Legal Guidance on Detention of Non-Indian Criminal Suspects

Download(PDF): Signed Memo Guidance on Legal Authority

The BIA Office of Tribal Justice issued guidance on legal authority of Tribal law enforcement to detain non-Indian offenders in Indian Country. It clarifies that if a non-Indian commits a crime in Indian country, tribal police have the authority to detain and put them in BIA detention facilities, until the status of tribal jurisdiction can be determined.  If the tribe does not have criminal jurisdiction, they can be held until transferred to a federal or state prosecuting authority.

Oregon Court of Appeals Decision and Dissent on whether Indian status is an issue of subject matter jurisdiction

The majority and dissent opinions address when the argument as to Indian status must be raised in a state prosecution. State v. Hill

Briefs here:

Appellant Brief

State Brief

Seattle U.’s VAWA Panel


Here’s a picture from Seattle University School of Law’s very inspiring VAWA Panel tonight. Left to right, the panelists were Molly Cohan, Sharon Jones Hayden, Alfred Urbina, and Ye-Ting Woo. Most of the handouts are here.

Among the many things I learned is that the one of the Pascua Yaqui Tribe’s first VAWA cases involved a same-sex couple. It was originally thought that this case might turn out to be the first tribal VAWA case to go through the federal habeas process and to eventually reach the Supreme Court, but the jury was uncertain as to whether the victim and defendant were in an intimate relationship as required by VAWA and so the defendant was acquitted. Given that the defendant and victim lived together and had a sexual relationship, this skepticism is troubling and, sadly, may reflect unconscious homophobia. There are still many positives, however. Despite the acquittal, the case helps shed light on a hidden problem–same-sex domestic violence is still a little-known and rarely mentioned phenomenon. Kudos to Pascua Yaqui for bringing the case. The prosecutorial response on its own was undoubtedly meaningful to the victim. And, given the jury’s acquittal, the case stands as a strong example of a tribal jury’s impartial treatment of a non-member.

There was also an important discussion of the holes in VAWA, including the lack of tribes’ ability under VAWA to prosecute crimes against children as well as stranger rape. Many of the more serious recent domestic violence crimes committed by nonmembers at both Tulalip and Pascua Yaqui involved crimes against children, but tribes cannot prosecute crimes against children under VAWA, so they must depend on the federal government (or the state in Public Law states) for prosecution of these crimes.

Article on the use of banishment in the rural Alaska Native village of Tanana

After the recent shooting deaths of two Alaska state troopers, the village of Tanana has turned to banishment as a way of protecting the community. The use of banishment is very controversial, raising a host of legal questions, but the circumstances of this village demonstrate how few options community members feel that they have under current jurisdictional conditions.

Full article here.

The Tanana Village Council, the Athabascan Indian tribal authority in the village of 250, is taking steps to expel two men whose actions contributed to the homicides and who have threatened other community members, council Chairman Curtis Sommer said.

“This is the only way we have to remove individuals who are — how do we say it? — who are dangerous to members of the community,” Sommer said.

The action is infrequent in Alaska, and when it is used, some question whether a tribal entity has the right to limit access to a community otherwise governed by state law. Those who are banished rarely contest the action publicly, and it isn’t clear if banished residents go on to cause problems in other communities because no one tracks them. . . . 

The state can’t afford to pay for law enforcement in small villages like this but they also refuse to let tribes have full authority over law enforcement, beyond an unarmed public safety officer, Kendall-Miller said. State troopers are flown in to deal with violence, but they can sometimes take days to arrive. . . .

Sommer concedes banishment is a “slippery slope.”

“It’s got to be very significant circumstances that would warrant this, either violent assaults or murder,” he said. “At what point do we draw the line on this? I do not know. I do know it’s not going to be used frivolously just to get back at someone.”

The village council will ask the state to enforce banishments. The Alaska Department of Law said it would carefully evaluate a banishment order. Kendall-Miller has seen unofficial support in the past.

“We have seen state police officers that have attempted to accommodate the tribal council’s blue ticket orders by helping to prevent individuals from coming back,” Kendall-Miller said. “It has been an informal arrangement that was done out of necessity.”

“If they do not enforce it, we will enforce it ourselves. We will get a group of men together and go to that person and tell him to leave and to not come back.”

H/T to SW.

Alex Pearl on Maximizing Welfare and Efficiency Through Informal Norms in Indian Law

M. Alexander Pearl has posted “Of ‘Texans’ and ‘Custers’: Maximizing Welfare and Efficiency Through Informal Norms,” forthcoming in the Roger Williams University Law Review, on SSRN.

