United States v. Johnny Smith

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30248
Plaintiff-Appellee,
D.C. No.
v. 3:16-cr-00436-BR-1
JOHNNY ELLERY SMITH,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted October 10, 2018
Portland, Oregon
Filed May 28, 2019
Before: Raymond C. Fisher, Richard R. Clifton, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan;
Concurrence by Judge Fisher
2 UNITED STATES V. SMITH
SUMMARY *
Criminal Law
The panel affirmed a conviction for two counts of fleeing
or attempting to elude a police officer in violation of Oregon
Revised Statutes § 811.540(1), as assimilated by 18 U.S.C.
§ 13, the Assimilative Crimes Act (ACA), and 18 U.S.C.
§ 1152, the Indian Country Crimes Act (ICCA).
The panel held that the ACA applies to Indian country,
by operation of both 18 U.S.C. § 7 (concerning land
“reserved or acquired for the use of the United States” and
“under the exclusive or concurrent jurisdiction thereof”) and
the ICCA (concerning “federal enclave” laws).
The panel held that the ACA, when invoked in Indian
country, is subject to the exceptions set forth in the ICCA,
namely: (1) “offenses committed by one Indian against the
person or property or property of another Indian,” (2) “any
Indian committing any offense in the Indian country who has
been punished by the local law of the tribe,” or (3) “any case
where, by treaty stipulations, the exclusive jurisdiction over
such offenses is or may be secured to the Indian tribes
respectively.” The panel held that the Indian-on-Indian
exception in the ICCA does not preclude application of the
ACA to all “victimless” crimes, and certainly not to the
offense in this case. Noting that the ICCA excludes from
federal prosecution only Indian defendants who have already
been punished by their tribe, the panel rejected the
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. SMITH 3
defendant’s contention that because he could have been
punished in tribal court for the same conduct, his prosecution
under the ACA was a needless and unlawful intrusion into
tribal sovereignty.
The panel rejected the defendant’s claim that 18 U.S.C.
§ 1153, the Major Crimes Act (MCA), precludes the
government from prosecuting any “state crimes” in Indian
country that are not listed in the MCA, such as Smith’s
offense of fleeing and attempting to elude the police as
defined under Oregon law.
Concurring, Judge Fisher agreed with the majority that
the ACA applies to “Indian country” subject to the ICCA’s
three exceptions. Observing that there are two ways to arrive
at that result, he wrote that he has some reservations about
the majority’s chosen approach – that the ACA applies to
Indian country on its own terms subject to the ICCA’s
exceptions.
COUNSEL
Conor Huseby (argued), Assistant Federal Public Defender,
Office of the Federal Public Defender, Portland, Oregon, for
Defendant-Appellant.
Paul T. Maloney (argued), Assistant United States Attorney;
Kelly A. Zusman, Appellate Chief; Billy J. Williams United
States Attorney; United States Attorney’s Office, Portland,
Oregon; for Plaintiff-Appellee.
4 UNITED STATES V. SMITH
Veronica C. Gonzales-Zamora, Brownstein Hyatt Farber
Schreck LLP, Albuquerque, New Mexico; Barbara L. Creel,
Southwest Indian Law Clinic, University of New Mexico
School of Law, Albuquerque, New Mexico; for Amicus
Curiae Southwest Indian Law Clinic.
OPINION
CALLAHAN, Circuit Judge:
Defendant-appellant Johnny Ellery Smith appeals from
his district court conviction, by guilty plea, of two counts of
fleeing or attempting to elude a police officer in violation of
Oregon Revised Statutes (ORS) § 811.540(1), as assimilated
by 18 U.S.C. § 13, the Assimilative Crimes Act (ACA), and
18 U.S.C. § 1152, the Indian Country Crimes Act (ICCA).
Smith argues that the federal government lacked jurisdiction
to prosecute him for his violation of state law in Indian
country because the ACA does not apply to Indian country.
While previous decisions may state otherwise, Smith argues
that these cases merely assumed the applicability of the ACA
to Indian country and did not directly address it, and thus do
not control. Second, Smith contends that even if the ACA
applies generally to Indian country, federal prosecution
under the ACA was barred in his case because he could have
been prosecuted under tribal law for the same offense.
Third, Smith asserts that 18 U.S.C. § 1153, the Major Crimes
Act (MCA), “occupies the field of federal court jurisdiction
over Indian country violations of state laws” and thus
precludes federal prosecution of his assimilated state crime.
UNITED STATES V. SMITH 5
We do not find Smith’s arguments persuasive. To the
extent that this issue was not settled by the Supreme Court
decision in Williams v. United States, 327 U.S. 711 (1946),
and our decision in United States v. Marcyes, 557 F.2d 1361(9th Cir. 1977), we confirm that the ACA applies to Indian
country, through the operation of 18 U.S.C. § 7 and § 1152.
The district court had jurisdiction over Smith’s offenses
under the ACA and the ICCA, and accordingly we affirm his
convictions.
I.
