Indian Country Jurisdiction and the Assimilative Crimes Act

Recent federal policy toward Indian tribes is closely aligned with what Indians want for themselves—self-determination. But the maze of tribal, state, and federal jurisdiction in Indian country creates a great obstacle to self-government and economic self-sufficiency. Many commentators have discussed the United States’ Rube Goldberg approach to jurisdiction, wherein the simple is made complex. A recent Supreme Court case and a federal district court’s reliance upon it may have added yet another twist to the approach to jurisdiction. Both cases involve the revenue-generating enterprise that has achieved nearly across-the-board success in Indian country, but which has generated the greatest wrath toward Indians from the non-Indian community since Custer’s Last Stand: gambling. These cases also involve the imposition of non-tribal laws, especially state, in Indian country. In California v. Cabazon Band of Mission Indians, the United States Supreme Court reaffirmed tribal sovereignty, ruling that California’s bingo and card game laws are regulatory in nature and thus have no effect on reservations within the state. In contrast, the federal district court in Pueblo of Santa Ana v. Hodel infringed upon tribal sovereignty by ruling that New Mexico’s parimutuel wagering and dog racing laws are prohibitory in nature; therefore, the state could regulate gambling on reservations within New Mexico. In 1953, Public Law 280 was enacted by Congress to give certain states greater power to control crime on Indian lands. The critical distinction between Cabazon and Santa Ana is that California is subject to Public Law 280 while New Mexico is not. Cabazon confirmed that states which assumed jurisdiction over Indian country under Public Law 280 may enact “prohibitory” laws to address crime, but in most cases may not extend the reach of state “regulatory” laws to reservations. The Cabazon prohibitory/regulatory (pro/reg) test for the validity of state law extensions seems appropriate for Public Law 280 states like California. However, New Mexico has never been granted jurisdiction over Indian country within its borders. The troubling aspect of Santa Ana is that the district court relied on Cabazon to grant New Mexico jurisdiction on two distinct bases—the federal Assimilative Crimes Act (ACA) and state public policy—to achieve essentially the same infringement on tribal sovereignty that Public Law 280 effected earlier. The danger to tribes of courts applying ACA and state public policy to Indian country is that non-Public Law 280 states could apply their criminal laws to reservations to fill in gaps in the federal criminal code, thereby permitting these states to outlaw gambling. This Comment will examine closely the interplay between the analyses in Cabazon and Santa Ana and other lower court decisions addressing Indian sovereignty. This Comment contends that ACA and state public policy should not apply in Indian country, that the reasons courts have used to apply them are flawed, and that any perceived gap in criminal laws in Indian country is already filled by the Indian Crimes Acts. Assuming, arguendo, that ACA and the Organized Crime Control Act (OCCA) apply to Indian country, this Comment notes that neither of these Acts, nor the reasons for applying them, provide a sound basis to invoke the pro/reg distinction. The Santa Ana court’s interpretation of Cabazon constitutes a new movement of judicial activism in the federal Indian law arena. It may resurrect the now-disfavored termination era policy underlying Public Law 280 and result in sweeping abrogations of tribal sovereignty. This trend contradicts the federal policy of tribal self-government, the canon of statutory construction that any abrogation of Indian rights must be done expressly by Congress, the intent of ACA, and the existing statutory framework which determines what laws apply in Indian country. Ironically, Indians initially viewed Cabazon as a great victory. Upon closer inspection, however, Cabazon may have provided the impetus the Santa Ana court needed to apply ACA to Indian country. Thus far, Cabazon and Santa Ana have been interpreted as authority for applying ACA in Indian country by Congress, law enforcement agencies, and even the Department of Interior, which is charged with administering the United States’ trust responsibility to the tribes. Typifying this new construction is a letter from a United States Attorney to an Indian tribe, in which the federal official declared: “If the state law is prohibitory, the Assimilative Crimes Act will apply. If regulatory, it will not. The most recent case in point which has an excellent analysis is Pueblo of Santa Ana v. Hodel."