Here is the abstract:

Professor Robert Ellickson (Yale) theorized that the informal norms of a close-knit community maximize aggregate welfare and Professor Barak Richman (Duke) identified two distinct types of private ordering systems: “shadow of law” and “order without law.” Under the Ellickson-Richman structure, many Indian tribes qualify as close-knit groups where informal norms effectively operate. The additional trait of isolation — both geographic and cultural — makes them ideal communities for the prioritization of informal norms. The imposition of external law, such as state law, is harmful and unnecessary to the maintenance of order in these communities. Recent legislative efforts to ameliorate criminal problems in Indian Country miss the mark and an alternative solution prioritizing the operation of informal norms and private ordering should prevail over application of external law and structures.

This article expands upon Ellickson’s assessment of how social behavior is affected by law and other forces, such as the informal norms in a given social group. Part I explains Ellickson’s theory and analyzes other important contributions made by other scholars. Part II discusses the taxonomy of historical and current examples of communities utilizing informal norms, or private law based mechanisms, to resolve disputes and how efficient results that maximize welfare (as defined by the community) are achieved. Part III, addresses the question of whether government law enforcement interferes with the close-knit community to an extent great enough to diminish the efficacy, or existence, of operative informal norms. Part IV examines anthropological sources to argue that the unique attributes of various Indian tribes and tribal communities warrant definition as the type of close-knit communities contemplated under Ellickson’s theory. Part V explains why the informal norms of certain tribal communities should be allowed to operate without interference from outside legal forces (Custers). Finally, Part VI looks at the relevant provisions in the recently passed Tribal Law and Order Act of 2010 and asks whether they effectively address the criminal justice issues facing Indian tribes subject to State criminal jurisdiction.

Louise Erdrich and TLOA in Poets & Writers Magazine

Unfortunately the article isn’t available online, but it includes snippets of an interview with Louise Erdrich, a discussion of The Round House, and some comments by both Erdrich and Professor Bruce Duthu on the problems with the current criminal jurisdiction framework on reservations. Here’s further information about where to find it.

Minn. S. Ct. on PL280 Jurisdiction over Traffic Offenses

The Minnesota Supreme Court upheld (4-2) state court jurisdiction over a conviction for driving without a license in State v. Losh. Here is the court’s syllabus:

1.     For the purposes of determining whether the State has subject-matter jurisdiction, pursuant to Public Law 280, to prosecute a tribal member who commits the offense of driving after revocation of a driver’s license, in violation of Minn. Stat. § 171.24, subd. 2 (2006), on tribal land because that offense is criminal/prohibitory, a court may consider the underlying basis for the revocation to determine whether the driving after revocation offense raises substantially different or heightened public policy concerns.
2.     Driving after revocation of a driver’s license, in violation of Minn. Stat. § 171.24, subd. 2, is criminal/prohibitory when the underlying basis for the revocation was driving while impaired, based on a violation of Minn. Stat. § 169A.20, subd. 1 (2006), or a failure of a test administered under the implied-consent law pursuant to Minn. Stat. § 169A.52, subd. 4 (2006).

Senate Hearing on DOJ/US Attorney Declinations in Indian Country

From the SCIA:

Here is the witness list and links to written testimony:

Panel 1
U.S. Attorney for North Dakota, U.S. Department of Justice, Washington, DC

Director, Office of Justice Services Bureau of Indian Affairs, U.S. Department of the Interior, Washington. DC

Panel 2
Partner, Best and Flanagan, LLP, Minneapolis, Minnesota

Deputy Attorney General. Confederated Tribes of the Umatilla Indian Reservation, Pendleton, Oregon

Director, Department of Justice and Regulatory, Southern Ute Indian Tribe. Ignacio, Colorado

Board Member and Tribal Representative of the National Criminal Justice Association and Chief Justice of the Mashantucket Pequot Tribal atio”, fashantucket, Connecticut

Biden Promises More Justice on Reservations

Biden promises more justice on reservations
By JODI RAVE of the Missoulian

KALISPELL – On Sunday, Democratic vice-presidential nominee Sen. Joe
Biden said an Obama-Biden administration would increase federal
prosecutions in Indian Country and strengthen tribal court
jurisdiction over crimes occurring within reservation borders,
regardless of the race of the criminal.

“There will be a much, much, much heightened sensitivity to
legitimate causes within reservations that, quite frankly, we’ve just
been taking advantage,” said Biden, author of the 1994 Crime Bill.
Tribal justice systems “should have greater say. I tried to get that
in the original crime bill when I wrote it. I find it absolutely
fascinating that we have this dual jurisdiction.”

Continue reading

ILPC Cross Deputization Occasional Paper

We’ve posted a new Occasional Paper on our Occasional Paper website.  The paper, Criminal Jurisdiction in Indian Country: The Solution of Cross Deputization, was primarily written by second and third year law students in our Indigenous Law and Policy Center class.  They researched and analyzed both issues of criminal jurisdiction and cross deputization agreements with a focus on Michigan and Michigan tribes.