On July 9, 2020, the U.S. Supreme Court ruled in McGirt v. Oklahoma, __ US __ (2020)(No. 18-9526) that about half of the land in Oklahoma is actually within a recognized Native American reservation. Why does this matter? In that case, Jimcy McGirt was convicted in a state court for three serious sexual offenses and then imprisoned. He argued that the State of Oklahoma lacked the jurisdiction to prosecute him because he was an enrolled member of the Seminole Nation of Oklahoma and his crimes took place on the Creek Reservation, so he is entitled to a new trial in federal court. Oklahoma contended that that Creek Reservation was not an established Indian reservation under federal treaty and that McGirt was not entitled to the protections from crimes committed in “Indian county” under the Major Crimes Act. The U.S. Supreme Court held that the Creek Reservation was a federally recognized Indian tribe and that Oklahoma had no jurisdiction to convict McGirt in state court, so he was entitled to a new trial in federal court.
There is a complicated division of jurisdiction among federal, state and tribal governments when it comes to prosecuting crime. A federally recognized tribe has sovereign control over the territories and land they govern, known as “Indian country” in federal law. These federally recognized tribes have treaties with the federal government regarding separate or concurrent jurisdiction over legal matters. There is not a completely clear separation of authority among the entities, and federal law just makes it more confusing.
The Major Crimes Act (“MCA”) was originally passed in 1885 and places under federal jurisdiction certain crimes if they are committed by an “Indian” in “Indian country” against another “Indian”. The MCA as amended today states:
- “Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under chapter 109A (‘sexual abuse’), incest, a felony assault under section 113 (‘e.g. assault with intent to commit murder or assault with a dangerous weapon’), an assault against an individual who has not attained the age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a felony under section 661 of this title (e.g. ‘larceny’) within the Indian country shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” 18 U.S.C. 1153(a).
The Major Crimes Act was determined to be constitutional by the U.S. Supreme Court in United States v. Kagama, 118 U.S. 375 (1886) when it found that the trust relationship between the federal government and the tribes conferred on Congress both a duty and power to regulate tribal affairs. However, many tribes continued to prosecute Native Americans for major crimes after the passage of the Act, so concurrent jurisdiction was tolerated by the federal courts.
The Indian Country Crime Act (“ICCA”), also known as the General Crimes Act of 1817, creates federal jurisdiction for certain types of offenses committed by Indians against non-Indian victims and for all offenses committed by non-Indians against Indian victims. The ICCA as amended today states:
- “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. This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.” 18 U.S.C. 1152.
The ICCA does not apply to crimes by Indians against Indians, crimes by Indians that were punished through the tribe, or crimes where a treaty gave exclusive jurisdiction through the tribe.
Other federal laws also complicate jurisdiction. The Violence Against Women Act (“VAWA”) empowers tribes to prosecute and punish domestic violence on Indian country, even if the perpetrator is not an Indian. In addition, some federal criminal statutes apply throughout the entire nation, including Indian country, and apply to both Indians and non-Indians. These statutes include treason, theft against the U.S. mail, violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) and the Organized Crime Control Act.
In some instances, legal authority was transferred from the federal government to the state government regarding authority to handle tribal affairs. Public Law 83-280 (also known as PL 280) confers an increased role in state criminal justice systems to deal with Indian crimes in Indian country. Currently, the states of California, Minnesota, Nebraska, Oregon, Wisconsin and Alaska are PL 280 states with greater to prosecute crimes occurring in Indian reservations on their territory. Other states may apply for and acquire PL 280 status if they so choose.
Here is a general guide to criminal justice jurisdiction over perpetrators in Indian country:
INDIAN COMMITS CRIME AGAINST INDIAN IN INDIAN COUNTRY
- TRIBE: YES, the tribe can prosecute any Indian who commits a crime within the tribe’s territory.
- FEDERAL: ONLY if crime is a listed offense under MCA or WAVA.
- STATE: NO, unless granted jurisdiction under PL 280.
INDIAN COMMITS CRIME AGAINST NON-INDIAN IN INDIAN COUNTRY
- TRIBE: YES, the tribe can prosecute any Indian who commits a crime within the tribe’s territory.
- FEDERAL: YES, may prosecute under MCA, ICCA and WAVA.
- STATE: NO, unless granted jurisdiction under PL 280.
INDIAN COMMITS VICTIMLESS CRIME IN INDIAN COUNTRY
- TRIBE: YES, the tribe can prosecute any Indian who commits a crime within the tribe’s territory.
- FEDERAL: MAYBE under ICCA.
- STATE: NO, unless granted jurisdiction under PL 280.
NON-INDIAN COMMITS CRIME AGAINST INDIAN IN INDIAN COUNTRY
- TRIBE: NO, unless permitted under WAVA for domestic violence offenses.
- FEDERAL: YES under ICCA due to being interracial crime and under WAVA.
- STATE: NO, unless granted jurisdiction under PL 280.
NON-INDIAN COMMITS CRIME AGAINST NON-INDIAN IN INDIAN COUNTRY
- TRIBE: NO, unless permitted under WAVA for domestic violence offenses.
- FEDERAL: ONLY if crime is listed under WAVA.
- STATE: YES, states possess criminal jurisdiction over crimes committed by non-Indians against non-Indians, even in Indian country.
NON-INDIAN COMMITS VICTIMLESS CRIME IN INDIAN COUNTRY
- TRIBE: NO
- FEDERAL: NO
- STATE: YES, states possess criminal jurisdiction over victimless crimes committed by non-Indians, even in Indian country.
The State of Michigan is home to 12 federally recognized Indian tribes. Depending on the type of crime that is committed, you may be subject to prosecution under federal, state or tribal laws. If you are accused of any crime on an Indian reservation, you need a skilled criminal defense attorney that can guide you through the process and ensure you have a favorable outcome. It is foolish to represent yourself, especially if the court that you are being tried in doesn’t have proper jurisdiction over you anyway. You only have one opportunity to properly defend yourself against criminal charges. A mistake can result in a wrongful and lengthy incarceration.
If you or a loved one is charged with any criminal offense in the State of Michigan and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
