charged with a misdemeanor and an Indian tribe has concurrent jurisdiction of the conduct, the Attorney General may forego prosecution and surrender the person to the jurisdiction of the tribe governing such area of Indian country. EXCERPT FROM REPORT OF JUDICIARY COMMITTEE TO ACCOMPANY S. 1722

In section 161 of the bill, the Committee has continued the definition of Indian country found in 18 U.S.C. 1151, as well as the various provisions in current law (18 U.S.C. 1162, 3243; 25 U.S.C. 232) that grant State jurisdiction over offenses committed in Indian country by or against Indians. In addition, the Committee has retained the basic structure of 18 U.S.C. 1152 and 1153 (the Major Crimes Act), while making modifications to improve and clarify those statutes.

Currently, under 18 U.S.C. 1152 the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, are made to extend to the Indian country. However, the section does not "extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in Indian country who has been punished by the local law of the tribe." Notwithstanding its apparently plain language the Supreme Court has held that 18 U.S.C. 1152 also does not apply to offenses committed by a non-Indian against a non-Indian victim in Indian country." Such offenses are triable in the States under State law.55 This means, in general, that section 1152 applies only when the offense is by a non-Indian against an Indian or when an Indian has not been punished by the tribe. Section 1152 incorporates those specific Federal statutes that apply only in the special territorial jurisdiction of the United States, e.g., assault (18 U.S.C. 113), theft (18 U.S.C. 661), rape (18 U.S.C. 2031), homicide (18 U.S.C. 1111-1112). Significant gaps in Federal coverage of criminal offenses exist in such statutes (for example, there is no Federal burglary statute), and offenses not specifically covered are incorporated by the provisions of the Assimilated Crimes Act, 18 U.S.C. 13, which "borrows" the applicable State definition of the offense and penalty.

38

56

Serious offenses by Indians against "the person or property"" of an Indian or another person in Indian country are governed by 18 U.S.C. 1153, the Major Crimes Act. As recently amended by P.L. 94-297, this statute lists fourteen major offenses that apply in such circumstances. As to twelve of these offenses, Federal statutes exist that prescribe the definition and penalty; as to two offenses, however (burglary and incest), no Federal definition or penalty exists, and the Major Crimes Act provides for the adoption of the laws of the State in which the offense is committed that are in force at the time of such offense.

Although the Major Crimes Act reaches most serious offenses against the person or property, some gaps in coverage remain. For example, maiming (18 U.S.C. 114) and forcible sodomy" are not within the statute and as a conse

64 E.g., New York ex rel Ray v. Martin, 326 U.S. 496, 499-500 (1946).

United States v. Burland, 441 F.2d 1199 (9th Cir.), cert. denied, 404 U.S. 842 (1971). In United States v. Antelope, 430 U.S. 641 (1977) the Supreme Court unanimously rejected a claim that this scheme constituted an unconstitutional discrimination against Indian defendants charged with a crime involving a non-Indian victim.

58 It must also be recognized, however, that the general laws of the United States, as opposed to the laws of the United States applicable in places under the sole and exclusive jurisdiction thereof, apply to both Indians and non-Indians in Indian country. See Walks on Top v. United States, 372 F.2d 422 (9th Cir.), cert. denied, 389 U.S. 879 (1967); United States v. McGrady, 508 F.2d 13 (8th Cir. 1974).

57 It has been held that gambling is an offense that is not "against the person or property" of another, so that 18 U.S.C. 1152, rather than the Major Crimes Act or tribal law, is applicable. United States v. Sosseur, 181 F. 2d 873 (7th Cir. 1950).

68 Murder, manslaughter, kidnaping, rape, carnal knowledge of any female (not the ac cused's wife) who has not attained sixteen years of age, assault with intent to commit rape, incest, assault with intent to kill, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larency. Where the offense is enumerated in section 1153 and is committed by an Indian against a non-Indian, it has been held that the prosecution must be brought under section 1153, notwithstanding that section 1152 also would seem to reach the conduct. Henry v. United States, 432 F.2d 114 (9th Cir. 1970), modified on rehearing, 434 F.2d 1283, cert. denied, 400 U.S. 1011 (1971). 50 The lack of coverage of forcible sodomy (sodomy is not included as a form of rape) has created a serious enforcement problem in some instances. In one recent case in Utah, prosecution of an Indian for sodomizing his three-year old grandson had to be declined. Plainly, in a case such as this where the victim and the offender are in the same family, such a result may have tragic consequences since there may be no other practicable way to remove the offender from the situation and to protect the victim from his unwanted sexual attention.

quence are punishable today (if committed in Indian country by or against an Indian) only by a tribal court, which can impose a maximum prison sentence of only six months."

60

At the same time, the Major Crimes Act belies its title in at least one respect. extending to misdemeanor (i.e. under $100) as well as serious "larcen [ies]".' The term "larceny", moreover, is ambiguous. While it has been held to refer to the offense described in 18 U.S.C. 661, there is a division of judicial viewpoint whether that statute reaches a taking of property in the nature of embezzlement rather than larceny at common law."2

62

Under the proposed new Federal Criminal Code, 18 U.S.C. 1152 is carried forward virtually verbatim in subsections (c) and (d) (1) of section 161 of the bill. 18 U.S.C. 1153 has, however, been recast in subsection (d)(2). In place of the fourteen offenses listed in section 1153, the Code lists twenty "felony" offenses against the person or property contained in chapters 16 and 17 of the Code that include as a jurisdictional base the special jurisdiction of the United States. The offenses are: murder, manslaughter, and negligent homicide (sections 16011603); maiming and aggravated battery (sections 1611–1612); terrorizing (section 1615); kidnapping and aggravated criminal restraint (sections 1621–1622); rape, sexual assault, and sexual abuse of a minor (sections 1641-1643); arson and aggravated property destructions (sections 1701-1702); burglary and criminal entry (sections 1711-1712); robbery and extortion (sections 1721-1722); theft, trafficking in stolen property, and receiving stolen property (sections 1731-1733); and incest. Although on balance the twenty offenses enumerated may somewhat enlarge the scope of this section as compared to current law, the Committee perceives no reason not to permit Federal prosecution of all serious crimes against the person or property when committed by an Indian in Indian country. Such a decision indeed is consistent with the congressional policy inherent in the Major Crimes Act.

