American Indian Law Deskbook

By Hardy Myers; Clay Smith | Go to book overview

Chapter 4
Criminal Law

Criminal jurisdiction in Indian country is relatively settled. As a general matter, federal statutes look to the nature of the offense, the location of the offense, and the Indian or non-Indian status of the offender and victim in allocating criminal jurisdiction among federal, state, and tribal authoritiess. In a number of states, the allocation scheme has been supplanted, in whole or in part, by federal statutes authorizing state assumption of jurisdiction over some or all crimes within Indian country. Outside Indian country, Indians are subject to state criminal jurisdiction to the same extent as non-Indians, but treaty provisions, particularly those securing hunting and fishing rights, may exempt certain activities from full application of state law.

This chapter discusses the significant federal statutes governing crimes committed in Indian country and associated decisional authority, the principles governing the respective bounds of tribal and state jurisdiction, and, finally, special questions of jurisdiction, including liquor-related offenses, juvenile offenses, and state authority to effect arrests of Indians within Indian country for offenses committed elsewhere. The discussion in Chapter 2 concerning the terms “Indian” and “Indian country” applies when determining whether criminal conduct has occurred within Indian country and whether the defendant or any victim is an Indian. 1

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1
See United States v. Roberts, 185 F.3d 1125, 1130—33 (10th Cir. 1999) (concluding that trust land status alone is sufficient for purposes of constituting an informal reservation under 18 U.S.C. § 1151(a)); United States v. Stands, 105 F.3d 1565, 1571—74 (8th Cir. 1997) (discussing whether a crime occurred in Indian country for federal jurisdictional purposes); State v. Dick, 981 P.2d 796, 798 (N.M. Ct. App. 1999) (applying the two-prong test established in Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520 (1998), to determine if parcel where tribal member was arrested qualified as a dependent Indian community and was thus Indian country under 18 U.S.C. § 1151(b)); cf. United States v. White, 237 F.3d 170, 173 (2d Cir. 2001) (exception for cash transactions “outside the United States” under Internal Revenue Service regulations implementing 26 U.S.C. § 60501 reporting requirement did not apply to transaction that occurred on Indian reservation since “American Indian reservations are not outside the United States”).

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