Exclusive Federal Jurisdiction Over Offenses by
As noted in this Manual at 678,
over offenses committed by non-Indians against non-Indians are within the
exclusive jurisdiction of the states. United States v. McBratney,
U.S. 621 (1882); Draper v. United States, 164 U.S. 240 (1896).
Non-Indians are immune from tribal court jurisdiction. See
v. Suquamish Indian Tribe, 435 U.S. 191 (1978). Except for those
by McBratney, the Federal government has jurisdiction over non-Indian
offenders. 18 U.S.C. § 1152. Despite some Supreme Court dicta (and
and federal district court holdings) to the contrary, it was the
opinion that federal jurisdiction was not exclusive of state jurisdiction.
See Office of Legal Counsel Memorandum, dated March 21, 1979,
at 6 ILR K-15, 1820 (August 1979). This is no longer the case in as much as
Solicitor General has taken the position that federal jurisdiction is
in an amicus brief recommending that certiorari be denied in Arizona v.
Flint, 492 U.S. 911 (1989). Concurrent state jurisdiction has,
been rejected by the appellate courts of four states with substantial
of Indian country within their borders. See State v. Larson,
N.W.2d 600 (S. Ct. S.D. 1990); State v. Flint, 157 Ariz. 227, 756
324 (Ct.App. Az. 1988), cert. denied, 492 U.S. 911 (1989); State
Greenwalt, 204 Mont. 196, 663 P.2d 1178 (S. Ct. Mont. 1983); State v.
Kuntz, 66 N.W.2d 531 (S. Ct. N.D. 1954).|
United States Attorneys have, therefore, a very important role to play in
reacting to crimes by non-Indians against Indians. It is their
to make sure that the tribal community is protected from crimes by persons
whom neither the tribe nor the state has jurisdiction.
[cited in USAM 9-20.100]