Reassessing Concurrent Tribal-State-Federal Criminal Jurisdiction in Kansas

The Kansas Act of 1940 is no longer relevant and continues to undercut tribal sovereignty. The Kansas Act was passed to cover the jurisdictional gap caused by the tribal communities’ lack of a judicial system. The Federal Government gave the state of Kansas concurrent jurisdiction to prosecute offenses addressed by federal law. After the Kansas Act was passed, three sovereigns—the United States, the State of Kansas, and any of the four federally recognized tribes located within State boundaries—had the ability to prosecute an individual American Indian for a single crime committed in Indian country. This could lead to duplicative prosecutions. Three possible solutions to the problem of duplicative prosecutions under the Kansas Act are: (1) a full repeal of the Kansas Act; (2) consideration of a partial repeal; or (3) having the tribes and state consider meaningful cooperative agreements between sovereigns in order to avoid duplicative prosecutions. Advocates for the full repeal of the Kansas Act argue based on the fact that tribal communities now have a judicial system that covers the jurisdictional gaps, which were the inspiration of the Act. Part of the Kansas Act could be repealed, either on a tribe-by-tribe basis or so that non-Indian defendants who commit crimes in Indian country would be prosecuted in a state court. If the Kansas Act is not repealed, a tribal-state cooperative agreement must be reached, which ensures defendants will not be tried multiple times for the same offense. The Kansas Act is no longer necessary and should be repealed, either fully or partially