Jurisdiction Over \"Victimless\" Crimes Committed by Non-Indians on Indian Reservations ( 1979 )

March 21, 1979
79-18 MEMORANDUM OPINION FOR THE DEPUTY
ATTORNEY GENERAL
Jurisdiction—Federal or State—“ Victimless”
Crimes Committed by Non-Indians on Indian
Reservations—18 U.S.C. §§ 1152, 1153
This responds to your request for our opinion whether so-called “ vic­
timless” crimes committed by non-Indians on Indian reservations fall
within the exclusive jurisdiction o f the State or Federal courts, or whether
jurisdiction is concurrent. The question posed is a difficult one' whose im­
portance is far from theoretical. We understand that in the wake of
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), serious concern
exists as to the adequacy o f law enforcement on a num ber o f reservations.
While many questions o f policy may be involved in allocating law enforce­
ment resources, you have asked—as an initial step—for our legal analysis
o f the jurisdictional limitations.
In an opinion to you dated June 19, 1978, we expressed the view that,
although the question is not free from doubt, as a general m atter existing
law appears to require that the States have exclusive jurisdiction with re­
gard to victimless offenses committed by non-Indians. At your request, we
have carefully reexamined that opinion. We have also discussed the legal
issue raised with others in the Departm ent, with representatives o f the
Department o f the Interior, and with Indian representatives; and we have
carefully considered the thoughtful submission prepared by the Native
American Rights Fund on behalf o f the Litigation Committee of the N a­
tional Congress o f American Indians.
Our further consideration o f the question has led us to conclude that
our earlier advice fairly summarizes the essential principles. There are,
1 The few writers who have touched obliquely on this question have expressed varying
views. See, e.g., Clinton, “ Criminal Jurisdiction Over Indian L ands,” 18 Ariz. L. Rev. 503,
529-30 (1976); Goldberg, “ Public Law 280: The Limits o f State Jurisdiction over Reserva­
tion Indians,” 22 U.C.L.A. L. Rev. 535, 541 n. 25 (1975); Davis, “ Criminal Jurisdiction
Over Indian C ountry in A rizona,” 1 Ariz. L. Rev. 62, 73-74 (1959).
Ill
however, several significant respects in which we wish to expand upon that
analysis. There are also several caveats that should be highlighted in view
o f the large num ber o f factual settings in which these jurisdictional issues
might arise. We also note, prefatorily, that there are now several cases
pending in courts around the country in which aspects o f these jurisdic­
tional issues are being, or are likely to be, litigated,2 and we may therefore
anticipate further guidance in the near term in applying the central prin­
ciples discussed in this mem orandum.
I. Introduction
Two distinct competing approaches to the legal question you have posed
are apparent. First, it may be contended that pursuant to 18 U.S.C.
§ 1152, with only limited exceptions, offenses committed on Indian reser­
vations fall within the jurisdiction o f the Federal courts. The Supreme
C ourt’s determ ination in United States v. McBratney, 104 U.S. 621(1882), that the States possess exclusive jurisdiction over crimes by non-
Indians against non-Indians com m itted on such enclaves, it is said, was
based on an erroneous premise that § 1152 does not control; at best, the
argument goes, McBratney creates a narrow exception to the plain com ­
mand o f the statute; this decision should therefore be given only limited
application and should not be deemed to govern the handling o f other
crimes that have no non-Indian victim. A related argument might also be
advanced: with rare exceptions, “ victimless” crimes are crimes against the
whole o f the populace; unlike offenses directed at particular non-Indian
victims (which implicate the Indian community only incidentally, or
accidentally), on-reservation offenses without a particular target neces­
sarily affect Indians and therefore fall outside o f the limited McBratney
exception and squarely within the terms o f § 1152.
O n the other hand, it may be argued that McBratney was premised on a
view o f the States’ right to control the conduct o f their citizenry generally
anywhere within their territory; the presence or absence o f a non-Indian
victim is thus irrelevant. Although continuing Federal jurisdiction has
been recognized with regard to offenses committed by or against Indians
on a reservation, victimless crimes, by definition, involve no particularized
injury to Indian persons or property, and therefore, under the McBratney
rationale, exclusive jurisdiction remains in the States.
