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Excerpted From: Jordan Gross, Incorporation by Any Other Name? Comparing Congress' Federalization of Tribal Court Criminal Procedure with the Supreme Court's Regulation of State Courts, 109 Kentucky Law Journal 299 (2020-2021) (347 Footnotes) (Full Document)


JordanGrossThe Bill of Rights, ratified in 1791, governs a wide range of government conduct. It prohibits specific government actions and grants affirmative rights to individuals. In the criminal arena, these provisions operate in two distinct spaces. First, the investigative phase, before a person is charged with a crime. And, second, the adjudicative phase, after a crime is charged and court procedures are triggered. This Article concerns the law governing the adjudicative stage of the criminal justice process and it examines provisions of the Bill of Rights triggered by criminal charges and their statutory analogs in the Indian Civil Rights Act of 1968. These provisions include prohibitions against subjecting an accused to double jeopardy, self-incrimination, excessive bail, excessive fines, and cruel and unusual punishment, and the affirmative rights to a speedy and public trial, notice of charges, confrontation of witnesses, compulsory process, and the assistance of counsel.

The authority to define, prosecute, and punish crimes in the United States has historically been the purview of local and state governments, not the national government. The Bill of Rights, as enacted, only constrained the national government prosecuting crimes in its own courts; it did not apply to the states. The Fourteenth Amendment, ratified in 1868 following the Civil War, redefined the relationship of the states to the national government and created an opening for federal oversight of states' criminal justice systems. The Fourteenth Amendment, among other things, prohibits any state from depriving any person of life, liberty, or property without due process of law, or denying any person the equal protection of the laws. The Supreme Court initially interpreted the Fourteenth Amendment to allow states to diverge from what the Bill of Rights required from the national government in federal court prosecutions as long as states provided some basic level of fairness to the accused. Today, however, the contours of state court criminal procedure are defined, for the most by the Bill of Rights.

The Bill of Rights requirements were extended to the states by the Supreme Court's “incorporation” jurisprudence. Under incorporation jurisdiction, if the Court determines that a specific provision in the Bill of Rights is implicit in the concept of ordered liberty, it is deemed “incorporated” into the Fourteenth Amendment. As such, it binds the states on the same terms as the national government. The Court decided its first incorporation cases in the 1920s, and they mostly concerned the First Amendment. The Court did not incorporate any criminal procedure provisions of the Bill of Rights until the 1960s. Thus, at the founding, criminal procedure in state and local courts was unregulated by the U.S. Constitution; from 1791 to the 1960s, it was supervised by the Court under a relatively deferential due process standard; since the 1960s the Court has incorporated virtually all of the criminal procedural protections of the Bill of Rights into the Fourteenth Amendment. As a result, the process by which state and local governments prosecute and punish crimes today must adhere to a national, common law code of criminal procedure that sets a uniform “floor” of federal protection for all defendants tried in state or federal court.

At the founding, Indian nations exercised sovereign authority within the territories they controlled, including the power to define and punish wrongdoing. No Indian nation signed the U.S. Constitution. Thus, in contrast to the national government's relationship with the states, its relationship with individual tribal nations is extra-constitutional. Shortly after the U.S. Constitution was ratified, the newly-formed Congress laid claim to federal jurisdiction over wrongdoing committed by non-Indians in some Indian territories, to the exclusion of states. Congress later asserted federal jurisdiction over interracial crimes committed in what has been designated “Indian country.” The Court subsequently carved out an exception to federal jurisdiction over crimes committed in Indian country for crimes committed by non-Indians against other non-Indians. Those case, it held, fall within state jurisdiction. After the Court recognized tribes' exclusive jurisdiction over crimes committed by one Indian against another, Congress asserted federal jurisdiction over serious crimes of personal violence committed by Indians in Indian country. Congress subsequently transferred federal criminal jurisdiction over crimes in some Indian country jurisdictions to states. The Supreme Court waded into these murky jurisdictional waters in Oliphant v. Suquamish Indian Tribe in 1978. There it held that tribes' criminal jurisdiction was limited to crimes committed by Indians, and that it did not extend to non-Indians absent express Congressional authorization. After Oliphant, jurisdiction over crimes committed by non-Indians in Indian country, which was previously exercised by tribes, rested with the states or the federal government unless Congress said otherwise. As a result of these federal interventions, criminal jurisdiction in Indian country today is allocated among states, tribes, and the federal government based on whether a perpetrator or victim is an Indian or a non-Indian, the nature of the offense, and the status under federal law of the Indian country in which a crime occurs.

Deep issues in federal Indian law include the nature of tribes' sovereign authority vis-à-vis the national and state governments, the extent to which a tribe's exercise of authority relies on express Congressional authorization, and whether a tribe's jurisdiction over conduct occurring within its territory, or affecting its interests, is concurrent with that of the other two sovereigns. Since the 1960s, Congress' stated policy has been to support tribes' self-determination. One way it has expressed this policy is by promoting and encouraging the development of Anglo-European court systems in Indian country. Since the U.S. Constitution has no force in Indian country, criminal procedure in tribal courts is not constrained by the Bill of Rights or the Court's Fourteenth Amendment incorporation jurisprudence. Tribal court criminal procedure is nonetheless heavily regulated by Congress through the Indian Civil Rights Act of 1968 (ICRA). Congress enacted ICRA during the Civil Rights era against the backdrop of the Court's incorporation jurisprudence, and its original version imposed most, but not all, of the criminal procedure provisions of the Bill of Rights on tribal governments using language mirroring the U.S. Constitution. ICRA also limited tribes' sentencing authority to misdemeanor-level penalties, even for the most serious offenses-- specifically, the 1968 version of ICRA limited tribal court sentences to six months; a cap Congress raised to one year in 1986.

