A recent Supreme Court decision that Indian tribes have no inherent criminal jurisdiction over non-Indians does not leave a void in criminal law enforcement on reservations, Interior Department Solicitor Leo M. Krulitz said in an opinion released today
"The purpose of the opinion is to emphasize that the Supreme Court decision in Oliphant v. Suquamish Indian Tribe--while very explicit in the narrow area it covers--does not call into question other clearly established principles of law regarding Indians," Krulitz said. "We do not have to ask ourselves, 'If tribes have no criminal jurisdiction over non-Indians for acts committed on reservations, who does'? The answer is clear and unchanged: the federal government does."
Krulitz said the Supreme Court has reiterated the conclusion that the United States has jurisdiction over crimes committed by non-Indians against Indians or their property. That jurisdiction is exclusive, Kru1itz said, citing a 1946 Supreme Court ruling that, while state courts may have jurisdiction over offenses committed by non-Indians against non-Indians, the laws and courts of the U.S. have jurisdiction over offenses against Indians by non-Indians. As recently as 1976, the Solicitor said, a federal appellate court held that offenses committed by non-Indians against Indians may not be prosecuted under state law.
"Except where a state has acquired, by Act of Congress, jurisdiction over Indian country within its borders, Bureau of Indian Affairs police and tribal police commissioned by the federal government may arrest non-Indians for offenses committed against Indians or their property in Indian country," said Krulitz.
"We are not merely talking about specific offenses described in federal statutes, either. Under the Assimilative Crimes Act, state laws are often adopted as federal law for federal enclaves. Offenses under these laws are punishable according to the law of the state in which the enclave is located. II
Krulitz pointed out that prosecution for such crimes must be by the Department of Justice before a federal district court judge or a federal magistrate. He advised the Bureau of Indian Affairs to work closely with the Justice Department to set up procedures to ensure cooperation.
Here are other major points in the opinion:
--BIA or tribal police who carry state commissions may also arrest non-Indians for violations of state law, even when no Indians or Indian property is involved. Non-Indians arrested for those crimes may be tried only in state courts.
--The U.S. continues to have jurisdiction over Indians and non-Indians alike who violate federal laws applying across the nation or who violate substantive criminal laws applicable only to Indian country, such as Indian liquor laws or bans on hunting or fishing on Indian lands without permission.