We have carefully considered both o f these theses and, in our opinion,
the correct view o f the law falls somewhere between them. The McBratney
rationale seems clearly to apply to victimless crimes so as, in the majority
o f cases, to oust Federal jurisdiction. W here, however, a particular
1 Mescalero Apache Tribe v. Griffin Belt et al., No. 78-926 C (D .N .M . filed Dec. 14, 1978)
Ourisdiction over traffic offenses by non-Indians on Indian reservations); State v. Herber,
No. 2CA -CR 1259 (Ariz. Ct. A pp. April 27, 1978), pending on motion to reconsider
(authority o f State police authorities to arrest non-Indian on Indian reservation).
112
offense poses a direct and immediate threat to Indian persons, property,
or specific tribal interests, Federal jurisdiction continues to exist, just as is
the case with regard to offenses traditionally regarded as having as their
victim an Indian person or property. While it has heretofore been assumed
that as between the States and the United States, jurisdiction is either ex­
clusively State or exclusively Federal, we also believe that a good argument
may be made for the proposition that even where Federal jurisdiction is
thus implicated, the States may nevertheless be regarded as retaining the
power as independent sovereigns to punish non-Indian offenders charged
with “ victimless” offenses o f this sort.
n.
Section 1152 o f title 18 provides in pertinent part:
Except as otherwise expressly provided by law, the general laws
o f the United States as to the punishment o f offenses committed
in any place within the sole and exclusive jurisdiction o f the
United States, except the District o f Columbia, shall extend to
the Indian country * * *.5
Given its full sweep, this provision would require that Federal law gener­
ally applicable on Federal enclaves o f various sorts would be equally ap­
plicable on Indian reservations. Thus, Federal law with regard to certain
defined crimes such as assault, 18 U.S.C. § 113, and arson, 18 U.S.C.
§ 81, would govern, as would the provisions o f the Assimilative Crimes
Act, 18 U.S.C. § 1 3 , which renders acts or omissions occurring in areas
within Federal jurisdiction Federal offenses where they would otherwise
be punishable under State law.4
Notwithstanding the provision’s broad terms, the Supreme C ourt has
significantly narrowed § 1152’s application. Thus, where a crime is com ­
mitted on a reservation by a non-Indian against another non-Indian ex­
clusive jurisdiction lies in the State absent treaty provisions to the con­
trary. United States v. McBratney, supra; Draper v. United States, 164
U.S. 240 (1896). Subsequent cases have, for the most part, carefully
repeated the precise McBratney formula—non-Indian perpetrator and
non-Indian victim—and have not elaborated on whether the status o f the
defendant alone or his or her status in conjunction with the presence o f a
non-Indian victim is critical.5 However, the McBratney rule was given an
’ The current version o f § 1152 is not o f recent vintage, but has roots in the early 19th cen­
tury. See Act o f March 3, 1817, 3 Stat. 383; Act o f June 30, 1834, 4 Stat. 733, as am ended by
Act o f March 27, 1854, 10 Stat. 269. See also Trade and Intercourse Act o f 1790, 1 Stat. 137(offenses by non-Indians against Indians).
4 The Assimilative Crimes Act has been regarded as establishing Federal jurisdiction over
“ victimless” offenses occurring within a Federal enclave. See, e.g.. United States v. Barner,
195 F. Supp. 103 (N .D . Cal. 1961) (reckless driving on air force base); United States v. Chap­
man, 321 F. Supp. 767 (E .D . Va. 1971) (possession o f m arijuana).
’ See, e.g., United States v. Wheeler, 435 U.S. 313, 325 n. 21 (1978) (“ crimes committed
(Continued)
113
added gloss in New York ex ret. Ray v. Martin, 326 U.S. 496 (1946). The
Supreme C ourt in that case characterized its prior decisions as “ stand[ing]
for the proposition that States, by virtue o f their statehood, have juris­
diction over such crimes notwithstanding [18 U.S.C. § 1152].” 326 U.S. at
500.6 Similarly, in Surplus Trading Co. v. Cook, 281 U.S. 647, 651 (1930),
the Court spoke in the following broad terms: “ [Indian] reservations are
part o f the State within which they lie and her laws, civil and criminal,
have the same force therein as elsewhere within her limits, save that they
can have only restricted application to the Indian wards.” The C ourt’s ra­
tionale thus appears to be rooted at least to some extent in basic notions of
federalism.
