Let’s say hypothetically, I am a drug dealer selling fentanyl pills. One of my customers owes me an exorbitant amount of money. I conclude that I need to make an example of this individual. I cannot perpetuate the image of being a pushover and get very far selling opioids on the black market. Beyond that, there isn’t any legal recourse for recouping my money. I don’t believe there is a claims court in the United States that would back me on this one. I need to kill my customer over this nonpayment issue. I plan to meet this gentleman, let’s call him Bob, by a desolate farm located on the Ak-Chin Reservation, just outside of Maricopa, Arizona. Bob is under the impression that we are meeting to discuss a “peaceful” resolution to our dispute over the pills. When we meet, Bob extends his right hand for a handshake. I clasp onto Bob’s right hand while concealing a switchblade in my left hand. As Bob pulls me towards him for a “pound-hug” I stab him five-times in the abdomen before he can even say “What’s up”. I then quickly vacate the scene of the crime. Leaving Bob to die. Then days later I am apprehended by the authorities.
Does the question become which law enforcement agency took me into custody? After all, the astute observer would notice this crime transpired on tribal land. As a legal matter when it comes to crimes committed in “Indian Country” the situation becomes quite convoluted. The core complexity of American Indian Law (law about the relationship between the federal government and the sovereign tribes) is the dispute over jurisdiction. However, depending on the location, the nature of the crime, and the tribal status of the persons involved will sway the needle on which law enforcement agency needs to intervene.
Determining jurisdiction for crimes committed in “Indian Country” used to be a simple matter. During the colonial period, the tribe had authority over any crimes committed within a tribal territory (p. 103). After the end of the Revolutionary War, the federal government assumed jurisdiction over crimes by non-Indians perpetrated against Indians on tribal lands. As a means of creating a “buffer” between the competing interests of the two populations (P.104). The federal authority of crimes committed in “Indian Country” was formally extended to the U.S. government through the Federal Enclaves Act. Over the years have undergone various statutory revisions (P.104). Per William C. Canby Jr. the ruling on Ex parte Crow (1881) set the precedent pattern for federal authority being extended in cases of Non-Indian on Indian crime being addressed by the U.S. government. Indian on Indian crime being handled by tribal governments (P.104). The Supreme court initiated this pattern of judicial decision making through ruling that the Enclaves Act excludes federal intervention in Indian on Indian crime. In the Crow case, the involved parties were both of tribal affiliation and the shooting transpired on the Great Sioux Reservation. Placing jurisdiction squarely on tribal authorities.
In reaction to this ruling, congress then went on to pass the Major Crimes Act. Which extended federal authority to seven crimes even if they were committed on Indian soil (p. 105). Chief Justice Marshall’s ruling on Worcester v Georgia set the tone for tribal jurisdiction for the next fifty years (p.108). In this case, George residents were living within the bounds of tribal land without proper permission. Marshall struck down any action on the part of the state government noting it was outside of their legal authority. Stating on Cherokee land “… the laws of Georgia can have no force…” (p.109). This decision was held until fifty years later when the criminal jurisdiction question become muddied. While the matter of jurisdiction more clearly defined for Non-Indian on Indian crime and vice versa on tribal land, what about Non-Indian on Non-Indian crime on tribal land? Would the tribal authorities have the jurisdiction to punish the offenders?
This leads us to the 1881 case of United States V. McBratney. A case where a Non-Indian man killed another individual who did not have any tribal affiliations on the Ute Reservation in Colorado. Surely the tribe would have authority over this crime? If not the tribe, a division of federal law enforcement due to the federal government’s guardianship of the tribal nations? The Supreme Court saw the situation in a different light. Departing from the previously established judicial conventional wisdom. The high court ruled that federal authority could only exercise legal jurisdiction “over places where they have exclusive jurisdiction” (p.110). This unorthodox ruling was based upon the premise that Colorado was to be admitted to the Union on “… equal footing with the original states…”. Meaning that on Non-Indian on Non-Indian crime, Colorado’s laws extended throughout the boundaries of the state. This also includes the Ute Reservation (p.110). Needless to say, detractors criticized this decision because it conflicts with the precedence established in Worcester V. Georgia (p.110).
