Indian Country Criminal Jurisdiction

, , and | April 19, 2019 | American Indian Law

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.

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Matthew L.M. Fletcher

Reporter, American Indian Law Restatement

Matthew L.M. Fletcher is the Harry Burns Hutchins Collegiate Professor of Law at University of Michigan Law School. He teaches and writes in the areas of federal Indian law, American Indian tribal law, Anishinaabe legal and political philosophy, constitutional law, federal courts, and legal ethics.  He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians and sits as the Chief Justice of the Pokagon Band of Potawatomi Indians and the Poarch Band of Creek Indians.

Wenona T. Singel

Associate Reporter, American Indian Law Restatement

Wenona T. Singel is an Associate Professor of Law at Michigan State University College of Law and the Associate Director of the Indigenous Law & Policy Center. She served as Deputy Legal Counsel for the office of Governor Gretchen Whitmer from January of 2019 through January of 2021, advising Governor Whitmer on tribal-state affairs. Her other professional activities have included serving as the Chief Appellate Justice for the Little Traverse Bay Bands of Odawa Indians and service as the Chief Appellate Judge for the Grand Traverse Band of Ottawa and Chippewa Indians. 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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