two cases. But in the Crater Lake Nat. Park Co. case there was raised for the
first time, by motion for issuance of an injunction, the question whether the
Assimilative Crimes Act affects the federalization of regulatory provisions of
State law; this question the court did not answer, holding that its resolution
should occur through a criminal proceeding and that there was no ground for
injunctive relief.
The case of Birmingham v. Thompson, 200 F. 2d 505 (C. A. 5, 1952), like the
Collins and Petersen cases resiUted in a court's disapproval of a State's attempt
to exercise State regulatory authority in a matter jurisdiction as to which had
been transferred to the Federal Government. Here it was a municipality (under
State-derived authority, of course) which sought to impose the provisions of a
building code, particularly the requirement for a building permit and its inci-
dental fee, upon a Federal contractor, and the court held that a State reserva-
tion of taxing jjower did not extend to permit State control of building. Again,
there was involved no question as to whether the Assimilative Crimes Act fed-
eralized State regulatory statutes.
In the case of Johnson v. Yelloiv Cab Transit Co., 321 U.S. 383 (1944), there
was involved a State seizure of liquor in transit through State territory to an
area under exclusive Federal jurisdiction. The court's decision invalidating the
seizure was based on the fact that no State law purported to prohibit or regu-
late a shipment into or through the State to an area under exclusive Federal
jurisdiction. In connection with a collateral matter, as to whether a Federal
court properly ordered a surrender of the liquor by the State, there was raised
the question whether the Assimilative Crimes Act effected an adoption of State
law in the Federal enclave, which might have had the effect of making illegal
the transactions involved. The court made clear that it was avoiding the ques-
tion (p. 391) :
Were we to decide that the assimilative crimes statute is not applicable
to this sJiipment of liquors, we would, in effect, be construing a federal
criminal statute against the United States in a proceeding in which the
United States has never been represented. And. on the other hand, should
we decide the statute outlaws the shipment, such a decision would be equiv-
alent to a holding that more than 200 Army Officers, sworn to support the
Constitution, had participated in a conspiracy to violate federal law. Not
only that, it would for practical purposes be accepted as an authoritative
determiantion that all army reservations in the State of Oklahoma must
conduct their activities in accordance with numerous Oklahoma liquor regu-
lations, some of which, at least, are of doubtful applicability. And all of
this would be decided in a case wherein neither the Army Officf rs nor the
War Department nor th'- Attorney General of the United States have been
3443
represented, and upon a record eonsistins of stipulations between a private
carrier and the legal representatives of Oklahoma.
While two justices of the Supreme Court rendered a minority opinion express-
in:; the view that the Assimilative Crimes Act adopted State regulatory statutes
for the Federal enclave and made illegal the transactions involved, the majority
opinion cannot thereby be construed, in view of the plain language with which
il expresses the court's avoidance of a ruling on the question, as holding that the
Assimilative Crimes Act does not adopt regulatory statutes.
The absence of decisions on the point whether the Assimilative Crime Act is
applicable to regulatory statutes containing criminal provisions may well long
C(mtinue. in the general absence of Federal machinery to administer and enforce
such statutes. In any event, it seems clear that portions of such statutes pro-
viding for administrative machinery are inapplicable in Federal enclaves; and
in numerous instances such portions will, in falling, bring down penal provisions
from which they are inseparable.""
I'NiTEo States Commissioners Act of 1940: The act of October 9, 1940 (now
IS U.S. C. 3401), granted to United States commissioners the authority to make
final disposition of petty offenses committed on lands under the exclusive or
concurrent jurisdiction of the United States, thus providing an expeditious
method of disposing of many cases instituted under the assimilative crimes
statute. By 28 U.S.C. 632, national park commissioners (see 28 U.S.C. 631), have
had extended to them the jurisdiction and power had by United States commis-
sioners under 18 U.S.C. 3401.
The view has been expressed that under this act United States commissioners
are not authorized to try persons charged with petty offenses committed within
a national monument.â„¢ a national memorial park,^ or a national wildlife refuge,*^
because of the fact that the United States held the particular lands in a pro-
prietorial interest status, in accordance with its usual practice respecting lands
held for these purposes, and the act authorizes specially designated commis-
sioners to act only with respect to lands over which the United States exercises
either exclusive or concurrent jurisdiction.
