The Major Crimes Act states that the Indians shall be charged and held liable for crimes that will fall under federal rather than state jurisdiction (Langland, 2012). However, the Act has specifically mentioned that the law shall only be made applicable to Indians, but does not define the scope of who is considered an “Indian”. As a result, the courts are left with their own discretion to establish their respective tests to determine if the defendant is an Indian.
With the passing of the Act, the test that courts used to determine if a person is an Indian is known as the Rogers test (Langland, 2012). By using the Rogers test, the courts will be able to determine if a person has some degree of Indian blood; and know if such person is recognized as an Indian (Langland, 2012). One of the considerations taken by courts is to trace the lineage or pedigree of the defendant to know if he or she has an Indian blood. The courts should also know if the defendant belongs to Indian tribes that are recognized by the court. However, the Supreme Court has held in several cases that the determination of who is an Indian shall be on the basis of race. Although the United States Supreme Court has consistently pointed out that being an Indian is a political classification, and not a racial classification (Langland, 2012).
In the case of United States v. Antelope, the High Court ruled that the Indian classification in the Major Crimes Act should not be viewed as a form of a racial classification. In this particular case, the Court in Antelope was incorrect in finding that the Indian classification in the Major Crimes Act was not a racial classification (Langland, 2012).
The expansion of the Major Crimes Act increase the presence of FBI in Indian Country and has affected the right of the tribal members in the sense that the Act had influenced the courts to rely solely on whether defendants are enrolled in federally recognized tribes before the Rogers test is applied. In effect, the classification of Indian becomes a purely racial classification that has violated the Equal Protection. While the courts may rely on the standard of “other factors” for the determination of the recognition the Rogers test, some of the defendants argued that the Major Crimes Act can be considered as a vague defense since the term “other factors standard” has not sufficiently informed the defendants if they are Indians, and therefore fall under the provisions of the said Act.
The Major Crimes Act failed to to meet the federal government’s obligation to protect the interest of the Indians from the abuses of other states, who may consider the Indians to fall within their jurisdiction. The issue that has to whether the laws of others states are less discriminatory to achieve the government’s interest of protecting Indians from the states as shown in the Supreme Court rulings of U.S. v. Kagama and U.S. v. Antelope (Langland, 2012).
The states should implement laws that are less discriminatory means in order to achieve the government’s interest of that will protect the Indians from the states. One illustration is that the federal government may allow the states jurisdiction over Indians for the crimes enumerated in the Major Crimes Act and must pass regulations over this new state jurisdictional power to ensure that states will not abuse such power (Langland, 2012). Another suggestion is for the federal government that will permit the tribal courts to have sole jurisdiction over the crimes provided under the Major Crimes Act that occur in Indian country and are committed by both Indians or non-Indians (Langland, 2012).
References:
Langland, J. F. (2012). Indian status under the Major Crimes Act. Journal of Gender, Race and Justice, 15(1), 109.
