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June 13, 2018

"When Tribal Disenrollment Becomes Cruel and Unusual"

The title of this post is the title of this new article available on SSRN authored by Judith Stinson. Here is the abstract:

In the past two decades, Native American tribes have disenrolled — permanently removed from tribal citizenship — thousands of tribal members, mainly because of lineage concerns or for political reasons.  In these instances, scholars generally decry disenrollment.  But there is a growing trend to disenroll tribal citizens for criminal conduct, and scholars (and even tribal members themselves) assume this is proper.  This paper argues that tribal disenrollment for criminal conduct violates the Indian Civil Rights Act’s prohibition on cruel and unusual punishment.

The Supreme Court held that denationalization as a result of criminal conduct is cruel and unusual punishment in violation of the Eighth Amendment.  Congress applied that same prohibition to Native American tribes in the Indian Civil Rights Act.  And traditionally, tribes, who had the inherent power to impose any sanction necessary, focused on restoring harmony rather than punishing offenders; permanent expulsion was almost never imposed.  Tribes are nations, and tribal membership is a voluntary compact equivalent in all meaningful respects to United States citizenship — hence, tribes cannot disenroll members for criminal behavior.  Yet Congress also severely limited tribes’ ability to punish criminal defendants by capping incarceration at one year, and crime in Indian country is a significant problem.  To allow tribes to battle crime and yet protect against cruel and unusual punishment, Congress should remove the limit on incarceration and individual tribal members can decide whether they are willing to submit to their tribe’s inherent power — and greater sentences — or voluntarily renounce their tribal citizenship.

June 13, 2018 at 10:27 AM | Permalink


Uf this goes through get ready for the next step. Trump will do the same for everyone else. Instant set of second class citizens.

Posted by: Rodsmith3510 | Jun 13, 2018 2:48:00 PM

Interesting premise, but I question the conclusions. First, tribal sovereignty is different than nation-state sovereignty in important ways. Tribes are domestic dependent nations, subject to federal oversight. Indeed the Indian Civil Rights Act itself is a federal statute imposed on tribes (by a purportedly separate sovereign) that regulates tribal criminal justice systems, including an Eighth Amendment analogue. But given the more limited degree of sovereignty that tribes possess (as compared to a UN member state like the USA), the analogy between tribal disenrollment and denaturalization is not exact. Tribal members all also have US citizenship, and so aren't rendered stateless if disenrolled, unlike most US citizens would be if they were denationalized. The specter of statelessness was key to the Supreme Court's reasoning in Trop v. Dulles, which found denationalization an Eighth Amendment violation.

Second, the proposed solution of allowing voluntary renounciation of citizenship in lieu of facing the tribe's criminal jurisdiction would likely result in many defendants facing no punishment for many and sometimes serious crimes, as many defendants would surely choose disenrollment over prison. Although there is concurrent federal jurisdiction for some serious offenses under the Major Crimes Act, Kevin Washburn and others have shown that the feds often don't make tribal law enforcement a top priority, and tend not to be at all accountable to the local community's values and concerns. Plus, it's not like tribes have border checkpoints, so an offender who voluntarily disenrolled to avoid punishment in the tribal justice system could easily return to tribal land and cause problems, but would not be subject to tribal criminal jurisdiction. The most the tribe could do is forcibly remove the offender off the reservation, but he could easily return given the lack of any real border. Full nation states, by contrast, have a much greater ability to deport and exclude people from their territory.

Posted by: Anon | Jun 13, 2018 3:00:43 PM

The Real Id Act already has made some people "second class citizens". The USA moved into a caste society decades ago so the tribes are not innovating they are playing follow the leader.

Posted by: Daniel | Jun 13, 2018 3:45:26 PM

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