Smith is an enrolled Indian member of the Confederated
Tribes of Warm Springs. In September 2016, Smith fled in
his vehicle from Warm Springs police officers when they
tried to initiate a traffic stop, leading the officers on a high-
speed pursuit. During this chase, Smith drove at speeds
exceeding 77 miles per hour, crossed over the fog line
multiple times, and traveled in the opposing lane of traffic
for approximately 100 yards. He eventually turned onto an
unpaved dirt path, at which point the officers stopped their
pursuit for safety reasons.
Less than two months later, Smith again fled from Warm
Springs police officers when they attempted to conduct a
traffic stop after observing him speeding. During this
pursuit, Smith drove up to 120 miles per hour, failed to stay
in the proper lane, drove into the opposite lane of travel, and
at one point, slammed on his brakes, causing a pursuing
patrol vehicle to rear-end his vehicle. Eventually the officers
forced Smith’s vehicle off the road, where he exited his
vehicle and attempted to flee on foot, but was ultimately
stopped and arrested. Both incidents occurred on the Warm
Springs Indian Reservation within the State of Oregon.
6 UNITED STATES V. SMITH
Smith was charged in federal district court with two
counts of fleeing or attempting to elude a police officer, in
violation of ORS § 811.540(1), as assimilated by the ACA
and the ICCA. Smith was not charged in tribal court for
fleeing or attempting to elude a police officer based on these
incidents.
Smith filed a motion to dismiss the indictment on the
ground that the government lacked jurisdiction to charge him
in federal court for a state law violation alleged to have been
committed by an Indian in Indian country. The district court
denied the motion, after which Smith pled guilty to the two
counts in the indictment, while reserving his right to appeal
the district court’s decision on the jurisdictional issue.
II.
We review de novo jurisdictional issues over criminal
offenses. United States v. Begay, 42 F.3d 486, 497 (9th Cir.
1994).
Smith’s primary jurisdictional challenge to his
convictions is that the ACA does not apply to Indian country,
despite the line of cases that have suggested or stated
otherwise. The original, and most commonly cited,
precedent for the proposition that the ACA applies to Indian
country is Williams, wherein the Supreme Court stated:
It is not disputed that this Indian reservation
is “reserved or acquired for the use of the
United States, and under the exclusive or
concurrent jurisdiction thereof,” or that it is
“Indian country” within the meaning of [the
ICCA]. This means that many sections of the
Federal Criminal Code apply to the
UNITED STATES V. SMITH 7
reservation, including . . . the Assimilative
Crimes Act . . . .
327 U.S. at 713 (footnotes omitted) (quoting 18 U.S.C.
§ 451, the predecessor to 18 U.S.C. § 7). In Marcyes, we
relied on Williams in rejecting an argument raised by amicus
curiae against the applicability of the ACA to Indian country,
which was virtually identical to the challenge Smith raises
here:
Amicus’ argument that the [Supreme Court
in Williams] merely assumed [the ACA’s]
applicability without deciding the question is
belied by the court’s own words . . . .
We would also note that the Williams court’s
ultimate decision . . . would never had been
reached had the court felt that the A.C.A. did
not apply to any crime committed upon
Indian lands. Our own review of the
language of 18 U.S.C. § 13 and 18 U.S.C.
§ 1152 convinces us that the district court
was correct in holding that the A.C.A., by its
own terms and through § 1152, is applicable
to Indian country.
8 UNITED STATES V. SMITH
557 F.2d at 1365 n.1 (emphasis added). In several other
decisions, we have upheld or asserted the applicability of the
ACA in Indian country. 1 Other circuits are in accord. 2
These prior decisions indicate that the ACA applies to
Indian country. Smith alleges, however, that the
jurisdictional question was never directly at issue in those
other cases but merely assumed, such that we are not bound
by those decisions. We do not need to address that
contention. Because the jurisdictional question is now
directly before us, we expressly hold that the ACA applies
to Indian country, based both on precedent and our own
analysis of the ACA and the ICCA.
1
E.g., Acunia v. United States, 404 F.2d 140, 142 (9th Cir. 1968)
(“[T]he [ACA] is among the general laws which the first paragraph of
[the ICCA] extends to Indian territory.”); United States v. Kaufman,
862 F.2d 236, 237-38 (9th Cir. 1988) (per curiam) (upholding appellant’s
conviction under the ACA for pointing a firearm at another person in
violation of an Oregon statute while “at the Chemawa Indian School
construction site, which is within a federal enclave”); United States v.
Errol D., Jr., 292 F.3d 1159, 1164 (9th Cir. 2002) (“[T]he government
could have charged Errol D. under [the ICCA], which, by extending the
[ACA] to Indian territory, would have rendered him criminally liable for
a ‘like offense’ and a ‘like punishment’ under state law.”); United States
v. Bare, 806 F.3d 1011, 1016-17 (9th Cir. 2015) (holding that, under the
ICCA, appellant “is subject to punishment in Indian Country—by the
United States—which incorporates in the federal offense the elements of
Arizona’s disorderly conduct statute under the ACA”).
