JURISDICTION BY INFERENCE: LESSER-INCLUDED OFFENSES AND THE LIMITS OF FEDERAL POWER IN INDIAN COUNTRY

This Note examines a circuit split over whether federal courts may convict Indian defendants of unenumerated lesser-included misdemeanor offenses in prosecutions under the Major Crimes Act (MCA). Some circuits permit such convictions by inferring jurisdiction once a court properly exercises authority over an enumerated offense, while others reject that approach and require explicit congressional authorization. The disagreement has produced inconsistent outcomes and uncertainty about the scope of federal criminal power in Indian country.

This Note argues that the MCA’s enumerated structure reflects a deliberate limitation on federal jurisdiction, leaving most Indian-on-Indian misdemeanors to tribal courts. It contends that procedural fairness—particularly the availability of lesser-included-offense instructions under Keeble v. United States—cannot supply jurisdiction where Congress has not conferred it.

To resolve the split, this Note proposes a uniform rule requiring federal courts to vacate and dismiss convictions for unenumerated lesser-included offenses for lack of subject-matter jurisdiction, while preserving the use of lesser-included instructions at trial. It further suggests dismissal without prejudice, allowing subsequent tribal prosecution and preserving the jurisdictional balance between federal and tribal authority.

JURISDICTION BY INFERENCE- LESSER-INCLUDED OFFENSES AND THE LIMITS OF FEDERAL POWER IN IND.

Download • 318KB