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such an offense would cause direct injury to the Tribe and cannot therefore be regarded as truly "victimless." A second group of offenses that may directly implicate the Indian community are consensual crimes committed by nonIndian offenders in conjunction with Indian participants, where the Indian participant, although willing, is within the class of persons which a particular state statute is specifically designed to protect. Thus, federal jurisdiction will lie under 18 U.S. § 2032 for the statutory rape of an Indian girl, as would a charge of contributing to the delinquency of a minor where assimilated into federal law pursuant to 18 U.S.C. § 13. A third group of offenses which may be punishable under the law of individual states and assimilated into federal law pursuant to the Assimilative Crimes Act would also seem intrinsically to involve the sort of threat that would cause federal jurisdiction to attach where an Indian victim may in fact be identified. Such crimes would include reckless endangerment, criminal trespass, riot or rout, and disruption of a public meeting or a worship service conducted by the Tribe.

In certain other cases, conduct which is generally prohibited because of its ill effects on society at large and not because it represents a particularized threat to specific individuals may nevertheless so specifically threaten or endanger Indian persons or property that federal jurisdiction may be asserted. Thus, speeding in the vicinity of an Indian school or in an obvious attempt to scatter Indians collected at a tribal gathering, and a breach of the peace that borders on an assault may in unusual circumstances be seen to constitute a federal offense.

III.

Whatever the contours of the area in which federal jurisdiction may be asserted, a final critical question remains to be considered: whether state authorities may also legally charge a non-Indian offender with commission of an offense against state law or whether federal jurisdiction, insofar as it attaches, is exclusive. This issue is an exceedingly difficult one and many courts, without carefully considering the question, have assumed that federal jurisdictions whenever it obtains is exclusive. We nevertheless

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believe that it is a matter which should not be regarded as settled before it has been fully explored by the courts. Although McBratney firmly establishes that state jurisdiction, where it attaches because of the absence of a clear Indian victim, is exclusive, 'we believe that, despite Supreme Court dicta to the contrary, it does not necessarily follow that, where an offense is stated against a non-Indian defendant under federal law, state jurisdiction must be ousted.

The exclusivity of federal jurisdiction vis-a-vis the states with regard to 18 U.S.C. § 1153, the Major Crimes Act, has been recognized, see, e.g., Seymour v. Superintendent, 368 U.S. 351 (1962), but has only formally been addressed and decided in the last year. See United States v. John, 98 S. Ct. 2547, 2550 (1978). The Court in John relied on notions of preemption and the slight evidence provided by the legislative history of this provision to reach a result that had long been assumed by the lower courts. 13/

Section 1152 has likewise been viewed as ousting state jurisdiction where Indian defendants are involved. 14/ Supreme Court dicta, moreover, suggests that federal jurisdiction may similarly be exclusive where offenses by nonIndians against Indians within the terms of § 1152 are

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13/ See, e.g., Application of Kinaha, 131 F.2d 737 (7th Cir. 1942); In re Carmen's Petition, 165 F. Supp. 942, 948 (N.D. Cal. 1958), aff'd sub nom. Dickson v. Carmen, 207 F.2d 809 (9th Cir. 1959), cert. denied, 361 U.S. 934 (1960).

14/ See, e.g., United States ex rel. Lynn v. Hamilton, 233 F. 685 (W.D.N.Y. 1915); In re Blackbird, 109 F. 139 (W.D. Wis. 1901); Application of Denetclaw, 83 Ariz. 299, 320 P.2d 697 (1958); State v. Campbell, 53 Minn. 354, 55 N.W. 553 (1893); Arquette v. Schneckloth, 56 Wash. 2d 178, 351 P.2d 92 (1960).

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concerned. 15/ Square holdings to this effect are, however, rare. The Supreme Court of North Dakota has held that state jurisdiction is ousted where federal jurisdiction under § 1152 is seen to exist in cases where non-Indians have committed

15/ See State of Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 47 U.S.L.W. 4111, 4113 (Jan. 16, 1979) ("State law reaches within the exterior boundaries of an Indian reservation only if it would not infringe'on the right of reservation Indians to make their own laws and be ruled by them. Williams v. Lee, 358 U.S. 217, 219-20. As a practical matter, this has meant that criminal offenses by or against Indians have been subject only to federal or tribal laws ... except where Congress in the exercise of its plenary and exclusive power over Indian affairs has 'expressly provided that state laws shall apply'"); Williams v. Lee, 358 U.S. at 220 ("if crime was by or against an Indian, tribal jurisdic-. tion or that expressly conferred on other than state] courts has remained exclusive"); id. at n.5 ("Congress has granted to the federal courts exclusive jurisdiction over all major crimes. And non-Indians committing crimes against Indians are now generally tried in federal courts ."); Williams v. United States, 327 U.S. 711, 714 (1946) ("the laws and courts of the United States, rather than those of Arizona, have jurisdiction over offenses committed on the reservation by one who is not an Indian against one who is an Indian"). See also Bartkus v. Illinois, 359 U.S. 121, 161 (1959) (Black, J., dissenting); United States v. Cleveland, 503 F.2d 1067 (9th Cir. 1975) (federal law applies to assault by non-Indian against an Indian).

