Except for non-Indian against non-Indian offenses falling under the
rule of McBratney, 104 U.S. 621 (1882), States have no criminal
jurisdiction in the Indian country unless expressly conferred by an act of
Congress. See this Manual at 678.|
A number of states have been given criminal jurisdiction over all
some of the reservations within their borders by Public Law 280 (1953), now
codified at 18 U.S.C. § 1162(a). On those reservations neither 18
§§ 1152 nor 1153 apply. 18 U.S.C. § 1162(c).
Other states, e.g., Kansas, Iowa, and New York, acquired
jurisdiction by other enactments. 18 U.S.C. § 3243 (Kansas), Pub.L.
(Iowa), and 25 U.S.C. § 232 (New York). The law is now settled that
states have plenary jurisdiction but that jurisdiction under 18 U.S.C.
1152 and 1153 may be exercised concurrently by the federal government.
Negonsott v. Samuels, 507 U.S. 99 (1993); United States v.
922 F.2d 1026, 1033 (2d Cir.), cert. denied, sub nom.
v. United States, 500 U.S. 941 (1991). The same has been held true for
so-called "option states" -- those which assumed jurisdiction pursuant to
Law 280 after its enactment -- since § 1162(c) refers only to the
"mandatory states" listed in § 1162(a). United States v. High
902 F.2d 660 (8th Cir. 1990). Many option states assumed less than plenary
criminal jurisdiction. See, e.g., Washington v. Confederated
the Yakima Indian Nation, 439 U.S 463 (1979). Whatever
degree of cession of authority to the state, the reservations remain "Indian
country" for most purposes. California v. Cabazon Band of
Mission Indians, 480 U.S. 202 (1987).
The Supreme Court has held that the cession of criminal (and civil)
jurisdiction by Public Law 280 did not authorize the state to apply its tax
other "regulatory" laws in Indian country. Bryan v. Itasca County,
U.S. 373 (1976). The distinction is drawn between criminal/prohibitory laws
which prohibit and punish conduct offensive to a state's public policy, and
which are civil/regulatory, where the conduct is regulated and enforced by
criminal penalties. The latter may not be enforced by a Public Law 280
Indian country. Bryan v. Itasca County was followed in California
Cabazon Band of Mission Indians, 480 U.S. 202 (1987)(California
laws are regulatory and unenforceable). By virtue of the same analysis,
regulatory statutes may also not be enforceable through 18 U.S.C.
the Assimilative Crimes Act on federal reservations. See Quechan
Indian Tribe v. McMullen, 984 F.2d 304 (1993)(California fireworks laws
criminal and state may enforce); St. Germaine v. Circuit Court for
County, 938 F.2d 75 (7th Cir. 1991), cert. denied, 112 S. Ct.
(1992)(Wisconsin multiple offender vehicle law is criminal and may be
by state); Confederated Tribes of the Colville Res. v. Washington,
F.2d 146 (9th Cir. 1991), cert. denied, 112 S. Ct. 1704
(1992)(Washington's decriminalized vehicle code is unenforceable); United
States v. Marcyes, 557 F.2d 1361 (9th Cir. 1977)(Washington fireworks
are criminal and United States may enforce); Pueblo of Santa Ana v.
663 F. Supp. 1300 (D.D.C. 1987) (Secretary of the Interior justifiably
approval of dog track where track operation would violate the Assimilative
Act since dog racing was criminally prohibited by New Mexico).
[cited in Criminal Resource Manual 677; USAM 9-20.100]