Crime and Governance in Indian Country

Abstract

Criminal jurisdiction in Indian country is defined by a central, ironic paradox. Recent federal laws expanding tribal criminal jurisdiction are, in many respects, enormous victories for Indian country, as they acknowledge and reify a more robust notion of tribal sovereignty, one capable of accommodating increased tribal control over safety and security on Indian reservations. At the same time, the laws make clear that sovereignty comes at a price, potentially working to effectuate further assimilation of tribal courts and Indian people. As a result, at the same time that tribal sovereignty gains ground in ways critical to autonomy and self-governance, it is simultaneously threatened by exogenous forces that have the potential to homogenize tribal justice systems legally, politically, and—in particular—culturally.This Article offers the first comprehensive assessment of the Tribal Law and Order Act and the reauthorization of the Violence Against Women Act, respectively, to show how they relate to one another on the ground and the implications for tribal sovereignty and self-determination. Ultimately, based on data compiled for the first time as well as extensive secondary sources, I argue that expanded criminal jurisdiction and punishment authority have, perhaps paradoxically, enhanced the ability of tribes to develop and enforce policies, laws, and procedures that are consistent with tribal custom and tradition. This presents a unique opportunity worthy of further exploration. In other words, rather than sovereignty and assimilation expanding in tension with one another, I find that the application of the laws has been experienced in tribal communities, as least anecdotally and preliminarily, as greatly enhancing—not threatening or destroying—tribal sovereignty and Indian cultural survival.Published: Angela R. Riley, "Crime and Governance in Indian Country," 63 UCLA Law Review 1564 (2016).

Incorporation Without Assimilation: Legislating Tribal Civil Jurisdiction Over Non-Members

“…156 In her analysis about the implementation of VAWA 2013, Professor Angela Riley also acknowledged the problems with making constitutional provisions applicable to Indian tribes. 157 However, she concluded that some constitutional provisions could be applied to Indian tribes without jeopardizing their cultural and political distinctiveness. First, she noted that a lot of existing tribal court procedures are already similar if not identical to the ones applied in federal and state courts.…”

Native People and Violent Crime

“…Since 1999, the United States government has acknowledged that Native people suffer the highest per capita rates of violent crime in the nation (Bureau of Justice Statistics 1999, 2004; Rosay 2016). Empirical studies of rates of victimization in the United States almost universally conclude that Native people suffer violence at extremely elevated rates when compared to the general population (Bachman et al, 2010; Black et al, 2010; Riley 2016). Domestic violence and sexual assault, in particular, are very common in the lives of Native women (Oetzel and Duran, 2004; Sapra et al, 2014).…”

“…The Court ruled that tribal nations are forbidden to prosecute non-Indians for any crime, no matter how heinous. Oliphant v. Suquamish Indian Tribe ushered a strangely racialized form of determining a criminal jurisdiction question (Riley 2016).…”

“…The reform efforts that began in 2008 were led by Native women and their allies who sought to raise awareness about the high rates of sexual and domestic violence in Indian country and Alaska Native villages (Agtuca 2014; Casselman 2016). Thanks to “media coverage, targeted advocacy, coalition building, and lobbying,” Congress began to hold a series of hearings on crime in Indian country starting in the mid-2000s, with efforts ramping up once Obama was elected (Riley 2016, p. 1584). Two major laws restoring a portion of sovereignty were passed during the Obama administration: the Tribal Law and Order Act (2010), and the 2013 reauthorization of the Violence Against Women Act.…”

“…Perhaps I have left the most difficult question for the end of this essay: do TLOA and VAWA force tribes to assimilate with the state and federal legal systems? TLOA and VAWA require tribal governments to adhere to certain Anglo-American notions of law and order, with federal oversight to ensure compliance (Casselman 2016; Fortin 2013; Riley 2016). As noted above, TLOA and VAWA require tribal governments to adopt Anglo-American legal norms in order to take advantage of restored jurisdiction.…”