It is interesting to note that the act of October 9, 1940 (54 Stat. 1058), of which
the present code section is a re-enactment by the act of June 25, 1948, was
introduced as H.R. 1999, 76th Congress. A similar bill (H.R. 4011) without the
phraseology "or over which the United States has concurrent jurisdiction" was
passed by the House of Representatives in the 75th Congress. When the bill was
reintroduced in the 76th Congress, the above-quoted words were included at the
special request of the National Park Service, since only a small number of na-
tional iiark areas were under the exclusive jurisdiction of the United States, and
without some language to provide for the trial jurisdiction of commissioners
over petty offenses committed in the other areas the benefits of the proposed
legislation could not be realized in many national parks.
The words "concurrent jurisdiction" were suggested because they were under-
stood as including partial (or proprietorial) jurisdiction and as consisting essen-
tially of that jurisdiction of the Federal Government which is provided by the
Constitui-ion. article IV. section 3. In fact .for a number of years, a proprietorial
interest status as exercised over permanent reservations by the United States
was understood among attorneys in the Department of the Interior as "con-
current jurisdiction."*" This construction has never been placed on the term
"concurrent jurisdiction" either by the courts or by Government agencies gen-
erally, and at least in recent years the Department of the Interior has not so
interpreted the term.
l.^?,?^'i''vlf^^*w^•;'*'^'■'^^''i'" '^ related fliscussion of adoption under the International
law rule of State statutes requiring administrative action
TO Memo Aug. 23, 1945, from Acting Director. National Park Service, Department of the
Interior, to Regional Director, National Park Service, Department of tlie Interior
so Memo Sept. 24, 1948, from Acting Assistant Director, National Park Service Depart-
ment of the Interior, to Regional Director, Region 2, National Park Service, Department
of the Interior.
81 Letter dated Sept. 1, 1954, from Director, Fish and Wildlife Service, Department of
the Interior, to United States Commissioner, St. Joseph, Missouri.
8- Memo June 12, 1951, from Regional Counsel, Region Three, National Park Service
Department of the Interior, to Regional Director, Region Three, National Park Service'
Department of the Interior.
Letter dated Dec. 27, 1951, from Regional Counsel, Region 3, National Park Service,
Department of the Interior, to Chief Judge, Court of Appeals for the Third Circuit. Wil-
mington, Del.
3444
In this connection, it should be noted that the Department of the Interior in
the past considered obtaining, in collaboration with other interested Federal
agencies, legislation which would authorize United States commissioners to try
petty offenses against the United States, regardless of the status of the juris-
diction over the Federal area involved.^
The Committee has given consideration to broadening the powers of United
States commissioners by authorizing them to act additionally on lands over which
the Government has a proprietorial interest only. In the Committee's conclusions
and recommendations," it was recommended that the powers of commissioners
also extend to any place "* * * which is under the charge and control of the
United States."
Staff Survey, Committee on the Judiciary, Subcommittee o^ Criminal Law
AND Procedures United States Senate
state jurisdiction over crimes involving INDIANS OR INDIAN LAND
On June 20, 1972, the Subcommittee on Criminal Laws and Procedures sent a
special mailing to the Attorneys General of the twenty-six states in which, accord-
ing to the Interior Department, Indian country is located.
Following is the relevant text of the letter of Senator McClellan, the Subcom-
mittee's chairman :
"As you know, the Subcommittee on Criminal Laws and Procedures is consid-
ering the policy questions presented by a proposed new Federal Criminal Code
drafted by the National Commission on Reform of Federal Criminal Laws. The
National Association of State Attorneys General and the Attorneys General of a
number of States have given generously of their time and expertise to examine
the proposed Code and testify or offer written comments and suggestions thereon
to the Subcommittee.
"I am writing now about one specific problem to which our attention has been
alerted i.e., the problem of Federal criminal jurisdiction over crimes committed
in Indian country. Since there is Indian country in your State, I should like your
observations and recommendations with respect to such jurisdiction.
