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925 F.3d 410
FISHER, Circuit Judge, concurring:
I agree with the majority that the Assimilated Crimes Act (ACA) applies to "Indian country" subject to the Indian Country Crimes Act (ICCA)'s three exceptions. See 18 U.S.C. § 1151 (defining "Indian country"); id. § 1152 (providing that the ICCA "shall not extend [1] to offenses committed by one Indian against the person or property of another Indian, nor [2] to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or [3] to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively").
There are two ways to arrive at that result. One is to hold that the ACA applies to Indian country only through the ICCA, not on its own terms - i.e., that the ACA is part of "the general laws of the United States" under the ICCA, id. § 1152, but Indian country is not among the "lands reserved or acquired for the use of the United States" under the ACA, id. §§ 7(3), 13. A second way to arrive at this result (the one adopted by the majority) is to hold that the ACA applies to Indian country on its own terms - i.e., that Indian country is among the "lands reserved or acquired for the use of the United States" under § 7(3) - but that Congress nonetheless intended the ACA's application to Indian country to be subject to the ICCA's three exceptions.
I have some reservations about the majority's chosen approach. See Cohen's Handbook of Federal Indian Law § 9.02 n.19 (Nell Jessup Newton ed., 2017) ("Only one court stated that the ACA applied of its own force within Indian country, in a case in which the point was not in issue. United States v. Marcyes , 557 F.2d 1361, 1365 n.1 (9th Cir. 1977). The statement is inconsistent with the policy of leaving tribes free of general federal criminal laws, except as expressly provided."). Under either approach, however, the bottom line is the same: the ACA applies to Indian country subject to the ICCA's three exceptions. Accordingly, I concur.