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MONDAY, JUNE 24, 2002

A divided federal appeals court threw out criminal charges against a Montana juvenile on Friday, focusing on a century-old law that represented one of the first intrusions on tribal sovereignty.

In a 2-1 ruling, the 9th Circuit Court of Appeals said the Major Crimes Act of 1885 does not allow prosecution of American Indians for property crimes involving government entities. A three-judge panel dismissed charges against Errol D., a juvenile accused of burglarizing a Bureau of Indian Affairs office on the Fort Peck Reservation.

But the majority was quick to point out that federal authorities could have invoked other laws. "In this case, however, we conclude the government simply charged Errol D. under the wrong statute," wrote Circuit Judge William A. Fletcher

That explanation wasn't accepted by a dissenting panel member. Circuit Judge Melvin Brunetti accused the court of creating a catch-22 situation where certain property crimes could go unpunished.

"[B]y excluding a government agency from the list of possible victims of burglary, the majority creates a loophole in the statutes governing federal criminal jurisdiction over Indians in Indian Country," Brunetti wrote.

The dispute centers on a law that gave the federal government, for the first time, jurisdiction over certain crimes in Indian Country. An 1883 Supreme Court case that upheld tribal sovereignty and treaty rights prompted the change in policy.

But according to the 9th Circuit, the offenses listed in the Major Crimes Act only involve crimes against an Indian "person." The BIA, or any other state or federal entity, is not a "person," the panel ruled.

There are other federal laws that govern victimless crimes in Indian Country. Included is the General Crimes Act of 1854, which the court said federal prosecutors could have used against Errol D.

Brunetti's dissent challenges that reasoning. He claims the law forbids federal prosecution when a tribe exercises its sovereignty and punishes a tribal member for a crime, the same situation which prompted Congress to act over a century ago.

"This rearrangement of the prosecution of Indian burglaries in Indian Country will result in a truly anomalous situation," he wrote.

A federal court in Montana recently decided a similar case involving an adult tribal member. In May 2001, U.S. District Judge Donald W. Molloy dismissed charges against Curtis A. Belgarde for allegedly burglarizing a state agency located on the Fort Peck Reservation.

Get the Case:
US v. ERROL D., No. 00-30337 (9th Cir. June 21, 2002)

Related Decisions:
Ex parte Crow Dog, 109 U.S. 556 (1883)

Relevant Links:
Indian Country Jurisdiction - http://tribaljurisdiction.tripod.com