685. Exclusive Federal Jurisdiction Over Offenses by Non-Indians Against Indians

As noted in this Manual at 678, jurisdiction over offenses committed by non-Indians against non-Indians are within the exclusive jurisdiction of the states. United States v. McBratney, 104 U.S. 621 (1882); Draper v. United States, 164 U.S. 240 (1896). Non-Indians are immune from tribal court jurisdiction. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). Except for those exempted by McBratney, the Federal government has jurisdiction over non-Indian offenders. 18 U.S.C. § 1152. Despite some Supreme Court dicta (and state and federal district court holdings) to the contrary, it was the Department's opinion that federal jurisdiction was not exclusive of state jurisdiction. See Office of Legal Counsel Memorandum, dated March 21, 1979, reprinted at 6 ILR K-15, 1820 (August 1979). This is no longer the case in as much as the Solicitor General has taken the position that federal jurisdiction is exclusive in an amicus brief recommending that certiorari be denied in Arizona v. Flint, 492 U.S. 911 (1989). Concurrent state jurisdiction has, moreover, been rejected by the appellate courts of four states with substantial expenses of Indian country within their borders. See State v. Larson, 455 N.W.2d 600 (S. Ct. S.D. 1990); State v. Flint, 157 Ariz. 227, 756 P.2d 324 (Ct.App. Az. 1988), cert. denied, 492 U.S. 911 (1989); State v. Greenwalt, 204 Mont. 196, 663 P.2d 1178 (S. Ct. Mont. 1983); State v. Kuntz, 66 N.W.2d 531 (S. Ct. N.D. 1954).

United States Attorneys have, therefore, a very important role to play in reacting to crimes by non-Indians against Indians. It is their responsibility to make sure that the tribal community is protected from crimes by persons over whom neither the tribe nor the state has jurisdiction.

[cited in USAM 9-20.100]