5.1 Defining Indian Country and Its Implications

Indian Country's legal definition is crucial for understanding jurisdiction in Native American territories. It encompasses reservations, dependent communities, and allotments, shaping the complex interplay of tribal, federal, and state authority.

The status of land within Indian Country, including trust and fee lands, further complicates jurisdictional matters. This creates challenges like checkerboard jurisdiction and raises questions about diminishment or disestablishment of reservations, impacting tribal sovereignty and governance.

Legal Definition of Indian Country

Statutory Definition and Key Components

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• Indian Country defined in 18 U.S.C. § 1151, a federal statute that provides the legal framework for determining jurisdictional authority in Native American territories
• Includes all lands within the limits of any Indian reservation, regardless of the issuance of any patent, and including rights-of-way running through the reservation
• Covers all dependent Indian communities within the borders of the United States, whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state
• Encompasses all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same

Reservation Lands and Allotted Lands

• Reservations are lands set aside by the federal government for the use and occupation of specific Native American tribes (Navajo Nation, Pine Ridge Reservation)
• Allotted lands are parcels of land owned by individual Native Americans, which were granted to them under the General Allotment Act of 1887 (Dawes Act)
• Allotted lands remain part of Indian Country even if the Indian title has been extinguished, as long as the land remains in trust status

Dependent Indian Communities

• Dependent Indian communities are lands that have been set aside by the federal government for the use of Native Americans and are under federal superintendence (Pueblos in New Mexico, Alaska Native Villages)
• The U.S. Supreme Court has established a two-part test to determine whether a particular area qualifies as a dependent Indian community: (1) the land must have been set aside by the federal government for the use of Native Americans, and (2) the land must be under federal superintendence

Land Status within Indian Country

Trust Lands and Fee Lands

• Trust lands are held in trust by the federal government for the benefit of a tribe or individual Native American, with the United States serving as the legal trustee (Tribal trust land, Individual trust allotments)
• Fee lands are privately owned lands within the boundaries of Indian Country, which can be owned by Native Americans, non-Natives, or a combination of both
• The distinction between trust lands and fee lands is crucial in determining jurisdictional authority within Indian Country

Checkerboard Jurisdiction and Its Challenges

• Checkerboard jurisdiction refers to the complex patchwork of land ownership and jurisdictional authority within Indian Country, often resulting from the allotment era and subsequent land transfers
• This intermixing of trust lands, fee lands, and non-Native owned parcels can create significant challenges for law enforcement, service provision, and the exercise of tribal sovereignty
• Checkerboard jurisdiction can lead to disputes over which governmental entity (tribal, federal, or state) has the authority to prosecute crimes, regulate activities, or provide services in a particular area

Diminishment and Disestablishment of Reservations

• Diminishment occurs when the boundaries of a reservation are reduced by an act of Congress, but the reservation itself is not terminated (Rosebud Sioux Tribe v. Kneip, where the U.S. Supreme Court held that certain acts of Congress had diminished the boundaries of the Rosebud Sioux Reservation)
• Disestablishment refers to the complete termination of a reservation by an act of Congress, resulting in the loss of its status as Indian Country (Osage Nation in Oklahoma, which was disestablished by the Osage Allotment Act of 1906)
• The U.S. Supreme Court has established a three-part test to determine whether a reservation has been diminished or disestablished: (1) the statutory language used by Congress, (2) the historical context surrounding the passage of the act, and (3) the subsequent treatment of the area by Congress and the executive branch

Jurisdiction in Indian Country

Tribal Sovereignty and Its Implications

• Tribal sovereignty refers to the inherent authority of Native American tribes to govern themselves and their territories, as recognized by the U.S. Constitution, treaties, and federal law
• As sovereign entities, tribes have the power to establish their own governments, enact laws, and exercise jurisdiction over their members and territories (Tribal courts, Tribal police)
• However, tribal sovereignty is not absolute and can be limited by acts of Congress or decisions of the U.S. Supreme Court (Oliphant v. Suquamish Indian Tribe, which held that tribes do not have criminal jurisdiction over non-Natives)

Federal Jurisdiction in Indian Country

• The federal government has jurisdiction over certain crimes committed in Indian Country, as established by the General Crimes Act (18 U.S.C. § 1152) and the Major Crimes Act (18 U.S.C. § 1153)
• The General Crimes Act extends federal criminal jurisdiction to crimes committed by non-Natives against Natives in Indian Country, while the Major Crimes Act grants federal jurisdiction over certain serious crimes committed by Natives, regardless of the victim's status
• Federal jurisdiction in Indian Country is concurrent with tribal jurisdiction, meaning that both the federal government and the tribe may prosecute a Native American defendant for the same crime (United States v. Lara)

State Jurisdiction and Public Law 280

• Generally, states do not have jurisdiction over Native Americans or their lands within Indian Country, as affirmed by the U.S. Supreme Court in Worcester v. Georgia
• However, Public Law 280, enacted by Congress in 1953, granted certain states (California, Minnesota, Nebraska, Oregon, Wisconsin, and Alaska) criminal and civil jurisdiction over Native Americans in Indian Country
• Public Law 280 has been controversial, as it was enacted without the consent of the affected tribes and has been criticized for undermining tribal sovereignty and creating jurisdictional confusion
• Some states have since retroceded (returned) their Public Law 280 jurisdiction back to the federal government, and tribes in Public Law 280 states have the option to request retrocession