Enforcing criminal law on native American lands.

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.

The Eighth Circuit rejected the defendant's contention, stating the Indian General Crimes Act and its exceptions "do not extend or restrict the application of general federal criminal statutes to Indian reservations. The statute applies only to federal enclave laws and does not encompass federal laws that make actions criminal wherever committed." (10)

POLICING WITHIN INDIAN COUNTRY

The complications with respect to jurisdiction in Indian country arise because there are four kinds of "police" that one may find on an Indian reservation: tribal police, the BIA, other federal law enforcement, and state and local law enforcement. (11) Historically, it was considered a federal government responsibility to provide police services for Indians. This protection has been provided by BIA personnel. Over time, the role of the federal government as direct provider came to be seen as paternalistic, and, in 1975, Congress passed the Indian Self-Determination and Education Assistance Act. (12) Among other things, the act enabled the tribes to provide their own police protection via "638 contracts" (13) entered into with the BIA and funded by the United States (this is the most common configuration), or they can elect to retain BIA police services. Many tribes find that the contract arrangement is cumbersome due to the many requirements imposed on them by the government. (14) Many tribes, especially the wealthier ones (particularly those with a robust and successful gaming industry), deliberately forgo the 638 contracting mechanism and elect to completely fund the tribal forces with their own monies. Another variant is a combination approach whereby tribal police are funded by some 638 contracts and some tribal monies.

By statute, (15) state and local law enforcement personnel were empowered to enforce state criminal law within all Indian country found in California, Nebraska, and Wisconsin and within a large segment of the Indian country in Alaska, (16) Minnesota, (17) and Oregon. (18) When interpreting this statute, courts have held that it does not divest tribes and tribal police of their authority "to enforce tribal criminal law against Indians and to detain and turn over to state or local authorities non-Indians who commit suspected offenses on the reservation." (19) The Indian General Crimes Act and the Indian Major Crimes Act are thus inapplicable in these Indian country state law-enforced areas. (20) This presents an anomalous situation: state criminal laws apply with respect to all offenses committed within most Indian country that is located in just six states but not within the remainder. (21) The first version of this statute related to the assumption of jurisdiction by California, Minnesota, Nebraska, Oregon, and Wisconsin, which assumption was not seemingly objected to by the tribes involved. The reason for the statute's enactment was that the five affected states:

    lack[ed] jurisdiction to prosecute Indians for most offenses
    committed on Indian reservations or other Indian country, with
    limited exceptions. The applicability of Federal criminal laws in
    States having Indian reservations is also limited. The United
    States district courts have a measure of jurisdiction over
    offenses committed on Indian reservations or other Indian country
    by or against Indians, but in cases of offenses committed by
    Indians against Indians that jurisdiction is limited to the
    so-called 10 major crimes .... (22) As a practical matter, the
    enforcement of law and order among the Indians in Indian country
    has been left largely to the Indian groups themselves. In many
    States, tribes are not adequately organized to perform that
    function; consequently, there has been created a hiatus in law
    enforcement authority that could best be remedied by conferring
    criminal jurisdiction on States indicating an ability and
    willingness to accept such responsibility .... [The five states]
    indicated their willingness to accept the proposed transfer of
    jurisdiction [and] Indian groups in those States were, for the
    most part, agreeable to the transfer .... (23)

In point of fact, however, this congressionally mandated approach to jurisdiction was unpopular with many Indians as the states affected by this statute gained criminal jurisdiction with regard to offenses committed by or against Indians in Indian country without regard for the views of the tribes located within those states. This legal framework later was changed by statute in 1968 to require tribal consent prior to any assumption of criminal jurisdiction by a state. The precondition of consent applies only to postenactment state assumption of criminal jurisdiction and leaves the pre-1968 legal regime in place with respect to those states that assumed criminal jurisdiction prior to 1968. (24)

