Criminal Jurisdiction Over Tribal Land in Kansas Dueling Sovereigns
| Publication year | 1999 |
| Pages | 22 |
68 J. Kan. Bar Assn. February, 22 (1999). CRIMINAL JURISDICTION OVER TRIBAL LAND IN KANSAS DUELING SOVEREIGNS
February, 1999
Copyright (c) 1999 by the Kansas Bar Association; John Rainwater
This article addresses criminal jurisdiction over offenses committed by or against Indians [FN1] in Indian country [FN2] located in Kansas. The law in this area is complex because of the overlapping jurisdiction of federal, state and tribal governments. [FN3] However, in Kansas, the issue is somewhat simpler than other states. Federal law grants the state of Kansas jurisdiction over all major and minor criminal offenses committed by or against Indians anywhere within the state. [FN4] This article explores the special jurisdictional rules that apply to Kansas in this area. It also discusses general principles pertaining to tribal and federal jurisdiction over offenses committed by or against Indians. [FN5]
*23 I. General principles of criminal jurisdiction
A. Tribal jurisdiction
Indian tribes are limited sovereigns with the power to govern their internal affairs. [FN6] When tribal land was incorporated into the territory of the United States, and tribes accepted the protection of the federal government, some tribal sovereignty was lost. In this way, tribes became and remain "domestic dependent nations." [FN7] Today, tribes retain "the powers of self-government, including the power to prescribe and enforce internal criminal laws." [FN8] To this end, Indian tribes have criminal jurisdiction over offenses committed by Indians in Indian country. [FN9] Punishment in these cases is limited to a term of imprisonment not to exceed one year, a fine of $5,000, or both. [FN10] Indian tribes do not have criminal jurisdiction over non-Indians who commit offense in Indian country. [FN11]
Tribes also have jurisdiction over Indians who are not members of the tribe who commit crimes on tribal land. This has been the subject of recent controversy. In Duro v. Reina, [FN12] the United States Supreme Court held that tribes do not have jurisdiction over nonmember Indians because such power is inconsistent with the limited powers of self-government retained by tribes. [FN13] Congress, however, disagreed with the Duro decision, and in late 1990 passed an amendment to the Indian Civil Rights Act [FN14] that granted tribes jurisdiction over nonmember Indians who commit crimes on tribal land. However, this means that tribal jurisdiction over nonmember Indians does not originate from the inherent sovereignty of tribal governments, but instead from an express grant from the federal government. [FN15] This might have double jeopardy implications for prosecutions undertaken in federal and tribal court. [FN16]
B. Federal and state jurisdiction
The Federal Major Crimes Act [FN17] grants the federal government jurisdiction over numerous "major" criminal offenses committed by or against Indians in Indian country. Unless Congress has specifically stated to the contrary, the Major Crimes Act precludes state jurisdiction over these offenses. [FN18] State courts, however, have jurisdiction over offenses committed in Indian country if the parties involved are all non-Indians. [FN19]
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Federal criminal jurisdiction under the Major Crimes Act is supplemented by two additional federal statutes. The Indian Country Crimes Act [FN20] extends the criminal law governing federal enclaves to crimes committed in Indian country except for crimes "committed by one Indian against the person or property of another Indian." [FN21]
Furthermore, the Assimilative Crimes Act [FN22] "makes punishable under federal law any act done in Indian Country that would be punishable if done within the jurisdiction of the state where such land is situated according to the terms of that state's criminal laws." [FN23]
Essentially, the Assimilative Crimes Act "incorporates lesser state crimes into the federal criminal code and applies those state crimes to federal enclaves, including Indian lands, located within the states." [FN24] However, state law is applicable only if the crime committed is not controlled by a preexisting federal law. In other words, state law cannot be substituted for federal law if a federal law prohibiting the conduct already exists. [FN25]
C. Double jeopardy
The U.S. Supreme Court has held there is no double jeopardy violation when a defendant is prosecuted for a Major Crimes Act offense in federal court after the same defendant has been convicted of a lesser included offense in tribal court. [FN26] Similarly, in states where Congress has granted state jurisdiction over Indian offenses in Indian country, at least one federal district court has held that successive tribal and state prosecutions for the same offense do not violate double jeopardy principles. [FN27]
However, it remains undecided whether successive prosecution in state and federal court for an offense committed by an Indian in Indian country violates...
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