2
E.g., United States v. Sosseur, 181 F.2d 873, 874 (7th Cir. 1950)
(citing Williams to hold that “the [ACA] . . . has been conclusively held
applicable to the Indian country”); United States v. Thunder Hawk,
127 F.3d 705, 707 (8th Cir. 1997) (stating that the ACA “is one of the
federal enclave laws made applicable to Indian country by the ICCA”);
United States v. Pino, 606 F.2d 908, 915 (10th Cir. 1979) (concluding
that the ACA “assimilates state traffic laws and others into federal
enclave law” and “reaches activities on Indian reservations”).
UNITED STATES V. SMITH 9
A. The Assimilative Crimes Act
As with all questions of statutory interpretation, we turn
first to the text of the statute. The ACA states in part:
Whoever within or upon any of the places
now existing or hereafter reserved or
acquired as provided in [18 U.S.C. § 7] . . . is
guilty of any act or omission which, although
not made punishable by any enactment of
Congress, would be punishable if committed
or omitted within the jurisdiction of the State,
Territory, Possession, or District in which
such place is situated, by the laws thereof in
force at the time of such act or omission, shall
be guilty of a like offense and subject to a like
punishment.
18 U.S.C. § 13(a). The plain text of the ACA lacks any
express reference to Indians or Indian country. The statute
on its face also contains no limitation based on the status of
the defendant, to include whether he is Indian or non-Indian.
Instead, it begins with the all-encompassing term
“[w]hoever” in regards to whom it might apply—so long as
this person commits the offense “within or upon any of the
places now existing or hereafter reserved or acquired as
provided in [18 U.S.C. § 7].” Id.Hence, the jurisdictional “hook” of the ACA is the situs
of the offense, which hinges on the ACA’s reference to
18 U.S.C. § 7. This federal criminal statute defines areas
within the “special maritime and territorial jurisdiction of the
United States,” 18 U.S.C. § 7, which are often referred to as
“federal enclaves.” See United States v. Markiewicz,
978 F.2d 786, 797 (2d Cir. 1992) (“[F]ederal enclave laws
are a group of statutes that permits the federal courts to serve
10 UNITED STATES V. SMITH
as a forum for the prosecution of certain crimes when they
occur within the ‘[s]pecial maritime and territorial
jurisdiction of the United States’, 18 U.S.C. § 7; this
jurisdiction includes federal land, and property such as
federal courthouses and military bases.”) (alteration in
original). If an offense is committed in a federal enclave and
there is no federal statute defining that offense (i.e., an
offense “not made punishable by any enactment of
Congress”), the federal government may nonetheless
prosecute the offense through the ACA by assimilating a
“like offense” and “like punishment” from the law of the
state in which the federal enclave is situated. See Lewis v.
United States, 523 U.S. 155, 160 (1998) (“The ACA’s basic
purpose is one of borrowing state law to fill gaps in the
federal criminal law that applies on federal enclaves.”).
Our first question then is whether “Indian country”—or
more specifically, the Warm Springs Indian Reservation
where Smith’s offenses occurred—qualifies as one of these
“places . . . reserved or acquired as provided in [18 U.S.C.
§ 7].” See 18 U.S.C. § 13(a). Smith contends that Indian
country does not fall within the meaning of 18 U.S.C. § 7because the section lacks any reference to Indian country or
Indian reservations. Despite the apparent absence of the
term “Indian” however, 18 U.S.C. § 7(3) defines federal
territorial jurisdiction to include “[a]ny lands reserved or
acquired for the use of the United States, and under the
exclusive or concurrent jurisdiction thereof.” Based on a
plain reading of this text, any Indian reservation or land that
is (1) “reserved or acquired for the use of the United States,”
and (2) “under the exclusive or concurrent jurisdiction
thereof” falls within the ambit of 18 U.S.C. § 7.
Turning first to whether Indian country is “reserved or
acquired for the use of the United States,” we have stated
UNITED STATES V. SMITH 11
that the meaning of this phrase in section 7(3) “is plain
enough. Courts have demonstrated their faith in the words’
clarity by skipping over them without explication.” United
States v. Corey, 232 F.3d 1166, 1176 (9th Cir. 2000). In
cases such as Williams, Marcyes, and others, courts have
readily accepted that Indian reservations are “reserved or
acquired for the use of the United States” within the meaning
of 18 U.S.C. § 7(3) without much discussion. See, e.g.,
Guith v. United States, 230 F.2d 481, 482 (9th Cir. 1956)
(“[A]ppellant’s ranch, being located in ‘Indian country’, is
on ‘lands reserved . . . for the use of the United States, and
under exclusive . . . jurisdiction thereof’, within 18 U.S.C.
§ 7(3).”); Pino, 606 F.2d at 915 (“The [ACA] reaches
activities on Indian reservations since such areas are
‘reserved or acquired for the use of the United States, and
under the exclusive or concurrent jurisdiction thereof.’”).