Tribal Police

As indicated earlier, most tribal police are under a "638 contract" with the BIA by which the BIA funds the tribal police "to perform the functions of the Branch of Criminal Investigations." (25) Tribal police do not, as a matter of inherent sovereignty, have jurisdiction over non-Indians within a reservation. However, under appropriate circumstances, the authority of a tribal police officer to stop and search a nonmember of the tribe while investigating an on-reservation violation of state or federal law has been affirmed. Additionally, evidence obtained as a result of such action may be admissible in a state or federal prosecution. (26)

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A fundamental right in the sovereignty of an Indian tribe is the power to exclude trespassers from the reservation. The tribe's police may effectuate this power. Subsumed within this power of exclusion is the authority, if otherwise permitted by the tribe, to deliver those trespassing violators of state or federal law, including non-Indians, to the appropriate authorities. (27)

BIA

The Secretary of the Interior, acting through the BIA, (28) is responsible for providing, or for assisting in the provision of, law enforcement services in Indian country. The organization within the BIA statutorily responsible for carrying out these functions is the Division of Law Enforcement Services (DLES), (29) which, through its Branch of Criminal Investigations (BCI), has responsibility for investigating cases involving violations of the Indian General Crimes Act and the Indian Major Crimes Act committed within Indian country. (30) However, the statute specifically states that the BCI is not primarily responsible for the routine law enforcement activities of the BIA in Indian country. (31) The BCI's responsibility is caveated because it is carried out "under [an] inter-agency agreement ... reached between the [Interior] Secretary and appropriate officials of the Department of Justice." (32) With tribe approval, the DLES also may enforce tribal law.

Other Federal Law Enforcement

Although the FBI has jurisdiction to investigate Indian country violations of the Indian General Crimes Act and the Indian Major Crimes Act, (33) as a practical matter, by the time the FBI is able to respond, in all likelihood "some investigation will have been undertaken by tribal or [BIA] police" and, as a consequence, "United States Attorneys are encouraged and authorized to accept investigative reports directly from tribal or BIA police[.]" (34)

Hybrid Policing

As a July 2001 report prepared for the National Institute of Justice noted, "[t]o this already complicated picture, we must add several more possibilities. First, tribes can contract with the BIA for individual police functions. Therefore, some departments will have a tribal patrol function and a BIA criminal investigation function." (35)

TRIALS FOR OFFENSES OCCURRING WITHIN INDIAN COUNTRY

Tribal Court

As an initial observation, the Bill of Rights within the U.S. Constitution does not in and of itself apply to the Indian tribes. (36) However, many rights similar to those provided for within the Bill of Rights have been extended to Indian tribes by virtue of the Indian Civil Rights Act of 1968 (ICRA). (37) Through the operation of the ICRA, Indian courts have been established, but they are limited in what criminal offenses they handle. Such courts are restricted to misdemeanors inasmuch as they can mete out punishment no harsher than a 1-year confinement, a $5,000 fine, or both. (38) Further, they have no jurisdiction over non-Indians, (39) but they do have jurisdiction over Indians of a different tribe. (40)

An Indian convicted before and punished by a tribal court for a federal enclave offense occurring in Indian country may not subsequently be tried in federal court for conduct arising from the same set of facts. (41) However, this same double jeopardy prohibition does not appear in the Indian Major Crimes Act and, hence, does not apply if the follow-on prosecution in federal court is for a "major crime." It is an open question, however, whether an Indian could be tried in federal court following a conviction based upon the same facts in a court of Indian offenses, often referred to as a "CFR court." (42)

CFR Courts

Tribes that do not operate tribal courts typically have, by default, "CFR courts." The rules of criminal procedure for CFR courts are set out at Title 25, Code of Federal Regulations (CFR), Section 11.300, et seq. The regulations are intended "to provide adequate machinery for the administration of justice for Indian tribes in those areas of Indian country where tribes retain jurisdiction over Indians that is exclusive of state jurisdiction but where tribal courts have not been established to exercise that jurisdiction." (43) Offenses triable before these courts also are delineated within the regulations at section 11.400, et seq. By regulation, these courts may not adjudge periods of confinement for more than 6 months nor a fine more than $500. (44)

