Indian Country Defined

"Indian Country" defined
from: Pevar, Stephan L. The Rights of Indian and Tribes. Ed. Norman Dorsen. New York: Bantam Books, 1983. (American Civil Liberties Union Handbook)
The term "Indian country" has been used in many senses. Broadly speaking, Indian country is all the land within an Indian reservation and any other land which has a special relation to Indians and their government. As a general rule, Indian country is controlled by tribal and federal law as opposed to state law. If someone says, 'The crime took place in Indian country," this would imply that the crime is governed, by tribal or federal law and not state law.
The term "Indian country" was first used by Congress as being descriptive of the territory controlled by Indians. (1) Today it is defined in a federal law which describes the area in which the federal government may exercise its criminal jurisdiction. This law, Title 18, U.S. Code, section
1151 (18 U.S.C. §1151), states:
"Indian country" . . . means (a) all land within the limits
of' any Indian reservation under the jurisdiction of the
United States government, notwithstanding the issuance
of any patent, and including rights-of-way running through
the reservation, (b) all dependent Indian communities
within the borders of the United States whether within
the original or subsequently acquired territory thereof,
and whether within or without the limits of a state, and
(c) all Indian allotments, the Indian titles to which have
not been extinguished, including rights-of-way running
through the same.
Although."'Indian country" is defined in a criminal law, the concept of Indian country generally applies in all non-criminal ("civil") cases as well. In the same way that crimes by Indians within Indian country are usually governed by tribal or federal, not state law, traffic accidents, divorces, inheritance, child custody and other civil matters involving Indians in Indian country are usually governed by tribal or federal law. (2)

Section 1151 identifies three areas as being "Indian country. "
First, Indian country includes all lands within the boundaries of an Indian reservation. Thus any land which a non-Indian owns within a reservation is still considered Indian country. (3) (There is one exception to this rule, which is discussed below.) Even rights-of-way through reservation lands, such as state or federal highways, remain a part of Indian country. (4)
Second, Indian country includes "all dependent Indian communities" within the United States. (5) Essentially, a dependent Indian community is any area of land which has been set aside for the use, occupancy or benefit of Indians, even if it is not part of a reservation. (6) Examples of dependent Indian communities are the Pueblos of New Mexico, whose lands, although owned by the tribes themselves, are under federal
supervision, (7) -tribal housing projects located on federal land (8) and federal schools operated for Indian children on federal land. (9) However, the mere fact that an area or a facilities used by Indians does not mean that it is a dependent Indian community; there must also be some evidence of federal or tribal control or supervision. (10)
Finally, section 1151 includes as Indian country all "trust" and all "restricted" allotments of land, whether or not these allotments are inside the boundaries of an Indian reservation. (11) (Essentially, a "trust" allotment is federal land which has been set aside for the exclusive use of an Indian, who is called the "allotee." A "restricted" allotment is land for which federal approval must be obtained before it can be sold, leased or mortgaged, whether the land is owned by the federal government or not. Even a "non-trust" allotment outside the reservation is considered Indian country so long as the allotee retains ownership. (12) (A "non-trust" allotment is land which the federal government has given to an Indian with full rights of ownership, as opposed to a "trust" allotment, in
which ownership is retained by the United States.)
To summarize, all land within an Indian reservation is Indian country, even land owned by a non-Indian. In addition, trust and restricted Indian allotments outside a reservation are considered Indian country, and so are dependent Indian communities.
There is, however, one exception to the rule that all land within a reservation is Indian country. Privately owned ("fee-patented") land which can be classified as a "non-Indian community" is not Indian country for purposes of federal liquor laws. (13) The state, rather than the tribe or the federal government, has jurisdiction to regulate the introduction of liquor in "non-Indian communities" even though these communities are within the boundaries of an Indian reservation.
Exactly what constitutes a "non-Indian " community within a reservation is open to some debate. The term is not defined in the statute which uses it, or in any other statute. Over the years several liquor stores owned by non-Indians within Indian reservations have claimed to be exempt from tribal liquor regulations because they were located in a "non-Indian
community." (14)
One Of these challenges reached the Supreme Court, which held that the store was not located in "non-Indian community" because the majority)' of the people who lived in the vicinity were Indians and tribal headquarters
were located nearby. (15) In another case a federal appellate court held that a liquor establishment was located in a non-Indian community because most residents of the area were non-Indian, the area had a history of being owned and controlled by non-Indians, and no tribal offices or housing projects were located nearby. (16)
Are non-Indians permitted to live within Indian country?
Yes. In fact, there are probably more non-Indians living
within Indian country than Indians. (As explained in Chapter
I, the federal government sold a large amount of reservation
land to non-Indians between 1887 and 1934.) In a recent
case, the Supreme Court noted that only 19 percent of the
population of the Flathead Indian Reservation in Montana was Indian. Nevertheless, the reservation retained its status as Indian country. (17)
(1) Joint Tribal Council of the Passamaquody Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975). Cf. U.S. v. Mitchell, 445 U.S. 535 (1980).
(2)
(3) Holliday, note 2 above. See also "Final Report," note 14 above, pp.
131-32.
(4) Ruiz, note 22 above.
(5) "Final Report," note 14 above, pp. 13132.
(6) "Final Report," note 14 above, at 130. See also U.S. v. Ahtanum
lrrig. Dist., 236 F.2d 321, 328 (9th Cir. 1956), cert. den•• 352
U.S. 988 (1957), and cases cited in note 13 above.
(7) See chap. V, 9B.
(8) See chap. XVI.
(9) See chap. XVI.
(10) See "Final Report," note 14 above, at 12536. See olso Cham•iers,
note 5 above.
(11) Menominee Tribe, note 11 above; Kagama, note 2 above.
(12) See, e.g., 25 U.S.C. ••564, 677, 691. The subject of termlnation is
discussed more fully in chap. V, •B.
(13) U.S. o. Nice, 241 U.S. 591 (1916).
(14) Matter ofHeff, 197 U.S. 488 (1905).
(15) Nice, note 33 above.
(16) Menominee Tribe, note 11 above; Heckmrrn o. U.S., 224 U.S. 413
(1912). But see Rosebud Siour Tribe v. Kneip, 430 U.S. 5&1 (19TI).
(17) Passamaquoddy Tribe, note 9 above.