New Scholarship on Federal Restrictions on Tribal Customary Law

Concetta Tsosie de Haro has posted “Federal Restrictions on Tribal Customary Law: The Importance of Tribal Customary Law in Tribal Courts.” The paper was published in the Tribal Law Journal.

Here is the abstract:

This article examines the adverse effects of federal case law and legislation on tribal courts and tribal courts’ ability to incorporate tribal customary law. Tribal customary law is the law given to tribes by holy deities which governs tribal ways of life. It is important to maintain tribal customary law because it strengthens tribal communities’ identities and cultural foundations. While Supreme Court precedent has, at different times, both restricted and promoted tribes’ ability to use tribal customary law to adjudicate the cases of tribal members, federal legislation including the Major Crimes Act, the Indian Civil Rights Act, the Tribal Law and Order Act, and the Violence Against Women Act continues to restrict tribes’ ability to apply customary law in tribal courts. To illustrate one way in which current federal Indian policy limits tribes’ ability to use customary law, the author highlights the ways in which two-spirit tribal members are excluded and ignored by the protections established in the Violence against Women Act. As the use of tribal customary law is critical to the maintenance of tribal sovereignty, this article advocates for corrections to these legislative restrictions to promote tribal court’s use of tribal customary law.

United States Accepts Concurrent Jurisdiction Over Mille Lacs Band of Ojibwe

Department of Justice Press Release here.

The decision will take effect on Jan. 1, 2017.  Tribal, state and county prosecutors and law enforcement agencies will also continue to have criminal jurisdiction on the reservation.

“We believe this decision – made after a careful review of the tribe’s application and the facts on the ground – will strengthen public safety and the criminal justice system serving the Mille Lacs Band of Ojibwe,” said Deputy Attorney General Yates.  “This is another step forward in the Justice Department’s commitment to serve and protect American Indian and Alaska Native communities, to deal with them on a government-to-government basis and to fulfill the historic promise of the Tribal Law and Order Act.  Strong law enforcement partnerships with the Tribe, as well as state and local counterparts, will be essential to the success of this effort.”

Mille Lacs is the second tribe to be granted concurrent jurisdiction under the Tribal Law and Order Act of 2010. White Earth received concurrent jurisdiction status in 2013.

Indian Country Investigation & Prosecutions Report to Congress

Link to DOJ report for 2014 here.

Highlights:

  • FBI’s CY 2014 statistics are similar to 2013. The majority of Indian country criminal investigations opened by the FBI were referred for prosecution.
  • The majority of Indian country criminal cases opened by the USAOs were
    prosecuted.
  • The most common reason FBI Indian country investigations were closed administratively without referral for prosecution was that the investigation concluded that no federal crime had occurred. Analysis of CY 2014 data indicates that 657 FBI Indian country investigations were closed administratively without referral to a prosecuting authority — approximately 32% of the investigations that were opened. Reasons for non-referral include deaths determined to be the result of natural causes, accident, or suicide (i.e., non-homicides; 20% in CY 2014 of all investigations not referred), and insufficient evidence of criminal activity (21% in CY 2014).
  • All but 37 of the 148 death investigations that the FBI closed administratively in CY 2014 were closed because the FBI established that the death was due to causes other than homicide; i.e., accidents, suicide, or death due to natural causes.
  • In 2014, the USAOs resolved more cases than in 2013. In 2014, the USAOs resolved 535 more cases than in 2013. A total of 3,930 Indian country matters were resolved in CY 2014, as compared to 3,395 cases in 2013.
  • The USAO declination rate remained steady. USAO data for CY 2014 show that 34% (989) of all Indian country submissions for prosecution (2,941) were declined. In CY 2013, USAOs declined approximately 34% (853) of all (2,542) Indian country submissions for prosecution. USAO data for CY 2012 indicate that just under 31% (954) of all Indian country submissions for prosecution (2,542) were declined.
  • The most common reason for declination by USAOs was insufficient evidence (59.6% in CY 2014, 56% in CY 2013, and 52% in CY 2012). The next most common reason for declination by USAOs was referral to another prosecuting authority (16.3% in CY 2014, 21% in CY 2013, and 24% in CY 2012).

NAICJA Board of Directors Unanimously Support AG and ILOC Reports

Resolution No. 2015-01
Resolution No. 2015-02

The National American Indian Court Judges Association are supporting the Indian Law and Order Commission’s November 2013 report entitled “A Roadmap for Making Native America Safer,” which “advocates for tribal justice systems to have the ability to fully express their sovereignty by opting out of the current jurisdictional maze, and exercise criminal jurisdiction over all persons without any sentencing limitations, including juveniles.”  However, NAICJA prefers that all individuals charged with crimes under this enhanced tribal jurisdiction be provided with civil rights protections equivalent to those guaranteed by the Indian Civil Rights Act, instead of the U.S. Constitution.

