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Daniel Donovan and John Rhodes

Reprinted from: Daniel Donovan and John Rhodes, To Be or Not to Be: Who Is an indian Person?, 73 Montana Law Review 61 (Winter 2012) (301 footnotes omitted).


The United States Supreme Court and the Ninth Circuit Court of Appeals have accurately observed: The exercise of criminal jurisdiction over Indians and Indian country is a complex patchwork of federal, state, and tribal law, which is better explained by history than by logic. Federal jurisdiction for Indian country crimes requires proof that the defendant or the victim is an Indian. Despite this jurisdictional requirement, Congress has not defined Indian. For purposes of federal criminal jurisdiction, courts have struggled to fill this void. Under federal criminal law, who is an Indian is frequently a difficult question to answer--at times, shockingly difficult. In our opinion, this complexity reflects the uneasy historical and current relationship between the United States and Native America. The resulting caselaw embodies this tension, highlighted by a circuit split over tests for determining who is an Indian.

This article reviews the origins and current state of this caselaw, identifies practice pointers for litigants, and discusses ideas for refining the law. With respect to our ideas, we believe that a choice needs to be made: should the law be more rigid and, thus, more easily applied? Or should the law reach even further to reflect the reality that who is an Indian can be a frustratingly complex issue?

Passed in 1885, the Major Crimes Act, 18 U.S.C. 1153, established federal criminal jurisdiction over specified serious crimes committed in Indian country solely by Indian defendants. The crimes include murder, manslaughter, assault, sexual abuse, and arson. The General Crimes Act, 18 U.S.C. 1152, provides federal criminal jurisdiction over federal enclave crimes in Indian Country. [U]nder the Indian General Crimes Act, the criminal laws of the United States apply to offenses committed in Indian country by non-Indians against Indians and by Indians against non-Indians. As the Tenth Circuit summarized, the General Crimes Act establishes federal jurisdiction over interracial crimes only. If neither the defendant nor the victim is an Indian, even where the crime occurs in Indian country, there is no federal jurisdiction. Neither 1152 nor 1153 define Indian. The absence of a definition has resulted in an ongoing judicial effort to determine who is, and who is not, Indian. The courts clearly, indeed expressly, struggle with this task.

The differing burdens under 1152 and 1153 illustrate the inherent challenges of federal Indian criminal law. If the government charges a crime under the Major Crimes Act ( 1153), it must prove the defendant's Indian status beyond a reasonable doubt. But in a General Crimes Act prosecution ( 1152), the defendant must meet the burden of proving his or her Indian status to the factfinder by affirmatively producing evidence, which if met, requires the government to refute Indian status beyond a reasonable doubt.

Congress passed the Major Crimes Act in response to Ex parte Crow Dog, where the United States Supreme Court overturned the federal court conviction of Chief Crow Dog, who was sentenced to death in 1884 for the murder of Chief Spotted Tail on the Rosebud Indian Reservation in Dakota Territory. The Court reasoned that the tribe's authority to prosecute such an offense had not been sufficiently abrogated by an act of Congress. As a result, Crow Dog was released from custody. Congress's legislative response limited the sovereignty of Indian tribes by removing tribal jurisdiction over certain serious offenses in Indian country. The underlying theory was that Indian tribes were not competent to deal with serious issues of crime and punishment. The Court has since explained that the Major Crimes Act was a carefully limited intrusion of federal power into the otherwise exclusive jurisdiction of the Indian tribes to punish Indians for crimes committed on Indian land. Nonetheless, for specified crimes, the Major Crimes Act created federal criminal jurisdiction over Indian defendants in Indian country. Prior to the Major Crimes Act, Congress established federal jurisdiction over federal enclaves generally in 1817 through passage of the General Crimes Act. Although passed to provide federal jurisdiction over federal enclaves generally, the General Crimes Act works together with the Major Crimes Act to broadly provide federal jurisdiction over Indian Country.

A defendant's Indian status is an essential element of a 1153 Major Crimes Act offense, which the government must allege in the indictment and prove beyond a reasonable doubt at trial. In years past, as a matter of custom and practice, the government could establish the Indian status element by simply proving that the defendant was an enrolled member of a federally recognized Indian tribe. However, over time, as racial intermarriage by subsequent generations of Indians has diluted the amount of Indian blood in many people of Indian descent, tribal membership is no longer the only determinative factor, and some tribal members may not even consider themselves to be Indians. The ever-evolving domestic American diaspora confounds this complexity.

The question of who is an Indian has not captured the attention of the Supreme Court since the Antebellum Period, fostering circuit splits and biting dissents during the 21st century. Indeed, two of the most prominent Indian country circuit splits conflict over the fundamental issue: how to define Indian. Congress's recent focus on criminal justice in Indian country promises more prosecutions. And whether the executive branch prosecutes under the Major Crimes Act or the General Crimes Act, Indian status--be it of the defendant or the victim--is a jurisdictional element.