Federal courts try Indians for crimes on Indian land

DAVID BERGELAND/Durango Herald - DURANGO - 06/25/12 - Steven Boos. Enlarge photo

DAVID BERGELAND/Durango Herald - DURANGO - 06/25/12 - Steven Boos.

My client, a Navajo, and a couple of his friends had been spotlighting rabbits and drinking too much beer in the rough country north of Hatch Trading Post in Utah. A sheriff’s deputy from Blanding who liked to focus his attention on the activities of Navajos and Utes, said he spotted a burned-out brake light on my client’s truck, spun his patrol car around and began chasing my client’s truck over the dirt roads and through the washes of McCracken Mesa.

When my client’s truck plunged through a wash that was too deep and shorted his distributor with the water, he made the beer-soaked decision to scare off the deputy with a couple of shots from his .22 rifle. One shot grazed the front of the deputy’s car, which was thrown into a high-speed reverse by the deputy.

My client was eventually arrested, charged with attempted first-degree murder of a police officer, with a gun-enhancement, and might have been spending a significant part of the rest of his life in jail. Given that the incident, when news got out, had sparked racial violence at the Blanding High School, with non-Indian students attacking Indian students, my client’s chances with a local jury weren’t looking too good, despite the fact that his actions were more likely bone-headed than murderous.

But my client never faced a local jury.

Jurisdiction over major crimes committed by Indians in Indian Country is within the exclusive authority of the federal courts. This has been true since the 1883 U.S. Supreme Court decision in a case called Ex Parte Crow Dog and the subsequent passage of the Major Crimes Act by Congress.

Crow Dog was a Brulé Sioux who lived on the Rosebud Indian Reservation. Crow Dog murdered Spotted Tail, another tribal member. Following tribal custom, the matter was resolved by Crow Dog paying $600, eight horses and one blanket to Spotted Tail’s family. This resolution was rejected by the United States, which put Crow Dog on trial for murder and sentenced him to death by hanging.

The Supreme Court held that the trial court was without jurisdiction to hear the case and instead recognized the sovereign authority of tribes to resolve crimes occurring in Indian Country according to their own customs. The decision also recognized the “plenary power” of Congress over Indian affairs, which could be used to change the law and make Indians subject to federal criminal laws. Crow Dog was released.

Congress was scandalized by the decision and, taking up the invitation extended by the Supreme Court, in 1885 used its plenary power to pass the Major Crimes Act, which made Indians who committed major crimes on Indian land subject to prosecution in federal courts.

On McCracken Mesa, sections of Indian land sit next to sections of non-Indian land in a vast “checkerboard.” The sheriff’s deputy started chasing my client on a section of non-Indian land, but the chase went back and forth from non-Indian land, to Indian land and back to non-Indian land. I traveled over the route of the chase with my client and determined that he had either been just inside or just outside a section of Indian land when he fired his .22 at the deputy. I hired a surveyor who was able to conclusively establish that the shooting had occurred on Indian land.

I filed a motion to dismiss the prosecution in the state court, arguing that jurisdiction over the shooting was exclusively vested in the federal courts. At a preliminary hearing, the county prosecutor conceded the motion and the case was dismissed. My client was later charged with a federal misdemeanor by a prosecutor in the Salt Lake City U.S. Attorney’s office who had no stake in the racially charged atmosphere that existed in Blanding after the shooting. My client pleaded guilty and received a term of probation, rather than several decades of imprisonment at the Utah State Prison.

There have been times when Congress considered changing this outcome by giving states the opportunity to assume criminal jurisdiction over Indian lands through Public Law 83-280. However, P.L. 280 was never widely extended and it remains a bedrock principle of federal Indian law that only the federal courts have jurisdiction over major crimes committed by an Indian on Indian land.

Steven C. Boos is an attorney with the firm of Maynes, Bradford, Shipps & Sheftel in Durango. Reach him at sboos@mbssllp.com.