It is, moreover, significant that the historical practice—insofar as we
have found evidence on this m atter—has been to regard McBratney as
authority for the States’ assertion o f jurisdiction with regard to a variety
o f “ victimless” offenses committed by non-Indians on Indian reserva­
tions. Examination o f the limited available precedent provided by turn-of-
the-century State appellate court decisions reveals that State jurisdiction
was upheld' with regard to non-Indian offenders charged with violating
State fish and game laws while on an Indian reservation. See, Ex parte
Crosby, 38 Nev. 389, 149 P. 989 (1915).7 An early W ashington State case
held that a non-Indian charged with the “ victimless” crime o f m anu­
facturing liquor on an Indian reservation was also held to be properly
(Continued)
by non-Indians against non-Indians” ); United States v. Antelope , 430 U.S. 641, 643 n. 2
(1977) (“ non-Indians charged with comm itting crimes against other non-Indians” ), 644 n. 4
(“ crimes by non-Indians against other non-Indians” ); Village o f Kake v. Egan, 369 U.S. 60,
73 (1962) (“ m urder o f one non-Indian by an o th er” ); Williams v. United States, 327 U.S.
711, 714 (1946) (“ offenses com m itted on this reservation between persons who are not In­
dians” ); Donnelly v. United States, 228 U.S. 243, 271 (1913) (“ offenses comm itted by white
people against whites” ). But see United States v. Sutton, 215 U .S. 291, 295 (1909)
(characterizing Draper as holding that the State enabling act “ did not deprive the State of
jurisdiction over crimes com m itted within a reservation by others [except] Indians or against
Indians” ).
* T hat the Martin discussion is more than a post hoc explanation for the McBratney
C o u rt’s failure to give sufficient weight to the plain language o f § 1152 is suggested by the
careful language o f United States v. Rogers, 45 U .S. (4 How.) 567, 572 (1846), recognizing
Federal jurisdiction under the early version o f § 1152 with regard to a crime comm itted by a
non-Indian against a non-Indian victim on a territorial reservation (“ where the country oc­
cupied by [the Indian tribes] is not within the limits o f one o f the States, Congress may by law
punish any offence [sic] com m itted there, no m atter whether the offender be a white man or
an Indian” ). See also, In re Mayfield, 141 U .S. 107, 112 (1891).
7 More recently, in State ex ret. Nepstad v. Danielson, 149 M ont. 438, 427 P. 2d 689(1967), the M ontana Supreme C ourt expressed a similar view after determining that the ap­
plication o f State law had not been preem pted by the passage o f 18 U .S.C . § 1165, making
unlawful the unauthorized entry onto Indian land for purposes o f hunting, fishing, or trap­
ping. In 1971, relying on Danielson, Crosby, and opinions o f the A ttorneys General of
Nevada, New Mexico, and Oregon, the Solicitor o f Interior opined that a State would have
both the power and the right to exercise jurisdiction over non-Indians alleged to have violated
State game laws on an Indian reservation. 78 I.D . 101, 104.
114
within the jurisdiction o f the State’s courts. See, State v. Lindsey, 133
Wash. 140, 233 P . 327 (1925).8 State jurisdiction has also been upheld at
least as to a woman regarded by the court as a non-Indian who had been
charged with adultery; the charge against the other alleged participant in
this consensual offense, an Indian m an, was dismissed as falling outside
the court’s jurisdiction. See, State v. Campbell, 53 Minn. 354, 55 N.W .
553 (1893).9 More recent decisions, while not examining the question in
depth, have upheld State jurisdiction as to possessory drug offenses, State
v. Jones, 92 Nev. 116, 546 P. 2d 235 (1976), and as to traffic offenses by
non-Indians on Indian reservations, State v. Warner, 71 N.M . 418, 479 P.
