March 21, 1979
79-18 MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL Jurisdiction—Federal or State—“ Victimless” Crimes Committed by Non-Indians on Indian Reservations—18 U.S.C. §§ 1152, 1153
This responds to your request for our opinion whether so-called “ vic timless” crimes committed by non-Indians on Indian reservations fall within the exclusive jurisdiction o f the State or Federal courts, or whether jurisdiction is concurrent. The question posed is a difficult one' whose im portance is far from theoretical. We understand that in the wake of Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), serious concern exists as to the adequacy o f law enforcement on a num ber o f reservations. While many questions o f policy may be involved in allocating law enforce ment resources, you have asked—as an initial step—for our legal analysis o f the jurisdictional limitations. In an opinion to you dated June 19, 1978, we expressed the view that, although the question is not free from doubt, as a general m atter existing law appears to require that the States have exclusive jurisdiction with re gard to victimless offenses committed by non-Indians. At your request, we have carefully reexamined that opinion. We have also discussed the legal issue raised with others in the Departm ent, with representatives o f the Department o f the Interior, and with Indian representatives; and we have carefully considered the thoughtful submission prepared by the Native American Rights Fund on behalf o f the Litigation Committee of the N a tional Congress o f American Indians. Our further consideration o f the question has led us to conclude that our earlier advice fairly summarizes the essential principles. There are,
1 The few writers who have touched obliquely on this question have expressed varying views. See, e.g., Clinton, “ Criminal Jurisdiction Over Indian L ands,” 18 Ariz. L. Rev. 503, 529-30 (1976); Goldberg, “ Public Law 280: The Limits o f State Jurisdiction over Reserva tion Indians,” 22 U.C.L.A. L. Rev. 535, 541 n. 25 (1975); Davis, “ Criminal Jurisdiction Over Indian C ountry in A rizona,” 1 Ariz. L. Rev. 62, 73-74 (1959).
Ill however, several significant respects in which we wish to expand upon that analysis. There are also several caveats that should be highlighted in view o f the large num ber o f factual settings in which these jurisdictional issues might arise. We also note, prefatorily, that there are now several cases pending in courts around the country in which aspects o f these jurisdic tional issues are being, or are likely to be, litigated,2 and we may therefore anticipate further guidance in the near term in applying the central prin ciples discussed in this mem orandum.
I. Introduction Two distinct competing approaches to the legal question you have posed are apparent. First, it may be contended that pursuant to 18 U.S.C. § 1152, with only limited exceptions, offenses committed on Indian reser vations fall within the jurisdiction o f the Federal courts. The Supreme C ourt’s determ ination in United States v. McBratney, 104 U.S. 621 (1882), that the States possess exclusive jurisdiction over crimes by non- Indians against non-Indians com m itted on such enclaves, it is said, was based on an erroneous premise that § 1152 does not control; at best, the argument goes, McBratney creates a narrow exception to the plain com mand o f the statute; this decision should therefore be given only limited application and should not be deemed to govern the handling o f other crimes that have no non-Indian victim. A related argument might also be advanced: with rare exceptions, “ victimless” crimes are crimes against the whole o f the populace; unlike offenses directed at particular non-Indian victims (which implicate the Indian community only incidentally, or accidentally), on-reservation offenses without a particular target neces sarily affect Indians and therefore fall outside o f the limited McBratney exception and squarely within the terms o f § 1152. O n the other hand, it may be argued that McBratney was premised on a view o f the States’ right to control the conduct o f their citizenry generally anywhere within their territory; the presence or absence o f a non-Indian victim is thus irrelevant. Although continuing Federal jurisdiction has been recognized with regard to offenses committed by or against Indians on a reservation, victimless crimes, by definition, involve no particularized injury to Indian persons or property, and therefore, under the McBratney rationale, exclusive jurisdiction remains in the States. We have carefully considered both o f these theses and, in our opinion, the correct view o f the law falls somewhere between them. The McBratney rationale seems clearly to apply to victimless crimes so as, in the majority o f cases, to oust Federal jurisdiction. W here, however, a particular
1 Mescalero Apache Tribe v. Griffin Belt et al., No. 78-926 C (D .N .M . filed Dec. 14, 1978) Ourisdiction over traffic offenses by non-Indians on Indian reservations); State v. Herber, No. 2CA -CR 1259 (Ariz. Ct. A pp. April 27, 1978), pending on motion to reconsider (authority o f State police authorities to arrest non-Indian on Indian reservation).
