The Major Crimes Act18 U.S.C. § 1153
Section 1153 of Title 18 grants jurisdiction to federal courts,
exclusive of the states, over Indians who commit any of the listed offenses,
regardless of whether the victim is an Indian or non-Indian. See
United States v. John, 437 U.S. 634 (1978). It remains an open
whether federal jurisdiction is exclusive of tribal jurisdiction. Duro
Reina, 495 U.S. 676, 680 n. 1 (1990). See also Wetsit v.
Stafne, 44 F.3d 823 (9th Cir. 1995). The enumerated offenses are, for
most part, defined by distinct federal statutes. Those offenses which are
defined and punished by federal law are to be defined and punished in
with the law of the state where the crime was committed. See 18
The precursor to 18 U.S.C. § 1152 was section 25 of the Act of
30, 1834, 4 Section 733, and it was not until 1885 that federal legislation
enacted granting federal courts jurisdiction over certain major crimes
by an Indian against another Indian. Prior to 1885, such offenses were
tribal courts. See Ex parte Crow Dog, 109 U.S. 556
court had no jurisdiction to try an Indian for the murder of another
Section 1153 is predicated on the Act of March 3, 1885, § 8, 23 Stat.
and former sections 548 and 549, 18 U.S.C. (1940 ed.). The Major Crimes Act
passed in reaction to the holding of Crow Dog, see Keeble
United States, 412 U.S. 205, 209-12 (1973), and United States v.
Kagama, 118 U.S. 375, 383 (1886). Under 18 U.S.C. § 1153, federal
have jurisdiction exclusive of the states over offenses enumerated in the
when committed by a tribal Indian against the person or property of another
tribal Indian or other person in Indian country. United States v.
437 U.S. 634 (1978). Legislative history indicates that the words "or other
person" were incorporated in the 1885 Act to make certain the Indians were
prosecuted in federal court. 48th Cong., 2d Sess., 16 Cong. Rec. 934
Although the scheme of felony jurisdiction which has arisen is
in origin, it is not irrational in light of the historical settings in which
predecessor statutes of 18 U.S.C. §§ 1152 and 1153 were passed.
felonies involving an Indian, whether as victim or accused, are matters for
federal prosecution. Because of substantial non-Indian populations on many
reservations crimes wholly between non-Indians are left to state
It is, moreover, significant that the historical practice has been to regard
United States v. McBratney, 104 U.S. 621 (1882), as authority for the
states' assertion of jurisdiction with regard to a variety of "victimless"
offenses committed by non-Indians on Indian reservations. See this
Manual at 683.
In United States v. Antelope, 430 U.S. 641 (1977), the
Court in essence upheld the constitutionality of the plan contained in 18
§§ 1152 and 1153 by rejecting a challenge on equal protection
raised against 18 U.S.C. § 1153. It was held that the Constitution was
violated by federal prosecution of an Indian for the murder of a non-Indian
the reservation under a theory of felony-murder. The defendant argued that
he been prosecuted in state court under Idaho state law for the same act,
felony-murder doctrine would not have applied because Idaho does not
it. The Court acknowledged the disparity in treatment, but nonetheless
that the Major Crimes Act, like all federal regulation of Indian affairs, is
based upon an impermissible racial classification, but "is rooted in the
status of Indians as 'a separate people' with their own political
Federal regulation of Indian tribes, therefore, is governance of
political communities; it is not to be viewed as legislation of a 'racial'
consisting of Indians." See also Morton v. Mancari, 417 U.S.
[cited in USAM 9-20.100]