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National Crime Victim Law Institute

If a crime is committed against me on Indian lands in which court (state, federal or tribal) will the case proceed?

April 06, 2012

If a crime is committed against me on Indian lands in which court (state, federal or tribal) will the case proceed?  

 
While Indian tribes - as sovereign nations - have historically had authority over everything on their lands their criminal and civil authority is limited. Congress has removed some of that authority and given it to the federal courts (under the General Crimes Act and the Major Crimes Act) and to some state courts (under Public Law 280).  Determining which court has authority (also known as “jurisdiction”) over a case is a multi-step process.  Step 1:  Determine whether the crime took place on  Indian lands.  Step 2:  Determine whether the  victim and defendant are  “Indians.”  Step 3:  Determine what the particular crime is and whether the crime is a misdemeanor or a felony to determine if  the Major Crimes Act, the General Crimes Act, Public Law 280, and the Indian Civil Rights Act will apply. 

 

Despite what is a complex analysis, the following chart generally answers the question:

 

What is jurisdiction?

 Jurisdiction means the power or authority of a court to rule in a case.  So in a criminal case, jurisdiction is the power of a court to try and punish the accused for violating the law.

 

Offender/Victim

Major Crime

 Other Crimes

Indian/Indian

Federal & Tribal

Tribal

Indian/Non-Indian

Federal & Tribal

Federal & Tribal

Non-Indian/Indian

Federal

Federal

Non-Indian/Non-Indian

State

State

 
Who is an “Indian” for purposes of determining jurisdiction?

 Who is in an Indian for purposes of criminal proceedings arising from crimes committed on Indian lands is not defined by a code or statute, but is rather determined by case and tribal law.  An Indian is usually a person who is enrolled in a federally recognized tribe or who has a certain quantum of Indian blood. The criteria for enrollment is up to the Indian tribe  Indian tribes may record who is an enrolled member in “rolls” or the tribe may have no records of who is a member.  Whether a person is enrolled may not completely determine the person’s status as an Indian, though it is strong evidence that the person is an Indian.  .  Essentially, a person may be legally an Indian if the tribe or the court recognizes that person as an Indian.