Douglas Payne, Benewah County Prosecutor, responds to the notion that non-Indians can get away with crime in Indian country because no one will prosecute them in his short paper, “Criminal Jurisdiction in Indian Country: Complicated by Design, but Not Lawless.” It’s available on page 48 here.
He is responding to Brian McClatchey’s paper in the August issue — “The Tribal Law and Order Act of 2010: Toward Safe Tribal Communities” — available on page 24 here.
Barbara Creel (who will be one of our distinguished speakers this weekend) has posted her paper, “Tribal Court Convictions and the Federal Sentencing Guidelines: Respect for Tribal Courts and Tribal People in Federal Sentencing,” on SSRN. It is forthcoming in the USF Law Review.
Here is the abstract:
This article critiques a proposal to include tribal court criminal convictions and sentences in the federal sentencing scheme. The proposal, as articulated by Kevin Washburn, calls for an amendment to the Federal Sentencing Guidelines to count tribal court convictions in calculating an Indian defendant’s criminal history score to determine a federal prison sentence. Currently, tribal court convictions are not directly counted in criminal history, but may be used to support an “upward departure” to increase the Native defendant’s overall federal sentence.
Washburn’s proposal seeks to gain “respect” for tribal courts, based upon a premise that tribal convictions must be afforded the same weight and treatment as federal and state criminal convictions under the Federal Sentencing Guidelines. This Article explores the idea of respect for tribal courts and convictions in the context of their history and connection to tribal peoples and communities. Ultimately, this Article concludes that respectful treatment would not tolerate placing a tribal defendant in such a powerless position within the federal sentencing hierarchy.
A proposal that would negatively impact only Native American defendants in a foreign justice system in the name of respect warrants critical review. As an Assistant Federal Public Defender, I had the opportunity to view the application of federal criminal laws from the front and the back end of the criminal justice system, from trial to post-conviction. As a Native woman, I have seen the impact of crime, justice, and federal sentencing on tribal people, families, and whole communities.
It is from this perspective that I focus the lens of respect on the work of tribal courts and criminal justice in Indian Country, and ultimately oppose any amendment in federal sentencing to count tribal court convictions to increase federal sentences for Native criminal defendants. A review of the historical diminishment of tribal authority over crime and punishment on the reservation, as well as the disparate impact of crime and punishment on Native peoples, leads to a rejection of counting tribal court convictions in federal sentencing. This Article proposes an alternative view that both respects Native American individuals caught in the criminal justice system and elevates tribal sovereignty.
From the crit:
Here is the introduction:
This article examines the history of self-defense in America, including the right to bear arms, as related to Indian tribes, in order to shed light on how the construction of history affects tribes today. As shown below, Indians are the original caricatured “savage” enemy that white Americans believed they needed militias and arms to defend themselves from. Since the early days, others have ably documented that the perceived enemies have multiplied to include African-Americans, immigrants, and the lower classes. But this has not meant that Indians have been let off the hook. Instead, they not only remain saddled with whites’ nightmare images of their savagery, but they continue to be punished for the popular perception of them in very concrete ways. Specifically, they are repeatedly and increasingly denied the right to govern on grounds of their untrustworthiness, and it is entirely possible that the lawlessness on Indian reservations has continued as a result of this very racialization.
This article first examines evidence that the historical meaning of self-defense in America (including that of the Second Amendment) was predicated largely on the premise that European, especially English, colonists needed to defend themselves against “savage” Indians. The article then argues that the cultural myth of white America’s need to defend itself against Indians obscures the fact that Indians who engaged in armed conflicts with the United States or the colonies were, in many instances, actually defending themselves and their homelands from white aggression and encroachment on the lands they owned and had been using for centuries.The article next argues that this self-defense mythology and the oppressive history that it obscures have had important historical consequences for tribes and continue to have concrete consequences for tribes today. These continuing consequences are largely due to the fact that tribes today continue to be viewed as “savage” in the popular imagination and by Supreme Court Justices. The article further argues that such consequences can be understood as a deprivation of the right to self-defense in a figurative sense.More specifically, as scholars such as Robert Williams have documented, the Supreme Court implicitly relies on this racialized characterization to deny tribes their sovereign powers. Thus, despite the fact that federal and state governments no longer have statutes and rules in place that deny Indians the right to carry guns, because tribes continue to be punished for their past efforts to defend themselves, in a very real sense Indians today lack the right to self-defense. Furthermore, the Supreme Court’s continual abrogation of tribal sovereign rights render tribes and the individuals living on reservations, both Indian and non-Indian, virtually defenseless against everything from predatory lending to violent crime. As a result, the depictions of tribes as savages are depriving tribes and Indians of their right to self-defense in a figurative sense on a macroscopic level. Additionally, America’s cultural understanding of tribes as warlike savages who perpetrated aggressions on innocent white colonists may well be working to subconsciously motivate the federal government to turn a blind eye to the horrific levels of violent crime that plague Indian reservations in the United States.
This article concludes that, as a nation, we must make an honest attempt to reckon with this checkered history and that, ultimately, we need to reevaluate both key Indian law precedent and the right to self-defense embodied in the Second Amendment. At a minimum, Indians’ and tribes’ constitutional rights must be protected prospectively, both in the context of self-defense as traditionally understood and more widely. Moreover, limitations on tribal jurisdiction are, in many cases, grounded on notions of savagery and should be regarded as inherently suspect. Finally, as a society, we must question all of our assumptions about tribes and Indians.
