Tightening the Perceived 'Loophole': Reexamining ICRA's Limitation on Tribal Court Punishment Authority

Full-text available at SSRN. See link in this record.The Indian Civil Rights Act (ICRA) celebrated its fortieth anniversary in 2008. When it passed the ICRA as a rider to the Civil Rights Act of 1968, Congress intended to apply the protections of the US Constitution to Indian country in the hope of better protecting the civil rights of individual Indians. After more than four decades, one may necessarily pause to consider whether the statute has in fact been effective and improved the status of Indian country. This article concludes that the ICRA has not improved Indian country, and, instead, because of Section 1302(7) and its limitation on tribal court punishment authority, has actually played a contributing role in making Indian country less safe for those who reside there. Accordingly, the limitation on tribal court punishment authority contained within ICRA should be reformed to increase tribal court punishment authority, and, in turn, to help counter the perception that Indian country lacks effective enforcement. Data overwhelmingly show that Indians generally face a higher incidence of violence than other racial groups. A Department of Justice Bureau of Justice Statistics Report (BJS Report) concluded that “[t]he findings reveal a disturbing picture of the victimization of American Indians and Alaska Natives. The rate of violent crime estimated from self reported victimizations for American Indians is well above that of other U.S. racial or ethnic groups and is more than twice the national average.” The BJS Report is replete with startling statistics regarding violence and crime facing American Indians, Alaskan Natives, and Native Hawaiians. For example, “[o]n average, American Indians experience an estimated 1 violent crime for every 10 residents age 12 or older.” Furthermore, “[t]he violent crime rate in every age group below age 35 was significantly higher for American Indians than for all persons.” As a result of this high incidence of violence in Indian country, more than 80 percent of manslaughter cases, 60 percent of sexual abuse offense cases, and half of all murders and assaults cases tried in federal courts arise from crimes committed in Indian country. This chapter argues that ICRA, Section 1302(7), and its limitation on tribal court punishment authority is an important contributor to the flawed existing criminal jurisdictional framework in place, with the result being that Indians experience higher rates of violence than any other racial or ethnic group in Indian country. “The US federal government has created a complex interrelation...that undermines equality before the law and often allows perpetrators to evade justice. In some cases this has created areas of effective lawlessness which encourages violence.” In other words, ICRA’s limitations on tribal court enforcement authority, combined with the other elements of the current criminal jurisdictional scheme, have made Indian country less safe over the past four decades. The author does not suggest that reforming ICRA will lead to a complete reversal of this troubling trend in Indian country. In fact, only a small group of individuals, member and nonmember Indians, facing crime and violence arising in Indian country, may directly benefit from the proposal articulated here; however, reversing the perception that tribal courts lack punishment authority by increasing the punishment authority available to tribal courts will likely have a positive impact. It is this author’s assertion that if potential criminals perceive tribal courts as having effective enforcement authority within Indian country, they will be less likely to commit crimes there. It is a small but important step toward addressing the problem of increased crime in Indian country. Accordingly, this chapter suggests that Congress can begin to address the problem it helped create by reducing or eliminating the restriction on tribal court enforcement authority. Part I introduces the existing criminal jurisdictional scheme within Indian country. Part II examines the relevant ICRA legislative history from 1961 to 1968 in an effort to ascertain why Congress enacted ICRA, Section 1302(7). Part III concludes that the concerns that occupied Congress in the 1960s and established the foundation for passage of the ICRA, Section 1302(7) have largely been ameliorated. Therefore, in order to begin to address the perception that tribal courts lack effective enforcement authority within Indian country, Congress should repeal ICRA, Section 1302(7) or, at the very least, substantially increase tribal court punishment authority