112 offense poses a direct and immediate threat to Indian persons, property, or specific tribal interests, Federal jurisdiction continues to exist, just as is the case with regard to offenses traditionally regarded as having as their victim an Indian person or property. While it has heretofore been assumed that as between the States and the United States, jurisdiction is either ex clusively State or exclusively Federal, we also believe that a good argument may be made for the proposition that even where Federal jurisdiction is thus implicated, the States may nevertheless be regarded as retaining the power as independent sovereigns to punish non-Indian offenders charged with “ victimless” offenses o f this sort.
n. Section 1152 o f title 18 provides in pertinent part: Except as otherwise expressly provided by law, the general laws o f the United States as to the punishment o f offenses committed in any place within the sole and exclusive jurisdiction o f the United States, except the District o f Columbia, shall extend to the Indian country * * *.5 Given its full sweep, this provision would require that Federal law gener ally applicable on Federal enclaves o f various sorts would be equally ap plicable on Indian reservations. Thus, Federal law with regard to certain defined crimes such as assault, 18 U.S.C. § 113, and arson, 18 U.S.C. § 81, would govern, as would the provisions o f the Assimilative Crimes Act, 18 U.S.C. § 1 3 , which renders acts or omissions occurring in areas within Federal jurisdiction Federal offenses where they would otherwise be punishable under State law.4 Notwithstanding the provision’s broad terms, the Supreme C ourt has significantly narrowed § 1152’s application. Thus, where a crime is com mitted on a reservation by a non-Indian against another non-Indian ex clusive jurisdiction lies in the State absent treaty provisions to the con trary. United States v. McBratney, supra; Draper v. United States, 164 U.S. 240 (1896). Subsequent cases have, for the most part, carefully repeated the precise McBratney formula—non-Indian perpetrator and non-Indian victim—and have not elaborated on whether the status o f the defendant alone or his or her status in conjunction with the presence o f a non-Indian victim is critical.5 However, the McBratney rule was given an
’ The current version o f § 1152 is not o f recent vintage, but has roots in the early 19th cen tury. See Act o f March 3, 1817, 3 Stat. 383; Act o f June 30, 1834, 4 Stat. 733, as am ended by Act o f March 27, 1854, 10 Stat. 269. See also Trade and Intercourse Act o f 1790, 1 Stat. 137 (offenses by non-Indians against Indians). 4 The Assimilative Crimes Act has been regarded as establishing Federal jurisdiction over “ victimless” offenses occurring within a Federal enclave. See, e.g.. United States v. Barner, 195 F. Supp. 103 (N .D . Cal. 1961) (reckless driving on air force base); United States v. Chap man, 321 F. Supp. 767 (E .D . Va. 1971) (possession o f m arijuana). ’ See, e.g., United States v. Wheeler, 435 U.S. 313, 325 n. 21 (1978) (“ crimes committed (Continued)
