Indians, Race, and Criminal Jurisdiction in Indian Country

39 Pages Posted: 12 Aug 2016 Last revised: 31 Aug 2017

See all articles by Alexander Tallchief Skibine

Alexander Tallchief Skibine

University of Utah - S.J. Quinney College of Law

Date Written: 2016

Abstract

With the possible exception of the Indian Major Crimes Act, the classification of “Indian” for the purposes of the ICCA and the Duro Fix is not “racial” even if it includes non-enrolled people of Indian ancestry with significant connections to tribal communities. Furthermore, although the first prong of the Rogers test should be eliminated on policy grounds, the holding of the Zepeda court that the first prong could be satisfied by proof of blood quantum from any Indian tribe, recognized or not, is highly suspicious, seems to be arbitrary, and boosts the argument that the classification of “Indian” in such cases is a racial classification.

Acknowledging the problems plaguing current law enforcement on Indian reservations, this article has endorsed a position which would allow Indian tribes to determine the meaning of “Indian” for the purpose of the Duro fix. The Article also argued that the universe of “Indians” for the purpose of federal jurisdiction should be limited to enrolled tribal members and those eligible for such membership unless the relevant tribe has enacted precise standards delineating who is an Indian for the purpose of federal jurisdiction on its reservation.

Suggested Citation

Skibine, Alexander Tallchief, Indians, Race, and Criminal Jurisdiction in Indian Country (2016). 10 Alb. Govt. L. Rev. 49 (2017), University of Utah College of Law Research Paper No. 176, Available at SSRN: https://ssrn.com/abstract=2821182 or http://dx.doi.org/10.2139/ssrn.2821182

Alexander Tallchief Skibine (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

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