Except for non-Indian against non-Indian offenses falling under the
rule of McBratney, 104 U.S. 621 (1882), States have no criminal
jurisdiction in the Indian country unless expressly conferred by an act of
Congress. See this Manual at 678.
A number of states have been given criminal jurisdiction over all
or
some of the reservations within their borders by Public Law 280 (1953), now
codified at 18 U.S.C. § 1162(a). On those reservations neither 18
U.S.C.
§§ 1152 nor 1153 apply. 18 U.S.C. § 1162(c).
Other states, e.g., Kansas, Iowa, and New York, acquired
jurisdiction by other enactments. 18 U.S.C. § 3243 (Kansas), Pub.L.
80-846
(Iowa), and 25 U.S.C. § 232 (New York). The law is now settled that
those
states have plenary jurisdiction but that jurisdiction under 18 U.S.C.
§§
1152 and 1153 may be exercised concurrently by the federal government.
Negonsott v. Samuels, 507 U.S. 99 (1993); United States v.
Cook,
922 F.2d 1026, 1033 (2d Cir.), cert. denied, sub nom.Tarbell
v. United States, 500 U.S. 941 (1991). The same has been held true for
the
so-called "option states" -- those which assumed jurisdiction pursuant to
Public
Law 280 after its enactment -- since § 1162(c) refers only to the
so-called
"mandatory states" listed in § 1162(a). United States v. High
Elk,
902 F.2d 660 (8th Cir. 1990). Many option states assumed less than plenary
criminal jurisdiction. See, e.g., Washington v. Confederated
Bands of
the YakimaIndian Nation, 439 U.S 463 (1979). Whatever
the
degree of cession of authority to the state, the reservations remain "Indian
country" for most purposes. California v. CabazonBand of
Mission Indians, 480 U.S. 202 (1987).
The Supreme Court has held that the cession of criminal (and civil)
jurisdiction by Public Law 280 did not authorize the state to apply its tax
or
other "regulatory" laws in Indian country. Bryan v. Itasca County,
426
U.S. 373 (1976). The distinction is drawn between criminal/prohibitory laws
which prohibit and punish conduct offensive to a state's public policy, and
those
which are civil/regulatory, where the conduct is regulated and enforced by
criminal penalties. The latter may not be enforced by a Public Law 280
state in
Indian country. Bryan v. Itasca County was followed in California
v.
Cabazon Band ofMission Indians, 480 U.S. 202 (1987)(California
bingo
laws are regulatory and unenforceable). By virtue of the same analysis,
such
regulatory statutes may also not be enforceable through 18 U.S.C. § 1152
and
the Assimilative Crimes Act on federal reservations. SeeQuechan
Indian Tribe v. McMullen, 984 F.2d 304 (1993)(California fireworks laws
are
criminal and state may enforce); St. Germaine v. Circuit Court for
VilasCounty, 938 F.2d 75 (7th Cir. 1991), cert. denied, 112 S. Ct.
1704
(1992)(Wisconsin multiple offender vehicle law is criminal and may be
enforced
by state); Confederated Tribes of the Colville Res. v. Washington,
938
F.2d 146 (9th Cir. 1991), cert. denied, 112 S. Ct. 1704
(1992)(Washington's decriminalized vehicle code is unenforceable); United
States v. Marcyes, 557 F.2d 1361 (9th Cir. 1977)(Washington fireworks
laws
are criminal and United States may enforce); Pueblo of Santa Ana v.
Hodel,
663 F. Supp. 1300 (D.D.C. 1987) (Secretary of the Interior justifiably
withheld
approval of dog track where track operation would violate the Assimilative
Crimes
Act since dog racing was criminally prohibited by New Mexico).