State Courts

State courts, in some instances, may have concurrent jurisdiction over both Indian offender and Indian victim offenses committed within Indian country. To determine this, a first place to look is Title 18, Section 1162, U.S. Code, which sets forth the areas of Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin where those states have "exclusive" jurisdiction (i.e., state areas where the Indian General Crimes Act and the Indian Major Crimes Act are inoperative. (45) As noted above, state laws also apply (sometimes concurrently with the federal government) by virtue of several state-specific statutes to offenses committed by or against Indians in all or discrete parts of New York, Kansas, North Dakota, and Iowa. (46) Additionally, and despite the plain wording of the Indian General Crimes Act, the U.S. Supreme Court has ruled that states have exclusive jurisdiction with regard to violations of federal enclave laws committed within Indian country that do not involve Indians. (47)

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Federal Courts

The federal district courts have jurisdiction to try: 1) anyone who commits a federal enclave offense, to include personal or property offenses, occurring within Indian country and who are not first punished by a tribal court; 2) any Indian who commits a "major" offense within Indian country listed in the Indian Major Crimes Act; 3) anyone who commits an offense involving violations of those federal statutes of general applicability, such as the CSA; and 4) anyone who commits a crime peculiarly federal in nature, such as an assault upon a federal officer.

VICTIMLESS CRIMES COMMITTED BY NON-INDIANS

The applicability of statutes relating to criminal jurisdiction with respect to offenses occurring within Indian country depend on whether or not the victim and the violator are Indians. Victimless crimes committed by non-Indians only add to the complexity of Indian country criminal law because the jurisdictional statutes relating to Indian country offenses are silent concerning this violation subcategory. Just as state courts have exclusive jurisdiction with regard to Indian country federal enclave law violations involving only non-Indians, (48) the U.S. Department of Justice, through the Office of Legal Counsel (OLC) has offered guidance suggesting that states have exclusive jurisdiction with regard to victimless offenses committed by non-Indians. (49) However, it is uncertain how this position should be reconciled with jurisdiction relating to federal crimes of general applicability, such as the CSA, or for victimless state offenses that can be "imported" via the Assimilative Crimes Act (ACA) to federal district court.

The OLC does caveat this last conclusion to a degree, remarking that "[where], however, a particular offense poses a direct and immediate threat to Indian persons, property, or specific tribal interests, federal jurisdiction continues to exist, just as in the case with regard to offenses traditionally regarded as having as their victim an Indian person or property." (50) Elaborating, OLC continues that "[i]n the absence of a true victim, unless it can be said the offense particularly affects an Indian or the tribe itself, McBratney would control, leaving the states the exclusive jurisdiction to punish offenders charged with 'victimless' crimes." (51)

In such an instance where offenses "particularly affect an Indian or the tribe itself," OLC argues, the federal government would share jurisdiction concurrently with the states. Such offenses fall into four categories and include those "crimes calculated to obstruct or corrupt the functioning of tribal government." (52) The second group (i.e., ones that also "may directly implicate the Indian community") are "consensual crimes committed by non-Indian offenders in conjunction with Indian participants, where the Indian participant, although willing, is within the class of persons which a particular State statute is specifically designed to protect." (53) The third class of offenses where the federal jurisdiction lies concurrently with the states "involve the sort of threat ... where an Indian victim may in fact be identified," such as "reckless endangerment, criminal trespass, riot, or rout, and disruption of a public meeting or worship service conducted by the tribe." (54) The last class of crimes that "particularly affect an Indian or tribe itself" are those that address "conduct that is generally prohibited because of its ill effects on society at large and not because it represents a particularized threat to specific individuals" but which "nevertheless so specifically threatens or endangers Indian persons or property." (55)

CONCLUSION

Although the fabric of both the policing and criminal court jurisdictions within Indian country is a crazy quilt--extremely convoluted and certainly not intuitive--federal law enforcement agencies clearly have the authority to venture upon reservations to investigate violations of the U.S. Code that apply to federal enclaves, crimes that are enumerated in the Indian Major Crimes Act, state offenses that are incorporated by operation of the Assimilative Crimes Act, those crimes having a significant federal nexus, and, finally, those federal laws that apply generally throughout the United States. That said, states also have investigative interests, largely based on federal statutes, and the significant role of the tribal police also must be considered. Lastly, it would be prudent to deconflict and coordinate any law enforcement activity slated to take place within Indian country with the tribal, BIA, other federal, or state and local law enforcement authorities that police the reservations.

