History of American Indians and the United States

Crime & Jurisdiction

Dr. Kane

mkane2@albany.edu Humanities 109 | MWF 9:20 - 10:15 AM

Office Hrs: M 10:20 - 11:20 & F 1:30 - 3:30

Social Science 60S

Wednesday, September 13

coming up

  • Policy piece due Monday Sept 18 (BB)
  • EC: Sept 28 11:30 Hum 230 Charlottesville roundtable

today's class

  • historical extent of jurisdiction
  • recent changes in jurisdiction
  • impacts on people's lives

Indian Commerce Clause

  • Congress has the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
  • federal power to buy land
  • federal, not state, power to regulate gaming, taxation, hunting, etc

Indian Country General Crimes Act - 1817

  • federal jurisdiction over crime in "Indian territory"
  • applied only to crime between Native/non-Native or non-Native/non-Native
  • reserved jurisdiction for Native/Native to tribes
  • non-Native/Native crime often not prosecuted

Major Crimes Act - 1885

  • extended federal jurisdiction to Native/Native crime on reservations
  • only: murder, manslaughter, rape, assault, arson, burglary, larceny
  • US v. Kagama 1886 - DDN status gives Congress power and duty to regulate crime for "ward" nations "in a state of pupilage"
  • expanded Congressional powers outside of Indian Commerce Clause

Public Law 280 - 1953

  • Minnesota, Nebraska, California, Oregon, Wisconsin, Alaska, Nevada, South Dakota, North Dakota, Washington, Florida, Idaho, Montana, Arizona, and Utah
  • tribal populations considered large or "lawless" enough to affect surrounding population
  • extends only state criminal and civil jurisdiction - not tax or regulation
  • non-PL280: state jurisdiction for non-Native/non-Native crime only


  • Rehnquist court & Roberts court - 1986-2017 70-80% cases against Native plaintiff/defendent
  • Oliphant v. Suquamish 1978 - no tribal jurisdiction over non-Native accused
  • Duro v. Reina 1990 - no tribal jurisdiction over non-member Indians

Tribal Law and Order Act - 2010

  • PL280 states: possible to share jurisdiction with federal govt
  • tribes may prosecute felonies & impose longer/heavier sentences
  • info and resources sharing between tribal, state, and federal agencies: rape kits, drug & trafficking prevention, youth crime prevention
  • training and technical assistance for tribal courts

UAlbany resources

  • thehotline.org
  • http://www.albany.edu/advocacycenter/
  • Advocacycenter@albany.edu
  • 518-442-CARE
  • Indian Quad, Seneca Hall Basement, Suite 009
  • Confidental: Advocacy Center, Health Services, Counseling, Interfaith Center
  • Not confidential: faculty, other University employees

Missing & Murdered Indigenous Women

  • ~70% of Native women physically abused
  • ~45% of Native women sexually assulted
  • available Indian princess vs "missing white woman" syndrome
  • off-reservation women often seen as sex workers or "asking for it"
  • disappearances not investigated because of unclear jurisdiction

Violence Against Women Act - 2013

  • tribal jurisdiction over non-Native/Native crime in domestic violence and sexual assault cases
  • only applies if accused lives, works, or has family relationships on reservation
  • tribal courts must pay for defendent's attorney through appeals process
  • tribal courts must provide trial by jury including non-Native jury members
  • why are so many reservation residents non-Native? ~75%