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,