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.25 U.S.C.§ 1302(7).This limitation severely constrains the ability of tribes toprosecute serious felonies.There is no double jeopardy issue in the context of a federaland tribal prosecution.United States v.Wheeler, 435 U.S.313 (1978).States have nocriminal jurisdiction over Indians in Indian country, except in states that have P.L.280 jurisdiction or some other applicable federal statute.7.Ibid.§ 13.The Assimilative Crime Act fills the gap in federal enclaves (includ-ing Indian country) by applying state criminal law when there is no identification ordefinition of federal criminal law and provides in pertinent part:(a) Whoever within or upon any of the places now existing or hereafterreserved or acquired as provided in section 7 of this title, or on, above, orbelow any portion of the territorial sea of the United States not within thejurisdiction of any State, Commonwealth, territory, possession, or district isguilty of any act or omission which, although not made punishable by anyenactment of Congress, would be punishable if committed or omitted withinthe jurisdiction of the State, Territory, Possession, or District in which suchplace is situated, by the laws thereof in force at the time of such act oromission, shall be guilty of a like offense and subject to a like punishment. 374 notes to pages 211 2148.118 U.S.375 (1886).9.Ibid.at 378 79.Kagama set the stage for the full-blown emergence of theplenary power doctrine seven years later in Lone Wolf v.Hitchcock, 187 U.S.553 (1903).See the discussion in chapter 5.10.United States v.McBratney, 104 U.S.621, 624 (1881).11.435 U.S.191 (1978).12.Ibid.at 208.13.But was the Court really analyzing anything or merely making a policy-driven decision about what it thought tribes should and shouldn t be allowed to do? Atbest, this is a most curious jurisprudence.At worst, it is colonialism and a markeddeparture from the rule of law.See the later discussion in this chapter.14.See, e.g., Atkinson Trading Co., Inc.v.Shirley, 532 U.S.645 (2001) (NavajoNation may not tax non-Indian guest at a non-Indian-owned hotel located on fee landwithin the Navajo Reservation).15.Increasing tribal loss at the bar of the Supreme Court is the current trend.See,e.g., David H.Getches et al., Cases and Materials on Federal Indian Law (Thomson West,5th ed., 2005), 456 475; David H.Getches, Conquering the Cultural Frontier: TheNew Subjectivism of the Supreme Court in Indian Law, 84 Cal.L.Rev.1573 (1996).16.See the discussion in chapter 4.17.This, of course, concedes the existence (if not legitimacy) of a congressionalplenary power that is problematic in its own right.See the discussion in chapter 5.18.358 U.S.217 (1959).19.Charles Wilkinson, American Indians, Time, and the Law (Yale UniversityPress, 1987), 1 2 (citation omitted).20.See 25 U.S.C.§ 262 (2000), which provides:Any person desiring to trade with Indians on any Indian reservation shall,upon establishing the fact, to the satisfaction of the Commissioner of IndianAffairs, that he is a proper person to engage in such trade, be permitted to doso under such rules and regulations as the Commissioner of Indian Affairsmay prescribe for the protection of said Indians.The regulations are found at 25 C.F.R.§§ 140.1 140.26 (2005).21.Williams, 358 U.S.at 217 18.22.Ibid.at 218.23.Ibid.at 220.24.Ibid.at 220 21.Public Law 280 provided the states with an option to obtaincriminal and/or civil jurisdiction in Indian country if they enacted appropriatelegislation and, when necessary, amended their constitution.In 1968, Public Law 280was amended to require a tribal referendum as a condition precedent to any stateattempt to secure jurisdiction pursuant to Public Law 280.See 25 U.S.C.§ 1323(2000).25.Ibid.at 223 (citations omitted).26.31 U.S.515 (1832); see ibid.at 221.27.Williams, 358 U.S.at 222.28.Ibid.at 220. notes to pages 214 216 37529.See the later discussion in this chapter.30.411 U.S.164 (1973).31.Ibid.at 165.The amount of tax liability in controversy was $16.20 (ibid.at166).32.Ibid.at 165 (emphasis added).33.Ibid.at 179.34.Ibid.at 179 80.35.Ibid.at 172 (citations omitted).The Court also stated, This is not to say thatIndian sovereignty doctrine, with its concomitant jurisdictional limit on the reach ofstate law, has remained static during the 141 years since Worcester was decided.Notsurprisingly, the doctrine has undergone considerable evolution in response tochanged circumstances (ibid.at 171).36.Ibid.at 172.37.36 Stat.570 (1910) ( nothing herein, or in the ordinance herein provided for,shall preclude the said State from taxing as other lands and other property are taxedoutside of an Indian reservation owned or held by any Indian ) (emphasis added).38.4 U.S.C.§§ 104 110 (2000)
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