Smith argues that tribal lands were not “reserved or
acquired for the use of the United States” by referencing two
specific treaties between the federal government and Indian
tribes in Oregon and Washington that “cede[d] certain lands
to the United States while reserving lands for ‘exclusive use’
by tribes.” But for lands to be “reserved or acquired for the
use of the United States” under 18 U.S.C. § 7(3), “[t]here is
no requirement that the United States be an owner, or even
an occupant, so long as the land has been set aside for the
use of an instrumentality of the federal government.” Corey,
232 F.3d at 1177. In the 1850s, when “the federal
government began frequently to reserve public lands from
entry for Indian use,” “the modern meaning of Indian
reservation emerged, referring to land set aside under federal
protection for the residence or use of tribal Indians.”
Cohen’s Handbook of Federal Indian Law § 3.04 at 190
(Nell Jessup Newton ed., 2017) (citations omitted). “This
use of the term ‘reservation’ from public land law soon
12 UNITED STATES V. SMITH
merged with the treaty use of the word to form a single
definition describing federally protected Indian tribal lands
without depending on any particular source.” Id. at 191.
Contrary to Smith’s claim, the treaties he cites provide
specific examples of how Indian reservations were “reserved
or acquired” by the United States for the federal purpose of
protecting Indian tribes, which traditionally were considered
“wards of the nation” under federal law. See generally
Donnelly v. United States, 228 U.S. 243 (1913); United
States v. Kagama, 118 U.S. 375 (1886); Worcester v.
Georgia, 31 U.S. 515 (1832).
Second, we turn to whether Indian country falls “under
the exclusive or concurrent jurisdiction” of the United
States. This phrase in section 7(3) “refers to ‘legislative
jurisdiction,’” which means “the state’s authority ‘to make
its law applicable to the activities, relations, or status of
persons’” within a territory. Corey, 232 F.3d at 1177–78
(quoting the Restatement (Third) of the Foreign Relations
Law of the United States § 401 (1987)). Given this, the
United States’ jurisdiction over Indian country—if measured
by its authority to legislate with regard to Indian territories
and the activities within—seems apparent. The Supreme
Court has long recognized Congress’ “broad general
powers” under the Constitution to regulate with respect to
Indian affairs—“powers that [have been] consistently
described as ‘plenary and exclusive.’” United States v. Lara,
541 U.S. 193, 200 (2004) (quoting Washington v.
Confederated Bands & Tribes of Yakima Nation, 439 U.S.
463, 470–71 (1979); Negonsott v. Samuels, 507 U.S. 99, 103
(1993); United States v. Wheeler, 435 U.S. 313, 323 (1978)).
The history of 18 U.S.C. § 7 and other statutes by which
Congress defined Indian country and asserted federal
criminal jurisdiction over newly acquired territories, to
UNITED STATES V. SMITH 13
include tribal lands, also supports this view. “As the United
States acquired new possessions, Congress extended federal
criminal jurisdiction with the boundaries of the young
republic[,]” and “did so by reference” to federal criminal
jurisdiction in federal enclaves. Corey, 232 F.3d at 1174,
1175. The original Federal Crimes Act of 1790 referred to
federal enclaves as “any fort, arsenal, dock-yard, magazine,
or . . . any other place or district of country, under the sole
and exclusive jurisdiction of the United States,” 1 Stat. 112,
§ 3 (1790), and the Indian Boundaries Act of 1817 3 and the
Indian Intercourse Act of 1834 4 similarly referred to crimes
committed in places “under the sole and exclusive
jurisdiction of the United States.” As the statutory definition
of federal enclave jurisdiction evolved into what is now the
3
Titled “An Act to Provide for the Punishment of Crimes and
Offences Committed Within the Indian Boundaries,” the statute provided
for the punishment of crimes committed by “any Indian or other person
or persons . . . within the United States, and within any town, district, or
territory, belonging to any nation or nations, tribe or tribes, of Indians,
commit any crime, offence, or misdemeanor, which if committed in any
place or district of country under the sole and exclusive jurisdiction of
the United States, would, by the laws of the United States, be punished
with death, or any other punishment . . . .” Act of March 3, 1917, ch. 92,
§ 1, 3 Stat. 383 (1817). Section 2 of the act gave federal courts
jurisdiction to hear and try these offenses, with the exception of “any
offence committed by one Indian against another, within any Indian
boundary.” Id. § 2, 3 Stat. 383.
4
Section 25 provided that the “punishment of crimes committed
within any place within the sole and exclusive jurisdiction of the United
States, shall be in force in the Indian country” except for “crimes
committed by one Indian against the person or property of another
Indian.” See An Act to Regulate Trade and Intercourse with the Indian
Tribes and to Preserve Peace on the Frontiers, ch. 161, § 25, 4 Stat. 733(1834).
14 UNITED STATES V. SMITH
ACA in 18 U.S.C. §§ 7 and 13, 5 the language used to
describe and define federal criminal definition of federal
jurisdiction in Indian country was likewise updated. When
Congress enacted the ACA and the ICCA as part of the
revised and consolidated federal criminal code in 1948, it
also codified the definition of Indian country as “all land
within the limits of any Indian reservation under the
jurisdiction of the United States Government.” 18 U.S.C.