After I killed Bob, I was arrested and tried in court by the state of Arizona. Since neither Bob nor I were a member of any recognized tribes. If I was under the impression that committing the crime on the reservation would save me from state persecution, that was a foolish assumption. However, considering the rural terrain of the reservation ,it was the prime location to dispose of a body.
What a messy area of law!
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No pun intended (considering the context being murder). This isn’t even including instances of extradition.
Prior to reading American Indian Law: In a Nutshell ,I had an inclination that this would be a complex topic. However, perhaps this interpretation maybe due to the fact I am a layman, however, can’t any area of law be messy?
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Excellent observation! In fairness, one reason why law tends to be so complex and convoluted is that courts must always end up trying to balance competing values–even values that are diametrically opposed!
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That definitely makes sense. This point is absolutely applicable to the struggles of Indians V. Non-Indians vying for land, resource extraction rights, legal authority, etc.
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Interesting. So, the state has selective jurisdiction in tribal land depending on the ethnic status of the individual/s involved in a given crime?
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I will have to be cautious here, as I am not a lawyer. Strictly going by the ruling of United States V. McBratney, the state government has rule over murder, if the offender is not an enrolled member of a federally recognized. If the Individual is of Native ancestry, but of a tribe that has had federal recognition terminated or was never acknowledged in the first place, they are treated as any other U.S. citizen.
It also should be mentioned that the crime needs to be committed on Indian soil for this to apply. The McBratney ruling grinds against prior precedent. The Major Crimes Act extended federal authority to certain crimes committed in “Indian Country”. Which to some extent makes sense due to the guardianship relationship between the tribes and the fed.
Prior to McBratney, Chief Justice Marshall’s ruling on Worcester V. Georgia held that they states have zero authority to exercise legal jurisdiction over tribal territories. McBratney is controversial in that regard. It disregards past judgements pertaining to state authority.
To be intellectually honest, I could be misapplying McBratney. While traditionally tribal affairs have been address either by federal authorities or tribal depending on the context, tribal affiliation of the victim/offender, and the law that has been violated.
To some extent based on my potentially flawed understanding of the law, it does seem as if the states do have limited jurisdiction over crimes committed on tribal soil by non-Indian offenders.
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I also forgot to mention that if power is allotted to the states in tribal matters, it is generally delegated by congress. Therefore, creating an an exception. My apologies for leaving that part out.
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What an illuminating reply. I find this fascinating as my knowledge about the history and law of tribal territory is remarkably insignificant. With respect to this particular case, would you then side with Marshall’s precedent (that is, to grant states zero authority in employing jurisdiction over Tribal territory?) But apparently siding with Marshall runs roughshod over the McBratney decision?
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Once I get into Public Law 280, it gets even more complicated.
It’s a difficult call. In most instances I would be inclined to side with a federalist approach. I know that the federal guardianship did operate somewhat as a safeguard (as well as a hindrance) for the tribes. The intention was to prevent the state governments from spurring conflicts with the tribes. But invariably the federal government’s involvement had presented other issues to the tribes.
At the same time I am somewhat sympathetic to the tribes having the right to self-determination. State or territorial membership to the Union should be voluntary. Then again purely my outlandish opinion. Not so much a fact-based comment. It’s a point worth noting.
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So, the federal guardianship did seek to function as a protective force for the tribes, but this seemingly benevolent service somewhat brought with it other unanticipated consequences.
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I would say it was never really benevolent. More a means of avoiding conflict with the tribes. The temptation of the states to acquire tribal land or to create legislation that was hostile to Indian interests was all too likely. The guardianship dynamic has been used for the ends of the federal government ( attempts to “assimilate” native populations) .Also, this relationship has had unintended consequences.Such as confusion over legal jurisdiction.
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