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 “ victimless” crimes committed by non-Indians on Indian reservations fall 

within the exclusive jurisdiction of the State or Federal courts, or whether 

jurisdiction is concurrent. The question posed is a difficult one' whose importance 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 of law enforcement on a number of reservations. 

While many questions o f policy may be involved in allocating law enforcement resources, you have asked—as an initial step—for our legal analysis 

of 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 matter existing 

law appears to require that the States have exclusive jurisdiction with regard 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 Department, with representatives of the 

Department of the Interior, and with Indian representatives; and we have 

carefully considered the thoughtful submission prepared by the Native 

American Rights Fund on behalf of the Litigation Committee of the National Congress of American Indians.

Our further consideration of 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 Lands,” 18 Ariz. L. Rev. 503, 

529-30 (1976); Goldberg, “ Public Law 280: The Limits o f State Jurisdiction over Reservation Indians,” 22 U.C.L.A. L. Rev. 535, 541 n. 25 (1975); Davis, “ Criminal Jurisdiction 

Over Indian Country in Arizona,” 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 number of 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 of these jurisdictional 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 principles discussed in this memorandum.

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 reservations fall within the jurisdiction of the Federal courts. The Supreme 

Court’s determination in United States v. McBratney, 104 U.S. 621 

(1882), that the States possess exclusive jurisdiction over crimes by nonIndians against non-Indians committed 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 command of the statute; this decision should therefore be given only limited 

application and should not be deemed to govern the handling of 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 of 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 necessarily affect Indians and therefore fall outside of the limited McBratney

exception and squarely within the terms of § 1152.

On the other hand, it may be argued that McBratney was premised on a 

view of the States’ right to control the conduct of their citizenry generally 

anywhere within their territory; the presence or absence of 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 of these theses and, in our opinion, 

the correct view of the law falls somewhere between them. The McBratney

rationale seems clearly to apply to victimless crimes so as, in the majority 

of cases, to oust Federal jurisdiction. Where, 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. App. April 27, 1978), pending on motion to reconsider

(authority o f State police authorities to arrest non-Indian on Indian reservation).

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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 exclusively 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 of this sort.

n.

Section 1152 of title 18 provides in pertinent part:

Except as otherwise expressly provided by law, 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, except the District of Columbia, shall extend to 

the Indian country * * *.5 

Given its full sweep, this provision would require that Federal law generally applicable on Federal enclaves o f various sorts would be equally applicable 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 of the Assimilative Crimes 

Act, 18 U.S.C. §13, 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 Court has 

significantly narrowed § 1152’s application. Thus, where a crime is committed on a reservation by a non-Indian against another non-Indian exclusive jurisdiction lies in the State absent treaty provisions to the contrary. 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 of the 

defendant alone or his or her status in conjunction with the presence of a 

non-Indian victim is critical.5 However, the McBratney rule was given an

’ The current version o f § 1152 is not of recent vintage, but has roots in the early 19th century. See Act o f March 3, 1817, 3 Stat. 383; Act o f June 30, 1834, 4 Stat. 733, as amended by 

Act of March 27, 1854, 10 Stat. 269. See also Trade and Intercourse Act of 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. Chapman, 321 F. Supp. 767 (E.D . Va. 1971) (possession o f marijuana).

’ See, e.g., United States v. Wheeler, 435 U.S. 313, 325 n. 21 (1978) (“ crimes committed

(Continued)

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added gloss in New York ex ret. Ray v. Martin, 326 U.S. 496 (1946). The 

Supreme Court in that case characterized its prior decisions as “ stand[ing] 

for the proposition that States, by virtue of their statehood, have jurisdiction 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 of 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 Court’s rationale 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 of jurisdiction with regard to a variety 

of “ victimless” offenses committed by non-Indians on Indian reservations. Examination of the limited available precedent provided by turn-ofthe-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 Washington State case 

held that a non-Indian charged with the “ victimless” crime of manufacturing 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 committing 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) (“ murder o f one non-Indian by another” ); Williams v. United States, 327 U.S. 

711, 714 (1946) (“ offenses committed on this reservation between persons who are not Indians” ); Donnelly v. United States, 228 U.S. 243, 271 (1913) (“ offenses committed 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 committed within a reservation by others [except] Indians or against 

Indians” ).