Types of Indian Police Departments and Their Characteristics, 1995

Type of Law
Enforcement     Public Law                      Self-     Tribally
Program           93-638             BIA      Governance   Funded

Number              88               64           22         4

Administered       Tribe           Federal       Tribe      Tribe
by                                government

Officers are       Tribe           Federal       Tribe      Tribe
employees of                      government

Funding            Federal         Federal       Tribe      Tribe
              (often with tribal  government
                contribution)

Type of Law
Enforcement     Public Law
Program           83-280

Number              N/A

Administered  State or local
by            law enforcement
                 agencies

Officers are  State or local
employees of  law enforcement
                 agencies

Funding          Primarily
              state and local
                 entities

Source: Policing on American Indian Reservations, supra note 11 at 7
("Exhibit 1").

The author would like to thank and recognize Chris Chaney, Associate Solicitor for the Division of Indian Affairs, Office of the Solicitor, Department of the Interior, whose assistance was invaluable in the preparation of this article.

Endnotes

(1) "Indian country" is defined at Title 18 U.S.C. [section] 1151 to mean, with limited exceptions, "(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government .... (b) all dependant Indian communities within the borders of the United States .... (c) all Indian allotments ...." Note for the sake of consistency with statutory terminology, "Indian" will be used in place of the more current term "Native American."

(2) Title 21 U.S.C. [section] 801 et seq.

(3) Not surprisingly, every general rule has a caveat, although this one with regard to the CSA is limited: Indians can use, possess, or transport peyote for "bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion." Title 42 U.S.C. [section] 1996a(b)(1). Further, Title 21 C.F.R. [section] 1307.31 provides that "[t]he listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church so using peyote are exempt from registration." Peyote is listed at Schedule I at Title 21 C.F.R. [section] 1308.11(d)(22). See generally Jose de Codoba, Down South in Texas Scrub, "Peyoteros" Stalk Their Elusive Prey, Wall St. J., May 12, 2004.

(4) "Indian tribes are recognized as quasi-sovereign entities that may regulate their own affairs except where Congress has modified or abrogated that power by treaty or statute." United States v. Begay, 42 F.3d 486, 498 (9th Cir. 1994), cert. denied, 516 U.S. 826 (1995). Tribes are "limited sovereigns, necessarily subject to the overriding authority of the United States, yet retaining necessary powers of internal self-governance." Duro v. Reina. 495 U.S. 676, 685 (1990).

(5) "[T]he general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States ... shall extend to Indian country. This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in Indian country who has been punished by the local law of the tribe, or to any case where ... the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively."

Title 18 U.S.C. [section] 1152 is also known as the "General Crimes Act," the "Indian Country Crimes Act," or the "Indian General Crimes Act." As noted, it provides that the "general laws" extending to Indian country are those federal crimes applicable "within the sole and exclusive jurisdiction of the United States," (i.e., within the "special maritime and territorial jurisdiction of the United States," a term defined at Title 18 U.S.C. [section] 7). These "general laws" so applied are sometimes referred to as "federal enclave laws," and, as a result, the "General Crimes Act" is also known as the "Federal Enclave Act." United States v. Brisk, 171 F.3d 514, 519 (7th Cir.), cert. denied, 528 U.S. 860 (1999). In addition to the application of federal enclave laws within Indian country, the "Assimilative Crimes Act," at Title 18 U.S.C. [section] 13, permits a federal court to borrow a state's criminal laws in instances where there is no federal law proscribing an offense committed on an enclave within that state.

