The following entry is excerpted from the Reporters’ Introductory Note on Chapter 5 – Indian Country Criminal Jurisdiction, and Black Letter and Comments of § 100. Indian Country. Please see the link at the end of this post view the full Introductory Note and § 100, including Reporters’ Notes. 

This draft will be presented to membership at the 2019 Annual Meeting for approval. Until approved, this is not the position of The American Law Institute and should not be represented as such.

Reporters’ Introductory Note About Indian Country Criminal Jurisdiction

Professor and tribal judge Robert N. Clinton famously described Indian country criminal jurisdiction as a “maze.” Robert N. Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503 (1976).

The United States Department of Justice maintains an informal but helpful chart to assist the public on the “maze” of Indian country criminal jurisdiction. (See the PDF link at the end of this post.)

§ 100. Indian Country

          In Indian country, federal and state criminal jurisdiction in most cases depend on the location of the crime.

Comment:

          a. In general. Indian country is codified at 18 U.S.C. § 1151. See § 3 of this Restatement.

          b. Element of the crime. In certain federal criminal prosecutions, Indian country location is considered an element of the offense and must be proven beyond a reasonable doubt.

          c. Contrast to civil jurisdiction. In non-Public Law 280 jurisdictions, unlike civil jurisdiction questions where courts primarily distinguish between Indian and non-Indian lands, see §§ 15-16, the codified definition of “Indian country” defines the geographic scope of criminal jurisdiction. In Public Law 280 jurisdictions, the “Indian country” definition also defines the scope of state civil jurisdiction. See § __ [in Chapter 3, Subchapter 1, to come] of this Restatement; 28 U.S.C. § 1360.

          d. Criminal conduct occurring within and without Indian country. Some crimes occur partially within and partially without Indian country. In such circumstances, federal, state, and tribal jurisdiction is determined by assessing the elements of the charged offenses and determining the location of each element. In general, when a crime occurs both inside and outside of Indian country, state courts acquire concurrent jurisdiction with federal and tribal courts over the crimes that occurred at least partially within the state’s territorial jurisdiction.

 

View the complete text from the Introduction and Section.

Matthew L.M. Fletcher

Reporter, American Indian Law Restatement

Matthew L.M. Fletcher is a Professor of Law and Director of the Indigenous Law and Policy Center at Michigan State University College of Law. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians.  He sits as the Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Grand Traverse Band, the Hoopa Valley Tribe, the Lower Elwha Tribe, the Nottawaseppi Huron Band of Potawatomi Indians, the Pokagon Band of Potawatomi Indians, and the Santee Sioux Tribe of Nebraska.

Wenona T. Singel

Associate Reporter, American Indian Law Restatement

Wenona T. Singel is the deputy legal counsel to the Office of the Governor for the State of Michigan. Ms. Singel is the first American Indian to hold this position in Michigan. Her position of deputy legal counsel includes serving as the advisor to the Governor on tribal affairs where she work to strengthen the government-to-government relationship between Michigan’s twelve federally-recognized tribes and the State of Michigan. Before her appointment, Ms. Singel was an associate professor at MSU College of Law and Associate Director of the Indigenous Law and Policy Center. She is a magna cum laude graduate of Harvard College, and she received a J.D. from Harvard Law School.   

Kaighn Smith, Jr.

Associate Reporter, American Indian Law Restatement

Kaighn Smith, Jr., leads Drummond Woodsum’s nationwide Indian Law Practice Group. He has represented Indian nations and their enterprises for more than 25 years in cases that focus on jurisdiction and sovereignty disputes, labor and employment relations, complex transactional disputes, environmental matters, and fishing and water rights.

Jennifer Morinigo

The American Law Institute

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