Testimony Before the U.S. Sentencing Commission on the Tribal Law and Order Act

Under longstanding policy, the U.S. Sentencing Commission takes the position that tribal court convictions ought not be counted for purposes of evaluating a convicted defendant\u27s criminal history. Because in some cases this policy underestimates a defendant\u27s criminal history, it undermines the utilitarian and retributive purposes of federal sentencing. The Tribal Law and Order Act, currently pending in Congress and supported by the President, should cause the United States Sentencing Commission to reconsider its position on tribal convictions. The Act would provide clear federal authorization for tribal court felony sentences of up to three years per offense as long as tribal governments provide counsel to indigent defendants. I stop short of recommending a particular outcome because I believe that the Commission ought to consider the views of tribal governments before deciding. However, if the Act becomes law, the Commission should take this opportunity to re-open the question and consult with tribes about the future of this provision

Jurisprudence and Recommendations for Tribal Court Authority Due to Imposition of U.S. Limitations

There are over 570 federally-recognized Tribal Nations in the United States and more than 330 tribal courts serving as the judicial branch of those nations. Yet, there is little mention of the existence of tribal courts in most mainstream civil procedure courses taught in the over 200 law schools in the United States. To gain any knowledge as to the existence of these courts, law students must take a course on federal Indian law, which is not available in the majority of law schools. In fact, less than twenty law schools offer a series of courses forming an Indian law program. Thus, the invisibility of tribal courts is perpetuated through curriculum omission in mainstream civil procedure courses and rarely remedied through offering a stand-alone course on federal Indian law. Tribal Nations have existed from time immemorial with their own laws, dispute resolution systems, and governing structures. This lack of attention and suppression of information serves only to reinforce colonizing ideas of subsuming tribal governance into the forums set up by the United States. This article will discuss the history of formal tribal courts as first established to control American Indian populations in the late 1800s. As tools of oppression, the first judicial forums established on American Indian reservations were the Code of Indian Offenses Courts, also known as the C.F.R. Courts (Code of Federal Regulations Courts). The Indian Reorganization Act of 1934 signaled a shift in policy, which provided for the adoption of tribal constitutions. Under the Department of Interior, the Bureau of Indian Affairs personnel developed boilerplate constitutions for adoption by Tribal Nations. These constitutions often included provisions for the establishment of tribal courts. Through U.S. Supreme Court decisions and federal laws, the criminal and civil jurisdiction of tribal courts has been limited. The U.S. Supreme Court has also opined that the U.S. Congress holds plenary authority over American Indian Tribes. Utilizing this authority, the U.S. Congress has legislated federal criminal jurisdiction as concurrent on all tribal lands with tribal court jurisdiction and has provided a mechanism to delegate federal criminal jurisdiction to state legal systems. In the civil jurisdiction sphere, the U.S. Supreme Court has established processes for federal courts to review tribal civil jurisdiction determinations and for the refiling of cases from tribal courts to federal courts based on the status of civil defendants as non-Indians or non-members. Following a discussion on the history and function of tribal courts, this article will examine the limitations on tribal court civil jurisdiction set forth in U.S. Supreme Court decisions. Through a critical examination of the U.S. authority and legal basis for review of tribal court determinations or decisions, this article will provide commentary on the ungrounded nature of the assertion of U.S. federal court review over tribal court decision-making. Finally, the article will recommend a government-to-government treaty agreement to set the framework for civil jurisdictional issues arising between Tribal Nations and the United States

Incorporation Without Assimilation: Legislating Tribal Civil Jurisdiction Over Non-Members

For the last 40 years the Supreme Court has been engaged in a measured attack on the sovereignty of Indian tribes when it comes to tribal court jurisdiction over people who are not members of the tribe asserting that jurisdiction. The Congress has already enacted legislation partially restoring some tribal courts’ criminal jurisdiction over non-members. This Essay proposes to legislatively reconfirm the civil jurisdiction of tribal courts over such non-members. After examining the Supreme Court’s jurisprudence in this area and summarizing the Court’s main concerns with such tribal jurisdiction, this Essay explores various legislative options before settling on a preferred course of action. The proposal set forth in the last part of this Essay would reconfirm tribal court civil jurisdiction over non-members provided the tribal courts has established personal jurisdiction over the parties. However, tribal courts’ determinations on this subject would be appealable to federal courts. Furthermore, the Essay proposes to allow non-members being sued in tribal courts the option of removing their cases to federal courts under certain conditions