(6) To ensure that serious Indian-on-Indian crimes would not go unpunished and in strong reaction to the "1883 Supreme Court case Ex Parte Crow Dog [109 U.S. 566 (1883)], in which the Court declared that the United States could not prosecute intra-tribal crimes committed on tribal land," James Winston King, The Legend of Crow Dog: An Examination of Jurisdiction Over Intra-Tribal Crimes Not Covered by the Major Crimes Act, 42 Vand.L.Rev 1479, 1480 (1999), Congress passed the "Major Crimes Act" also known as the "Indian Major Crimes Act" (a list proscribing 14 serious offenses), Title 18 U.S.C. [section] 1153, subsequent to the passage of Title 18 U.S.C. [section] 1152.

(7) Duro, supra note 4 at 680 n.1 [(citing United States v. McBratney, 104 U.S. 621 (1882)]; New York ex rel. Ray v. Martin, 326 U.S. 496, 499-500 (1946). Federal crimes of general applicability apply throughout the United States, regardless of where committed and by whom, can be investigated by federal LEAs and can be tried in U.S. district court. This is because such crimes are not federal enclave crimes.

(8) 3 Op.Off.Legal Counsel 111, 118-119 (1979). See also State v. Larson, 455 N.W.2d 600 (S.D. 1990) (Court rebuffs state argument that it has prosecutive jurisdiction concurrent with federal government to prosecute simpler, misdemeanor assault committed by non-Indian against Indian in Indian country).

(9) 722 F.2d 383 (8th Cir. 1983).

(10) Id. at 384 (emphasis added, citations omitted). A number of circuits have reached the same conclusion. See Begay, supra note 4 at 500. ("Ninth Circuit law clearly allows Indians to be charged under federal criminal statutes of nationwide applicability if the charge is not otherwise affected by federal enclave law (e.g., the Major Crimes Act [section] 1153 ....")); United States v. Yannott, 42 F.3d 999, 1004 (6th Cir.), cert. denied, 513 U.S. 1182 (1995) (following the Eighth Circuit's lead in Blue, supra note 9, the court held "that [section] 1152 and its exceptions only apply to federal laws where the situs of the crime is an element of the offense; [section] 1152 and its exceptions do not affect application of general federal criminal statutes to Indian reservations .... Furthermore, [[section] 1153] does not strip the federal courts of jurisdiction of those crimes not enumerated therein; in fact, federal courts retain jurisdiction over violations of federal laws of general, nonterritorial applicability"); Brisk, supra note 5 at 520. Contrast United States v. Markiewicz, 978 F.2d 786, 799 (2d Cir. 1992), cert. denied 506 U.S. 1086 (1995) ("Indian against Indian crimes occurring in Indian country--[section] 1153 provides for Federal jurisdiction over the 13 [now, 14] enumerated offenses. Jurisdiction over other offenses rests with the tribe. Exceptions--the above pattern is subject to two overriding exceptions. First, some Federal laws have ceded to certain States complete or concurrent criminal jurisdiction over certain Indian country. The second overriding exception is for crimes that are peculiarly Federal. Thus there is federal jurisdiction when the offense is one such as assaulting a federal officer ...." citation omitted; quoting from H.R. Rep. No. 94-1038 (1976), reprinted in 1976 U.S.C.C.A.N. 1125, 1127); contrast also United States v. Miller, 26 F.Supp.2d 415, 427 (N.D.N.Y. 1998).

(11) There are more than 200 police departments operating in Indian country. Two, those of the Navajo Nation and the Oglala Sioux Tribe, have police forces of 100 or more officers, and taken together they serve roughly 15 percent of all Indian country residents. U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, Policing on American Indian Reservations v-vi (2001), retrieved on October 20, 2004, from http://www.ncjrs.org/pdffilesl/nij/188095.pdf.

