Criminal Jurisdiction In Indian Country

Criminal Jurisdiction in Indian Country

Tribal nations enjoy a unique legal position in the United States attributable to their sovereign status with built in powers of self-government. They also enjoy a special relationship with the federal government. In turn, this status and relationship has consequences for tribes and their members; for the states and their citizens; and the federal government. This paper will explore the significance of tribal sovereignty, the tribal-federal trust relationship, and their impact on criminal jurisdiction in Indian Country. It will also identify the division of criminal jurisdiction between the tribes, the federal government, and the states, which flows from this unique status and relationship. I will also discuss the three most important federal statutes, which govern criminal jurisdiction in Indian Country: the Indian Country Crimes Act, the Assimilative Crimes Act, and the Major Crimes Act.

The foundational principles in Indian law include the historical context of criminal jurisdiction in Indian Country and a basic analysis of criminal jurisdiction in Indian Country. Criminal jurisdiction in Indian Country has appropriately been characterized as a "maze." This jurisdictional confusion, unique to Indian Country, is due to several factors:

1. The sovereign status of Indian nations and that sovereignty's impact on tribal-federal relationships and tribal-state relationships;

2. Congress' plenary power which serves both as a shield and a sword over tribal nations; and

3. Interpretations of history, treaties, the United States Constitution, federal statutes, and executive orders, rendered through the United States Supreme Court's decisions, which have shaped the contours of tribal sovereignty.

All of these influences have yielded the maze of criminal jurisdiction, which burdens and challenges law enforcement in Indian Country today.

Indian nations have a special status in the United States because they are sovereign entities, whose sovereignty was recognized first by the European nations, then by the United States. Prior to the arrival of Europeans on the North American continent, tribes had political, cultural, and social autonomy. They made war and peace, provided for their people, and lived according to their cultural and religious views, without approval or disapproval of any outside entity. In recognition of their sovereign status, European nations entered into treaties with Indian nations, a practice which continued with the United States until 1871. Through treaties, Indian nations ceded vast areas of their lands, in exchange for the United States' promise to protect them and provide for their welfare. However, Indian nations also reserved for themselves land bases, hunting and fishing rights, water rights, and all attributes of sovereignty not expressly given up through treaties.

Today, on attribute of a sovereign nation is the ability to govern its territory through enforcement of civil and criminal laws, and exclusion of individuals from its territory. However, because of an early United States Supreme Court decision, in which tribes were described as "domestic dependent nations," Indian tribes enjoy a type of sovereignty, which is distinct from state governments, the federal government, or foreign nations. Domestic dependent nationhood of tribes signifies their dependence upon the federal government for protection, while retaining a measure of independence.

The relationship between tribes and the federal government has been characterized as a trust relationship. This trust relationship means that the federal government holds legal title to tribal property and has the legal duty to manage and protect this property for the beneficial use of tribal nations. This legal duty as a fiduciary means that the federal government must act in the best interests of the Indian nations. The federal trust responsibility imposes a legal duty to protect tribal governments from incursions by the states; to safeguard the natural resources and land bases of tribes; and to provide health care, education, and public safety for these domestic dependent nations.

Despite this special government-to-government relationship, deeply rooted in the history of the United States and its treatment of Indian nations, federal policies for dealing with Indian nations have not always been faithful to this trust responsibility. Federal policy has varied radically from a policy of annihilation, to assimilation, to termination, to self-determination. Each has been influenced by the political and social climate of the era originating to the policy. So, for example, when gold fever spurred non-Indians to invade Indian Country to extract this precious metal, federal legislation removed this land from the Indian Country, resulting in broken treaty promises and removal of tribes from place to place. The trust relationship and federal supervisory authority over Indian nations rests upon Congress' plenary power over Indian affairs.

Congress' plenary power over Indian affairs is the second factor, which contributes to the tangled pattern of criminal jurisdiction in Indian Country. Plenary means full and complete and not limited in any respect. According to U.S. Supreme Court decisions, the source of Congress' vast power over Indian nations comes from several constitutional powers. These include

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