Thursday, September 19, 2013
M. Alexander Pearl (Florida International University College of Law) has posted Criminal Justice in Indian Country (American Indian Law Review, vol. 38, No. 2, 2014) on SSRN. Here is the abstract:
This Article examines the role played by different enacted legislation on California’s Indian tribes criminal justice system. For centuries, tribal governments were the only entities with criminal jurisdiction in Indian Country. In 1883, the Supreme Court in Ex parte Kan-Gi-Shun-Ka (Ex parte Crow Dog) confirmed that a crime committed by an Indian against another Indian did not give rise to federal jurisdiction. In response, Congress passed the Major Crimes Act, granting federal authorities the power to investigate, enforce, and prosecute certain crimes occurring in Indian Country.The federal statutes creating federal jurisdiction did not preclude tribal jurisdiction, but states lacked jurisdictional authority. This all changed in 1953 with the enactment of Public Law 280. Affecting only five mandatory states, including California, Public Law 280 precluded federal jurisdiction and conferred jurisdictional authority on the state government to enforce and prosecute crimes occurring in Indian Country, thereby flipping the general rules regarding criminal jurisdiction. In 2010, Congress amended Public Law 280. In the Tribal Law and Order Act of 2010 (“TLOA”), Congress allowed Indian tribes located in mandatory Public Law 280 states to request the Department of Justice to re-assert criminal jurisdiction. However, there is much more to Public Law 280 and its long-running consequences in California than the simple question of which government has the authority to enforce and prosecute crimes.