Criminal Jurisdiction on the Qualla Boundary

Last month, I traveled to a hotel located on the Eastern Cherokee Indian Reservation, or Qualla Boundary, in Cherokee, North Carolina to teach at the summer conference for North Carolina prosecutors. Probably because I had crime and criminal prosecution on my mind, I found myself wondering what happens when a person commits a crime on the reservation. What law applies? Who enforces the law? Who prosecutes the person – and where? I thought I’d do a little research and quickly find the answers. As it turns out, a complicated combination of federal, state, and tribal law governs Indian Country, including the Qualla boundary. And the answers to these questions vary depending on the race of the perpetrator and the victim and the nature of the crime.

First, what is the Qualla Boundary? The Eastern Cherokee Indian Reservation (also known as the Qualla Boundary) is home to the Eastern Band of Cherokee Indians, a federally recognized Indian tribe. The reservation is situated in Jackson and Swain counties on land held in trust by the United States. A handful of state highways (Hwys 19, 74, and 441) and the Blue Ridge Parkway traverse the territory. The land qualifies as “Indian Country,” for purposes of federal laws that, in certain circumstances, divest the state of criminal jurisdiction. See United States v. Welch, 822 F.2d 460 (4^th Cir. 1987).

Exclusive federal jurisdiction over certain crimes committed by or against Indians. States generally lack jurisdiction over crimes committed by or against “Indians” in Indian Country. See United States v. Bryant, 136 S. Ct. 1954, 1960–61 (2016). Instead, the federal courts have jurisdiction and federal law generally applies to the commission of such crimes in Indian Country. See 18 U.S.C. § 1152. That jurisdiction, afforded by the General Crimes Act, 18 U.S.C. § 1152, incorporates the Assimilative Crimes Act (ACA), 18 U.S.C. § 13. The ACA provides that when conduct which would violate state law occurs on federal land, the relevant state law is assimilated into federal law unless there is already applicable federal law. See United States v. Billadeau, 275 F.3d 692, 694 (8th Cir. 2001).

That jurisdiction afforded by the General Crimes Act excludes, however, crimes committed by one Indian against another. See Bryant, 136 S. Ct. at 1960-61. The Indian Major Crimes Act (IMCA), 18 U.S.C. § 1153, fills some of this jurisdictional void.

Major crimes committed by Indians. The IMCA provides for exclusive federal jurisdiction over “major crimes” committed by “Indians” in Indian Country. See 18 U.S.C. § 1153; United States v. John, 437 U.S. 634, 654 (1978) (holding that federal government had exclusive criminal jurisdiction over the defendant, a Choctaw Indian, alleged to have committed an assault on the Choctaw Reservation in Mississippi). The major crimes covered by the IMCA are set forth in 18 U.S.C. § 1153 and include murder, manslaughter, kidnapping, maiming, certain felony assault and felony sex abuse crimes, felony child abuse or neglect, arson, burglary, robbery, and certain felony property crimes.

To qualify as an “Indian,” for purposes of the IMCA, a defendant must have some Indian blood and must be recognized as an Indian by a tribe and/or the federal government. See State v. Nobles, ___ N.C. App. ___, 818 S.E.2d 129, 135-36 (2018) (citing and applying two-pronged test from United States v. Rogers, 45 U.S. 567, 573 (1846)).

Lesser crimes by Indians against Indians. An Indian who commits a crime against another Indian that is not included in the IMCA but that violates tribal law may be prosecuted in tribal court. Welch, 822 F.2d at 463 (stating that if the offense charged is by one Indian against another and not listed in the IMCA, the case “is to be resolved by the Indian Tribal Council”). An Indian tribe has jurisdiction over crimes committed by both its own Indian members and by Indian members of other tribes. 18 U.S.C. § 1153; see also State v. Kostick, 233 N.C. App. 62, 72–73 (2014) (so stating). Federal law limits the sentences that may be imposed by a tribal court. Such sentences generally may not exceed one year’s imprisonment. However, if certain procedural safeguards are adopted, a tribal court may impose up to three years’ imprisonment. 25 U.S.C. § 1302(a)(7).

