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Indian Country Criminal Jurisdiction - by Native.law

This website is a general guide regarding which sovereign has jurisdiction to prosecute crimes which occur in Indian country: federal court, tribal court, or state court.

Jurisdiction is the authority of a court to deal with a particular type of dispute. Criminal jurisdiction is the authority of a court to deal with a particular type of criminal offense. There are three different types of domestic sovereign governments recognized by the laws of the United States: federal, tribal, and state (state sovereignty includes county and municipal governments). When a crime occurs within Indian country, the law may allow that offense to be prosecuted in the courts of one or more of these sovereigns and this website should be of some assistance. If a crime has occurred outside of Indian country, then depending on what type of offense it is, the state court or federal court will likely have jurisdiction (this website does not deal with criminal jurisdiction outside of Indian country).

There are several federal statutes which affect criminal jurisdiction in Indian country. The Major Crimes Act (18 USC 1153) creates federal court jurisdiction for certain offenses committed by Indians in Indian country; most of these are felonies (crimes which carry a maximum penalty of more than one year imprisonment). The Indian Country Crimes Act, sometimes called the General Crimes Act, (18 USC 1152) creates federal court jurisdiction for certain types of offenses committed by Indians against non-Indian victims and for all offenses committed by non-Indians against Indian victims. Part of the Indian Civil Rights Act (25 USC 1302(a)(7)(B)) limits tribal court criminal jurisdiction to offenses which carry a maximum penalty of no more than one year imprisonment (misdemeanors); however in 2010, Congress acknowledged tribal court authority to handle some felony offenses if the tribal court meets certain standards; 25 USC 1302(b)-(d).

In addition, there are US Supreme Court cases which also affect Indian country criminal jurisdiction. In Worcester v. Georgia (31 US 515), the Court held that state criminal law does not apply in Indian country. However, this was later modified by US v. McBratney (104 US 621) and Draper v. US (164 US 240) which held that state courts have exclusive jurisdiction over crimes committed by non-Indians against non-Indian victims in Indian country. In Oklahoma v. Castro-Huerta (__ US __), the Court held that states have jurisdiction (concurrent with federal jurisdiction) to prosecute non-Indians who commit crimes against Indians in Indian country. In US v. Lara (541 US 193), the Court held that tribal courts have criminal jurisdiction over all members of federally recognized tribes, but in Oliphant v. Suquamish Tribe (435 US 191), the Court held that tribal courts do not have criminal jurisdiction over non-Indians. In 2013 and 2022, Congress acknowledged tribal court authority to handle certain domestic violence and other listed cases involving non-Indian defendants if the tribal court meets certain standards; 25 USC 1304. In US v. Cooley (__ US __), the US Supreme Court upheld the inherent power of tribal police officers to detain and search non-Indians suspected of criminal activity.

Statutes and Supreme Court decisions have made the determination of Indian country criminal jurisdiction very complex. Jurisdiction for crimes in Indian country can be determined by looking at: 1) the status of the perpetrator (Indian or non-Indian), 2) the status of the victim (Indian or non-Indian), and 3) the type of offense invloved. This website has a link to a chart which can be helpful in figuring things out for most tribal lands within the United States. You should be aware that Public Law 280 and other state specific and tribal specific statutes exist which can change the usual jurisdictional set-up on a particular parcel of Indian country land from the usual arrangement.

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IMPORTANT NOTE: This website does not offer nor provide legal advice; it is a guide for general informational purposes only. Indian country criminal jurisdiction is extremely complex! If you are a crime victim, you should contact your local federal, tribal, or state prosecutor for assistance. If you are a suspect or defendant and need legal advice, you should contact an attorney who is licensed and competent to handle Indian law criminal matters.

This website is brought to you by Native.law and was last updated on February 22, 2024. The webmaster can be contacted at: ElkRiver1832@gmail.com .