65

Unlike the Major Crimes Act, the sole instance in section 161 where it is stated that recourse shall be had to State law occurs with respect to the crime of incest, since that crime is not defired in the Code. Subsection (d) also contains a sentence which makes it clear that, in the event of a criminal prosecution of an Indian for one or more of the offenses listed therein, nothing in the subsection shall be deemed to preclude a conviction for a lesser included offense, whether or not such lesser offense is enumerated in the subsection. This carries forward the interpretation of the present Major Crimes Act in Keeble v. United States. It should be noted that the provisions of section 161 and indeed of the Criminal Code Reform Act in general, take no position with respect to the scope of jurisdiction possessed by tribal courts; for example, there is no attempt in this bill to alter the recent determination that tribal courts may not exercise jurisdiction over non-Indians accused of offenses in Indian country." It is the Committee's intention to preserve the extent of concurrent court jurisdiction as it now exists. To that end, section 205 (a) (2) makes clear that the existence of Federal jurisdiction over an offense does not in itself preclude an Indian tribe, band, community, group, or pueblo from exercising its jurisdiction in Indian country to enforce its laws applicable to the conduct involved. Moreover, subsection (b) of section 161 reinforces this policy by evincing a plain legislative intent that nothing in this Act (except to the extent specifically set forth) is intended to diminish, expand, or otherwise alter in any manner or to any extent State or tribal jurisdiction over offenses within Indian country, as such jurisdiction existed on the date immediately preceding the effective date of this Act.

60 25 U.S.C. 1302 (7).

68

61 United States v. Gilbert, 373 F. Supp. 32, 89–93 (D. S. Dak. 1974).

62 Compare, in this regard, United States v. Armata, 193 F. Supp. 624 (D. Mass. 1961) (embezzlement is included in 18 U.S.C. 661) with United States v. Beard, 436 F.2d 1084. 1088-1090 (5th Cir. 1971) (doubting the correctness of Armata`.

63 Offenses having general jurisdictional applicability will continue to be prosecutable without regard to the provisions of section 161. See the cases cited in note 56, supra.

61 The grading of the theft series of offenses varies from felony to misdemeanor status depending on the type or value of property involved. Section 161 is worded so as to reach only a felonious violation of these provisions, thus narrowing the scope in this respect of the Major Crimes Act but reflecting the policy adhered to generally in that Act that only serious offenses by Indians should be federally prosecutable.

65 See 18 U.S.C. 1153; and see Acunia v. United States, 404 F.2d 140 (9th Cir. 1968). 66 412 U.S. 205 (1973).

67 See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).

68 See also. holding that the double jeopardy clause is not a bar to successive tribal and Federal court prosecutions of the same defendant for the same act, United States v. Wheeler, 435 U.S. 313 (1978).

Finally, as stated above, the Supreme Court has ruled that 18 U.S.C. 1152 does not apply to offenses committed by a non-Indian against a non-Indian in Indian country and that such offenses are triable by State courts in accordance with State law. The Committee believes that there is Federal power under the Constitution to punish such offenses." In redrafting the provisions of current 18 U.S.C. 1152 in section 161 of the bill in conjunction with the definition of the special territorial jurisdiction in the Code, it is not the intention of the Committee that current law with respect to Federal jurisdiction of offenses by nonIndians against non-Indians be changed.

The special territorial jurisdiction also includes, under subparagraph (a)(4), any island, rock, or key which may, at the discretion of the President, be considered as appertaining to the United States. This carries forward the provisions of 18 U.S.C. 7(4). Currently crimes committed or such places are treated as if committed on the high seas on board a United States vessel."1

70

Finally, the special territorial jurisdiction includes any facility for exploration or exploitation of natural resources constructed or operated on or above the outer continental shelf as defined in section 2(a) of the Outer Cortinental Shelf Lands Act."

See United States v. Mazurie, 419 U.S. 544 (1975). Regardless of the Indian status of the perpetrator or victim, offenses in Indian country frequently constitute a breach of the peace and security of the enclave sufficient to invoke the exercise of Federal jurisdiction. Cf. Relford v. Commandant, 401 U.S. 355, 367-369 (1971). The Committee intends and anticipates, however, that the Federal government's new jurisdiction under section 161 of the bill over non-Indian versus non-Indian offenses, which is concurrent (see section 205(a) (1) and (2)) with that of the States and tribes, will be exercised sparingly to vindicate a distinct Federal interest or to insure against an apparent failure of justice. Cf. the Department of Justice policy in Petite v. United States, 361 U.S. 529 (1960).

70 The constitutionality of this statute is established by Jones v. United States, 137 U.S. 202 (1890). The limitations to keys "containing deposits of guano" has been eliminated.

71 See 48 U.S.C. 1417; Jones v. United States, supra note, 70.

72 43 U.S.C. 1331 (a). By including such faci'ities, the Committee accepts the recoinmendation of the American Bar Association. See statement of Prof. Livingston Hall on behalf of the ABA, Hearings, p. 5784.

STATES AND TRIBES AFFECTED BY PUBLIC LAW 83-280-Continued

No jurisdiction pursuant to Jurisdiction exercised in all