The Meaning and Implications of "Indian Country": State v. Dana

The jurisdictional reach of many federal laws relating to Indians is expressly tied to the term "Indian country.” Where "Indian country" exists, these laws, together with the strong federal policies underlying them, can preempt state jurisdiction. According to 18 U.S.C. § 1151, "Indian country" includes (a) any Indian reservation under the jurisdiction of the United States, (b) all dependent Indian communities within the borders of the United States, and (c) all Indian allotments, the Indian titles to which have not been extinguished. The State of Maine, under the belief that no Indian Country is located within its borders, has throughout its history exercised complete criminal, civil, and regulatory jurisdiction over the Passamaquoddy and Penobscot Indian Reservations. Recently, however, in what may result in a sharp restriction of such unqualified state power, the Maine Supreme Judicial Court held in State v. Dana that all land in Maine to which aboriginal Indian title has not been extinguished and which continues to be occupied by a bona fide tribe, is a "dependent Indian community," and hence "Indian country" subject to the preemptive power of applicable federal laws. What follows is a two-part examination of the character and consequences of Dana.