(12) Pub.L.No. 93-638, 88 Stat. 2203 (1975), codified at 25 U.S.C. [section] 450 et seq. "As part of its policy of noninterference with tribal self-governance, Congress enacted the Indian Self-Determination Act of 1975, which allows the [BIA] to enter into contracts with tribes under which the tribe administers programs that were previously controlled by the BIA. The Act was passed because 'the prolonged Federal domination of Indian service programs has served to retard rather than enhance the progress of Indian people and their communities by depriving Indians of the full opportunity to develop leadership skill crucial to the realization of self-government ....'" Sandra Schmieder, The Failure of the Violence Against Women Act's Full Faith and Credit Provision in Indian Country: An Argument for Amendment, 74 U.Colo.L.Rev. 765, 781-82 (2003), quoting from 25 U.S.C. [section] 450(a)(1)."

(13) These contracts get their name from the statute's public law number, see note 12, supra. "After consultation with the Attorney General of the United States, the [Interior] Secretary may prescribe ... regulations relating to ... the consideration of applications for contracts awarded under the Indian Self-Determination Act to perform the functions of the Branch of Criminal Investigations." Title 25 U.S.C. [section] 2805.

(14) The Departments of Justice and the Interior entered into a 11/22/1993 memorandum of understanding. See Department of Justice Criminal Resource Manual (CRM) [section] 676, retrieved on April 12, 2004, from http//www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm00676.htm, which provides at para. IV.4 that "[a]ny contracts awarded under the Indian Self-Determination Act to perform the function of the BIA, Branch of Criminal Investigators [sic], must comply with all standards of the Branch of Criminal Investigators [sic] including the following [15 requirements as set forth at para IV.4a-o]." These requirements for the tribal police include having police officer certification, completing the basic criminal investigator course at the Federal Law Enforcement Training Center or equivalent, and receiving compensation comparable to BIA investigators, among others.

(15) Title 18 U.S.C. [section] 1162.

(16) Alaska has criminal jurisdiction over all Indian country within the state "except that on Annette Islands, the Metlakatla Indian community may exercise jurisdiction over offenses committed by Indians in the same manner in which such jurisdiction may be exercised by Indian tribes in Indian country over which State jurisdiction has not been extended." Title 18 U.S.C. [section] 1162(a).

(17) Minnesota has criminal jurisdiction over all Indian country within the state "except the Red Lake Reservation." Id.

(18) Oregon has criminal jurisdiction over all Indian country within the state "except the Warm Springs Reservation." Id. Note that Pub.L.No. 83-280, [section] 2(a), 67 Stat. 588 (1953), was codified at Title 18 U.S.C. [section] 1162(a). Because the six states just mentioned in the main text (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin) are directed by [section] 1162(a), they "shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country" (emphasis added), they are sometimes said to have "mandatory Pub.L.No. 83-280 jurisdiction" as opposed to the "optional Pub.L.No. 83-280 jurisdiction" afforded by 25 U.S.C. [section] 1321(a).

(19) Cabazon Band of Mission Indians v. Smith, 34 F.Supp.2d 1195, 1200 (C.D. Calif. 1998).

(20) Title 18 U.S.C. [section] 1162(c).

(21) It should be pointed out that Indian country is not present in each of the remaining 44 states but in just 34 of the continental states; most of it is west of the Mississippi River. Policing on American Indian Reservations, supra note 11, at 5. Note that two states--Kansas and New York--apply their state laws to Indian country by virtue of state-specific statutes, and some states apply their criminal laws to Indian country by way of tribe/reservation-specific statutes. In the case of New York, this authority is exercised concurrently with the federal government, United States v. Cook, 922 F.2d 1026, 1032-33 (2d Cir.), cert. denied, 500 U.S. 941 (1991). That Kansas exercised jurisdiction concurrently with the federal government is evidenced by the statutory language itself, which proclaims that Title 18 U.S.C. [section] 3243, the Kansas Act, "shall not deprive the courts of the United States of jurisdiction over offenses defined by the laws of the United States committed by or against Indians on Indian reservations." See Negonsott v. Samuels, 507 U.S. 99 (1993). See also Pub.L.No. 79-394, 60 Stat. 229 (1946) (North Dakota-criminal jurisdiction over offenses committed by or against Indians on Devils Lake Indian Reservation) and Pub.L.No. 80-846, 62 Stat. 1161 (1948) (Iowa - criminal jurisdiction over offenses committed by or against Indians on the Sac and Fox Indian Reservation).