§ 1151(a) (emphasis added). In that sense, perhaps the most
direct indicator that Indian country, as currently defined in
the federal criminal code, falls within the “jurisdiction of the
United States” comes from the express language of the
statutory definition itself.
In light of the above, we hold that the ACA applies to
Indian country by virtue of 18 U.S.C. § 7.
5
In the Federal Crimes Act of 1825, Congress broadened the
definition of federal enclaves, see An Act More Effectually to Provide
for the Punishment of Certain Crimes against the United States and for
Other Purposes, ch. 65, § 1, 4 Stat. 115 (1825), and also enacted the
provision that “provided the basis from which has grown the
Assimilative Crimes Act now before us.” See id. § 3, 4 Stat. 115; United
States v. Sharpnack, 355 U.S. 286, 290 (1958). In 1909, Congress
consolidated various criminal jurisdictional provisions into a single
statute, wherein its definition of federal enclaves included “any lands
reserved or acquired for the exclusive use of the United States, and under
the exclusive jurisdiction thereof. . . .” See Act of March 4, 1909. ch.
321, § 272, 35 Stat. 1088, 1143. This precursor to 18 U.S.C. § 7(3) was
expanded in 1940 to include land over which the federal government had
“concurrent” jurisdiction. See Act of June 11, 1940, ch. 323, 54 Stat.
304 (1940).
UNITED STATES V. SMITH 15
B. The Indian Country Crimes Act
Our review of the ICCA (sometimes referred to as the
General Crimes Act) further supports the applicability of the
ACA to Indian country. The ICCA states:
Except as otherwise expressly provided by
law, the general laws of the United States as
to the punishment of offenses committed in
any place within the sole and exclusive
jurisdiction of the United States, except the
District of Columbia, shall extend to the
Indian country.
This section shall not extend to offenses
committed by one Indian against the person
or property of another Indian, nor to any
Indian committing any offense in the Indian
country who has been punished by the local
law of the tribe, or to any case where, by
treaty stipulations, the exclusive jurisdiction
over such offenses is or may be secured to the
Indian tribes respectively.
18 U.S.C. § 1152.
Courts have repeatedly interpreted the “general laws of
the United States” in the ICCA to refer to “federal enclave
laws,” meaning those laws passed by the federal government
in exercise of its police powers in areas of exclusive or
concurrent federal jurisdiction as defined in 18 U.S.C. § 7.
E.g., Begay, 42 F.3d at 498 (“[U]nder § 1152, Congress
mandated that the ‘general laws’ of the United States
applicable in federal enclaves, such as national parks,
military bases, veterans’ hospitals, federal buildings, and
federal prisons, apply in Indian country . . . .”); United States
16 UNITED STATES V. SMITH
v. Strong, 778 F.2d 1393, 1396 (9th Cir. 1985) (“[The ICCA]
applies only to ‘federal enclave law’—law in which the situs
of the offense is an element of the crime.”); United States v.
Torres, 733 F.2d 449, 454 (7th Cir. 1984) (“In order to
prosecute under 18 U.S.C. § 1152, the Government must
prove, as a jurisdictional requisite, that the crime was in
violation of a Federal enclave law . . . .”).
The ACA, as a federal enclave law, thus also applies to
Indian country by operation of the ICCA. Many prior cases
uphold the applicability of an ACA violation in Indian
country on this basis. E.g., United States v. Burland,
441 F.2d 1199, 1200 (9th Cir. 1971) (finding “[o]ne of the
‘general laws’ referred to [in the ICCA] is the [ACA],”
which “makes the Montana statute that prohibits passing
forged checks . . . part of the federal law applicable on the
Fort Peck reservation”); Acunia, 404 F.2d at 142 (holding
“the [ACA] is among the general laws which the first
paragraph of section 1152 extends to Indian territory”);
Thunder Hawk, 127 F.3d at 707 (stating the ACA “is one of
the federal enclave laws made applicable to Indian country
by the ICCA”).
Accordingly, we hold that the ACA applies to Indian
country, by operation of both 18 U.S.C. § 7 and 18 U.S.C.
§ 1152.
III.
Having recognized the general applicability of the ACA
to Indian country, we turn next to whether the ACA is
subject to any limitations when applied to Indian country,
and if so, whether those limitations precluded jurisdiction in
Smith’s case. Smith argues that even if the ACA may
generally apply to Indian country, the federal government
cannot invoke the ACA to prosecute a state crime that is
UNITED STATES V. SMITH 17
already defined under tribal law. To do so, Smith alleges,
would defeat the “gap-filling” purpose of the ACA, since
there is no gap in criminal jurisdiction for the ACA to fill.
This argument misconstrues the purpose of the ACA, which
is aimed at “gaps in the federal criminal law”—not gaps in
overall criminal jurisdiction—and simply allows the federal
government to adopt state criminal law in order to prosecute
violations on federal enclaves that are not specifically
defined in the federal criminal code.
