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Who Is an Indian? History Creates a Legal Labyrinth and Defense Opportunities
By Daniel Donovan and John Rhodes
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Cover Story columns.
I. Introduction
Law enforcement on Indian reservations has drawn increasing attention in recent years. Codified in the Tribal Law and Order Act, Congress’ focus on criminal justice in Indian country promises more prosecutions.1 Federal jurisdiction over Indian country crimes is statutorily circumscribed, including requiring that either the defendant and/or the victim be an “Indian.” Indian status is thus necessary to federal jurisdiction in Indian country. This elemental importance vexes litigants, the courts, and Indian country jurisprudence.
The Supreme Court and the Ninth Circuit 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.’”2 The Major Crimes Act, 18 U.S.C. § 1153, establishes federal criminal jurisdiction over specified serious crimes committed in Indian country by Indian defendants.3 The crimes include
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