Committed by Indians: Some crimes committed by Indians on reservations do not really involve offenses against the person or property of non-Indians or other Indians. Such offenses typically involve crimes against 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, e.g., 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); United States Attorneys should give serious consideration to prosecution in such cases 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 over non-Indians. The Office of Legal Counsel (OLC) prepared an extensive memorandum dated March 21, 1979, concluding that in most cases, the states have jurisdiction over victimless crimes by non-Indians. The OLC memorandum was reprinted in the August 1979 issue of Indian Law Reporter (6 ILR K-15ff) and copies are available from the Department. The conclusion of OLC is, that in the absence of a true victim, United States v. McBratney, 104 U.S. 621 (1882), would control, 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 federal jurisdiction can be said to attach. Thus, most traffic violations, most routine cases of disorderly conduct, and most offenses against morals such as gambling, which are not designed for the protection of a particular vulnerable class, should be viewed as having no real "victim" and therefore to fall exclusively within state competence.
In certain other cases, however, a more direct threat to Indian persons or property may be sufficient to bring an ordinarily "victimless" crime within 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 state law is drafted in suitable terms. Cf. United States v. Tonry, 837 F.2d 1281 (5th Cir. 1988)(conduct held not covered by state commercial bribery statute) with United States v. Boots, 80 F.3d 580 (1st Cir. 1996)(conviction under 18 U.S.C. § 1952). Another sort of conduct, adversely affecting the tribal community, consists of consensual crimes committed by non-Indian offenders with Indian participants, where the participant, although willing, is within the class of persons which a particular state or federal statute is specifically designed to protect. Thus, there is federal jurisdiction under 18 U.S.C. § 1152 and Chapter 109A for the statutory rape of an Indian 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 and 13.
A third group of offenses which may be punishable under the law of individual states assimilated into federal law would be cases where an Indian victim is actually identified. Examples would include reckless endangerment, criminal trespass, riot or rout, and disruption of a public meeting or a worship 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 that 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 General Benjamin Civiletti with the following memorandum setting forth the opinion of the 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 from 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 courts. 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 summary 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 state traffic codes against non-Indians operating vehicles on the Reservation. The following is a summary of the principal conclusions set forth in the opinion and 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 of 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 that 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 concurrent.
These conclusions were reached after consultation with the Office of the Solicitor of Interior and with representatives of the Native American Rights Fund and the Litigation Committee of the National Congress of American Indians. These conclusions represent the beginning point, rather than the culmination, of the Department of Justice's efforts to provide coherent and effective law enforcement in those areas left uncertain after the Supreme Court's decision last term in Oliphant v. Suquamish Tribe, 435 U.S. 191(1978). We anticipate working closely with Interior, the Indian Community, the United States Attorneys, and state law enforcement officials both in the implementation of this opinion, and in considering whether some form of legislative change in the controlling statutes should be proposed.