2d 66 (1963).10
At the same time as McBratney has been given such broad application,
however, the courts have carefully recognized that Federal jurisdiction is
retained with regard to offenses against Indians. The C ourt in both
McBratney and Draper was careful to limit its holdings to the precise facts
presented, reserving the question whether State jurisdiction would also be
found with regard to the “ punishm ent o f crimes committed by or against
Indians, [and] the protection o f the Indians in their im provements.” See
104 U.S. at 624. Subsequent decisions have expressly recognized that
where a crime is committed in Indian country by a non-Indian against the
person or property o f an Indian victim, Federal jurisdiction will lie.
United States v. Chavez, 290 U.S. 357 (1933) (theft); United States v.
Ramsey, 271 U.S. 467 (1926) (murder); Donnelly v. United States, 228
U.S. 243 (1913) (murder). Insight concerning the significance o f and
reasoning behind this exception to M cBratney’s broad sweep is provided
by United States v. Bridleman, 7 F. 894 (1881), a decision o f the U.S.
District Court for Oregon. The case involved the theft, on the Umatilla
Reservation, o f an Indian’s blanket by a white man. Judge Deady, writing
without the benefit o f the McBratney decision decided the same year,
upheld Federal jurisdiction, reasoning that while the admission o f Oregon
into the Union in 1859 ousted general territorially based jurisdiction
previously asserted by the Federal Governm ent, “ the jurisdiction which
arises out o f the subject—the intercourse between the inhabitants o f the
state and the Indian tribes therein—remained as if no change had taken
place in the relation o f the territory to the general governm ent.” Id. at
* W here the identical acts that constitute a violation o f State law would also constitute a
violation o f a Federal statute expressly prohibiting conduct such as unauthorized hunting and
fishing or m anufacture or sale o f liquor on a reservation w ithout attem pting to preem pt State
jurisdiction, a separate prosecution under Federal law would o f course remain a possibility.
See, e.g., United States v. Lanza, 260 U.S. 377, 382 (1922).
• The only other early case with which we are familiar upheld State jurisdiction with regard
to one who appeared to be a non-Indian charged with obstructing the use o f Indian lands.
See, State v. Adams, 213 N .C . 243, 195 S.E . 822 (1938). T he statem ent o f the case in the ap­
pellate court’s opinion is extremely obscure; we therefore regard the apparent holding as hav­
ing limited significance.
10 See also, O p. Ariz. A tt’y Gen. N o. 58-71 (1958).
115
899. He therefore concluded that to the extent that § 1152 provided for
punishment o f persons “ for wrong or injury done to the person or prop­
erty o f an Indian, and vice versa,” it remained in force. Id.
Bridleman and the num erous subsequent cases thus support the view
that Federal jurisdiction exists with regard to offenses committed by non-
Indians on the reservation against the person or property o f Indians.
The principle that tangible Indian interests—in the preservation o f person
and property—should be protected dates from the earliest days o f the
Republic when it was embodied in the Trade and Intercourse A cts." To say
that these tangible interests should be protected is not, however, necessarily
to say that a generalized interest in peace and tranquility is sufficient to trig­
ger continuing Federal jurisdiction. McBratney itself belies that view since
the commission o f a m urder on the reservation—a much more significant
breach o f the peace than simple vagrancy, drug possession, speeding, or
public drunkenness—provided no basis for an assertion o f Federal jurisdic­
tion. Indeed, as the reasoning o f Bridleman suggests, it is necessary that a
clear distinction be made between threats to an Indian person or property
and mere disruption o f a reservation’s territorial space.
We therefore believe that a concrete and particularized threat to the per­
son or property o f an Indian or to specific tribal interests (beyond preserv­
ing the peace o f the reservation) is necessary before Federal jurisdiction can
be said to attach. In the absence o f a true victim, unless it can be said that
the offense peculiarly affects an Indian or the tribe itself, McBratney would
control, leaving in the States the exclusive jurisdiction to punish offenders
charged with “ victimless” crimes. Thus, in our view, most traffic viola­
tions, most routine cases o f disorderly conduct, and most offenses against
morals such as gambling which are not designed for the protection o f a par­
ticular vulnerable class, should be viewed as having no real “ victim,” and
therefore to fall exclusively within State competence.