"There are a number of ways in which jurisdictional responsibility might be
divided among the tribal. Federal and State authorities and be respectful of
Federal-State relations and the status of the tribes. It would be helpful to the
work of the Subcommittee if you would :
"(1) indicate the nature of your State's jurisdiction vis-a-vis tribal and
Federal jurisdiction over crimes involving Indians or Indian land ;
"(2) cite relevant statutes, and, if possible, provide a copy of such
statutes ;
"(.3) indicate any practical problems involved in fair and effective law
enforcement under the existing arrangements ; and
"(4) make any suggestions you may have for change and improvement."
Replies were received from the offices of the Attorneys General of nineteen
states. The length and character of the responses were too varied to permit
generalizations. Consequently, relevant portions of each reply are set forth below,
State by State.
ALASKA
Character of Criminal Jurisdiction over Indian Country in State:
The Metlakatla Community itself exercises tribal jurisdiction over criminal
offen-es committed by Indians in that area. "All other parts of what (but for 18
U.S.C. § 1162) would be considered Indian country are dealt with in such a
fashion as to make it impossible for Indian country ever to exist there again."
The state itself exercises criminal "jurisdiction over offenses committed by or
against Indians to the same extent that they exercise jurisdiction elsewhere in
83 Memo Sept. 24, 1948, from Acting Assistant Director, National Park Service, Depart-
ment of the Interior, to Regional Director, Region 2, National Park Service, Department
of the Interior.
8* Report, part I, p. 76.
3445
the state . . . ; there is no special significance jurisdictionally to the locus of or
parties to the crime".
.Problems icith Current Jurisddctional Arrangements:
At one point, the Metlakatia community, like other Indian communities in the
state, was under the jurisdiction of the state. Nevertheless, the Metlakatia com-
munity continued to have its own tribal court and objected to the witiidrawal of
the power of the tribal court ; because of its location, the community could not
receive adequate service from the state courts and police. When the Civil Rights
Act of 19G8 allowed retrocession of jurisdiction, such action was taken and the
tribal jurisdiction of the Metlakatia community was reestablished.
There have been no difficulties with the Metlakatia court or its procedures.
CALIFORNIA
Character of CriminalJurisdictian over Indian Country in State:
Mr. Ario E. Smith of the Attorney General's ofiice wrote :
"California has had criminal jurisdiction over 'all Indian country in the state'
since 1953. As a result of the 1953 amendment, the entire body of California
criminal hwv has been applicable to Indian Country, with the exceptions noted
in that section concerning fishing and hunting rights."
Suggestions:
Mr. Smith made the following observations :
"There is one statement which should be made concerning the assertion that
the existing definition of Indian Country in Title 18, United States Code, Sec-
tion 1151 appears to need no redefinition. The definition is complex. In particular,
I would call your attention to the subsection 1151 which provides for all allot-
ments, 'the Indian titles to which have not been extinguished. . . .' There ap-
pears to be some conflict among the cases concerning the definition of 'Indian
titles.' Congress might make clear its intent to cover Indian allotments out of
what was formerly land to which Indian title had never been extinguished —
reservations created by agreement or treaty, or land specifically set aside for
Indian use. If the term is interpreted, as in one case, to include all allotments out
of public lands to Indians, the effect is to scatter small and frequently isolated
enclaves of federal jurisdiction throughout a state. This creates difficult enforce-
ment problems both for the federal and state governments.
"The policy of the statute is designed to promote the continuity of Indian
communities — which appears to be a wise policy. This policy is not served by
assigning exclu.sive jurisdiction to allotments out of national forest lands at a
distance from Indian Country. The statute should apply exclusive federal juris-
diction to Indian allotments made from lands to which there was 'Indian' title."
Character of Criminal Jiirisdiction over Indian Country in State:
Attorney General Robert L. Shevin wrote :
"Florida exercises criminal jurisdiction over crimes committed in Indian
country pursuant to Section 285. IG, Florida Statutes, which provides :
" '285.16 Civil and Criminal j urisdiction ; Indian reservation. —
"'(1) The state of Florida hereby assumes jurisdiction over criminal
offenses committed by or against Indians or other persons within Indian
reservations and over civil causes of^ actions between Indians or other per-
sons or to which Indians or other persons are parties rising within Indian
reservations.
