Crime remains an endemic problem in Indian country. Shocking homicide rates, skyrocketing levels of juvenile crime and gang activity, child abuse, and substance abuse plague the over 1.4 million people who populate tribal land. (1) Crime data showed that violent victimization of Indians and Alaska natives is 2.5 times greater than that of other ethnic and racial subgroups within the United States.(2)
Some people have wondered if confusion over criminal jurisdiction in Indian country contributes to an increased rate of crime. (3) Others point to the lack of resources allocated to the criminal justice system in tribal land. Undoubtedly, many factors lead to the high crime rate. Regardless of the contributing factors, an obvious need exists for additional federal legislation to improve the criminal justice system in these areas. On July 29, 2010, Congress responded to this need by enacting a sweeping criminal reform known as the Tribal Law and Order Act (TLOA) for Indian country. (4)
This article reviews briefly the major federal legislative acts impacting criminal jurisdiction on tribal land. It then will highlight changes and improvements in jurisdiction and the criminal justice system under TLOA in Indian country.(5)
Congress has responded routinely to criminal jurisdiction problems in Indian country by passing legislation tailored to address the problems faced at a given time. The main legislative acts in Indian country include the Federal Enclaves Act, the Assimilative Crimes Act, and the Major Crimes Act.(6) Two other legislative acts impacting tribal land are Public Law 280 and the Indian Civil Rights Act of 19682
Federal Enclaves Act
In 1817, Congress passed the Federal Enclaves Act, which asserts federal criminal jurisdiction over non-Indians for crimes they commit on tribal land and over Native Americans for some offenses against non-Indians.(8) Under the Act, "the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States... [extend] to the Indian country." (9) Consequently, for jurisdictional purposes, Indian land today is treated as a "federal enclave," similar to a federal building, park, prison, or military base. The Act has three important exceptions. It does not apply to crimes by Indians against other Native Americans, offenses by Indians punished by the tribe, or crimes over which a treaty gives the tribe exclusive jurisdiction.
The Act applies the entire body of federal criminal law to Indian country. By making the site of the crime one of their elements, federal enclave laws adopt or define traditional crimes, such as arson, murder, and robbery, addressed by state laws and apply them to federal enclaves. Thus, someone can violate an enclave law by committing a certain act in an enclave. However, the federal criminal code applied to federal enclaves by no means is complete.
Assimilated Crimes Act
Congress recognized that some criminal acts committed within federal enclaves went unpunished because no specific federal laws prohibited them, and state law had no force within these enclaves, including Indian country. To address this...