Document Type
Article
Publication Date
1996
Publication Information
72 N.D. L. Rev. 433 (1996).
Abstract
From the Introduction
This Article may not tie up this loose end to everyone's satisfaction, but it should contribute to a better understanding of federal criminal jurisdiction in Indian Country, through detailed examination of the relevant caselaw, animated by reflection on first principles. Part II lays out a few, very general, "big ideas" concerning the crucial connection between jurisdiction - especially criminal jurisdiction - and community self-determination. Part III provides specific background, and introduces the complicated rubric of federal criminal jurisdiction in general, and of jurisdiction in Indian Country in particular. Part IV examines the possible bases, or "hooks," for federal conspiracy jurisdiction over intra-Indian offenses in Indian Country, and suggests that no adequate hook exists. Part V reviews and evaluates the different approaches to this problem taken by the United States Courts of Appeals, and suggests that the rule which best respects tribal sovereignty, and Lopez's first principles, is one that places the burden on the United States to justify prosecutions for violations of "generally applicable" federal criminal laws in Indian Country by proving an overriding national interest in doing so. Part VI closes with a few thoughts about the broader significance of Lopez and the principles of subsidiarity for the criminal side of Federal Indian Law.
Recommended Citation
Richard W. Garnett,
Once More into the Maze: United States v. Lopez, Tribal Self-Determination, and Federal Conspiracy Jurisdiction in Indian Country,
72 N.D. L. Rev. 433 (1996)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1900