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Joshua Zoeller

Abstract

The General Crimes Act, codified at 18 U.S.C. § 1152, is an older statute that pertains to federal criminal jurisdiction over crimes committed in Indian Country. The General Crimes Act is limited in scope as it only applies to cases where the alleged perpetrator of the crime is not a Native American but the victim is determined to be a Native American. But who decides how to label each party as “Indian” or “non-Indian” (to borrow language used in the courts)? And is ‘Indian status’ an element of the statute that the prosecution must prove or is it reserved for the defendant as an affirmative defense to rebut the prosecution? Federal appellate courts have touched on these issues in the past, but a circuit split exists over how to approach a test that may be used to determine the Indian status of the parties in all matters involving the General Crimes Act, as well as how Indian status fits within the elemental framework of the statute. In 2022, the U.S. Supreme Court released a decision in Oklahoma v. Castro-Huerta that dramatically affected how the General Crimes Act is interpreted. But what did the Court have to say about how to determine a party’s Indian status in the decision? Was it even on the Justices’ minds?

This Note takes a closer look at the circuit split over what may be thought of as an ‘Indian status test’ as it historically existed in the courts, and within different interpretations of the General Crimes Act. The Note then describes the status of the circuit split in the wake of the Court’s decision in Castro-Huerta. This Note concludes with predictions on how the Castro-Huerta decision may affect future cases involving the General Crimes Act and where, if applicable, an ‘Indian status test’ may be invoked.

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