NCJ Number
38844
Journal
NOTRE DAME LAWYER Volume: 52 Issue: 1 Dated: (OCTOBER 1976) Pages: 109-135
Date Published
1976
Length
27 pages
Annotation
IN 1948 CONGRESS PASSED 18 U.S.C. SECTION 1152 GRANTING FEDERAL COURTS EXCLUSIVE JURISDICTION OVER ALL CRIMINAL OFFENSES COMMITTED WITHIN INDIAN COUNTRY.
Abstract
EXCEPTIONS TO SECTION 1152 HAVE LIMITED FEDERAL JURISDICTION TO CRIMES COMMITTED WITHIN INDIAN TERRITORY ONLY IF BOTH AN INDIAN AND A NON-INDIAN ARE INVOLVED. THE MAJOR CRIMES ACT, 18 U.S.C. SECTION 1153, HOWEVER, SINGLES OUT SIX CRIMES (MURDER, RAPE, MANSLAUGHTER, ASSAULT WITH INTENT TO KILL, ARSON, ROBBERY, AND LARCENY) WHICH REQUIRE THE IMPOSITION OF STATE LAW PROVIDED THE DEFENDANT IS INDIAN. THIS NOTE CONSIDERS THE CONSTITUTIONAL IMPLICATIONS OF SECTIONS 1152 AND 1153 AND SUGGESTS THAT UNLESS A RATIONAL JUSTIFICATION EXISTS FOR THE DIFFERENT TREATMENT ACCORDED DEFENDANTS DUE TO THEIR RACE, THAT PORTION OF THE MAJOR CRIMES ACT WHICH AUTHORIZES SUCH A PROCEDURE MAY BE UNCONSTITUTIONAL AS VIOLATIVE OF DUE PROCESS. IT IS ALSO POINTED OUT THAT IF 1153 WERE AMENDED SO AS TO APPLY TO ANYONE ACCUSED OF ONE OF THE CRIMES ENUMERATED THEREIN, REGARDLESS OF HIS RACE OR THE RACE OF HIS VICTIM, THIS WOULD REMEDY ITS PRESENT CONSTITUTIONAL DEFICIENCIES. SUCH AN AMENDMENT WOULD DESTROY THE CONSTITUTIONAL INEQUALITY COMPLAINED OF WITHOUT DISTURBING TO ANY GREAT EXTENT THE JURISDICTIONAL STATUS QUO. UNDER THE PRESENT SET-UP, THE FEDERAL COURTS HAVE JURISDICTION OVER NON-INDIANS WHO COMMIT CRIMES ON THE RESERVATION UNLESS THE VICTIM IS NOT INDIAN. (AUTHOR ABSTRACT MODIFIED)