- Committed by Indians: Some crimes committed by
on reservations do not really involve offenses against the person or
non-Indians or other Indians. Such offenses typically involve crimes
public order and morals. Examples are traffic violations, prostitution or
gambling. Federal prosecutions in these cases can be based on 18 U.S.C.
1152 and the Assimilative Crimes Act (18 U.S.C. § 13). See,
Quechan Indian Tribe v. McMullen, 984 F.2d 304 (1993)(fireworks);
United States v. Marcyes, 557 F.2d 1361 (9th Cir. 1977)(fireworks);
United States v. Sosseur, 181 F.2d 873 (7th Cir.1950)(gambling);
States Attorneys should give serious consideration to prosecution in such
where prosecution by the tribe is not forthcoming or is inadequate.
- Committed by Non-Indians: The question of jurisdiction over
victimless crimes by non-Indians received considerable attention in the
Department following the Supreme Court's holding in Oliphant v. Suquamish
Tribe, 435 U.S. 191 (1978), that tribal courts do not have jurisdiction
non-Indians. The Office of Legal Counsel (OLC) prepared an extensive
dated March 21, 1979, concluding that in most cases, the states have
over victimless crimes by non-Indians. The OLC memorandum was reprinted in
August 1979 issue of Indian Law Reporter (6 ILR K-15ff) and copies are
from the Department. The conclusion of OLC is, that in the absence of a
victim, United States v. McBratney, 104 U.S. 621 (1882), would
leaving the states with jurisdiction. There must be a concrete and
particularized threat to the person or property of an Indian or to specific
tribal interests(beyond preserving the peace of the reservation) before
jurisdiction can be said to attach. Thus, most traffic violations, most
cases of disorderly conduct, and most offenses against morals such as
which are not designed for the protection of a particular vulnerable class,
should be viewed as having no real "victim" and therefore to fall
within state competence.
- In certain other cases, however, a more direct threat to Indian
or property may be sufficient to bring an ordinarily "victimless" crime
federal jurisdiction. One example would be crimes calculated to obstruct or
corrupt the functioning of tribal government. This could include bribery of
tribal officials, which in some circumstances is now covered by 18 U.S.C.
666, and in others might be reached under §§ 1152 and 13, provided
law is drafted in suitable terms. Cf. United States v. Tonry,
F.2d 1281 (5th Cir. 1988)(conduct held not covered by state commercial
statute) with United States v. Boots, 80 F.3d 580 (1st Cir.
1996)(conviction under 18 U.S.C. § 1952). Another sort of conduct,
affecting the tribal community, consists of consensual crimes committed by
non-Indian offenders with Indian participants, where the participant,
willing, is within the class of persons which a particular state or federal
statute is specifically designed to protect. Thus, there is federal
under 18 U.S.C. § 1152 and Chapter 109A for the statutory rape of an
girl, and over a charge of contributing to the delinquency of a minor where
assimilated into federal law pursuant to 18 U.S.C. §§ 1152
- A third group of offenses which may be punishable under the law of
individual states assimilated into federal law would be cases where an
victim is actually identified. Examples would include reckless
criminal trespass, riot or rout, and disruption of a public meeting or a
service conducted by the tribe. In certain other cases, conduct, which is
generally prohibited because of its ill effects on society at large and not
because it represents a particularized threat to specific individuals, may
nevertheless so specifically threaten or endanger Indian persons or property
federal jurisdiction may be asserted. Thus, speeding in the vicinity of an
Indian school, homosexual activity in the same area, an obvious attempt to
scatter Indians collected at a tribal gathering, or a breach of peace that
borders on an assault, may in unusual circumstances be seen as sufficiently
serious to warrant federal prosecution.
- In 1979, the Office of Legal Counsel provided Deputy Attorney
Benjamin Civiletti with the following memorandum setting forth the opinion
Department of Justice regarding the jurisdiction of the State and Federal
government over victimless offenses by non-Indians in Indian country.
JURISDICTION OVER "VICTIMLESS"
OFFENSES COMMITTED BY NON-INDIANS
On March 21, 1979 the Office of Legal Counsel responded to a request
the Deputy Attorney General, Benjamin R. Civiletti, for our opinion on the
question whether so-called "victimless" offenses committed by non-Indians on
Indian reservations fall within the jurisdiction of the state or federal
Several days earlier the Department of Justice filed in the United States
District Court for New Mexico a memorandum in support of a motion for
judgment in a case styled Mescalero Apache Tribe v. Bell in which the
Tribe has sought to require the United States to enforce the New Mexico
traffic codes against non-Indians operating vehicles on the Reservation.
following is a summary of the principal conclusions set forth in the opinion
in the memorandum:
- Most traffic offenses and other crimes and offenses in which there
is not a plainly identifiable "victim" are within the exclusive jurisdiction
the states when that offense is committed by a non-Indian.
- Where, however, there is an identifiable Indian victim, or where the
conduct in question posed an immediate and direct threat to Indian persons,
property, or to specific tribal community interest there is, under the
Assimilative Crimes Act, a basis for asserting federal jurisdiction.
- Although the issue is not at all free from doubt, it is our judgment
in cases in which there is as discussed in (2) above, a basis for federal
jurisdiction the states would not be ousted from jurisdiction, i.e., the
jurisdiction of the state and Federal government in these cases would be
These conclusions were reached after consultation with the Office
the Solicitor of Interior and with representatives of the Native American
Fund and the Litigation Committee of the National Congress of American
These conclusions represent the beginning point, rather than the
the Department of Justice's efforts to provide coherent and effective law
enforcement in those areas left uncertain after the Supreme Court's decision
term in Oliphant v. Suquamish Tribe, 435 U.S. 191(1978). We
working closely with Interior, the Indian Community, the United States
and state law enforcement officials both in the implementation of this
and in considering whether some form of legislative change in the
statutes should be proposed.
[cited in Criminal Resource Manual 679; USAM 9-20.100]