1,720,977 research outputs found
Tribal Criminal Jurisdiction Beyond Citizenship and Blood
Full text linkUnlike 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 grounded in 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.
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\u27 approach to defining the scope of their own criminal power in light of the limits imposed by the federal government, the article proposes a single unifying standard to clarify who should (and should not) be subject to a tribe’s criminal jurisdiction: tribal criminal jurisdiction should extend 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 status remains a political (as opposed to simply racial) designation
The Promise of Mancari: Indian Political Rights As Racial Remedy
Full text linkIn 1974, the Supreme Court declared that an Indian employment preference was based on a political rather than racial classification. The Court\u27s framing of Indianness as a political matter and its positioning of political and racial as opposing concepts has defined the trajectory of federal Indian law and influenced common sense ideas about what it means to be Indian ever since. This oppositional framing has had specific practical consequences, including obscuring the continuing significance of racialization for Indians and concealing the mutually constitutive relationship between Indian racialization and Indian political status. This Article explores the legal roots of the political classification doctrine, its ongoing significance, and the descriptive limits and normative consequences of the ideas that it contains. Specifically, this Article argues that the political classification doctrine constructs race as an irrelevant matter of ancestry and Indianness as a simple matter of civic participation. This Article suggests a new framework for considering Indian issues and federal Indian law that draws on a more robust and realistic understanding of both race and Indianness to acknowledge the cyclical relationship between Indian racialization and Indian political status
Untangling the Web: Juvenile Justice in Indian Country
Full text linkThe 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
Resilience and Native Girls: A Critique
Full text linkThe term resilience is often used with reference to Indigenous women and Indigenous youth. Native girls are included in each of these categories but are rarely the main focus of a campaign. Their triple vulnerability (gender, indigeneity, and age), however, means that the focus on resilience is often greatest when applied to them. This Article centers them. It traces the development of resilience in the (non-Native) ecological and psychological literature. Although resilience is used across many different disciplines, it is especially prominent in ecological literature about resilient institutions, such as communities and cities, and in psychological literature about resilient individuals. This Article then examines the way resilience has been applied to Native girls, particularly in the context of juvenile justice, and cautions against potentially damaging implications of what is almost uniformly imagined to be a positive and complimentary label.
Part I briefly considers whether the concept of institutional resilience provides an accurate framework for addressing tribal survival. It then compares and contrasts the institutional concept with the individual concept. However, the ultimate focus of this Article, discussed in Parts II and III, is how resilience is applied to individual Native girls. Other articles in this volume address the way institutional resilience might be reframed from a Native perspective; Part IV of this Article, which addresses potential reframing, focuses only on individual resilience
Recentering Tribal Criminal Jurisdiction
Full text linkThe boundaries of modern tribal criminal jurisdiction are defined by a handful of clear rules—such as a limit on sentence length and a categorical prohibition against prosecuting most non-Indians—and many grey areas in which neither Congress nor the Supreme Court has specifically addressed a particular question. This Article discusses five of the grey areas: whether tribes retain concurrent jurisdiction to prosecute major crimes, whether tribes affected by Public Law 280 retain concurrent jurisdiction to prosecute a full range of crimes, whether tribes may prosecute Indians who are not citizens of any tribe, whether tribes may prosecute their own citizens for crimes that occur outside of Indian country, and how much authority and flexibility tribes have to address juvenile delinquency as they see fit.
Many courts have employed an “outside in” approach to these questions, one which begins by assessing the scope of federal and state criminal jurisdiction and then attempts to discern the minimum degree of tribal criminal power necessary to fill the gap left by federal and state authority. Because many tribal criminal justice systems have long devoted most of their resources to filling this gap (prosecuting only minor crimes committed by tribal citizens within Indian country), it may seem to a court that any further exercise of jurisdiction is unnecessary and new, leading to a limited vision of tribes’ retained criminal jurisdiction. This approach prevents engagement with tribal jurisdiction and substantive criminal law on their own terms, leaving courts and legislators to rely on generalizations and assumptions rather than carefully considering the purpose and scope of, and limitations on, tribal criminal jurisdiction.
In the past few decades, however, courts have followed the lead of tribes and legal scholars by employing an “inside out” approach, which centers tribes by asking only whether a particular power is an element of tribes’ sovereignty and whether it has been taken away. When a court employs an inside out approach, neither the scope of federal and state jurisdiction nor the common practices of tribal criminal courts bear directly on the scope of modern tribal criminal power. Tribal criminal jurisdiction is examined standing alone, which may lead to consideration of why criminal jurisdiction is necessary for sovereignty, the multiple functions such jurisdiction serves, and the various forms it may take. As applied to the questions discussed here, the result is a much broader vision of tribes’ retained criminal power. This Article explains why the inside out approach is the more appropriate one and how the analytical shift is attributable in large part to the work of Carole Goldberg. By addressing five specific grey areas of tribal jurisdiction, this Article demonstrates how the use of an inside out methodology—a clear alternative to the implicit divestiture approach employed most famously in Oliphant v. Suquamish Indian Tribe—can have significant consequences for the future of tribal criminal jurisdiction
Native Youth & Juvenile Injustice in South Dakota
Full text linkIn this essay, Professor Rolnick uses the three themes of racism, jurisdiction, and tribal sovereignty to provide a snapshot of the juvenile justice system in South Dakota as it impacts Native youth. First, she describes the tribal juvenile justice systems in the state. She argues tribal systems should rightfully play a central role handling Native youth offenders, but they are underfunded and may not therefore be sufficiently responsive to young offenders\u27 needs. Second, she examines the impact of federal power over youth on reservations in South Dakota. Specifically, federal juvenile jurisdiction, as well as federal financial and administrative power, can interfere with tribal jurisdiction, complicating the possible consequences and protections that should be available to Native youth. Finally, Professor Rolnick describes the state and county juvenile justice system in South Dakota, where Native youth have long made up a disproportionate share of children who are arrested and incarcerated
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