Jurisdiction-Federal or State-Victimless" Crimes Committed by Non-Indians on Indian Reservations- 18 U.S.C. §§ 1152, 1153, 79-18

CourtOpinions of the Office of Legal Counsel of the Department of Justice
Citation3 Op. O.L.C. 111
Docket Number79-18
PartiesJurisdiction—Federal or State—Victimless" Crimes Committed by Non-Indians on Indian Reservations— 18 U.S.C. §§ 1152, 1153
Decision Date21 March 1979

3 Op. O.L.C. 111

Jurisdiction—Federal or State—Victimless" Crimes Committed by Non-Indians on Indian Reservations— 18 U.S.C. §§ 1152, 1153

No. 79-18

United States Department of Justice

March 21, 1979

John M. Harmon Assistant Attorney General Office of Legal Counsel

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 "victimless" crimes committed by non-Indians on Indian reservations fall within the exclusive jurisdiction of the State or Federal courts, or whether jurisdiction is concurrent. The question posed is a difficult one' whose importance 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 of law enforcement on a number of reservations. While many questions of policy may be involved in allocating law enforcement resources, you have asked—as an initial step—for our legal analysis of 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 matter existing law appears to require that the States have exclusive jurisdiction with regard 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 Department, with representatives of the Department of the Interior, and with Indian representatives; and we have carefully considered the thoughtful submission prepared by the Native American Rights Fund on behalf of the Litigation Committee of the National Congress of American Indians.

Our further consideration of the question has led us to conclude that our earlier advice fairly summarizes the essential principles. There are, [1] [ 112] however, several significant respects in which we wish to expand upon that analysis. There are also several caveats that should be highlighted in view of the large number of 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 of these jurisdictional 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 principles discussed in this memorandum.

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 reservations fall within the jurisdiction of the Federal courts. The Supreme Court's determination in United States v. McBratney, 104 U.S. 621 (1882), that the States possess exclusive jurisdiction over crimes by non-Indians against non-Indians committed 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 command of the statute; this decision should therefore be given only limited application and should not be deemed to govern the handling of 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 of 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 necessarily affect Indians and therefore fall outside of the limited McBratney exception and squarely within the terms of § 1152.

On the other hand, it may be argued that McBratney was premised on a view of the States' right to control the conduct of their citizenry generally anywhere within their territory; the presence or absence of 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 of these theses and, in our opinion, the correct view of the law falls somewhere between them. The McBratney rationale seems clearly to apply to victimless crimes so as, in the majority of cases, to oust Federal jurisdiction. Where, however, a particular [ 113] 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 exclusively 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 of this sort.


Section 1152 of title 18 provides in pertinent part:

Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country * * *.[3]

Given its full sweep, this provision would require that Federal law generally applicable on Federal enclaves of various sorts would be equally applicable 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 of the Assimilative Crimes Act, 18 U.S.C. § 13, 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 Court has significantly narrowed § 1152's application. Thus, where a crime is committed on a reservation by a non-Indian against another non-Indian exclusive jurisdiction lies in the State absent treaty provisions to the contrary. 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 of the defendant alone or his or her status in conjunction with the presence of a non-Indian victim is critical.[5] However, the McBratney rule was given an [ 114] added gloss in New York ex rel. Ray v. Martin, 326 U.S. 496 (1946). The Supreme Court in that case characterized its prior decisions as "stand[ing] for the proposition that States, by virtue of their statehood, have jurisdiction 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 of 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 Court's rationale 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 matter—has been to regard McBratney as authority for the States' assertion of jurisdiction with regard to a variety of "victimless" offenses committed by non-Indians on Indian reservations. Examination of 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 Washington State case held that a non-Indian charged with the "victimless" crime of manufacturing liquor on an Indian reservation was also held to be properly [ 115] within the jurisdiction of 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 man, 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 Court 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 "punishment of crimes committed by or against Indians, [and] the protection of the Indians in their improvements." See 104 U.S. at 624. Subsequent decisions have expressly recognized that where a crime is committed in Indian country by a non-Indian...

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