Nonetheless, we agree that the ACA may have a more
limited reach in Indian country than it would in other federal
enclaves, and, in particular, may be subject to the exceptions
in the ICCA. In addressing this question, we recognize that
our holdings above may present a seeming tension. If, on
one hand, the ACA extends to Indian country through the
ICCA, then naturally the ACA would be subject to the
exceptions of the ICCA; but if the ACA applies to Indian
country through 18 U.S.C. § 7, a provision independent of
the ICCA, then shouldn’t we reasonably find that the ACA
can be invoked in Indian country without any regard to the
ICCA’s exceptions?
Our statutory review leads us to conclude that the ACA,
when invoked in Indian country, is subject to the exceptions
set forth in the ICCA. Several principles inform this
determination. First, in our interpretation of the applicability
of the ACA to Indian country, we are mindful that “the
standard principles of statutory construction do not have
their usual force in cases involving Indian law.” Montana v.
Blackfeet Tribe, 471 U.S. 759, 766 (1985). The Supreme
Court has “consistently admonished that federal statutes and
regulations relating to tribes and tribal activities must be
‘construed generously in order to comport with . . .
traditional notions of [Indian] sovereignty and with the
18 UNITED STATES V. SMITH
federal policy of encouraging tribal independence.’” Ramah
Navajo Sch. Bd. v. Bureau of Revenue, 458 U.S. 832, 846
(1982) (alterations in original); see also Bryan v. Itasca Cty.,
426 U.S. 373, 392 (1976) (“[W]e must be guided by that
‘eminently sound and vital canon’ that ‘statutes passed for
the benefit of dependent Indian tribes . . . are to be liberally
construed, doubtful expressions being resolved in favor of
the Indians.’”) (citation omitted).
Second, we recognize that Congress’ intent for the ACA
to apply generally to federal enclaves within the meaning of
18 U.S.C. § 7 is not necessarily at tension with—or
exclusive of—Congress’ intent or ability to expand, limit, or
otherwise modify the precise contours of the ACA’s reach in
specific types of federal enclaves by other statutes. Given
that the ICCA is one of the primary laws enacted by
Congress to “balance the sovereignty interest of Indian tribes
and the United States’ interest in punishing offenses
committed in Indian country,” Begay, 42 F.3d at 498, we
find that Congress intended to impose its express limitations
on all federal enclave laws in Indian country, including the
ACA. This conclusion is consistent with precedent and with
our view that the ACA extends to Indian country by virtue
of the ICCA. See Acunia, 404 F.2d at 142 (“[I]t is clear that
Congress did not intend that the [ACA] should apply to
situations wherein, under the second paragraph of 18 U.S.C.
§ 1152, the extension to Indian country of the general laws
of the United States for federal enclaves is specifically
removed.”); United States v. Welch, 822 F.2d 460, 463 (4th
Cir. 1987) (“The [ACA] does not apply to crimes committed
by one Indian against another Indian in Indian country
. . . .”); United States v. Wadena, 152 F.3d 831, 840 n.13 (8th
Cir. 1998) (“[U]nder the Assimilative Crimes Act, the
exception involving Indian-against-Indian crimes would still
apply.” (citing Thunder Hawk, 127 F.3d at 706–08)).
UNITED STATES V. SMITH 19
Thus, the federal government may not invoke the ACA
to prosecute cases in Indian country that the ICCA
specifically excepts, namely: (1) “offenses committed by
one Indian against the person or property of another Indian,”
(2) “any Indian committing any offense in the Indian country
who has been punished by the local law of the tribe,” or
(3) “any case where, by treaty stipulations, the exclusive
jurisdiction over such offenses is or may be secured to the
Indian tribes respectively.” 18 U.S.C. § 1152. Here, these
limitations did not prohibit the federal government’s
prosecution of Smith.
On this point, however, amicus argues that the Indian-
on-Indian exception in the ICCA prohibits application of the
ACA to “victimless” crimes in Indian country, which would
include the Oregon crime of fleeing and eluding police in
this case. Amicus cites United States v. Quiver, 241 U.S.
602 (1916), where the Supreme Court dismissed a federal
charge for adultery between two Indians in Indian country as
barred by the ICCA’s Indian-on-Indian exception. The
government had argued that the ICCA exception did not
apply because adultery “is a voluntary act on the part of both
participants, and, strictly speaking, not an offense against the
person of either.” Id. at 605. The Court rejected that
argument in light of “the policy reflected by the legislation
of Congress and its administration for many years, that the
relations of the Indians among themselves—the conduct of
one toward another—is to be controlled by the customs and
laws of the tribe, save when Congress expressly or clearly
directs otherwise[.]” Id. at 605–06.
We do not read Quiver’s emphasis on Congress’ policy
from “an early period” to “permit the personal and domestic
relations of the Indians with each other to be regulated . . .
according to their tribal customs and laws” to mean that the
20 UNITED STATES V. SMITH
ICCA’s Indian-on-Indian exception prohibits federal
prosecution of any “victimless” crimes. Id. at 603–04.
Federal policy towards the exercise of tribal sovereignty has
evolved and fluctuated over time, particularly since Quiver
was decided in 1916. See United States v. Lara, 541 U.S.
