Kansas Act of 1940 facts for kids

The Kansas Act of 1940 addressed the means by which Congress could use its power under the Indian Commerce Clause to authorize a state's ability to exercise jurisdiction in certain instances. Because the inherent sovereignty of Indian nations generally precluded state jurisdiction over Indian country, the Act became one of the first legislative actions to permit state jurisdiction over most offenses committed by or against Indians on Indian reservations. This was a departure from previous federal policy in which the Federal Government had sole jurisdiction over Indians. The Act was a precursor to the Indian termination policy and in essence was a kind of "trial legislation" to see if such transfers would be effective. Several other states followed suit. Today, the jurisdictional gap which existed when the Kansas Act was passed no longer exists, and instead there is an overlap; a native person committing a single crime within Indian country in the state of Kansas could be prosecuted by the United States, the State of Kansas, and one of the tribes.

Effects

The Kansas Act of 1940 was followed by virtually identical statutes granting jurisdiction to North Dakota and Iowa for prosecuting offenses within their state borders committed by or against Indians on certain reservations and in 1948 to the state of New York. The primary difference in the New York statute was the protection of traditional hunting and fishing rights to tribal members which might be protected by treaty or agreement.

The fact that state jurisdiction over most matters had occurred previous to the passage of the House concurrent resolution 108 issued 1 August 1953 was one of the reasons for including the New York, Kansas and North Dakota Indians in those marked for immediate termination.

Current implications

All four tribes within Kansas now hear both civil and criminal cases in their tribal court systems. All judges, prosecutors, and public defenders are members of state bar associations. The jurisdictional gap which existed when the Kansas Act was passed no longer exists. In fact, now an overlap occurs. A native person committing a single crime within Indian country, in the state of Kansas, could be prosecuted by the United States, the State of Kansas, and one of the tribes.