* That the Martin discussion is more than a post hoc explanation for the McBratney

C ourt’s failure to give sufficient weight to the plain language o f § 1152 is suggested by the 

careful language of 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 committed by a 

non-Indian against a non-Indian victim on a territorial reservation (“ where the country occupied by [the Indian tribes] is not within the limits o f one of the States, Congress may by law 

punish any offence [sic] committed there, no matter 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 Court expressed a similar view after determining that the application o f State law had not been preempted by the passage of 18 U.S.C. § 1165, making 

unlawful the unauthorized entry onto Indian land for purposes o f hunting, fishing, or trapping. In 1971, relying on Danielson, Crosby, and opinions of the Attorneys General of 

Nevada, New Mexico, and Oregon, the Solicitor of 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.

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within the jurisdiction of 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 man, 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 Court 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 “ punishment of crimes committed by or against 

Indians, [and] the protection of the Indians in their improvements.” 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 of 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 of and 

reasoning behind this exception to McBratney’s broad sweep is provided 

by United States v. Bridleman, 7 F. 894 (1881), a decision of the U.S. 

District Court for Oregon. The case involved the theft, on the Umatilla 

Reservation, of an Indian’s blanket by a white man. Judge Deady, writing 

without the benefit of the McBratney decision decided the same year, 

upheld Federal jurisdiction, reasoning that while the admission of Oregon 

into the Union in 1859 ousted general territorially based jurisdiction 

previously asserted by the Federal Government, “ the jurisdiction which 

arises out of the subject—the intercourse between the inhabitants of the 

state and the Indian tribes therein—remained as if no change had taken 

place in the relation of the territory to the general government.” Id. at

* Where 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 manufacture or sale o f liquor on a reservation without attempting to preempt State 

jurisdiction, a separate prosecution under Federal law would of 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). The statement o f the case in the appellate court’s opinion is extremely obscure; we therefore regard the apparent holding as having limited significance.

10 See also, Op. Ariz. A tt’y Gen. No. 58-71 (1958).

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899. He therefore concluded that to the extent that § 1152 provided for 

punishment of persons “ for wrong or injury done to the person or property of an Indian, and vice versa,” it remained in force. Id.

Bridleman and the numerous subsequent cases thus support the view 

that Federal jurisdiction exists with regard to offenses committed by nonIndians on the reservation against the person or property of Indians.

The principle that tangible Indian interests—in the preservation of person 

and property—should be protected dates from the earliest days of 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 trigger continuing Federal jurisdiction. McBratney itself belies that view since 

the commission of a murder on the reservation—a much more significant 

breach of the peace than simple vagrancy, drug possession, speeding, or 

public drunkenness—provided no basis for an assertion of Federal jurisdiction. Indeed, as the reasoning of Bridleman suggests, it is necessary that a 

clear distinction be made between threats to an Indian person or property 

and mere disruption of a reservation’s territorial space.

We therefore believe that a concrete and particularized threat to the person or property of an Indian or to specific tribal interests (beyond preserving the peace of the reservation) is necessary before Federal jurisdiction can 

be said to attach. In the absence of 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 violations, most routine cases of disorderly conduct, and most offenses against 

morals such as gambling which are not designed for the protection of a particular 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 persons or property may be said to bring an ordinarily “ victimless” crime 

within Federal jurisdiction. Certain categories of offenses may be identified 

that routinely involve this sort of threat to Indian interests. One such 

category would be crimes calculated to obstruct or corrupt the functioning 

of tribal government. Included in this category would be bribery of 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 committed 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 make punishable under Federal law 

minor 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 offense punishable under Federal law would therefore depend on the precise terms o f the applicable State statute and whether it applied to public officials generally or only to 

enumerated officers o f the State or local governments.

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and cannot therefore be regarded as truly “ victimless.” A second group of 

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 of 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 of an Indian girl, as would a charge of contributing to the 

delinquency of a minor, where assimilated into Federal law pursuant to 18 

U.S.C. § 13. A third group of offenses that may be punishable under the 

law of individual States and assimilated into Federal law pursuant to the 

Assimilative Crimes Act would also seem intrinsically to involve the sort 

of threat that would cause Federal jurisdiction to attach where an Indian 

victim may in fact be identified. Such crimes would include reckless endangerment, criminal trespass, riot or rout, and disruption of a public 

meeting or a worship service conducted by the tribe.