193, 202 (2004) (“From the Nation’s beginning . . . the
Government’s Indian policies . . . of necessity would
fluctuate dramatically as the needs of the Nation and those
of the tribes changed over time. And Congress has in fact
authorized at different times very different Indian policies
. . . . Such major policy changes inevitably involve major
changes in the metes and bounds of tribal sovereignty.”)
(citation omitted). The laws passed by Congress to
effectuate its policies on criminal jurisdiction in Indian
country have never placed any explicit emphasis on the
“victimless” nature of a crime.
The Eighth Circuit, in considering similar challenges to
a federal prosecution of an Indian for driving under the
influence in Indian country, reached the same conclusion.
See Thunder Hawk, 127 F.3d at 709 (“We do not believe . . .
that Quiver stands for the proposition that the ‘Indian versus
Indian’ exception applies to every ‘victimless’ crime
involving Indians.”). As the Eighth Circuit reasoned:
Quiver involved domestic relations, an area
traditionally left to tribal self-government. In
such a case, including “victimless” crimes
within the “Indian versus Indian” exception
preserves the tribe’s exclusive jurisdiction
over domestic matters. Here, in contrast, the
prohibition of and punishment for driving
under the influence has not traditionally been
within the exclusive jurisdiction of Indian
tribes. Rather, the ACA “assimilates state
UNITED STATES V. SMITH 21
traffic laws and others into federal enclave
law in order ‘to fill in the gaps in the Federal
Criminal Code, where no action of Congress
has been taken to define the missing
offense.’” Moreover, the offense of driving
under the influence is more akin to an offense
against the public at large, both Indian and
non-Indian, rather than a true “victimless”
crime.
127 F.3d at 709 (citations omitted). Likewise, Smith’s
offense of fleeing and eluding the police is a public safety
offense, rather than a true “victimless” crime, and falls well
outside the area of domestic relations “traditionally left to
tribal self-government.” Id. Thus, we join the Eighth
Circuit’s view that the Indian-on-Indian exception in the
ICCA does not preclude application of the ACA to all
“victimless” crimes, and certainly not to the offense in this
case.
Smith also asserts that because he could have been
prosecuted in tribal court for the same conduct, his
prosecution by the federal government under the ACA “was
a needless and unlawful intrusion into tribal sovereignty.”
Smith provides no legal authority for the proposition that the
federal government may not prosecute where the tribe also
has the authority to do so, nor do we find it supported by the
text or purpose of the ACA or the ICCA. The second
exception in the ICCA plainly refers to “any Indian . . . who
has been punished by the local law of the tribe,” not any
Indian who could be punished by the law of the tribe.
18 U.S.C. § 1152 (emphasis added). By excluding from
federal prosecution only Indian defendants who have already
been punished by their tribe, this provision aptly strikes at
the “balance” that Congress sought to achieve with the ICCA
22 UNITED STATES V. SMITH
between “the sovereignty interest of Indian tribes and the
United States’ interest in punishing offenses committed in
Indian country.” Begay, 42 F.3d at 498. It both defers to
tribal criminal proceedings and allows for federal
prosecution where a tribe might choose not to exercise its
authority.
We also note that, in some instances, even the dual
prosecution by both federal and tribal authorities for the
same conduct has been upheld as constitutionally
permissible. See Wheeler, 435 U.S. at 314 (holding that “the
prosecution of an Indian in a federal district court under the
Major Crimes Act, 18 U.S.C. § 1153, when he has
previously been convicted in a tribal court of a lesser
included offense arising out of the same incident” is not
barred by the Double Jeopardy Clause). Contrary to Smith’s
contention then, the federal prosecution in this case was not
an “unlawful intrusion into tribal sovereignty,” but rather a
permissible exercise of concurrent jurisdictional authority
often held by different sovereigns in Indian country. See
Duro v. Reina, 495 U.S. 676, 680 n.1 (1990) (explaining how
jurisdiction in Indian country “is governed by a complex
patchwork of federal, state, and tribal law”). Given that none
of the ICCA’s exceptions apply in this case, the district court
had jurisdiction over Smith’s offenses under the ACA.
IV.
Finally, we reject Smith’s claim that the MCA, 18 U.S.C.
§ 1153, precludes the federal government from prosecuting
any “state crimes” in Indian country that are not listed in the
MCA, such as Smith’s offense of fleeing and attempting to
elude the police as defined under Oregon law.
UNITED STATES V. SMITH 23
The MCA provides for federal jurisdiction over a list of
enumerated crimes committed by Indians “against the
person or property of another Indian or other person” within
Indian country. 18 U.S.C. § 1153(a). In Begay, we already
rejected the argument “that Indians may not be charged for
any criminal conduct beyond those crimes enumerated in
[the MCA].” 42 F.3d at 498 (emphasis in original).
Similarly, neither the text nor history of these statutes
supports Smith’s assertion that the MCA limits federal
jurisdiction over any “violations of state law” in Indian
country outside those listed in that statute. The text of the
MCA lacks any express reference to, much less any
limitation of, other laws—such as the ICCA or the ACA—
that establish federal authority to prosecute crimes in Indian
country.