In certain other cases, however, a sufficiently direct threat to Indian per­
sons or property may be said to bring an ordinarily “ victimless” crime
within Federal jurisdiction. Certain categories o f offenses may be identified
that routinely involve this sort o f threat to Indian interests. One such
category would be crimes calculated to obstruct or corrupt the functioning
o f tribal government. Included in this category would be bribery o f tribal
officials in a situation where State law in broad terms prohibits bribery of
public officials;12 such an offense would cause direct injury to the tribe
" See, e.g., § 5, Act o f July 22, 1790, 1 Stat. 137 (“ crimes upon, or trespass against, the
person or property o f any friendly Indian or Indians” ). See also, Donnelly v. United States,
supra, 228 U.S. at 272 (“ crimes com m itted by white men against the persons or property of
the Indian tribes” ); United States v. Chavez, 290 U .S. at 365 (“ where the offense is against
an Indian or his property” ).
11 The effect o f the Assimilative Crimes Act is to m ake punishable under Federal law
m inor offenses as defined and punished under State law. See, Smayda v. United States, 352
F. (2d) 251, 253 (9th Cir. 1965). W hether bribery o f tribal officials would constitute an o f­
fense punishable under Federal law would therefore depend on the precise terms o f the ap­
plicable State statute and whether it applied to public officials generally or only to
enum erated officers o f the State or local governments.
116
and cannot therefore be regarded as truly “ victimless.” A second group o f
offenses that may directly implicate the Indian community are consensual
crimes committed by non-Indian offenders in conjunction with Indian
participants, where the Indian participant, although willing, is within the
class o f persons which a particular State statute is specifically designed to
protect. Thus, Federal jurisdiction will lie under 18 U.S. § 2032 for the
statutory rape o f an Indian girl, as would a charge o f contributing to the
delinquency o f a minor, where assimilated into Federal law pursuant to 18
U.S.C. § 13. A third group o f offenses that may be punishable under the
law o f individual States and assimilated into Federal law pursuant to the
Assimilative Crimes Act would also seem intrinsically to involve the sort
o f threat that would cause Federal jurisdiction to attach where an Indian
victim may in fact be identified. Such crimes would include reckless en-
dangerment, criminal trespass, riot or rout, and disruption o f a public
meeting or a worship service conducted by the tribe.
In certain other cases, conduct that is generally prohibited because o f its
ill effects on society at large and not because it represents a particularized
threat to specific individuals may nevertheless so specifically threaten or
endanger Indian persons or property that Federal jurisdiction may be
asserted. Thus, speeding in the vicinity o f an Indian school or in an ob­
vious attem pt to scatter Indians collected at a tribal gathering, and a
breech o f the peace that borders on an assault may in unusual circum­
stances be seen to constitute a Federal offense.
m.
Whatever the contours o f the area in which Federal jurisdiction may be
asserted, a final critical question remains to be considered: whether State
authorities may also legally charge a non-Indian offender with commis­
sion o f an offense against State law or whether Federal jurisdiction, in­
sofar as it attaches, is exclusive. This issue is an exceedingly difficult one
and many courts, without carefully considering the question, have as­
sumed that Federal jurisdictions whenever it obtains is exclusive. We
nevertheless believe that it is a m atter that should not be regarded as set­
tled before it has been fully explored by the courts. Although McBratney
firmly establishes that State jurisdiction, where it attaches because o f the
absence o f a clear Indian victim, is exclusive, we believe that, despite
Supreme Court dicta to the contrary, it does not necessarily follow that,
where an offense is stated against a non-Indian defendant under Federal
law, State jurisdiction must be ousted.