113 added gloss in New York ex ret. Ray v. Martin, 326 U.S. 496 (1946). The Supreme C ourt in that case characterized its prior decisions as “ stand[ing] for the proposition that States, by virtue o f their statehood, have juris diction over such crimes notwithstanding [18 U.S.C. § 1152].” 326 U.S. at 500.6 Similarly, in Surplus Trading Co. v. Cook, 281 U.S. 647, 651 (1930), the Court spoke in the following broad terms: “ [Indian] reservations are part o f the State within which they lie and her laws, civil and criminal, have the same force therein as elsewhere within her limits, save that they can have only restricted application to the Indian wards.” The C ourt’s ra tionale thus appears to be rooted at least to some extent in basic notions of federalism. It is, moreover, significant that the historical practice—insofar as we have found evidence on this m atter—has been to regard McBratney as authority for the States’ assertion o f jurisdiction with regard to a variety o f “ victimless” offenses committed by non-Indians on Indian reserva tions. Examination o f the limited available precedent provided by turn-of- the-century State appellate court decisions reveals that State jurisdiction was upheld' with regard to non-Indian offenders charged with violating State fish and game laws while on an Indian reservation. See, Ex parte Crosby, 38 Nev. 389, 149 P. 989 (1915).7 An early W ashington State case held that a non-Indian charged with the “ victimless” crime o f m anu facturing liquor on an Indian reservation was also held to be properly
(Continued) by non-Indians against non-Indians” ); United States v. Antelope , 430 U.S. 641, 643 n. 2 (1977) (“ non-Indians charged with comm itting crimes against other non-Indians” ), 644 n. 4 (“ crimes by non-Indians against other non-Indians” ); Village o f Kake v. Egan, 369 U.S. 60, 73 (1962) (“ m urder o f one non-Indian by an o th er” ); Williams v. United States, 327 U.S. 711, 714 (1946) (“ offenses com m itted on this reservation between persons who are not In dians” ); Donnelly v. United States, 228 U.S. 243, 271 (1913) (“ offenses comm itted by white people against whites” ). But see United States v. Sutton, 215 U .S. 291, 295 (1909) (characterizing Draper as holding that the State enabling act “ did not deprive the State of jurisdiction over crimes com m itted within a reservation by others [except] Indians or against Indians” ). * T hat the Martin discussion is more than a post hoc explanation for the McBratney C o u rt’s failure to give sufficient weight to the plain language o f § 1152 is suggested by the careful language o f United States v. Rogers, 45 U .S. (4 How.) 567, 572 (1846), recognizing Federal jurisdiction under the early version o f § 1152 with regard to a crime comm itted by a non-Indian against a non-Indian victim on a territorial reservation (“ where the country oc cupied by [the Indian tribes] is not within the limits o f one o f the States, Congress may by law punish any offence [sic] com m itted there, no m atter whether the offender be a white man or an Indian” ). See also, In re Mayfield, 141 U .S. 107, 112 (1891). 7 More recently, in State ex ret. Nepstad v. Danielson, 149 M ont. 438, 427 P. 2d 689 (1967), the M ontana Supreme C ourt expressed a similar view after determining that the ap plication o f State law had not been preem pted by the passage o f 18 U .S.C . § 1165, making unlawful the unauthorized entry onto Indian land for purposes o f hunting, fishing, or trap ping. In 1971, relying on Danielson, Crosby, and opinions o f the A ttorneys General of Nevada, New Mexico, and Oregon, the Solicitor o f Interior opined that a State would have both the power and the right to exercise jurisdiction over non-Indians alleged to have violated State game laws on an Indian reservation. 78 I.D . 101, 104.
