criminal jurisdiction

What happened

Criminal jurisdiction in Indian country is a patchwork. In Ex parte Crow Dog (1883), the Supreme Court held that a federal court in Dakota was "without jurisdiction to find or try" a Brule Sioux man for killing another Brule Sioux in Indian country, reasoning that it found no clear expression of congressional intent to take that power from the tribe. In 1885, Congress passed the Major Crimes Act, now 18 U.S.C. 1153, which gives federal courts jurisdiction when an Indian commits listed offenses "against the person or property of another Indian or other person."

Oliphant v. Suquamish Indian Tribe (1978) held that tribal courts "do not have inherent criminal jurisdiction to try and to punish non-Indians" unless Congress authorizes it. Congress has since done so in limited ways: the VAWA acts of 2013 and 2022 recognize tribal power over non-Indians for certain crimes, and the Tribal Law and Order Act of 2010 raised tribal sentencing authority to three years.

States have a role too. McGirt v. Oklahoma (2020) held that land reserved for the Creek Nation remains Indian country for Major Crimes Act purposes. Two years later, Oklahoma v. Castro-Huerta held that "The Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country."

The result is that the answer to "who can prosecute?" requires asking three questions: is the defendant Indian or not, is the victim Indian or not, and is the place Indian country?

Summarized with AI assistance from 6 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error