Oregon State Bar Bulletin — JANUARY 2012
Key Legislation and Litigation Affecting Criminal Jurisdiction in Indian Country

1817 – Congress gives the federal government the authority to prosecute certain major, inter-racial (non-Indian against Indian, Indian against non-Indian) crimes with the exception of a) crimes committed by Indians that already have been punished by a tribe and b) crimes over which a treaty has given a tribe exclusive jurisdiction. (The Indian Country Crimes Act, also known as the General Crimes Act, 18 U.S.C. § 1152.)

1883 – The U.S. Supreme Court affirms tribal sovereignty by overturning the federal conviction and death sentence of an Indian who had murdered another Indian, reasoning that the ability of the tribe to deal with such an offense was an attribute of tribal sovereignty that had not been specifically abrogated by an act of Congress. (Ex parte Crow Dog, 109 U.S. 556.)

1885 – Congress responds to the Crow Dog decision by abrogating tribal nations’ authority to prosecute seven major crimes, even if they are committed by an Indian against another Indian in Indian country, and giving that authority to the federal government. (The Major Crimes Act, (U.S. Statutes at Large, 23:385 (1). The act has been amended and now includes more than one dozen serious felony crimes.) The act was based on the belief that tribal nations were not competent to investigate and prosecute serious crimes, even those committed by their own citizens.

1953 – Congress mandates the transfer of this now-federal law enforcement authority to state governments in six states, including Oregon, with the exception of the Confederated Tribes of the Warm Springs Reservation and, later, the Burns Paiute and the Confederated Tribes of the Umatilla Reservation. (Public Law 280, later codified as 18 U.S.C. § 1162, 28 U.S.C. § 1360 and 25 U.S.C. §§ 1321–1326).

1968 – Congress enacts the Indian Civil Rights Act, which imposed protections comparable to some of those found in the U.S. Constitution on tribal courts. (25 U.S.C. §§ 1301-1303.)

1978 – The U.S. Supreme Court holds that tribal nations do not have the power to arrest, try and convict non-tribal members, even if they commit crimes in Indian Country. (Oliphant v. Suquamish Indian Tribe, 435 U.S. 191.)

1990 – The U.S. Supreme Court holds that tribal nations do not have the power to arrest, try and convict non-tribal members, even if they commit crimes in Indian Country and even if the offenders are Indian. (Duro v. Reina, 495 U.S. 676.) Congress responds by amending the Indian Civil Rights Act (known as “the Duro fix”) to give tribes criminal jurisdiction over crimes committed on their tribal land by any Indian.

—Janine Robben

 


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