114 within the jurisdiction o f the State’s courts. See, State v. Lindsey, 133 Wash. 140, 233 P . 327 (1925).8 State jurisdiction has also been upheld at least as to a woman regarded by the court as a non-Indian who had been charged with adultery; the charge against the other alleged participant in this consensual offense, an Indian m an, was dismissed as falling outside the court’s jurisdiction. See, State v. Campbell, 53 Minn. 354, 55 N.W . 553 (1893).9 More recent decisions, while not examining the question in depth, have upheld State jurisdiction as to possessory drug offenses, State v. Jones, 92 Nev. 116, 546 P. 2d 235 (1976), and as to traffic offenses by non-Indians on Indian reservations, State v. Warner, 71 N.M . 418, 479 P. 2d 66 (1963).10 At the same time as McBratney has been given such broad application, however, the courts have carefully recognized that Federal jurisdiction is retained with regard to offenses against Indians. The C ourt in both McBratney and Draper was careful to limit its holdings to the precise facts presented, reserving the question whether State jurisdiction would also be found with regard to the “ punishm ent o f crimes committed by or against Indians, [and] the protection o f the Indians in their im provements.” See 104 U.S. at 624. Subsequent decisions have expressly recognized that where a crime is committed in Indian country by a non-Indian against the person or property o f an Indian victim, Federal jurisdiction will lie. United States v. Chavez, 290 U.S. 357 (1933) (theft); United States v. Ramsey, 271 U.S. 467 (1926) (murder); Donnelly v. United States, 228 U.S. 243 (1913) (murder). Insight concerning the significance o f and reasoning behind this exception to M cBratney’s broad sweep is provided by United States v. Bridleman, 7 F. 894 (1881), a decision o f the U.S. District Court for Oregon. The case involved the theft, on the Umatilla Reservation, o f an Indian’s blanket by a white man. Judge Deady, writing without the benefit o f the McBratney decision decided the same year, upheld Federal jurisdiction, reasoning that while the admission o f Oregon into the Union in 1859 ousted general territorially based jurisdiction previously asserted by the Federal Governm ent, “ the jurisdiction which arises out o f the subject—the intercourse between the inhabitants o f the state and the Indian tribes therein—remained as if no change had taken place in the relation o f the territory to the general governm ent.” Id. at
* W here the identical acts that constitute a violation o f State law would also constitute a violation o f a Federal statute expressly prohibiting conduct such as unauthorized hunting and fishing or m anufacture or sale o f liquor on a reservation w ithout attem pting to preem pt State jurisdiction, a separate prosecution under Federal law would o f course remain a possibility. See, e.g., United States v. Lanza, 260 U.S. 377, 382 (1922). • The only other early case with which we are familiar upheld State jurisdiction with regard to one who appeared to be a non-Indian charged with obstructing the use o f Indian lands. See, State v. Adams, 213 N .C . 243, 195 S.E . 822 (1938). T he statem ent o f the case in the ap pellate court’s opinion is extremely obscure; we therefore regard the apparent holding as hav ing limited significance. 10 See also, O p. Ariz. A tt’y Gen. N o. 58-71 (1958).
115 899. He therefore concluded that to the extent that § 1152 provided for punishment o f persons “ for wrong or injury done to the person or prop erty o f an Indian, and vice versa,” it remained in force. Id. Bridleman and the num erous subsequent cases thus support the view that Federal jurisdiction exists with regard to offenses committed by non- Indians on the reservation against the person or property o f Indians. The principle that tangible Indian interests—in the preservation o f person and property—should be protected dates from the earliest days o f the Republic when it was embodied in the Trade and Intercourse A cts." To say that these tangible interests should be protected is not, however, necessarily to say that a generalized interest in peace and tranquility is sufficient to trig ger continuing Federal jurisdiction. McBratney itself belies that view since the commission o f a m urder on the reservation—a much more significant breach o f the peace than simple vagrancy, drug possession, speeding, or public drunkenness—provided no basis for an assertion o f Federal jurisdic tion. Indeed, as the reasoning o f Bridleman suggests, it is necessary that a clear distinction be made between threats to an Indian person or property and mere disruption o f a reservation’s territorial space. We therefore believe that a concrete and particularized threat to the per son or property o f an Indian or to specific tribal interests (beyond preserv ing the peace o f the reservation) is necessary before Federal jurisdiction can be said to attach. In the absence o f a true victim, unless it can be said that the offense peculiarly affects an Indian or the tribe itself, McBratney would control, leaving in the States the exclusive jurisdiction to punish offenders charged with “ victimless” crimes. Thus, in our view, most traffic viola tions, most routine cases o f disorderly conduct, and most offenses against morals such as gambling which are not designed for the protection o f a par ticular vulnerable class, should be viewed as having no real “ victim,” and therefore to fall exclusively within State competence. In certain other cases, however, a sufficiently direct threat to Indian per sons or property may be said to bring an ordinarily “ victimless” crime within Federal jurisdiction. Certain categories o f offenses may be identified that routinely involve this sort o f threat to Indian interests. One such category would be crimes calculated to obstruct or corrupt the functioning o f tribal government. Included in this category would be bribery o f tribal officials in a situation where State law in broad terms prohibits bribery of public officials;12 such an offense would cause direct injury to the tribe
" See, e.g., § 5, Act o f July 22, 1790, 1 Stat. 137 (“ crimes upon, or trespass against, the person or property o f any friendly Indian or Indians” ). See also, Donnelly v. United States, supra, 228 U.S. at 272 (“ crimes com m itted by white men against the persons or property of the Indian tribes” ); United States v. Chavez, 290 U .S. at 365 (“ where the offense is against an Indian or his property” ). 11 The effect o f the Assimilative Crimes Act is to m ake punishable under Federal law m inor offenses as defined and punished under State law. See, Smayda v. United States, 352 F. (2d) 251, 253 (9th Cir. 1965). W hether bribery o f tribal officials would constitute an o f fense punishable under Federal law would therefore depend on the precise terms o f the ap plicable State statute and whether it applied to public officials generally or only to enum erated officers o f the State or local governments.