In certain other cases, conduct that is generally prohibited because of 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 of an Indian school or in an obvious attempt to scatter Indians collected at a tribal gathering, and a 

breech of the peace that borders on an assault may in unusual circumstances be seen to constitute a Federal offense.

m .

Whatever the contours of 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 commission of an offense against State law or whether Federal jurisdiction, insofar as it attaches, is exclusive. This issue is an exceedingly difficult one 

and many courts, without carefully considering the question, have assumed that Federal jurisdictions whenever it obtains is exclusive. We 

nevertheless believe that it is a matter that should not be regarded as settled before it has been fully explored by the courts. Although McBratney

firmly establishes that State jurisdiction, where it attaches because of the 

absence of 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 of Federal jurisdiction vis-a-vis the States with regard to 

18 U.S.C. § 1153, the Major 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 Court in John relied on notions of preemption and the slight evidence provided by the legislative history of this

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provision to reach a result that had long been assumed by the lower 

courts.13

Section 1152 has likewise been viewed as ousting State jurisdiction 

where Indian defendants are involved.14 Supreme Court dicta, moreover, 

suggests that Federal jurisdiction may similarly be exclusive where offenses by non-Indians against Indians within the terms of § 1152 are concerned.15 Square holdings to this effect are, however, rare. The Supreme 

Court of North D akota has held that State jurisdiction is ousted where 

Federal jurisdiction under § 1152 is seen to exist in cases where nonIndians have committed offenses against Indians on the reservation.16 At 

least, three other earlier cases suggest a contrary result, however, recognizing that, as in McBratney, the States have a continuing interest in the 

prosecution of 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 of interracial crimes, 

a conclusion that both Federal and State jurisdiction may lie, where conduct 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 Petition, 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 Minn. 354, 55 N .W . 553 (1893); Arquette v. Schneckloth,

56 Wash. 2d 178, 351 P.2d 92 (1960).

15 See, State o f Washington v. Confederated Bands and Tribes o f the Yakima Indian Nation, 47 U.S.L.W . 4111, 4113 (Jan. 16, 1979) (“ State law reaches within the exterior boundaries o f an Indian reservation only if it would not infringe ‘on the right of reservation Indians 

to make their own laws and be ruled by them .’ Williams v. Lee, 358 U.S. 217, 219-20. As a 

practical matter, this has meant that criminal offenses by or against Indians have been subject 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. And non-Indians committing 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 United States, rather than those o f Arizona, have 

jurisdiction over offenses committed [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 of livestock of 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 Ore. 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 manslaughter o f Indian on reservatio 

even if State court had jurisdiction o f offense under State law) (dicta).

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threat to an Indian person or property constitutes an offense against the 

laws of each sovereign, could not be criticized as inconsistent or 

anomalous. Section 1153 was enacted many years after § 1152 had been introduced as part of the early Trade and Intercourse Acts; its clear purpose 

was to provide a Federal forum for the prosecution of Indians charged 

with major crimes, a forum necessary precisely because no State jurisdiction over such crimes was contemplated. Consistent with this purpose, 

§ 1152 may properly be read to preempt State attempts 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 jurisdiction 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 jurisdiction in such a case, absent a separate grant of jurisdiction such as that 

provided by Pub. 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 Court recognized that, in the absence of express Federal 

legislation, the authority of 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 of 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 of other Federal enclaves. It is generally 

recognized that a State may condition its consent to a cession of land involving Government purchase or condemnation 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 of a 

cession agreement or condemnation proceedings, an analogy may nevertheless 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

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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 of conduct on the reservation that 

represents a direct and immediate threat against an Indian person or property, Federal jurisdiction may also attach.

IV. Conclusion

In sum, although we understand that in many cases commission by nonIndians of crimes traditionally regarded as victimless touches in a significant way upon the peace and tranquility of Indian communities, as a 

general rule we believe that such offenders fall within the exclusive 

jurisdiction of State courts. A more limited class of 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 protection, or an individual Indian or group of Indians who are victimized by 

conduct that either as a matter of law or as a matter of fact constitutes a 

direct and immediate threat to their safety. In such cases, Federal law enforcement 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 proposition that the States are not ousted from jurisdiction with regard to offenses committed by non-Indian offenders that pose a direct and substantial threat to Indian victims, but in their separate sovereign capacities may 

prosecute non-Indian offenders for violations of applicable State law as 

well.

J o h n M . H a r m o n

Assistant Attorney General

Office o f Legal Counsel

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