(22) Compare Title 18 U.S.C. [section] 1153.

(23) H.Rep.No. 848 (1953), reprinted in 1953 U.S.C.C.A.N. 2409, 2411-12. Note that subsequent to 1953 most of the Indian country within Alaska ("All Indian country within the State, except that on Annette Islands ....") was added to Title 18 U.S.C. [section] 1162.

(24) Pub.L.No. 90-284, [section] 401(a), 82 Stat 73, 78 (1968), codified at 25 U.S.C. [section] 1321(a). "This title [title IV of which [section] 401(a) is a part] repeals section 7 of Public Law 280, 83d Congress (67 Stat. 588) and authorizes States to assert ... criminal jurisdiction in Indian country only after acquiring the consent of the tribes in the States by referendum of all reservated Indians. In 1953, Public Law 280, 83d Congress (67 Stat. 588) conferred to States ... criminal jurisdiction over Indian country. Tribes have been critical of Public Law 280 because it authorizes the unilateral application of State law to all tribes without their consent and regardless of their needs or special circumstances. Moreover, it appears that tribal laws were unnecessarily preempted and, as a consequence, there was no law and order in some tribal communities. Any State not presently having ... criminal jurisdiction over Indian tribes would be required to obtain the consent of the tribes before assuming jurisdiction. The repeal of section 7 ..., however, does not affect States which have already assumed jurisdiction under Public Law 280. S.Rep.No., 90-721 (1967), reprinted in 1968 U.S.C.C.A.N. 1837, 1865-66."

(25) S.Rep.No. 101-167 (1989), reprinted in 1990 U.S.C.C.A.N. 712, 714. As of 1989, there were "approximately 900 law enforcement officers who are employed by Indian tribes. About 700 of these officers have been commissioned as BIA Deputy Special Officers." Id. at 713. By the mid-1990s, and including BIA criminal investigators, there were 2,070 tribal police officers and 168 tribal criminal investigators. Christopher B. Chaney, 14 BYU J.PubL. 173, 184 (2000). Note that there were 88 "638 contract" police departments as of 1995, Policing on American Indian Reservations, supra note 11, at 7.

(26) Id. at 716 [citing Ortiz-Barraza v. United States, 512 F.2d 1176 (9th Cir. 1975)].

(27) Ortiz-Barraza v. United States, 512 F.2d 1176 (9th Cir. 1975). See also Cabazon, supra note 19 at 1199-1200. "Where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain the offender and transport him to the proper authorities." Duro, supra note 4 at 697.

(28) The BIA's law enforcement powers, similar to some federal LEAs, see e.g., Title 21 U.S.C. [section] 878, are set forth at Title 25 U.S.C. [section] 2803. The statute is clear that the service or execution of warrants by BIA must relate "to a crime committed in Indian country and issued under the laws of (A) the United States ..., or (B) an Indian tribe if authorized by the Indian tribe." [section] 2803(2). BIA can make warrantless arrests for offenses committed in Indian country, [section] 2803(3), and--importantly--can be requested by "any Federal, tribal, State, or local" LEA to "assist (with or without reimbursement) .... in the enforcement or carrying out of the laws or regulations [the LEA] enforces or administers." [section] 2803(8).

(29) Title 25 U.S.C. [section] 2802(b)(1). DLES responsibilities include "(1) the enforcement of Federal law and, with the consent of the Indian tribe, tribal law; [and] (2) in cooperation with appropriate Federal and tribal law enforcement agencies, the investigation of offenses against criminal laws of the United States[.]" Title 25 U.S.C. [section] 2802(c)91), (2).

(30) Title 25 U.S.C. [section] 2802(d)(1).

(31) Id at (d)(2).

(32) Title 25 U.S.C. [section] 2802(d)(1). Pursuant to this provision, the Departments of Justice and Interior entered into a 11/22/1993 memorandum of understanding (MOU), CRM [section] 676, supra note 14. The MOU primarily governs BIA-FBI law enforcement relationships.