116 and cannot therefore be regarded as truly “ victimless.” A second group o f offenses that may directly implicate the Indian community are consensual crimes committed by non-Indian offenders in conjunction with Indian participants, where the Indian participant, although willing, is within the class o f persons which a particular State statute is specifically designed to protect. Thus, Federal jurisdiction will lie under 18 U.S. § 2032 for the statutory rape o f an Indian girl, as would a charge o f contributing to the delinquency o f a minor, where assimilated into Federal law pursuant to 18 U.S.C. § 13. A third group o f offenses that may be punishable under the law o f individual States and assimilated into Federal law pursuant to the Assimilative Crimes Act would also seem intrinsically to involve the sort o f threat that would cause Federal jurisdiction to attach where an Indian victim may in fact be identified. Such crimes would include reckless en- dangerment, criminal trespass, riot or rout, and disruption o f a public meeting or a worship service conducted by the tribe. In certain other cases, conduct that is generally prohibited because o f its ill effects on society at large and not because it represents a particularized threat to specific individuals may nevertheless so specifically threaten or endanger Indian persons or property that Federal jurisdiction may be asserted. Thus, speeding in the vicinity o f an Indian school or in an ob vious attem pt to scatter Indians collected at a tribal gathering, and a breech o f the peace that borders on an assault may in unusual circum stances be seen to constitute a Federal offense.
m.
Whatever the contours o f the area in which Federal jurisdiction may be asserted, a final critical question remains to be considered: whether State authorities may also legally charge a non-Indian offender with commis sion o f an offense against State law or whether Federal jurisdiction, in sofar as it attaches, is exclusive. This issue is an exceedingly difficult one and many courts, without carefully considering the question, have as sumed that Federal jurisdictions whenever it obtains is exclusive. We nevertheless believe that it is a m atter that should not be regarded as set tled before it has been fully explored by the courts. Although McBratney firmly establishes that State jurisdiction, where it attaches because o f the absence o f a clear Indian victim, is exclusive, we believe that, despite Supreme Court dicta to the contrary, it does not necessarily follow that, where an offense is stated against a non-Indian defendant under Federal law, State jurisdiction must be ousted. The exclusivity o f Federal jurisdiction vis-a-vis the States with regard to 18 U.S.C. § 1153, the M ajor Crimes Act, has been recognized, see, e.g., Seymour v. Superintendent, 368 U.S. 351 (1962), but has only formally been addressed and decided in the past year. See, United States v. John, 437 U.S. 634, 651 (1978). The C ourt in John relied on notions o f preem p tion and the slight evidence provided by the legislative history o f this
