Wednesday, May 25, 2016
Addie Rolnick (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted two pieces on Indian criminal law. The first is Untangling the Web: Juvenile Justice in Indian Country (19 N.Y.U. J. Legis. & Pub. Pol'y 49, 2016) Here is the abstract:
The juvenile justice system in Indian country is broken. Native youth are vulnerable and traumatized. They become involved in the system at high rates, and they are more likely than other youth to be incarcerated and less likely to receive necessary health, mental-health, and education services. Congressional leaders and the Obama administration have made the needs of Indian country, especially improvement of tribal justice systems, an area of focus in recent years. The release of two major reports — one from a task force convened by the Attorney General to study violence and trauma among Native youth and the other from a bipartisan commission appointed to recommend improvements to criminal justice in Indian country — has further trained this focus on improving juvenile justice. Two recommendations appear again and again in every report and article: give tribes more control over their juvenile justice systems and reduce the reliance on secure detention. Yet, implementing these recommendations seems next to impossible.
Taking as its starting point these two devastating reports, this Article provides a thorough description and diagnosis of the reasons that the Indian country juvenile justice system continues to fail Native youth, one that has been missing from the legal and policy literature. It provides a careful analysis of the law governing juvenile delinquency jurisdiction in Indian country. While it echoes others’ observations that the confusing jurisdictional web is part of the reason Native youth remain neglected and invisible in federal and state systems, and ill-served by tribal systems, this Article’s detailed analysis of the law reveals much greater potential for tribal control under current laws than others assume exists. More importantly, the Article moves beyond the familiar complaint about the jurisdictional web to examine the inner workings of each sovereign’s approach to Indian country justice, providing the fuller picture necessary to identify and implement both large-scale and small-scale solutions. As federal and tribal leaders debate legal and policy changes to the Indian country juvenile justice system, including potential amendments to the Federal Juvenile Delinquency Act, the Juvenile Justice and Delinquency Prevention Act, federal criminal laws, and Public Law 280, this Article’s timely investigation of barriers to improvement will elucidate a better path to healing, not harming, Native youth.
The second piece is Tribal Criminal Jurisdiction Beyond Citizenship and Blood
American Indian Law Review Vol. 39, 337, 2016. Here is the abstract:
Unlike most sovereigns, American Indian tribes cannot exercise full territorial criminal jurisdiction. Tribes generally lack jurisdiction over non-Indians, while they retain jurisdiction over “all Indians,” including their own citizens as well as “nonmember Indians,” but neither Congress nor the federal courts have carefully considered who is included in the latter category. Most recently, Congress restored tribal jurisdiction over some non-Indian domestic abusers, as long as the non-Indian has sufficient “ties to the Indian tribe.” These rules do not issue from a single source, but from multiple federal statutes and Supreme Court decisions. They are not linked to a unifying principle that explains why tribes lack criminal jurisdiction in certain situations, which could guide tribes in determining the scope of their jurisdiction in future cases.
In order to divine a unifying principle, this article explores the interests served by criminal jurisdiction, the scope of that jurisdiction in other contexts, and the particular concerns expressed by federal actors about Indian tribal power. It argues that the current federal rules seek to make tribal jurisdiction broad enough to provide for public safety, express cultural norms, and make individuals accountable to society, but narrow enough to prevent relative strangers from being prosecuted by tribes’ potentially different and unfamiliar legal systems.
Drawing on some tribes’ approach to defining the scope of their own criminal power in light of the limits imposed by the federal government, the article proposes a new standard to clarify who should (and should not) be subject to a tribe’s criminal jurisdiction: tribal criminal jurisdiction should extend, at minimum, to anyone who is recognized by the tribe as a member of the community. Community recognition is a flexible standard that can accommodate the many different ways an individual may be connected to a community. It empowers the tribal community to define who is included and considers an individual’s responsibility to the community, rather than focusing narrowly on consent and voluntary affiliation. It demonstrates that formal citizenship is not the only way to measure the connection between an individual and a tribal community, and is therefore not the only way to ensure that Indian remains a political (as opposed to simply racial) designation.