Federal Indian Law and Tribal Criminal Justice in the Self-Determination Era

American Indian Law Review Volume 38 | Number 2 1-1-2014 Federal Indian Law and Tribal Criminal Justice in the Self-Determination Era Samuel E. Ennis Caroline P. Mayhew Follow this and additional works at: http://digitalcommons.law.ou.edu/ailr Part of the Criminal Law Commons, and the Indian and Aboriginal Law Commons Recommended Citation Samuel E. Ennis & Caroline P. Mayhew, Federal Indian Law and Tribal Criminal Justice in the Self-Determination Era, 38 Am. Indian L. Rev. 421 (2014), http://digitalcommons.law.ou.edu/ailr/vol38/iss2/2 This Article is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized administrator of University of Oklahoma College of Law Digital Commons. For more information, please contact . FEDERAL INDIAN LAW AND TRIBAL CRIMINAL JUSTICE IN THE SELF-DETERMINATION ERA Samuel E. Ennis * & Caroline P. Mayhew** I. Introduction On March 7, 2013, President Obama signed into law the Violence Against Women Reauthorization Act of 2013 (VAWA). 1 Section 904 of the VAWA expressly affirmed Indian tribes’ inherent criminal jurisdiction over non-Indians for crimes of domestic violence or dating violence, as well as criminal violations of certain protection orders that occur in Indian country. 2 As the first recognition of tribal criminal authority over nonIndians since the Supreme Court extinguished such jurisdiction in 1978,3 section 904 was hailed as a victory by tribal advocates 4 and represents a major development in federal Indian law’s treatment of and interaction with tribal law and tribal justice systems. As sharply illustrated in the VAWA, however, federal Indian law appears to be accelerating in a direction that simultaneously supports the development of robust, contemporary tribal law — a goal closely aligned with the current stated federal policy of Indian self-determination and selfgovernance — and also cautiously seeks to align tribal judicial exercise more closely with American state and federal practices. Even in taking the * Associate Attorney, Sonosky, Chambers, Sachse, Endreson & Perry, LLP. Mr. Ennis would like to thank Reid Peyton Chambers and Colin Cloud Hampson for their insightful review and edits and Caroline Mayhew for her dedication and excellent writing. The views expressed by the author do not reflect those of Sonosky, Chambers law firm, its attorneys, or any of its clients. ** Associate, Hobbs, Straus, Dean & Walker, LLP. The views expressed by the author do not reflect those of Hobbs, Straus, Dean & Walker, its attorneys, or any of its clients. 1. Pub. L. No. 113-4, 127 Stat. 54 (2013). 2. Id. tit. IX, § 904, 127 Stat. at 120 (codified at 25 U.S.C. § 1304 (Supp. I 2013)) (adding section 204 to title II of the Indian Civil Rights Act, Pub. L. No. 90-284, 82 Stat. 73 (1968)). For a discussion of the importance of Congress affirming inherent tribal criminal jurisdiction, rather than attempting to confer it initially by statute, see Samuel E. Ennis, Comment, Reaffirming Indian Tribal Court Criminal Jurisdiction Over Non-Indians: An Argument for a Statutory Abrogation of Oliphant, 57 UCLA L. REV. 553, 601-04 (2009). 3. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). For a general discussion of jurisdiction in Indian country, see infra Part II. 4. See, e.g., Press Release, Nat’l Congress of Am. Indians, House Passes Violence Against Women Act (Feb. 28, 2013), available at http://www.ncai.org/news/articles/2013/ 02/28/house-passes-violence-against-women-act. 421 Published by University of Oklahoma College of Law Digital Commons, 2014 422 AMERICAN INDIAN LAW REVIEW [Vol. 38 monumental step of acknowledging tribal jurisdiction over non-Indians in section 904, Congress was influenced by the opposition of some politicians 5 and scholars 6 to any expansion of tribal court jurisdiction over non-Indians, and their concerns over the constitutionality and inherent legitimacy of tribal judiciaries.7 As a result, Congress qualified its support for tribal jurisdictional expansion under the VAWA: tribes wishing to exercise VAWA’s expanded jurisdictional authority must adopt certain legal safeguards that provide non-Indian defendants with federal Constitutional protections exceeding those that tribes must provide to most Indian defendants under federal law. 8 Thus, the hard-won and well-deserved victory of expanded jurisdictional authority under the VAWA came at the price of stringent and expensive requirements on tribal judicial systems and the potential further “Westernization” of tribal courts.9 5. See, e.g., Press Release, Senator Chuck Grassley of Iowa, Consideration of the Violence Against Women Act (Feb. 4, 2013) (arguing that VAWA “raises serious constitutional questions concerning both the sovereignty of tribal courts and the constitutional rights of defendants who would be tried in those courts”), available at http://www.grassley.senate.gov/news/newsreleases/consideration-violence-against-women-act-0. 6. See, e.g., Tom Gede, Criminal Jurisdiction of Indian Tribes: Should Non-Indians Be Subject to Tribal Criminal Authority Under VAWA?, ENGAGE: J. FEDERALIST SOC’Y PRAC. GROUPS, July 2012, at 40, 44 (arguing that that expanding tribal criminal jurisdiction “would subject non-Indian citizens to the authority of an extraconstitutional sovereign to which they had not previously been subject, and where the customary guarantees of federal constitutional protections may be questioned”). 7. See, e.g., Senator Slade Gorton, Equal Justice for Indians, Too, WASH. POST, Sept. 16, 1997, at A-17 (arguing against the impartiality of tribal courts); DAVID B. MUHLHAUSEN & CHRISTINA VILLEGAS, HERITAGE FOUND., BACKGROUNDER NO. 2673, THE VIOLENCE AGAINST WOMEN ACT: REAUTHORIZATION FUNDAMENTALLY FLAWED (Mar. 28, 2012), available at http://www.heritage.org/research/reports/2012/03/the-violence-against-womenact-reauthorization-fundamentally-flawed; David Wolitz, Criminal Jurisdiction and the Nation-State: Toward Bounded Pluralism, 91 OR. L. REV. 725, 766 (2013) (noting that the “reality and perception that tribal justice is too often unreliable, unfair, and immune to fundamental rights review undermines confidence in the tribe’s jurisdiction — and makes widening the functional jurisdiction of tribes an uphill climb”). 8. Pilot Project for Tribal Jurisdiction Over Crimes of Domestic Violence, 78 Fed. Reg. 35,961, 35,962 (June 14, 2013) [hereinafter Pilot Project Notice]. 9. Indeed, tribes have almost uniformly reported severe funding difficulties in implementing the legal protections that must be extended to non-Indian defendants in tribal courts. See U.S. GOV’T ACCOUNTABILITY OFFICE, TRIBAL LAW AND ORDER ACT: NONE OF THE SURVEYED TRIBES REPORTED EXERCISING THE NEW SENTENCING AUTHORITY, AND THE DEPARTMENT OF JUSTICE COULD CLARIFY TRIBAL ELIGIBILITY FOR CERTAIN GRANT FUNDS 3 (May 30, 2012) (finding that anywhere from 64% (...truncated)