"'(2) The civil and criminal laws of Florida shall obtain on all Indian
reservations in this state and shall be enforced in the same manner as else-
where throughout the state.' "
IDAHO
Character of Criminal Jurisdiction over Indian Country in State:
Assistant Attorney General "Wayne Meuleman forwarded to the Subcommit-
tee a copy of the State Attorney General's opinion on jurisdiction over Indian
country in Idaho. The following is an excerpt from that opinion :
"Section 67-5101 of the Idaho Code states: "STATE JURISDICTION FOR
CIVIL AND CRIMINAL ENFORCEMENT CONCERNING CERTAIN MAT-
3446
TERS ARISING IN INDIAN COUNTRY.— The state of Idaho, in accordance
with the provisions of 67 Statutes at Large, page 589 (Public Law 280) hereby
assumes and accepts jurisdiction for the civil and criminal enforcement of state
laws and regulations concerning the following matters and purposes arising in
Indian country located within this state, as Indian country is defined by title 18,
United States Code 1151, and obligates and binds this state to the assumption
thereof :
" 'A. Compulsory school attendance
" 'B. Juvenile delinquency and youth rehabilitation
" 'C. Dependent, neglected and abused children
" 'D. Insanities and mental illness
" 'E. Public assistance
" 'F. Domestic relations
" 'G. Operation and management of motor vehicles upon highways and
roads maintained by the county or state, or political subdivisions thereof.' "
"Except for Section (57-5102. Idaho Code, this is the extent of State jurisdic-
tion for civil and criminal matters arising in Indian reservations. Section
67-5102 states :
" -ADDITIONAL STATE JURISDICTION WITH CONSENT OF TRIBE
GOVERNING BODY. — Additional state jurisdiction in criminal and civil
causes of action may be extended to particular reservations or Indian coun-
try with the consent of the governing body of the tribe occupying the
Indian country affected by the assumption of such additional jurisdiction.
Thi may be achieved by negotiation with the tribe or by unilateral action
by i y the tribe. In every case the extent of such additional jurisdiction shall
be determined by a resolution of the tribal governing body and become
effective upon the tribe's transmittal of the resolution to the attorney-gen-
eral of the state of Idaho. Such resolution may effectively accept jurisdic-
tion as to any particular field of criminal or civil jurisdiction. All state
jurisdiction extended by virtue of this act shall be concurrent (and not
exclusive) with jurisdiction in the same matters existing in the tribes or
the federal government.' "
"Under Sections 67-5101 and 67-5102, Idaho Code, it is apparent that the
State may gain additional jurisdiction in criminal and civil matters by a resolu-
tion of the tribal governing body."
Mr. Meuleman added :
"The State of Idaho presently has agreements with the respective tribes in
Idaho extending criminal jurisdiction to the state on certain matters pursuant
to Idaho Code, Section 67-5102. At this writing. I have not yet obtained such
agreements and, therefore, cannot relay the exact terms of such agreement to
you."
KANSAS
Problems with Current Jurisdictional Arrangements :
The Attorney General's office states that there seems to be no difl5culty in the
state concerning crimes committed in Indian country.
MICHIGAN
The Michigan Attorney General's office replied both by letter and telephone.
Character of Criminal JurisdicUon over Indian Country in State:
Recent court decisions and current litigation leave the status of jurisdiction in
some confusion.
In 1930, the case of People v. Chosa, 252 Mich. 1.54 (1930), resulted in the as-
sumption of state jurisdiction over Indian Country ; subsequently, further re-
search into treaties and an 1850 Executive Order of President Zachary Taylor
led to the reversal of the Chosa decision in People v. Jondreau, 384 Mich. 539
( 1971 ) . There are several cases i)ending.
MINNESOTA
Character of Criminal Jurisdiction over Indian Country in State:
Attorney General Warren Spannaus wrote:
". . . the State of Minnesota is presently authorized to exercise jurisdiction
over offenses committed by or against Indians on all Indian land within the
state with the exception of the Red Lake Indian Reservation.
3447
"Of course, state authorities may not exercise jurisdiction over an Indian
involved in a crime committed on tlie Red Lake Reservation. This is the sole
province of tribal and federal authorities."