(33) MOU, supra note 32, para III states that "[e]xcept as provided in Title 18 U.S.C. [section] 1162(a) and (c)," FBI jurisdiction "includes but is not limited to, certain major crimes committed by Indians against the persons or property of Indians and non-Indians, all offenses committed by Indians against the persons or property of non-Indians, all offenses committed by non-Indians against the persons or property of Indians."

(34) CRM [section] 675, retrieved on April 12, 2004, from http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm00675.htm.

(35) Policing on American Indian Reservations, supra note 11 at 8.

(36) Duro, supra note 4 at 681, n.2 and at 693 (citing Talton v. Mayes, 163 U.S. 376 (1896)).

(37) Pub.L.No. 90-284, Title II, 82 Stat. 73, 77 (1968). The ICRA is codified at Title 25 U.S.C. [section][section] 1301-1303.

(38) Title 25 U.S.C. [section] 1302(7).

(39) Duro, supra note 4 at 682 (citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)). Note that "[a]t least 67% of American Indian victims of simple assault, [at least] 73% of American Indian victims of aggravated assault, and at least 79% of American Indian victims of robbery reported that their assailants were non-Indians." Chaney, supra note 25 at 185 (citation omitted).

(40) Title 25 U.S.C. [section] 1301(2). See also Pub.L.No. 101-511, [section] 8077(b)-(d), 104 Stat. 1856 (1990) as amended by Pub.L.No. 102-137, 105 Stat. 646 (1991). The effect of these two statutory changes to Title 25 U.S.C. [section] 1301(2) was to legislatively overturn that portion of Duro, supra note 4 at 688, which held that tribes had no jurisdiction over non-tribe member Indians. Thereafter, the Supreme Court upheld Congress' authority to enact [section] 1301(2), United States v. Lara--U.S.--, 124 S. Ct. 1628 (2004).

(41) Second clause of second paragraph, Title 18 U.S.C. [section] 1152: "This section shall not extend ... to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe[.]" "[T]he Double Jeopardy Clause of the Fifth Amendment to the Constitution does not bar prosecutions for violations of tribal law involving the same conduct." CRM [section] 683, retrieved on April 12, 2004, from http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm00683.htm. United States v. Wheeler, 435 U.S. 313, 329-30 (1978): Lara, supra note 40.

(42) Wheeler, supra note 41 at 327 n.26.

(43) Title 25 C.F.R. [section] 11.100(b).

(44) Title 25 C.F.R. [section] 11.315, 11.450 (a)(1). As of 1995, there were 254 courts in Indian country, 232 Tribal, and 22 C.F.R. courts, Joseph A Myers, Elbridge Coochise, 79 Judicature 147, 149 (1995)

(45) See supra notes 16-21 and accompanying text.

(46) See supra note 21 and accompanying text.

(47) See supra note 7.

(48) See supra note 7 and accompanying text.

(49) 3 Op.Off.Legal Counsel at 111. In State v. Jones, 546 P.2d 235 (Nev. 1976), Nevada assumed jurisdiction over and convicted a non-Indian found on a reservation in possession of marijuana. "An Indian reservation is part of the State within which it is located, and offenses committed thereon, not involving Indians or Indian property, are punishable by the State." Id.

(50) 3 Op.Off.Legal Counsel at 113.

(51) Id at 116.

(52) Id. Crimes falling within this last category include ones that can be imported into the federal system via the ACA, Title 18 U.S.C. [section] 13.

(53) Id at 117. An example of such a crime would be the statutory rape of an Indian girl.

(54) Id.

(55) Id. This fourth category of crimes would include "speeding in the vicinity of an Indian school or in an obvious attempt to scatter Indians collected at a tribal gathering, and a breech (sic) of the peace that borders on an assault may in unusual circumstances be seen to constitute a Federal offense."

By M. WESLEY CLARK, J.D., LL.M.

Mr. Clark is a senior attorney in the Domestic Criminal Law Section, Office of Chief Counsel, DEA.