Victimless crimes by Indians. An Indian who commits a victimless crime, such as driving while impaired, may be prosecuted in federal court pursuant to the Assimilated Crimes Act, if the Indian has not already been punished in tribal court. See United States v. Smith, 925 F.3d 410, 422–23 (9th Cir. 2019) (holding that the Assimilative Crimes Act applies to crimes in Indian country, and that neither the General Crimes Act nor the Major Crimes Act precluded the federal government from exercising its jurisdiction to prosecute the defendant for fleeing and eluding a law enforcement officer in violation of assimilated Oregon law); United States v. Thunder Hawk, 127 F.3d 705, 709 (8th Cir. 1997) (holding that the “Indian versus Indian” exception to 18 U.S.C. 1152 did not apply to deprive the federal court of jurisdiction because the offense of driving while impaired was not against the person or property of another Indian).

Criminal jurisdiction for non-Indians who commit crimes against non-Indians. The state court has exclusive jurisdiction, in contrast, over a non-Indian who commits a crime defined by state law against another non-Indian on the Qualla Boundary. See, e.g., United States v. Langford, 641 F.3d 1195, 1197 (10th Cir. 2011) (“The states possess exclusive criminal jurisdiction over crimes occurring in Indian country if there is neither an Indian victim, nor an Indian perpetrator.”); People v. Collins, 826 N.W.2d 175, 181 (Mich. App. 2012) (state courts in Michigan have jurisdiction over a criminal prosecution in which a defendant is a non-Indian, the offense is committed on Indian lands or in Indian country, and the offense is either victimless or the victim is not an Indian); But see David A. Sentelle and Melanie T. Morris, Criminal Jurisdiction on the North Carolina Cherokee Indian Reservation—A Tangle of Race and History, 24 Wake Forest L. Rev. 335 (1989) (stating that there is an exception to this general rule for crimes that are “peculiarly federal, i.e. those acts that are criminal wherever committed”).

Thus, the North Carolina Court of Appeals held in State v. Nobles, ___ N.C. App. ___, 818 S.E.2d 129, 133 (2018), that the trial court properly denied the non-Indian defendant’s motion to dismiss state charges of murder, armed robbery and unlawful firearm possession arising from acts on the Qualla Boundary for lack of jurisdiction. Similarly, the court in State v. Kostick, 232 N.C. App. 62 (2014), held that the state court had jurisdiction over driving while impaired charges against a non-Indian based on driving within the Qualla Boundary.

Criminal jurisdiction for non-Indians who commit crimes against Indians. The federal courts have exclusive jurisdiction under the General Crimes Act for crimes committed by non-Indians against Indians on the Qualla Boundary. Tribal courts have no jurisdiction over non-Indians for crimes committed on Indian land. Kostick, 232 N.C. App. at 72-73 (citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 207 (1978) (stating that “the commonly shared presumption of Congress … [is] that tribal courts do not have the power to try non-Indians [for crimes committed on Indian land].”).

So who enforces the law on the Qualla boundary? It appears that a combination of tribal, federal, state and local law enforcement officers do. The Cherokee Code provides that all traffic and motor vehicle violations are to be enforced in accordance with existing compacts. See Eastern Band of Cherokee Indians, Code of Ordinances, Sec. 20-1. The court of appeals in State v. Kostick cited testimony that indicated that the Cherokee Police Department had, at least for purposes of the law enforcement activity in that case, a compact with the Swain County Police Department and the State Highway Patrol.  233 N.C. App. at 71-72. A 1989 law review article on Qualla Boundary jurisdiction reported that tribal law enforcement officers were cross-designated as Swain and Jackson County Sheriff’s deputies. See Sentelle & Morris, Criminal Jurisdiction on the North Carolina Cherokee Indian Reservation—A Tangle of Race and History, 24 Wake Forest L. Rev. at 349. In Nobles, law enforcement officers with the Cherokee Police Department arrested the non-Indian defendant on murder charges along with Indians who also were alleged to have participated in the murder. Other criminal cases arising from acts on the Qualla Boundary note the involvement of federal agents.  See, e.g., United States v. Bird, 638 F. App’x 207, 208 (4th Cir. 2016); United States v. Squirrel, No. 2:12 CR 07, 2012 WL 5185750, at *1 (W.D.N.C. Sept. 27, 2012), report and recommendation adopted, No. 2:12CR07, 2012 WL 5185745 (W.D.N.C. Oct. 18, 2012) (unpublished).

Have insights of your own? As I said at the outset, this is complicated. If you know something about criminal jurisdiction on the Qualla Boundary that adds to (or differs from) something I’ve said, please use the comment feature to share your thoughts.