September 22, 2011
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Assumption of Concurrent Federal Criminal Jurisdiction in Certain Areas of Indian Country
The Department of Justice has published a proposed rule to establish the procedures for an Indian tribe whose Indian country is subject to State criminal jurisdiction under Public Law 280 (18 U.S.C. 1162(a)) to request that the United States accept concurrent criminal jurisdiction within the tribe's Indian country, and for the Attorney General to decide whether to consent to such a request. The Department is grateful for the very helpful input we have received during consultation with tribal leaders, which resulted in significant changes to the original draft of the rule.
Eight changes are particularly noteworthy.
1) Rather than giving priority only to those tribal requests received by August 31 of any calendar year, the proposed rule now gives priority to requests received by August 31 or by February 28. This change effectively doubles the number of annual cycles in which the Department will consider tribal requests on a prioritized basis.
2) The proposed rule now allows tribes to ask the United States to assume concurrent criminal jurisdiction either over all violations of the General Crimes and Major Crimes Acts within the tribe’s Indian country or over a subset of those violations that is clearly defined in the tribal request. Thus, requests can now focus on a limited set of crimes or on crimes in a limited geographic portion of the tribe’s Indian country.
3) The proposed rule now clarifies why it is unnecessary for a tribe in an “optional” Public Law 280 jurisdiction to request an assumption of concurrent Federal criminal jurisdiction. Case law may have previously created some confusion on this issue.
4) The proposed rule now clarifies that Federal agencies are to supply comments and information relevant to each tribal request, rather than merely announcing their overall support or opposition for each request.
5) The proposed rule reiterates that the assumption of concurrent Federal criminal jurisdiction under section 221 does not require the agreement, consent, or concurrence of any State or local government.
6) The proposed rule now expressly provides that the Office of Tribal Justice may give appropriate technical assistance to any tribe that wishes to prepare and submit a renewed request, following the denial of an earlier request.
7) The proposed rule now states that the assumption of jurisdiction will commence within six months of the decision to assume jurisdiction, if feasible, rather than merely mandating action within twelve months.
8) The proposed rule now requires that notice of a decision consenting to the request for assumption of concurrent Federal criminal jurisdiction will be published in the Federal Register.
The Department of Justice thus believes that many of the concerns that tribal officials expressed about section 221 at the tribal consultations in 2010 and 2011 have now been met.
The final rule is being prepared for publication in the Federal Register. A copy of the rule will also posted to the OTJ website.