Jurisdiction Over Victimless Crimes That Are Committed on Native American Reservations

Criminal Law & Procedure: Jurisdiction & Venue: Jurisdiction

When a criminal offense is committed on a Native American reservation, jurisdiction over the offense will depend upon whether the victim of the offense is a Native American or a non-Native American. If the victim of the offense is a Native American, either the federal government or a tribal court will generally assume jurisdiction over the offense. If the victim of the offense is a non-Native American, the state in which the reservation is located will generally assume jurisdiction over the offense.

If an offense is not committed against a victim or is considered to be a victimless crime, jurisdiction over the offense will depend upon whether the perpetrator is a Native American or is a non-Native American. Victimless crimes are generally crimes against the public order and the public morals. Examples of such crimes include traffic violations, prostitution, or gambling.

If a victimless crime is committed by a Native American, either the federal government or a tribal court will have jurisdiction over the crime. A tribal court will have jurisdiction over the crime if the tribe has exclusive jurisdiction over the crime under a treaty with the federal government. The federal government will have jurisdiction over the crime if the crime is a violation of a federal statute, such as gambling and violations of the federal liquor laws. The federal government will also have jurisdiction over the crime under the Major Crimes Act if the crime is a major felony.

If a victimless crime is committed by a non-Native American, either the federal government or the state in which the reservation is located will have jurisdiction over the crime. A tribal court only has jurisdiction over crimes that are committed by Native Americans. States generally have jurisdiction over victimless crimes that are committed by non-Native Americans on reservations. Examples of such offenses include gambling, disorderly conduct, and traffic violations.

The federal government may have jurisdiction over a victimless crime that is committed by a non-Native American on a reservation if the crime presents a threat to a Native American or to the specific interests of a tribe. However, the threat must be concrete and particularized.

If a threat to a Native American or to the specific interests of a tribe is more direct, the federal government may have jurisdiction over a victimless crime that is committed by a non-Native American. This most often occurs when the non-Native American seeks to obstruct or to corrupt the functioning of the tribe’s governmental processes, such as the bribery of tribal officials. The federal government may also have jurisdiction if the non-Native American is seeking to adversely affect the tribal community. Examples of such crimes include consensual crimes that are committed with Native Americans, such as statutory rape and contributing to the delinquency of a minor. Other examples include speeding, homosexual activity, or a breach of the peace that is aimed at disturbing a tribal activity.

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