The exclusivity o f Federal jurisdiction vis-a-vis the States with regard to
18 U.S.C. § 1153, the M ajor Crimes Act, has been recognized, see, e.g.,
Seymour v. Superintendent, 368 U.S. 351 (1962), but has only formally
been addressed and decided in the past year. See, United States v. John,
437 U.S. 634, 651 (1978). The C ourt in John relied on notions o f preem p­
tion and the slight evidence provided by the legislative history o f this
117
provision to reach a result that had long been assumed by the lower
co u rts.13
Section 1152 has likewise been viewed as ousting State jurisdiction
where Indian defendants are involved.14 Supreme C ourt dicta, moreover,
suggests that Federal jurisdiction may similarly be exclusive where of­
fenses by non-Indians against Indians within the terms o f § 1152 are con­
cerned.15 Square holdings to this effect are, however, rare. The Supreme
C ourt o f N orth D akota has held that State jurisdiction is ousted where
Federal jurisdiction under § 1152 is seen to exist in cases where non-
Indians have committed offenses against Indians on the reservation.16 At
least, three other earlier cases suggest a contrary result, however, recog­
nizing that, as in McBratney, the States have a continuing interest in the
prosecution o f offenders against state law even while Federal prosecution
may at the same time be w arranted.17
Although it would mean that § 1152 could not be uniformly applied to
provide for exclusive Federal jurisdiction in all cases o f interracial crimes,
a conclusion that both Federal and State jurisdiction may lie, where con­
duct on a reservation by a non-Indian presenting a direct and immediate
11 See, e.g., Application o f Konaha, 131 F. (2d) 737 (7th Cir. 1942); In re Carmen's Peti­
tion, 165 F. Supp. 942, 948 (N .D . Cal. 1958), a ff’d sub nom., Dickson v. Carmen, 270 F.
(2d) 809 (9th Cir. 1959), cert, denied, 361 U .S. 934 (1960).
14 See, e.g., United States ex rel. Lynn v. Hamilton, 233 F. 685 (W .D .N .Y . 1915); In re
Blackbird, 109 F. 139 (W .D . Wis. 1901); Application o f Denetclaw, 83 Ariz. 299, 320 P.2d
697 (1958); State v. Campbell, 53 M inn. 354, 55 N .W . 553 (1893); Arquette v. Schneckloth,
56 W ash. 2d 178, 351 P.2d 92 (1960).
15 See, State o f Washington v. Confederated Bands and Tribes o f the Yakima Indian Na­
tion, 47 U .S.L .W . 4111, 4113 (Jan. 16, 1979) (“ State law reaches within the exterior bound­
aries o f an Indian reservation only if it would not infringe ‘on the right o f reservation Indians
to make their own laws and be ruled by th em .’ Williams v. Lee, 358 U .S. 217, 219-20. As a
practical m atter, this has m eant that criminal offenses by or against Indians have been sub­
ject only to federal or tribal laws . . . except where Congress in the exercise o f its plenary
and exclusive power over Indian affairs has ‘expressly provided that state laws shall
apply’ ” ); Williams v. Lee, 358 U .S . at 220 (“ if the crime was by or against an Indian, tribal
jurisdiction or that expressly conferred on other [than state] courts has remained exclusive” );
id. at n. 5 (“ Congress has granted to the federal courts exclusive jurisdiction upon Indian
reservations over 11 m ajor crimes. A nd non-Indians comm itting crimes against Indians are
now generally tried in federal courts . . . .” ); Williams v. United States, 327 U.S. 711, 714
(1946) (“ the laws and courts o f the U nited States, rather than those o f Arizona, have
jurisdiction over offenses com m itted [on the reservation] by one who is not an Indian against
one who is an Indian” ). See also, Bartkus v. Illinois, 359 U .S. 121, 161 (1959) (Black, J..
dissenting); United States v. Cleveland, 503 F. (2d) 1067 (9th Cir. 1975) (Federal law applie:
to assault by non-Indian against an Indian).
14 State v. Kuntz, 66 N .W . 2d 531 (N. Dali. 1954) (State prosecution o f non-Indian foi
unlawful killing o f livestock o f Indian on Indian reservation dismissed on grounds tha
Federal jurisdiction o f the offense was exclusive).
17 See, State v. McAlhaney, 220 N .C . 387, 17 S.E. 2d 352 (1941) (State jurisdiction upheli
as to non-Indian charged with kidnapping Indian on Indian reservation); Oregon v. Cole
man, 1 O re. 191 (1855) (territorial jurisdiction upheld as to non-Indian charged with sale o
liquor to Indian on reservation notwithstanding existence o f comparable offense unde
Federal law). See also. United States v. Barnhart, 22 F. 285, 291 (D. Ore. 1884) (Feder:
jurisdiction would exist as to non-Indian charged with m anslaughter o f Indian on reservatio
even if State court had jurisdiction o f offense under State law) (dicta).
