Source Publication Abbreviation
This Article examines the different experience of states and tribes with uniform national standards of criminal procedure imposed by the federal government. Part I describes the federal government’s displacement of indigenous justice in service of colonialist political goals, a policy that has contributed to the public safety crisis in Indian country today. Part II explains the constitutional criminal procedure jurisprudence the Court developed for states on which Congress has modeled ICRA’s criminal procedure provisions. In TLOA and VAWA 2013, Congress recognized that restoring tribal autonomy over wrongdoing in Indian country must be part of the federal policy response to the violence indigenous peoples experience in Indian country within the United States. Part III asks whether Congress’ efforts to further federalize tribal court criminal procedure is aligned with its stated commitment to support tribal self-determination and make Indian country safer. This Article asserts that requiring tribes to adopt even more trappings of Anglo-European justice norms as the exclusive means to access increased authority over wrongdoing in their communities is counterproductive to Congress’ stated goals in two ways. First, it constrains tribes’ ability to adapt their court practices and processes to reflect their individual community’s normative values. This can undermine tribal courts’ internal legitimacy and, ultimately, their effectiveness. Second, Congress’ approach puts residents in low-resource and rural tribal communities at even greater risk of harm. Some of the additional procedures TLOA and VAWA 2013 require tribes to adopt as a pre-condition to exercising increased authority are extremely costly to implement. Thus, the promise of increased authority and restored sovereignty Congress has held out can only be accessed by tribes that have adequate revenue sources to pay for them, that are willing to re-direct funds from other public services to fund TLOA and VAWA 2013 upgrades, or that are situated near urban areas where they can access additional human and institutional resources in neighboring communities. This leaves low-resource, rural tribal communities in an Oliphant world, a world in which all crimes within the tribe’s jurisdiction, no matter how serious, are treated as misdemeanors, and where non-Indians can victimize residents of Indian country with relative impunity.
Gross, Jordan, "Incorporation By Any Other Name? Comparing Congress' Federalization of Tribal Court Criminal Procedure with The Supreme Court's Regulation of State Courts" (2021). Faculty Law Review Articles. 198.