Enforcing Criminal Law on Native American Lands

Article excerpt

Policing in and adjacent to land within "Indian country" (1) is often a complex and, at times, confusing jurisdictional puzzle. Solving this puzzle depends on a variety of factors, including whether the crime is a felony or misdemeanor, whether the subjects and victims are Indians, and whether the crime violates tribal, state, or federal law. Many law enforcement agencies (LEAs) have an interest in the answer to these questions. This article explores the complexities of Indian country jurisdiction, including the role of state, local, and federal law enforcement. In addition, the article discusses the various judicial venues in which crimes occurring within Indian country may be prosecuted.

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TRIBAL SOVEREIGNTY

The confusion created by Indian country jurisdiction is an outgrowth of this nation's structure of government, with the federal government and the states existing as sovereigns. The picture becomes further complicated when factoring in the sovereignty retained by Indian tribes. The federal government's authority with respect to federal offenses of general applicability, such as the Controlled Substances Act (CSA), (2) is rather straightforward. Such federal crimes of general applicability committed by anyone (including Indians) can be investigated by U.S. LEAs within Indian country just as they can against anyone anywhere else within the United States. (3)

The picture with respect to state and local offenses (as well as federal offenses, which are not generally applicable throughout the U.S.) is a bit more blurry. This article, including the appended jurisdictional charts, is intended to dispel some of that lack of clarity.

Any uncertainty about the extent of LEA authority may stem from the fact that relations between the federal government and Indian tribes are in many instances governed by treaty. This, in turn, may lead to the erroneous conclusion that Indian reservations are completely sovereign in much the same way that nation-states are sovereign. (4)

In an effort to provide clarity with respect to the scope of federal jurisdiction in Indian country, Congress enacted The Indian General Crimes Act, found at Title 18, Section 1152, U.S. Code. (5) This statute provides that acts that would be crimes on an enclave are also crimes if committed in Indian country unless the crime is by one Indian against another or if an Indian violator already has been punished in accordance with tribal law. In the event the crime is committed by one Indian against another, the Indian Major Crimes Act, (6) codified at Title 18, Section 1153, U.S. Code, may apply. Further adding to the confusion, and despite the plain wording of the Indian General Crimes Act, the U.S. Supreme Court has held that absent treaty provisions to the contrary, state courts have exclusive jurisdiction over Indian country crimes involving only non-Indians that would, except for involving non-Indians, fall within the Indian General Crimes Act. (7) However, when the defendant is an Indian but the victim is not, or where the defendant is a non-Indian but the victim is an Indian, federal jurisdiction is generally thought to operate to the exclusion of the states. (8)

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The Eighth Circuit Court of Appeals in United States v. Blue (9) illustrates the multi-jurisdictional dynamic associated with Indian country crimes. Raymond Blue, an "enrolled member" of the Turtle Mountain Band of Chippewa Indians, was convicted of a violation under the CSA in U.S. district court for making a number of marijuana sales on a North Dakota Indian reservation to a Bureau of Indian Affairs (BIA) agent. The sales also violated the Turtle Mountain Tribal Code. The defendant argued that the Indian General Crimes Act and the circumstances surrounding the acts complained of dictated that the offenses could only be heard in a tribal court. The government countered, asserting that both the tribal and federal courts could properly try Blue for his marijuana sales. …