The following entry is excerpted from the Reporters’ Introductory Note on Chapter 5 – Indian Country Criminal Jurisdiction, and Black Letter and Comments of § 100. Indian Country. Please see the link at the end of this post view the full Introductory Note and § 100, including Reporters’ Notes.
This draft will be presented to membership at the 2019 Annual Meeting for approval. Until approved, this is not the position of The American Law Institute and should not be represented as such.
Reporters’ Introductory Note About Indian Country Criminal Jurisdiction
Professor and tribal judge Robert N. Clinton famously described Indian country criminal jurisdiction as a “maze.” Robert N. Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503 (1976).
The United States Department of Justice maintains an informal but helpful chart to assist the public on the “maze” of Indian country criminal jurisdiction. (See the PDF link at the end of this post.)
§ 100. Indian Country
In Indian country, federal and state criminal jurisdiction in most cases depend on the location of the crime.
a. In general. Indian country is codified at 18 U.S.C. § 1151. See § 3 of this Restatement.
b. Element of the crime. In certain federal criminal prosecutions, Indian country location is considered an element of the offense and must be proven beyond a reasonable doubt.
c. Contrast to civil jurisdiction. In non-Public Law 280 jurisdictions, unlike civil jurisdiction questions where courts primarily distinguish between Indian and non-Indian lands, see §§ 15-16, the codified definition of “Indian country” defines the geographic scope of criminal jurisdiction. In Public Law 280 jurisdictions, the “Indian country” definition also defines the scope of state civil jurisdiction. See § __ [in Chapter 3, Subchapter 1, to come] of this Restatement; 28 U.S.C. § 1360.
d. Criminal conduct occurring within and without Indian country. Some crimes occur partially within and partially without Indian country. In such circumstances, federal, state, and tribal jurisdiction is determined by assessing the elements of the charged offenses and determining the location of each element. In general, when a crime occurs both inside and outside of Indian country, state courts acquire concurrent jurisdiction with federal and tribal courts over the crimes that occurred at least partially within the state’s territorial jurisdiction.