FEDERAL INDIAN LAW (FROM AMERICAN LAW - ANNUAL SURVEY, 1977, 1978, BY D S WISE AND A S LACHMAN - SEE NCJ-53652)

• NCJ Number: 53655
• Author(s): I B RUBIN
• Date Published: 1978
• Length: 18 pages
• Corporate Author: Oceana Publications, Inc
• Publication Format: Document
• Language: English
• Country: United States of America

Annotation

LAWS AND JUDICIAL DECISIONS BEARING UPON LEGAL JURISDICTION IN INDIAN COUNTRY UNDER VARIOUS CIRCUMSTANCES ARE DISCUSSED.

Abstract

THE FEDERAL AND STATE GOVERNMENTS AND THE INDIAN TRIBE HAVE JURISDICTION OVER CRIMES COMMITTED IN INDIAN COUNTRY. ONE RESULT OF THIS DIVIDED JURISDICTION IS THAT NON-INDIAN AND INDIAN OFFENDERS HAVE BEEN SUBJECT TO DIFFERENT LEGAL STANDARDS, DEPENDING ON THE STATUS OF THEIR VICTIMS. A PRINCIPAL ISSUE RAISED BY THESE DIFFERENT STANDARDS IS WHETHER THE MAJOR CRIMES ACT (THE ACT), A LAW APPLICABLE ONLY TO INDIAN OFFENDERS, VIOLATES EQUAL PROTECTION BY SUBJECTING INDIANS TO FEDERAL LAW WHILE SUBJECTING NON-INDIANS WHO COMMIT THE SAME CRIME IN THE SAME PLACE TO STATE LAW. ANOTHER IMPORTANT ISSUE IS WHETHER TRIBAL COURTS HAVE JURISDICTION OVER NON-INDIANS WHO COMMIT MINOR OFFENSES IN INDIAN COUNTRY. IN UNITED STATES V. ANTELOPE (1977), THE U.S. SUPREME COURT REJECTED THE ARGUMENT THAT THE ACT VIOLATES THE EQUAL PROTECTION CLAUSE BY ALLOCATING CRIMINAL JURISDICTION BETWEEN STATE AND FEDERAL COURTS ACCORDING TO THE RACE OF THE OFFENDER, HOLDING THAT THE ACT'S JURISDICTIONAL ALLOCATION IS NOT BASED ON A RACIAL CLASSIFICATION SINCE FEDERAL REGULATION OF TRIBAL AFFAIRS IS BASED ON SPECIFIC CONSTITUTIONAL PROVISIONS AND THE SPECIAL RELATIONSHIP BETWEEN THE FEDERAL GOVERNMENT AND THE QUASI-SOVEREIGN INDIAN TRIBES. FEDERAL LEGISLATION CLEARLY GRANTS TRIBAL JURISDICTION WHERE A CRIME IN INDIAN COUNTRY INVOLVES INDIANS AS BOTH OFFENDERS AND VICTIMS. THE ISSUE IS NOT SO CLEAR WHERE THE OFFENDER IS A NON-INDIAN. IN THE ABSENCE OF LEGISLATION PROVIDING FOR TRIBAL JURISDICTION OVER OFFENSES COMMITTED BY NON-INDIANS IN INDIAN COUNTRY, THE NINTH CIRCUIT COURT OF APPEALS HAS CONSISTENTLY HELD THAT INDIAN TRIBES HAVE THE POWER, FLOWING FROM THEIR INHERENT SOVEREIGNTY, TO EXERCISE CRIMINAL JURISDICTION CONCURRENTLY WITH THE FEDERAL COURTS OVER NON-TRIBAL MEMBERS WHO VIOLATE TRIBAL LAWS ON THE RESERVATION, WHERE CONGRESS OR A TREATY HAS NOT EXPRESSLY WITHDRAWN THAT POWER. (RCB)