117 provision to reach a result that had long been assumed by the lower co u rts.13 Section 1152 has likewise been viewed as ousting State jurisdiction where Indian defendants are involved.14 Supreme C ourt dicta, moreover, suggests that Federal jurisdiction may similarly be exclusive where of fenses by non-Indians against Indians within the terms o f § 1152 are con cerned.15 Square holdings to this effect are, however, rare. The Supreme C ourt o f N orth D akota has held that State jurisdiction is ousted where Federal jurisdiction under § 1152 is seen to exist in cases where non- Indians have committed offenses against Indians on the reservation.16 At least, three other earlier cases suggest a contrary result, however, recog nizing that, as in McBratney, the States have a continuing interest in the prosecution o f offenders against state law even while Federal prosecution may at the same time be w arranted.17 Although it would mean that § 1152 could not be uniformly applied to provide for exclusive Federal jurisdiction in all cases o f interracial crimes, a conclusion that both Federal and State jurisdiction may lie, where con duct on a reservation by a non-Indian presenting a direct and immediate
11 See, e.g., Application o f Konaha, 131 F. (2d) 737 (7th Cir. 1942); In re Carmen's Peti tion, 165 F. Supp. 942, 948 (N .D . Cal. 1958), a ff’d sub nom., Dickson v. Carmen, 270 F. (2d) 809 (9th Cir. 1959), cert, denied, 361 U .S. 934 (1960). 14 See, e.g., United States ex rel. Lynn v. Hamilton, 233 F. 685 (W .D .N .Y . 1915); In re Blackbird, 109 F. 139 (W .D . Wis. 1901); Application o f Denetclaw, 83 Ariz. 299, 320 P.2d 697 (1958); State v. Campbell, 53 M inn. 354, 55 N .W . 553 (1893); Arquette v. Schneckloth, 56 W ash. 2d 178, 351 P.2d 92 (1960). 15 See, State o f Washington v. Confederated Bands and Tribes o f the Yakima Indian Na tion, 47 U .S.L .W . 4111, 4113 (Jan. 16, 1979) (“ State law reaches within the exterior bound aries o f an Indian reservation only if it would not infringe ‘on the right o f reservation Indians to make their own laws and be ruled by th em .’ Williams v. Lee, 358 U .S. 217, 219-20. As a practical m atter, this has m eant that criminal offenses by or against Indians have been sub ject only to federal or tribal laws . . . except where Congress in the exercise o f its plenary and exclusive power over Indian affairs has ‘expressly provided that state laws shall apply’ ” ); Williams v. Lee, 358 U .S . at 220 (“ if the crime was by or against an Indian, tribal jurisdiction or that expressly conferred on other [than state] courts has remained exclusive” ); id. at n. 5 (“ Congress has granted to the federal courts exclusive jurisdiction upon Indian reservations over 11 m ajor crimes. A nd non-Indians comm itting crimes against Indians are now generally tried in federal courts . . . .” ); Williams v. United States, 327 U.S. 711, 714 (1946) (“ the laws and courts o f the U nited States, rather than those o f Arizona, have jurisdiction over offenses com m itted [on the reservation] by one who is not an Indian against one who is an Indian” ). See also, Bartkus v. Illinois, 359 U .S. 121, 161 (1959) (Black, J.. dissenting); United States v. Cleveland, 503 F. (2d) 1067 (9th Cir. 1975) (Federal law applie: to assault by non-Indian against an Indian). 14 State v. Kuntz, 66 N .W . 2d 531 (N. Dali. 1954) (State prosecution o f non-Indian foi unlawful killing o f livestock o f Indian on Indian reservation dismissed on grounds tha Federal jurisdiction o f the offense was exclusive). 17 See, State v. McAlhaney, 220 N .C . 387, 17 S.E. 2d 352 (1941) (State jurisdiction upheli as to non-Indian charged with kidnapping Indian on Indian reservation); Oregon v. Cole man, 1 O re. 191 (1855) (territorial jurisdiction upheld as to non-Indian charged with sale o liquor to Indian on reservation notwithstanding existence o f comparable offense unde Federal law). See also. United States v. Barnhart, 22 F. 285, 291 (D. Ore. 1884) (Feder: jurisdiction would exist as to non-Indian charged with m anslaughter o f Indian on reservatio even if State court had jurisdiction o f offense under State law) (dicta).
