American Indian Law Deskbook

By Hardy Myers; Clay Smith | Go to book overview

Chapter 2
Indian, Indian Tribe, and Indian Country

Fundamental to virtually all analysis of Indian law is an understanding of the terms “Indian, ” “Indian tribe, ” and “Indian country.” For criminal law purposes, the existence of federal, state, or tribal jurisdiction over alleged unlawful conduct will depend on the place of the crime—i.e., whether it occurred in Indian country—and the Indian or non-Indian status of the defendant or, in some instances, the victim. While civil adjudicatory or regulatory issues are not so neatly resolved, the presence of Indian, Indian tribe, or Indian country status is nonetheless an important, and sometimes controlling, jurisdictional consideration.


I. INDIAN

The question of who is an “Indian” depends in large measure on the context in which the issue arises. For criminal and many civil law purposes, the traditional common law definition discussed below controls. An increasing number of federal statutes, however, define the term “Indian” for purposes of those laws' application. More generally, Indians often have been referred to as a “race.” 1 This characterization arguably raised difficulties for Indians themselves, who some commentators argue had no conception of “race” prior to Euro-American contact. 2 Less abstractly, Indians “are the most ethnically diverse group in the nation” and roughly 80 percent of those with Indian blood could also “claim ancestry in other groups.” 3 Data from the 2000 Census show, for example, that forty percent of persons self-reporting as American Indian or Alaska Native indicated such status in combination with one or more other races. 4 One study has concluded that the “in combination”

____________________
1
See United States v. Rogers, 45 U.S. (4 How.) 567, 573 (1846).
2
See Carole Goldberg, Descent Into Race, 49 UCLA L. Rev. 1373, 1374 (2002).
3
L. Scott Gould, Mixing Bodies and Beliefs: The Predicament of Tribes, 101 Colum. L. Rev. 702, 709 (2001).
4
U.S. Census Bureau, The American Indian and Alaska Native Population: 2000, Census 2000 Brief, Tables 1 and 2 (Feb. 2002), available at .

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