118
threat to an Indian person or property constitutes an offense against the
laws o f each sovereign, could not be criticized as inconsistent or
anomalous. Section 1153 was enacted many years after § 1152 had been in­
troduced as part o f the early Trade and Intercourse Acts; its clear purpose
was to provide a Federal forum for the prosecution o f Indians charged
with m ajor crimes, a forum necessary precisely because no State juris­
diction over such crimes was contem plated. Consistent with this purpose,
§ 1152 may properly be read to preempt State attem pts to prosecute Indian
defendants for crimes against non-Indians as well.
In cases involving a direct and immediate threat by a non-Indian
defendant against an Indian person or property, however, a different
result may be required. The State interest in such cases, as recognized by
McBratney, is strong. Section 1152 itself recognizes that where an Indian
is charged with an interracial crime against a non-Indian, Federal juris­
diction is to be exercised only where the offender is not prosecuted in his
or her own tribal courts. But in no event would the State courts have juris­
diction in such a case, absent a separate grant o f jurisdiction such as that
provided by P ub. L. No. 83-280, 67 Stat. 588. An analogous situation is
presented where a non-Indian defendant is charged with a crime against an
Indian victim; the Federal interest is not to preempt the State courts, but
only to retain authority to prosecute to the extent that State proceedings
do not serve the Federal interest.
This result follows from the preemption analysis set forth in Williams v.
Lee, where the C ourt recognized that, in the absence o f express Federal
legislation, the authority o f the States should be seen to be circumscribed
only to the extent necessary to protect Indian interests in making their own
laws and being ruled by them. While significant damage might be done to
Indian interests if Indian defendants could be prosecuted under State law
for conduct occurring on the reservation, no equivalent damage would be
done if State as well as Federal prosecutions o f non-Indian offenders
against Indian victims could be sustained.
Finally, it might be argued that such a result is consistent with principles
governing the administration o f other Federal enclaves. It is generally
recognized that a State may condition its consent to a cession o f land in­
volving Government purchase or condem nation by reserving jurisdiction
to the extent consistent with the Federal use. Kleppe v. New Mexico, 426
U.S. 529, 540 (1976); Paul v. United States, 371 U.S. 245, 265 (1963).
Although Indian reservations are in many respects unique, insofar as they
existed in most cases prior to statehood rather than arising as a result o f a
cession agreement or condem nation proceedings, an analogy may never­
theless serve.
Since, in most cases, States may retain concurrent jurisdiction except to
the extent that that would interfere with the Federal use, they may do so
here as well by prosecuting non-Indian offenders while Federal jurisdiction
at the same time remains as needed to protect Indian victims in the event
that a State prosecution is not undertaken or is not prosecuted in good
119
faith. For these reasons, therefore, we believe a strong possibility exists
that prosecution may be commenced under State law against a non-Indian
even in cases where, as a result o f conduct on the reservation that
represents a direct and immediate threat against an Indian person or prop­
erty, Federal jurisdiction may also attach.
IV. Conclusion
In sum, although we understand that in many cases commission by non-
Indians o f crimes traditionally regarded as victimless touches in a signifi­
cant way upon the peace and tranquility o f Indian communities, as a
general rule we believe that such offenders fall within the exclusive
jurisdiction o f State courts. A more limited class o f crimes involving direct
injury to Indian interests should, however, be recognized as having Indian
victims—whether the tribe itself, an Indian who falls within the class of
persons to whom certain statutes are particularly designed to afford pro­
tection, or an individual Indian or group o f Indians who are victimized by
conduct that either as a m atter o f law or as a m atter o f fact constitutes a
direct and immediate threat to their safety. In such cases, Federal law en­
forcement officers may properly prosecute non-Indian offenders in the
Federal courts. We also believe that despite the common understanding
that jurisdiction over crimes on Indian reservations is either exclusively
State or exclusively Federal, a substantial case can be made for the propo­
sition that the States are not ousted from jurisdiction with regard to of­
fenses committed by non-Indian offenders that pose a direct and substan­
tial threat to Indian victims, but in their separate sovereign capacities may
prosecute non-Indian offenders for violations o f applicable State law as
well.
Joh n M . H arm on
Assistant A ttorney General
Office o f Legal Counsel
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