A New Corridor for the Maze: Tribal Criminal Jurisdiction and Nonmember Indians

American Indian Law Review Volume 17 Number 2 1-1-1992 A New Corridor for the Maze: Tribal Criminal Jurisdiction and Nonmember Indians William V. Vetter Prairie View A&M University Follow this and additional works at: https://digitalcommons.law.ou.edu/ailr Part of the Indigenous, Indian, and Aboriginal Law Commons Recommended Citation William V. Vetter, A New Corridor for the Maze: Tribal Criminal Jurisdiction and Nonmember Indians, 17 AM. INDIAN L. REV. 349 (1992), https://digitalcommons.law.ou.edu/ailr/vol17/iss2/2 This Article is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact . A NEW CORRIDOR FOR THE MAZE: TRIBAL CRIMINAL JURISDICTION AND NONMEMBER INDIANS William V. Vetter* Introduction Criminal jurisdiction in "Indian country"' is divided among federal, tribal, and state governments by an amalgam of statutes, court decisions, treaties, and administrative actions. Major crimes involving Indians are subject to federal jurisdiction. 2 Lesser crimes involving Indians and non-Indians are subject to federal jurisdiction.' Crimes © 1992 William V. Vetter * Assistant Professor, Wayne State University. LL.M., George Washington Uni- versity; J.D., University of Oregon. The author acknowledges the valuable contribution of Nancy Farhat, without whose enthusiasm and assistance this article would have been neither started nor completed. 1. Title 18 U.S.C. § 1151 (1988) defines "Indian country" as: (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c)all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. 2. The Major Crimes Act provides: Offenses committed within Indian country (a) Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under chapter 109A [18 U.S.C. §§ 2241-2245 (1988)], incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States. (b) Any offense referred to in subsection (a) of this section that is not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense. Major Crimes Act, 18 U.S.C. § 1153 (1988). 3. The Indian Country Crimes Act provides: Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place Published by University of Oklahoma College of Law Digital Commons, 1992 AMERICAN INDIAN LA W REVIEW [Vol. 17 involving only non-Indians are subject to state jurisdiction. 4 In 1953, Congress adopted Public Law 280, which transferred to specified states all federal criminal jurisdiction over reservations within those states (with some exceptions) and enabled other states to assume the same jurisdiction.5 Public Law 280 was amended in 1968 to require tribal consent to state assumption of Public Law 280 jurisdiction. 6 Crimes7 are subject to tribal jurisdiction if they involve only tribal members. In a 1976 article, Professor Robert N. Clinton dubbed criminal law in Indian country a "jurisdictional maze." 8 The legal and ideological foundations of that maze were begun in Europe long before the United States began its political existence - even before Europeans "discovered" the American continents. 9 Perhaps unfortunately, it is not the two-dimensional, Euclidian maze of King Minos; it is a three- or fourdimensional construct, often built with a hidden agenda and frequented by ghosts of ideologies past and present. When the first U.S. Congress enacted Indian-related legislation, it built on existing foundations. The ensuing 200 years has increased the complexity pnd confusion of Indian-related legislation. In 1990, another corridor of the maze was vithin the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country. This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively. Indian Country Crimes Act, 18 U.S.C. § 1152 (1988). 4. See Draper v. United States, 164 U.S. 240, 242-43 (1896); United States v. McBratney, 104 U.S. 621, 623 (1881). 5. Act of Aug. 15, 1953, ch. 505, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162 (1988), 25 U.S.C. §§ 1321-1326 (1988), 28 U.S.C. § 1360 (1988)). Some states, such as Washington and Montana, have assumed jurisdiction over part of the reservations in the state, and, in the case of Washington, assumed only partial jurisdiction over some reservations. 6. Pub. L. No. 90-284, §§ 201-701, 82 Stat. 73, 77-81 (codified at 25 U.S.C. §§ 1301-1341 (1988)). Public Law 90-284, except for title I, is commonly referred to as the Indian Civil Rights Act (ICRA). 7. See the exception to 18 U.S.C. § 1152, quoted supra note 3. However, administratively created Courts of Indian Offenses (also known as CFR courts) exercise misdemeamor jurisdiction over all intra-Indian crimes within some reservations, regardless of tribal membership. See discussion infra notes 481-88. 8. Robert N. Clinton, CriminalJurisdictionover Indian Lands: A Journey Through a JurisdictionalMaze, 18 ARiz. L. REv. 503, 503 (1976). 9. See generally JAmEs MULDOON, POPES, LAwYERs AND INFIDELS (1977); ROERT A. WIU.IAMS, JR., TaE AmERICAN INDIAN INWESTERN LEOAL THOUGHT: THE DISCOURSES OF CONQrEST (1990); FREDERICK TURNER, BEYOND GEOGRAPHY: THE WESTERN SPIRIT AGAINsT ian WILDERNESs (1980). https://digitalcommons.law.ou.edu/ailr/vol17/iss2/2 No. 2] TRIBAL CRIMINAL JURISDICTION 351 illuminated. The United States Supreme Court ruled in Duro v. Reina0 that Indian tribal courts do not have jurisdiction over crim (...truncated)