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offenses against Indians on the reservation. 16/ At least, three other earlier cases suggest a contrary result, however, recognizing that, as in McBratney, the states have a continuing interest in the prosecution of offenders against state law even while federal prosecution may at the same time be warranted. 17/

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Although it would mean that § 1152 could not be uniformly applied to provide for exclusive federal jurisdiction in all cases of interracial crimes, a conclusion that both federal and state jurisdiction may lie where conduct on a reservation by a non-Indian which presents a direct and immediate threat to an Indian person or property constitutes an offense against the laws of each sovereign could not be criticized as inconsistent or anomalous. Section 1153 was enacted many years after § 1152 had been introduced as part of the early Trade and Intercourse Acts; its clear purpose was to provide a federal forum for the prosecution of Indians charged with major crimes, a forum necessary precisely because no state jurisdiction over such crimes was contemplated. Consistent with this purpose, § 1152 may properly be read to preempt state attempts to prosecute Indian defendants for crimes against non-Indians as well.

In cases involving a direct and immediate threat by a non-Indian defendant against an Indian person or property, however, a different result may be required. The state interest in such cases, as recognized by McBratney, is strong. Section 1152 itself récognizes that where an Indian is charged with an interracial crime against a non-Indian,

16/ State v. Kuntz, 66 N.W. 2d 53 (N.D. 1954) (state prosecution of non-Indian for unlawful killing of livestock of Indian on Indian reservation dismissed on grounds that federal jurisdiction of the offense was exclusive).

17/ See State v. McAlhaney, 220 N.C. 387, 17 S.E. 352 (1941) Tstate jurisdiction upheld as to non-Indian charged with kidnapping Indian on Indian reservation); Oregon v. Coleman, 1 Oreg. 191 (1855) (territorial jurisdiction upheld as to non-Indian charged with sale of liquor to Indian on reservation notwithstanding existence of comparable offense under federal law). See also United States v. Barnhart, 22 F. 285, 291 (D. Oreg. 1884). (federal jurisdiction would exist as to non-Indian charged with manslaughter of Indian on reservation even if state court had jurisdiction of offense under State law) (dicta).

federal jurisdiction is to be exercised only where the offender is not prosecuted in his own tribal courts. But in no event would the state courts have jurisdiction in such a case absent a separate grant of jurisdiction such as that provided by Public Law No. 280. An analogous situation is presented where a non-Indian defendant is charged with a crime against an Indian victim; the federal interest is not to preempt the state courts, but only to retain authority to prosecute to the extent that state proceedings do not serve the federal interest.

This result follows from the preemption analysis set forth in Williams v. Lee, where the Court recognized that, in the absence of express federal legislation, the authority of the states should be seen to be circumscribed only to the extent necessary to protect Indian interests in making their own laws and being ruled by them. While significant damage might be done to Indian interests if Indian defendants could be prosecuted under state law for conduct occurring on the reservation, no equivalent damage would be done if state as well as federal prosecutions of non-Indian offenders against Indian victims could be sustained.

Finally, it might be argued that such a result is consistent with principles governing the administration of other federal enclaves. It is generally recognized that a state may condition its consent to a cession of land involving government purchase or condemnation by reserving jurisdiction to the extent consistent with the federal use. Kleppe v. New Mexico, 426 U.S. 529, 540 (1976); Paul v. United States, 371 U.S. 245, 265 (1963). Although Indian reservations are in many respects unique insofar as they in most cases existed prior to statehood rather than arising as a result of a cession agreement or condemnation proceedings, an analogy may nevertheless serve.

Since, in most cases, states may retain concurrent jurisdiction except to the extent that that would interfere with the federal use, they may do so here as well by prosecuting non-Indian offenders while federal jurisdiction at the same time remains as needed to protect Indian victims in the event that a state prosecution is not undertaken or is not prosecuted in good faith. For these reasons, therefore, we believe that a strong possibility exists that prosecution may be commenced under state law against a nonIndian even in cases where, as a result of conduct on the reservation which represents a direct and immediate threat against an Indian person or property, federal jurisdiction may also attach.

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