Here is the opinion in US v. Gabrion. It raises an interesting question whether there is federal criminal jurisdiction in national forests. The court, 2-1, found that the US does have criminal jurisdiction over national forest lands, in this case, the Manistee National Forest. Judge Moore’s concurring opinion delved into federal Indian law in response to the appellant’s claim that state and federal concurrent jurisdiction over national forest lands was a violation of equal protection (it isn’t — just ask an Indian):
Neither does the patchwork jurisdiction violate Gabrion’s right to equal protection under the Fifth Amendment’s Due Process Clause. See Bolling v. Sharpe, 347 U.S. 497 (1954) (holding that the District of Columbia’s maintenance of segregated schools violated the Fifth Amendment’s Due Process Clause). The government makes a convincing argument that federal Indian law offers an analogous area where patchwork jurisdiction does not violate the Equal Protection Clause of the Fourteenth Amendment, reversely incorporated into the Fifth Amendment. The Supreme Court has described jurisdiction in “Indian country” as “governed by a complex patchwork of federal, state, and tribal law.” Duro v. Reina, 495 U.S. 676, 680 n. 1 (1990). Whether the federal or a tribal or state government has criminal jurisdiction depends on the location where a crime is committed, the nature of the crime, and whether both the perpetrator and the victim are members of the same tribe. See Negonsott v. Samuels, 507 U.S. 99, 102-03 (1993) (describing jurisdictional rules under the Indian Country Crimes Act, the Indian Major Crimes Act, and the Kansas Act); Duro, 495 U.S. at 688 (holding that a tribe does not have criminal jurisdiction over a nonmember Indian who commits a crime on the tribe’s territory). In Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463 (1979), the Supreme Court considered whether such patchwork jurisdiction is arbitrary and irrational under the Equal Protection Clause. The case concerned a Washington law that granted jurisdiction to the state over Indian persons and Indian territory within the state, with the exception that in all but eight subject-matter areas Indians would retain jurisdiction on trust or restricted lands unless a tribe requested otherwise. Id. at 465-66. The Washington statue thus created patchwork jurisdiction in both a geographic and thematic sense. The Ninth Circuit found that the law’s creation of checkerboard jurisdiction lacked a rational basis and violated the Equal Protection Clause. Id. at 467-68. The Supreme Court overturned the court of appeals decision, however, explaining: “The lines the State has drawn may well be difficult to administer. But they are no more or less so than many of the classifications that pervade the law of Indian jurisdiction.” Id. at 502.
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