American Indian Law Deskbook, Fourth Edition

4: Criminal Law

141 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 authorities. 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. I. INDIAN COUNTRY CRIMES Jurisdiction over crimes committed in Indian country is governed primarily by several federal statutes: (1) the General Crimes Act; (2) the Major Crimes Act; and (3) Public Law 280, which conferred upon certain states  18 U.S.C. § 1152.  Id. § 1153.  Pub. L. No. 83-280, 67 Stat. 588 (1953) (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321–1325, and 28 U.S.C. § 1360). Chapter 4 Criminal Law 141 142 American Indian Law Deskbook, Fourth Edition criminal jurisdiction over all crimes within Indian country. Even after the adoption of Public Law 280, however, the substantive and jurisdictional effects of the principal Indian country federal criminal statutes remain pertinent in many states. A. Federal Crimes 1. General Crimes Act The General Crimes Act reads: Except as otherwise expressly provided by law, the 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, except the District of Columbia, shall extend to the Indian country. This section shall not extend to offenses committed by one Indian against the person or property of another Indian, or to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively. The term “general laws” in the first paragraph of the General Crimes Act refers only to “those laws, commonly known as federal enclave laws, which are criminal statutes enacted by Congress under its admiralty, maritime, and property powers, governing enclaves such as national parks.” It does not include “the general laws of the United States which constitute federal crimes regardless of where committed.” Non-enclave laws operate independently of  Other federal criminal laws specifically directed to Indians or Indian country include 18 U.S.C. § 437, which prohibits federal employees from contracting or trading with Indians; id. § 1158, which prohibits counterfeiting the Indian Arts and Crafts Board trademark; id. § 1159, which prohibits misrepresenting goods as Indian products; id. § 1163, which prohibits embezzlement or theft from tribal organizations; id.§ 1164, which prohibits the destruction, defacing, or removal of Indian country boundary and hunting, trapping, or fishing notice signs; and id. § 1165, which prohibits unauthorized hunting, trapping, or fishing on Indian lands. Cf. Kaw Nation v. Springer, 341 F.3d 1186, 1190–91 (10th Cir. 2003) (18 U.S.C. § 1163 does not create private right of action to recover amounts allegedly spent on housing construction in excess of federal limits).  18 U.S.C. § 1152.  United States v. Cowboy, 694 F.2d 1228, 1234 (10th Cir. 1982); see also United States v. Young, 936 F.2d 1050, 1055 (9th Cir. 1991) (per curiam) (holding that Indian country offenses by Indians are subject to prosecution under “federal laws of general, non‑territorial applicability” independently of ability to prosecute under 18 U.S.C. §§ 1152 and 1153); United States v. Yannott, 42 F.3d 999, 1003–04 (6th Cir. 1994) (same); United States v. Begay, 42 F.3d 486, 498–99 (9th Cir. 1994) (same).  United States v. Mitchell, 502 F...