Criminal Jurisdiction

Jurisdiction over Indian Country crimes is governed by a patchwork of federal and tribal law. To understand the law in this area, it is important to recognize that it flows from the legal premise that Indian tribes retain a certain “nationhood” status, which pre-dates the establishment of the United States, and includes inherent powers of internal selfgovernment. See Worcester v. Georgia, 31 U.S. 515 (1832). The United States serves as a fiduciary in a trust relationship with the tribes, Seminole Nation v. United States, 316 U.S. 286 (1942), which, at a minimum, entails the duty to provide those benefits and services specified by treaty, executive order, or statute. See also Agama v. United States, 118 U.S. 375 (1886) and United States v. Wheeler, 435 U.S. 313 (1978).

Unless tribes have determined to subject their members to prosecution by the state for felonies, as have the Confederated Salish and Kootenai Tribes, federal courts have jurisdiction over felony cases arising on Reservation lands involving prosecution of felonies where either the defendant or the victim is an Indian person or both the defendant and the victim are Indian persons and of misdemeanors when the defendant is not an Indian person and the victim is an Indian person. Tribal courts have exclusive jurisdiction to hear misdemeanor cases arising on Reservation lands where the defendant and victim are Indian persons and concurrent jurisdiction in felony cases involving Indian defendants. State courts have exclusive jurisdiction of cases arising on Reservation lands where both the victim and the defendant are not Indian persons, unless there has been a violation of federal law other than the Major Crimes Act, the Assimilative Crimes Act, or the Indian Country Crimes Act. Jurisdictional parameters for prosecution of cases arising on reservations may be summarized as follows:

 

DEFENDANT
VICTIM
JURISDICTION
 
Indian
Indian
Concurrent federal and Tribal jurisdiction for felonies. Tribal jurisdiction for misdemeanors. No federal jurisdiction for felonies not listed in § 1153. No federal misdemeanor jurisdiction. No state jurisdiction.
Indian
Non-Indian
Concurrent federal and Tribal jurisdiction for felonies listed in § 1153. Tribal jurisdiction for misdemeanors. Federal jurisdiction for other felonies and misdemeanors not listed in § 1153 unless tribe has already punished defendant. No state jurisdiction.
Non-Indian
Non-Indian
State jurisdiction. No federal jurisdiction. No Tribal jurisdiction.
Non-Indian
Indian
Federal jurisdiction for both misdemeanors and felonies. No Tribal jurisdiction.
Indian
Victimless Crime
Federal and Tribal jurisdiction.
Non-Indian
Victimless Crime
State jurisdiction. Generally no federal jurisdiction.

 

Criminal jurisdiction in Indian Country depends on a number of factors. An officer needs to determine, at the earliest point of an investigation, whether the offender and the victim are Indian or non-Indian. The location of the offense must also be determined. Of course, the officer needs to determine what the perpetrator did, and whether he may be charged. All of this will also determine where the offender will be charged -- federal, tribal, or state court.