Problems With Current Jurisdictional Arrangements :
Attorney General Spannaus made the following comments on the present juris-
dictional arrangement :
"Generally, the state has experienced no peculiar problems in the administra-
tion of criminal justice in situations involving serious crimes committed by or
upon Indians outside the Red Lake Reservation. We have found that the tribal
authorities are most willing to cooperate with state law enforcement agencies
when called upon to do so. Therefore, at least with regard to crimes committed
against the person or an individual's property, law enforcement agencies within
the state are experiencing no difficulties which could be attributed to the mere
fact that an Indian was either the perpetrator or the victim of the crime.
". . . It is our belief that the administration of justice on the Red Lake Reserva-
tion is steadily improving and that tribal authorities are becoming ever more
conscious of the proper exercise of their duties in matters involving violations of
the criminal law. We assume that the Red Lake Indians have established and
maintain good working relationships with federal authorities on this ground.
"There is, however, one area of the state-federal-tribal relationship which is
of particular concern. Certain state agencies, such as the Minnesota Department
of Natural Resources, presently feel the permissible scope of enforcement of state
conservation laws on Indian land other than Red Lake is unclear. Those charged
with the enforcement of the conservation laws do not feel that the extent of state
authority over violations of these laws occurring on Indian land has been clear by
federal enactments. This, of course, is a very complex issue which has evoked
strong response from both Indian leaders, who feel the state has no such authority,
and those ciitzens who are of the opinion that the state should be allowed to
enforce game and fish laws on, as well as off, Indian land."
Suggestions:
Mr. Spannaus noted that the state and members of the Indian community are
negotiating to solve the above mentioned problem. He stated :
"Among the suggestions which have been made is a plan for cross deputization
of conservation ofl^cers who would enforce conservation codes drafted by the
governing tribal unit. Whatever recommendations result from these negotiations
will have to be approved by the State Legislature as well as the affected Indian
tribes.
"Although the state and the Indian community are w'orking together in an
effort to ensure the preservation of the state's game and fish resources, it is felt
that this is one area where the extent of the state's jurisdiction under the
applicable federal law and treaties could be clarified."
MISSISSIPPI
Character of Criminal Jurisdiction Over Indian Country in State:
Mississippi law ctmcerning both civil and criminal jurisdiction over Indians is
presently uncertain.
Current liti.gation raises the question of whether there is any Indian country in
the state. (The Federal government maintains that there is a Choctaw reservation
and the State of Mississippi maintains that an 1830 treaty ended any lawful
status of the Choctaws as a tribe in Missis?^ii)pi.
MONTANA
Character of Criminal Jurisdiction Over Indian Country in State:
In 1947. Montana assimied jurisdiction over criminal matters on the Flathead
Indian Reservation (Section 82-801. Revised Codes of Montana, 1947). There is
no mention of the other areas listed as Indian lands by the Department of
Interior. Currently under litigation is the issue "whether the state can enforce a
c-riminal penalty for violation of a civil statute"'.
I'rohlems:
Montana Attorney (Jeneral Robert L. Woodahl noted the following problem :
"An area of concern in the area of tribal court jurisdiction is the almost total
lack of supervisory protection of a defendant's rights in tribal court. As you
.-)7 SfiS () — 72 — pt. :i -30
3448
know, there is no right of appeal from a tribal court adjudication. A tribal court
is tlie only court of petty jurisdiction I am aware of which can run rampant over
a defendant's rights with impunity. It is true that 25 U.S.C. § 1302 places some
restraint on tribal court actions, but I can see no reason why a misdemeanant
should be denied the right to appeal merely because he is an Indian. The right of
a federal court to frame a remedy to review tribal court actions is recognized
in Dodge v. yakui, (D. C. Ariz. 1968) 298 F. Supp. 17, and Spotted Eagle v.
Black feet Tribe, (D. C. IMont. 1968) 301 F. Supp. 85."
Suggestions:
Attorney General Woodahl made the following suggestions :
"I am concerned that subsection (2). 'State Jurisdiction Over Indian Coun-
try', omits reference to 2.j U.S.C. § 1321. As you know, 25 U.S.C. § 1321 allows
the states to assume jurisdiction over criminal offenses committed by or against
Indians on a reservation after proper action by the state and the tribe. 25 U.S.C.
S 212 appears to abolish 25 U.S.C. §1321. I am sure the intent was not to do so, but
would suggest adding a subsection (c) to clarify that 25 U.S.C. § 1321 is still in
force.
"You have noted several times in your comment that one area of unequal treat-