Furthermore, the MCA was enacted as “a direct
response” to the Supreme Court’s interpretation of the
ICCA, or more accurately, its predecessor in Revised
Statutes §§ 2145 and 2146. 6 Keeble v. United States,
412 U.S. 205, 209 (1973) (“The Major Crimes Act was
passed by Congress in direct response to the decision of this
Court in Ex parte Crow Dog, 109 U.S. 556 (1883) . . . [where
we held] that a federal court lacked jurisdiction to try an
Indian for the murder of another Indian . . . in Indian
country.”). “The prompt congressional response—
conferring jurisdiction on the federal courts to punish certain
offenses—reflected a view that tribal remedies were either
6
Revised Statutes §§ 2145 and 2146, later codified in 25 U.S.C.
§§ 217 and 218, were the direct progenitor for the ICCA enacted in 1948.
Section 2145 asserted federal criminal jurisdiction over violations of the
“general laws of the United States” in Indian country, while § 2146
provided for certain exceptions that were virtually identical to the
exceptions in the current ICCA.
24 UNITED STATES V. SMITH
nonexistent or incompatible with principles that Congress
thought should be controlling.” Id. at 210. Because the
ICCA did not “extend to offenses committed by an Indian
against another Indian, nor to any Indian . . . who has been
punished for that act by the local law of the tribe,” 18 U.S.C.
§ 1152, the MCA “partially abrogated [this exception in the
ICCA] by creating federal jurisdiction over fourteen
enumerated crimes committed by Indians against Indians or
any other person in Indian country.” United States v. Male
Juvenile, 280 F.3d 1008, 1013, 1019 (9th Cir. 2002) (“The
MCA was enacted after the [ICCA] . . . as an exception to or
abrogation of the [ICCA].”); Donnelly, 228 U.S. at 269–70
(explaining that the MCA of 1885 did not repeal the entire
ICCA predecessor but instead “manifestly repeal[ed] in part
the limitation that was imposed” by the specific exceptions).
Thus, rather than limit federal authority over crimes by
Indians in Indian country, the MCA extended it to specific
“major crimes,” thereby partially withdrawing the exclusive
authority of tribes over Indian-on-Indian crimes previously
afforded by the ICCA. The MCA did not otherwise affect
the federal criminal jurisdiction that was already established
by the ICCA for violations of the ACA and other federal
enclave laws in Indian country. For these reasons, the MCA
does not preclude the application of the ACA to Smith’s
offenses.
V.
We hold that the Assimilative Crimes Act applies to
crimes in Indian country, and that neither the Indian Country
Crimes Act nor the Major Crimes Act precluded the federal
government from exercising its jurisdiction to prosecute
Smith for his violations of Oregon Revised Statutes
§ 811.540(1) under the Assimilative Crimes Act. We uphold
UNITED STATES V. SMITH 25
the district court’s denial of the motion to dismiss for lack of
jurisdiction and AFFIRM Smith’s conviction.
FISHER, Circuit Judge, concurring:
I agree with the majority that the Assimilated Crimes Act
(ACA) applies to “Indian country” subject to the Indian
Country Crimes Act (ICCA)’s three exceptions. See
18 U.S.C. § 1151 (defining “Indian country”); id. § 1152
(providing that the ICCA “shall not extend [1] to offenses
committed by one Indian against the person or property of
another Indian, nor [2] to any Indian committing any offense
in the Indian country who has been punished by the local law
of the tribe, or [3] to any case where, by treaty stipulations,
the exclusive jurisdiction over such offenses is or may be
secured to the Indian tribes respectively”).
There are two ways to arrive at that result. One is to hold
that the ACA applies to Indian country only through the
ICCA, not on its own terms – i.e., that the ACA is part of
“the general laws of the United States” under the ICCA, id.
§ 1152, but Indian country is not among the “lands reserved
or acquired for the use of the United States” under the ACA,
id. §§ 7(3), 13. A second way to arrive at this result (the one
adopted by the majority) is to hold that the ACA applies to
Indian country on its own terms – i.e., that Indian country is
among the “lands reserved or acquired for the use of the
United States” under § 7(3) – but that Congress nonetheless
intended the ACA’s application to Indian country to be
subject to the ICCA’s three exceptions.
I have some reservations about the majority’s chosen
approach. See Cohen’s Handbook of Federal Indian Law
§ 9.02 n.19 (Nell Jessup Newton ed., 2017) (“Only one court
26 UNITED STATES V. SMITH
stated that the ACA applied of its own force within Indian
country, in a case in which the point was not in issue. United
States v. Marcyes, 557 F.2d 1361, 1365 n.1 (9th Cir. 1977).
The statement is inconsistent with the policy of leaving
tribes free of general federal criminal laws, except as
expressly provided.”). Under either approach, however, the
bottom line is the same: the ACA applies to Indian country
subject to the ICCA’s three exceptions. Accordingly, I
concur.