NAICJA is also supporting the November 2014 report from the Attorney General’s advisory committee on American Indian/Alaska Native Children Exposed to Violence entitled “Ending Violence So Children Can Thrive” which “calls for the restoration of the inherent sovereignty of tribes to assert full criminal jurisdiction over all persons who commit crimes against AI/AN children in Indian country.”

DEPARTMENT OF JUSTICE RELEASES SECOND REPORT TO CONGRESS ON INDIAN COUNTRY INVESTIGATIONS AND PROSECUTIONS

DEPARTMENT OF JUSTICE RELEASES SECOND REPORT TO CONGRESS ON INDIAN COUNTRY INVESTIGATIONS AND PROSECUTIONS

 

Report to Congress is Requirement under the Tribal Law and Order Act of 2010

 

WASHINGTON – The Department of Justice released today its second report to Congress entitled Indian Country Investigations and Prosecutions, which provides a range of enforcement statistics required under the Tribal Law and Order Act of 2010, as well as information about the progress of the Attorney General’s initiatives to reduce violent crime and strengthen tribal justice systems. 

 

The report, based on data compiled from the case management system used by U.S. Attorney’s Offices (USAO), shows prosecutors in 2013 continued to bring substantial numbers of cases to federal court (a 34 percent increase over FY 2009 numbers) and prosecute a substantial majority of all cases referred to them.  Of the cases that were declined for federal prosecution, most were declined for insufficient evidence or because they were referred to another prosecuting authority, such as the tribe, for potential prosecution.  

 

“As detailed in this report, the Department of Justice is making good on our commitment to strengthen cooperation with sovereign tribes, reduce violent crime, and ensure justice for every individual,” said Attorney General Eric Holder.  “From our work to empower Indian women under the landmark Violence Against Women Reauthorization Act, to the task force we established to safeguard children in Indian country from violence and abuse, we have made significant strides – in close partnership with tribal nations – to bolster the safety and security of all American Indian and Alaska Native communities.   As we move forward, we will continue to expand on this critical work; to deepen our ongoing efforts; and to reaffirm our dedication to the promise of equal rights, equal protection, and equal justice for all.”

 

Although declination rates are an imperfect means of evaluating the effectiveness of criminal justice in Indian country or elsewhere, the report shows that with few exceptions, areas where the largest populations of American Indian people live and suffer from the most serious crime rates, such as the Southwest and the northern plains states (which together handled approximately 70 percent of the 2,542 cases resolved in 2013), federal declination rates were the lowest in the nation.  For instance, South Dakota had the second to highest number of cases resolved in the country last year, 470 cases, and one of the lowest declination rates of 26 percent.  Arizona resolved the highest number of cases, 733 cases, and had a declination rate of 28 percent.

 

Associate Attorney General Tony West announced the findings in remarks to the Four Corners Indian Country Conference today on the Navajo Nation in Flagstaff, and met separately with the Attorney General’s advisory subcommittee on Native American issues to discuss the report, among other matters.

 

“We are witnessing an unprecedented era of collaboration among U.S. Attorneys’ offices and tribal law enforcement and prosecutors across the country,” said Associate Attorney General West.  “This report shows the fruits of this continuing partnership between the federal government and American Indian tribes, including enhancing training and capacity building for tribal court systems and improving responses to victims in Indian country.”

 

“Over the past five years, the Justice Department and our tribal partners have taken important steps forward on our journey toward a safer Indian Country,” said Timothy Purdon, U.S. Attorney for the District of North Dakota and chair of the Attorney General’s advisory subcommittee on Native American issues.  “Vigorous enforcement of federal laws is vitally important to strengthening public safety on American Indian reservations.  We are pleased to see in this report that U.S. Attorney’s Offices across the country continue to work hard to remove the most dangerous offenders and work closely with tribal law enforcement and prosecutors.  These promising numbers are the direct result of this enhanced communication and collaboration.” 

 

“The FBI continues to be committed to public safety in Indian Country,” said FBI Assistant Director Joseph S. Campbell. “Our partnership with federal, state, local, and tribal agencies remains strong as we continue to aggressively address violent crime and victimization in tribal communities.”

 

The information contained in the report shows the following: Continue reading

Chehalis COA Decides Criminal Matter involving Tribal Law and Order Act

Here is the opinion in Confederated Tribes of the Chehalis Reservation v. Lyons. An excerpt:

For the reasons set forth above, we hold that the trial court committed reversible error by admitting the Sexual Assault Report Form without providing the defendant the  opportunity to confront the author of the Report. We further hold that the criminal laws and rules of evidence of the Chehalis Tribe were not publicly available prior to the charging of the defendant in this case as required for the Tribe to exercise the enhanced sentencing authority permitted by the federal Tribal Law and Order Act of 2010.