American-Indian and Alaska Native women are victimized at a rate more than twice that of women of other ethnicities. This violence occurs primarily at the hands of non-Indians, who make up a substantial majority of the residents of Indian country. Jurisdictional loopholes that allow non-Indians to escape prosecution, limited tribal punishment authority, and inadequate federal funding of law enforcement and courts in Indian country have all contributed to this public safety crisis. In response to criticism of the federal government's law enforcement efforts in Indian country and inadequate funding of tribal institutions on the front line of this crisis, Congress amended ICRA with the Tribal Law and Order Act of 2010 (TLOA) and the Violence Against Women Reauthorization Act of 2013 (VAWA 2013), to increase tribal authority over criminal conduct in Indian country. TLOA authorized lifting ICRA's sentencing cap from one to three years for some offenses, and stacking offenses for a total of up to nine years. VAWA 2013 authorized tribes to exercise criminal jurisdiction over some non-Indians for the first time since the Court decided Oliphant over twenty-five years earlier.

Unlike the Bill of Rights or ICRA, ICRA's TLOA and VAWA 2013 provisions do not create uniform procedures. Rather, they are “opt in” statutes that authorize individual tribes to exercise greater authority over wrongdoing in their communities if they provide additional procedural safeguards above those required under ICRA's 1968 baseline provisions, which set the default requirements for tribal courts. Tribes that choose not to, or who cannot afford to adopt the more demanding procedural requirements of TLOA and VAWA 2013 remain subject only to the baseline provisions of the 1968 version of ICRA. TLOA and VAWA 2013 purport to capture criminal procedural protections required in state and federal courts under the Bill of Rights that were either left out of the 1968 version of ICRA, or that had been added to the Court's Fourteenth Amendment incorporation catalog after 1968. In several instances, Congress linked TLOA and VAWA 2013's requirements directly to the Court's incorporation jurisprudence, promoting further conformity between tribal court criminal procedure and federal constitutional criminal procedure. In many instances, however, TLOA and VAWA 2013 require tribes to extend greater procedural protections to defendants in their courts, especially if they are non-Indian, than those required of states under the Court's Fourteenth Amendment jurisprudence. TLOA and VAWA 2013, therefore, do not simply harmonize tribal criminal court procedure with federal constitutional criminal procedure, in some instances they impose greater burdens on tribes seeking to exercise sovereign authority over wrongdoing in their communities.

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.

[. . .]

The federal legal scheme within which tribal justice systems are situated in the United States is historically overtly hostile to indigenous justice. Current federal policy incentivizes abandonment of indigenous justice practices and encourages tribes to further shape their justice processes on colonialist norms if they want to reassert sovereign powers usurped by the national government. The displacement and suppression of indigenous justice within the U.S. federal system has been extensive. But it is neither an inevitable feature of post-colonial federalism, nor is it irreversible. Geographic-based jurisdiction and local autonomy are the norm in Anglo-European legal systems. And local innovation in law enforcement and criminal justice is held up as a value in the U.S. federal system. Congress could go a long way to addressing the public safety crisis in Indian country by embracing these principles in its Indian country policy, as the Court has in its modern relations with the states. One place to start is to deregulate tribal court criminal jurisdiction and procedure completely and restore tribes' plenary authority over wrongdoing in Indian country. Short of that, Congress should, at a minimum, amend ICRA to fix the incorporation imbalance described here that results in greater procedural rights for the non-Indian tribal court defendant at an added cost to tribal governments.

The Court has recognized that procedures like providing law-licensed lawyers and judges, and assembling criminal juries burden states' sovereignty interests and undermine the principal of local autonomy in criminal justice matters. The Court has thus declined to impose blanket federal mandates for appointed counsel, law-licensed judges, and juries in all criminal cases. Instead, it has carved out a misdemeanor/felony divide for the right to appointed counsel and for the right to a jury trial, and it has not required state judges to be licensed lawyers. Whether justifiable or not, the Court's felony/misdemeanor distinction reflects a recognition that across-the-board federal procedural mandates create extraordinary financial burdens for state and local government because misdemeanor cases constitute the bulk of criminal prosecutions in the United States. Requiring states to adopt resource-intensive procedures, thus, inevitably requires them to redirect resources from other state-funded programs and priorities. Ultimately, this limits states' options and introduces ground-level cost-avoidance incentives in the investigation and prosecution of crime. This dynamic is no different for tribes. By demanding more of tribes when they prosecute non-Indians than what the Court has deemed necessary to ensure fairness in state criminal prosecutions, Congress directly and disproportionately burdens tribes' exercise of their inherent sovereignty. Further, making the prosecution of non-Indians more expensive than that of other defendants can compromise community safety by introducing a cost-avoidance incentive into tribes' VAWA 2013 charging and prosecution decisions. There are valid arguments why the national government may have an interest in setting a procedural baseline for tribal courts as it has done for the states. But there is no sound justification in law or policy for requiring tribes to provide more procedural protections to non-Indian defendants than they would be entitled to in state court under the Fourteenth Amendment.

Professor of Law, University of Montana Blewett School of Law.

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