Based on the outstanding comments from the student editors at the Stanford Journal of Civil Rights and Civil Liberties, and from off-list comments (some of which were pretty passionate), I’ve made some significant changes to the paper. As always, off-list comments are welcome.
Here is the paper:
Stephen R. McAllister, the Solicitor General of Kansas, has published “The Supreme Court’s Treatment of Sovereigns as Amici Curiae” in the Green Bag 2d. He posted the article on SSRN here.
Here is the abstract:
This article traces the history of current Supreme Court Rule 37.4, which exempts the federal government, state governments, and local governments from rules that otherwise require consent of the parties to file an amicus brief and that require disclosure of information regarding whether any person or entity other than the named amicus contributed financially or otherwise to the amicus brief. The article surveys the Supreme Court’s historical practices regarding amici filings by government entities, and locates the first rule of the Court addressing amicus filings, then traces the rule’s evolution forward to the current day. In particular, the article considers the treatment of both Indian Tribes and foreign nations as sovereign amici in the Supreme Court, and comments upon their exclusion from current Rule 37.4.
Contact: Kristen Parker, University Relations, Office: (517) 353-8942, Cell: (517) 980-0709, Kristen.Parker@ur.msu.edu; Matthew Fletcher, College of Law, Office: (517) 432-6909, fletchem@law.msu.edu
Published: Oct. 17, 2011
Socio-economic and environmental problems are at an all-time high, says Matthew Fletcher, director of the Indigenous Law and Policy Center at the MSU College of Law. The answer: A change in tribal membership codes so that non-American Indians are held accountable.
His study, “Race and American Indian Tribal Nationhood,” was recently published in Wyoming Law Review.
Douglas Sanderson continues his excellent run of fine papers with “Redressing the Right Wrong: An Argument from Corrective Justice“, posted on SSRN.
Here is the abstract:
When we speak of historic injustice and the need for redress of those injustices, we tend to speak about land. After all, so the common narrative goes, what was taken from Indigenous nations was land, and so to redress past wrongs, land must be returned to present day Indigenous people. At this point, conversation tends to grind to a halt as present day citizens argue “I did nothing wrong, you can’t hold me to account for the sins of my father,” and lawyers begin speaking about things like the doctrine of laches or bona fide purchasers for value without notice. In this essay, I argue that all of this talk about land misses the point, because while settler government did in fact organize a wholesale theft of Indigenous lands, that is not all that was taken, and so is not all that needs to be returned to Indigenous nations to redress past wrongs. I make my argument within the framework of corrective justice, and I reason that the first thing you need to do in thinking about corrective justice is to identify the precise wrong that you are attempting to remedy. In the case of Indigenous nations, I argue that the single greatest wrong committed against Indigenous peoples has been the historical and on-going suppression of institutions in Indigenous communities that positively affirm Indigenous values, cultures and identities. The suppression of these institutions means that contemporary Indigenous people cannot flourish as Indigenous people because they do not have access to the social, cultural and political resources that affirm their identity as Indigenous people. To redress past and current day wrongs against Indigenous people in a framework of corrective justice is to return to Indigenous communities modern and contemporary institutions that affirm ancient Indigenous values and practices.
Tom Bell has posted his paper “‘Property’ in the Constitution: The View from the Third Amendment“, forthcoming in the William and Mary Bill of Rights Journal.
Here is the abstract:
During World War II, after Japan attacked the Aleutian Islands off Alaska’s coast, the United States forcibly evacuated the islands’ natives and quartered soldiers in private homes. That hitherto unremarked violation of the Third Amendment gives us a fresh perspective on what “Property” means in the U.S. Constitution. As a general legal matter, property includes not just real estate – land, fixtures attached thereto, and related rights – but also various kinds of personal property, ranging from tangibles such as books to intangibles such as causes of action. That knowledge would, if we interpreted the Constitution as we do other legal documents, tell us just about everything we need to know about the scope of constitutional property. Case law and commentary do not speak as plainly, however, raising troubling questions about what “Property” means each of the four times it appears in the Constitution. In particular, some authority suggests that the Takings Clause protects personal property less completely than it does real property. The unjust treatment of Aleutian natives during World War II shows the risk of giving constitutional property so peculiar and narrow a definition. This paper describes the troubling inconsistencies that afflict the law of constitutional property and invokes the Third Amendment, that oft-forgotten relic of the American Revolution, to argue for giving “Property” a plain, generous, and consistent meaning throughout Constitution.
Darryl Omar Freeman has posted “Neo-Colonial Adaptation or Neo-Sovereignty: Oklahoma Cherokee/African Ancestry Freedmen Conflict” on SSRN.
Might want to do some quick fact checking on Ward Churchill’s membership status with United Keetoowah Band.
Emily Tredeau has published “Tribal Control in Federal Sentencing” in the California Law Review.
Here is the abstract:
On many Indian reservations throughout the country, the federal government is the only sovereign empowered to prosecute serious felonies. Consequently Native Americans are disproportionately exposed to lengthy federal sentences. Because the federal government controls these cases, tribal sovereigns lack the local control over criminal law and policy that states enjoy.
Under the federal sentencing guidelines, each federal crime has an offense level that can go up or down depending on the crime’s circumstances. Combined with a defendant’s criminal history, the final level determines the range of sentences recommended under the guidelines. I propose that tribes alone decide offense levels for crimes committed in Indian country. This proposal aims to (1) enhance tribal sovereignty over on-reservation violence and thereby provide tribes with experience regulating felonies; (2) increase respect among tribal governments and their members for federal criminal prosecutions; and (3) decrease the racial sentencing disparity between Indians and non-Indians.
Turtle Talk 
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