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August 13, 2007

Reservations about federal law on reservations

The Wall Street Journal has this interesting front-page article entitled, "On Tribal Land, Tragic Arson Leads to a Life Sentence Justice Can Be Unequal In Reservation Crimes; Prayers at Sweat Lodge."  Here are excerpts:

Indian tribes once had control over the dispensation of justice on reservations. But federal laws -- some passed a century apart -- have whittled away that authority, and, critics say, helped create a legal system that's often separate and unequal....

Because the tribes don't have jurisdiction for serious crimes committed on their lands, outcomes of cases can be uneven.  In some cases, the federal government doesn't have the resources to prosecute such crimes, allowing criminals to slip through gaps. But Native Americans who do end up being prosecuted face a federal system that has become tougher in recent years.

Since the 1980s, Congress has been toughening federal penalties by adding mandatory minimum sentences -- which are often more severe than those handed out by states. Coupled with that was the abolishment of parole in the federal system. As a result, American Indians, especially the million or so living on tribal land, can face harsher punishments than non-Indians for what are effectively local crimes, say tribal officials and legal experts.

August 13, 2007 at 12:35 AM | Permalink


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This is all just specific playing of the media (the conclusion-driven Amnesty International findings, followed up by an incomplete NPR piece, and now this) by the NCAI to try to get a "Duro-fix" type of remedy for Oliphant.

Simple answer will be allow for prosecutions of crimes that occur on reservations. Or you can allow tribes to prosecute major crimes - of course, many tribes have courts that don't provide for representation by counsel, judges who may not even have high school diplomas, etc.

Of course Tribes don't want the states to handle the prosecutions in that it "infringes" on their "sovereignty" (albeit "domestic, dependant" sovereighty - they can't function without government subsidies and they can't competently manage their affairs without assistance from BIA). There are few tribes that are competent (Navajo, Cherokee, Chickasaw, etc.), however the far majority are incapable of managing their own affairs.

Posted by: Deuce | Aug 13, 2007 9:40:04 PM

I have a brief question regarding the “domestic dependent” sovereignty comment above. How would you propose that many of the tribes with few resources break this dependency? I don’t think the tribes wanted others to interfere with their “domestic” affairs to begin with, and I also think many tribes would refute the assertion that BIA assistance helps them to “competently manage” their affairs.

Posted by: bama | Aug 14, 2007 4:13:06 PM

The "domestic dependent" is a John Marshal quote from the Cherokee trilogy cases.

Also some tribes ant BIA to do the CFR courts for them. Remember, there are tribal courts and there are the BIA (CFR) courts. They don't want to spend their own resources on doing justice issues.

If the tribes can't run as a true sovereign and need federal subsidies and oversight - then they can never be sovereign in the truest since of the word.

Like the college kids still living with the parents. They are adults, but usually the parents get to set the rules of the house.

Posted by: Crow Dog | Aug 14, 2007 5:46:09 PM

This is truly a situation where the tribes (the vast majority) do not want what they are asking for. They do not have the manpower, the funds, the people, or the infrastructure to run it all. Very few tribes can function past a misdemeaner docket. Remember, the pure tribal courts do not have to follow the U.S. Constitution - thus do you want to get arrested in the tribal casino, go to court without a right to counsel and possibly be sentenced by a man who never received any legal training (no law school or even college), and put into a jail that will in all likelihood inadequate. The press is jumping on this, but does not have all the facts.

Posted by: Custer Died for your Sins | Aug 15, 2007 11:46:38 AM

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