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 question whether federal jurisdiction is exclusive of tribal jurisdiction. Duro v. 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 the most part, defined by distinct federal statutes. Those offenses which are not defined and punished by federal law are to be defined and punished in accordance with the law of the state where the crime was committed. See 18 U.S.C. § 1153(b).
The precursor to 18 U.S.C. § 1152 was section 25 of the Act of June 30, 1834, 4 Section 733, and it was not until 1885 that federal legislation was enacted granting federal courts jurisdiction over certain major crimes committed by an Indian against another Indian. Prior to 1885, such offenses were tried in tribal courts. See Ex parte Crow Dog, 109 U.S. 556 (1883)(federal court had no jurisdiction to try an Indian for the murder of another Indian). Section 1153 is predicated on the Act of March 3, 1885, § 8, 23 Stat. 385, and former sections 548 and 549, 18 U.S.C. (1940 ed.). The Major Crimes Act was passed in reaction to the holding of Crow Dog, see Keeble v. 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 courts have jurisdiction exclusive of the states over offenses enumerated in the section when committed by a tribal Indian against the person or property of another tribal Indian or other person in Indian country. United States v. John, 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 to be prosecuted in federal court. 48th Cong., 2d Sess., 16 Cong. Rec. 934 (1885).
Although the scheme of felony jurisdiction which has arisen is complex in origin, it is not irrational in light of the historical settings in which the predecessor statutes of 18 U.S.C. §§ 1152 and 1153 were passed. Major 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 prosecution. 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 Supreme Court in essence upheld the constitutionality of the plan contained in 18 U.S.C. §§ 1152 and 1153 by rejecting a challenge on equal protection grounds raised against 18 U.S.C. § 1153. It was held that the Constitution was not violated by federal prosecution of an Indian for the murder of a non-Indian on the reservation under a theory of felony-murder. The defendant argued that had he been prosecuted in state court under Idaho state law for the same act, the felony-murder doctrine would not have applied because Idaho does not recognize it. The Court acknowledged the disparity in treatment, but nonetheless reasoned that the Major Crimes Act, like all federal regulation of Indian affairs, is not based upon an impermissible racial classification, but "is rooted in the unique status of Indians as 'a separate people' with their own political institutions. Federal regulation of Indian tribes, therefore, is governance of once-sovereign political communities; it is not to be viewed as legislation of a 'racial' group consisting of Indians." See also Morton v. Mancari, 417 U.S. 535 (1974).
[cited in JM 9-20.100]