118 threat to an Indian person or property constitutes an offense against the laws o f each sovereign, could not be criticized as inconsistent or anomalous. Section 1153 was enacted many years after § 1152 had been in troduced as part o f the early Trade and Intercourse Acts; its clear purpose was to provide a Federal forum for the prosecution o f Indians charged with m ajor crimes, a forum necessary precisely because no State juris diction over such crimes was contem plated. Consistent with this purpose, § 1152 may properly be read to preempt State attem pts to prosecute Indian defendants for crimes against non-Indians as well. In cases involving a direct and immediate threat by a non-Indian defendant against an Indian person or property, however, a different result may be required. The State interest in such cases, as recognized by McBratney, is strong. Section 1152 itself recognizes that where an Indian is charged with an interracial crime against a non-Indian, Federal juris diction is to be exercised only where the offender is not prosecuted in his or her own tribal courts. But in no event would the State courts have juris diction in such a case, absent a separate grant o f jurisdiction such as that provided by P ub. L. No. 83-280, 67 Stat. 588. An analogous situation is presented where a non-Indian defendant is charged with a crime against an Indian victim; the Federal interest is not to preempt the State courts, but only to retain authority to prosecute to the extent that State proceedings do not serve the Federal interest. This result follows from the preemption analysis set forth in Williams v. Lee, where the C ourt recognized that, in the absence o f express Federal legislation, the authority o f the States should be seen to be circumscribed only to the extent necessary to protect Indian interests in making their own laws and being ruled by them. While significant damage might be done to Indian interests if Indian defendants could be prosecuted under State law for conduct occurring on the reservation, no equivalent damage would be done if State as well as Federal prosecutions o f non-Indian offenders against Indian victims could be sustained. Finally, it might be argued that such a result is consistent with principles governing the administration o f other Federal enclaves. It is generally recognized that a State may condition its consent to a cession o f land in volving Government purchase or condem nation by reserving jurisdiction to the extent consistent with the Federal use. Kleppe v. New Mexico, 426 U.S. 529, 540 (1976); Paul v. United States, 371 U.S. 245, 265 (1963). Although Indian reservations are in many respects unique, insofar as they existed in most cases prior to statehood rather than arising as a result o f a cession agreement or condem nation proceedings, an analogy may never theless serve. Since, in most cases, States may retain concurrent jurisdiction except to the extent that that would interfere with the Federal use, they may do so here as well by prosecuting non-Indian offenders while Federal jurisdiction at the same time remains as needed to protect Indian victims in the event that a State prosecution is not undertaken or is not prosecuted in good
119 faith. For these reasons, therefore, we believe a strong possibility exists that prosecution may be commenced under State law against a non-Indian even in cases where, as a result o f conduct on the reservation that represents a direct and immediate threat against an Indian person or prop erty, Federal jurisdiction may also attach.
IV. Conclusion In sum, although we understand that in many cases commission by non- Indians o f crimes traditionally regarded as victimless touches in a signifi cant way upon the peace and tranquility o f Indian communities, as a general rule we believe that such offenders fall within the exclusive jurisdiction o f State courts. A more limited class o f crimes involving direct injury to Indian interests should, however, be recognized as having Indian victims—whether the tribe itself, an Indian who falls within the class of persons to whom certain statutes are particularly designed to afford pro tection, or an individual Indian or group o f Indians who are victimized by conduct that either as a m atter o f law or as a m atter o f fact constitutes a direct and immediate threat to their safety. In such cases, Federal law en forcement officers may properly prosecute non-Indian offenders in the Federal courts. We also believe that despite the common understanding that jurisdiction over crimes on Indian reservations is either exclusively State or exclusively Federal, a substantial case can be made for the propo sition that the States are not ousted from jurisdiction with regard to of fenses committed by non-Indian offenders that pose a direct and substan tial threat to Indian victims, but in their separate sovereign capacities may prosecute non-Indian offenders for violations o f applicable State law as well.
Joh n M . H arm on Assistant A ttorney General Office o f Legal Counsel