Counter Culture

Tribal Criminal Law and Procedure is the second book in a series of comprehensive studies of tribal law in the US. This book examines the complexities of tribal criminal law utilizing tribal statutory law, and case law, weaving into the narrative Native cultural values. The authors discuss histories and practices of tribal justice systems, comparing traditional tribal systems with Anglo-American law, with a focused discussion on the various aspects of jurisdiction. They examine the elements of criminal law and procedure and alternative sentencing vs traditional sanctions. A valuable resource for legal scholars, this book was published in cooperation with the Tribal Law and Policy institute at Turtle Mountain College and the Native Nations Law and Policy Center at the University of California, Los Angeles.

Comparing Tribal criminal law and American criminal law

Foundations of Traditional law is discussed in Chapter 2 discuss the differences in Native systems. Mainly, that these laws do not come from man, they come from the Creator and are belief-based. Understanding this is critical to understanding the complexities of Tribal law. Traditional Native law based on values, deities, and responsibilities, linked to spiritual beliefs. Belief that the Great Spirit is the Creator and protector, the source of earthly blessings. The Great Spirit is given thanks for all things including preservation of native lives, social privileges, and prosperity. There is also a belief in the Evil-minded who creates monsters and poisonous creatures and plants. Humans stand somewhere in-between and are free to control their own destiny.

The framework stemming from this system of beliefs responds to problem behavior and how the system is focused on personal responsibility rather than prohibited activities; which American law focuses on. Tribal law focuses on how social harm affects the community rather than the harm done to or by a single individual. For instance, the Haudenosaunee Great Law based on beliefs about the Creator defines that a person’s duties and responsibilities are more important than their individual rights and privileges. Indeed, the principles of the League of the Iroquois address a similar idea that a man’s rights and privileges never exceed his duties and responsibilities. (1)

Tribal conceptions of social harm are more broadly interpreted compared to the American legal system. An aspect of social harm within tribes rests on community-based rights or duties, while other tribes might focus more on the individual’s responsibilities. One reason for the focus on community is that traditional laws address the responsibility of each to their family, clan, and tribe, since the strength of these groups, depends on the survival of its members. Decisions come down to whether a community or the individual will respond to the problem.

Behaviors are addressed according to the customs and the beliefs of each Nation and this dictates which entity will perform enforcement functions. The Iroquois Confederacy used social or political entities to resolve wrongdoing; thus, crime was rare with their lives revolving around the clan. The council of clans addressed problem-solving; however, if this did not resolve the issue, it might go to the Nation’s council. Councils were not the only entity enforcing laws. Parents enforced laws regarding disciplining their children. Additionally, Keepers of the Faith could act as censors of the people and possessed the authority to report evil deeds.

The Menominee and other Algonquian developed formal three-party judicial proceedings to prosecute crimes. A mike-suk would act as investigator and prosecutor, while a pipe-holder or sukanahowao, or even a warrior chief might act as a defense attorney. Additionally, a go-between acted as a mediator to negotiate settlements.

Native cultures focus on rehabilitation and restoration of peace and harmony to both the individual and community. One method of restoration might be banishment to protect the community from harm or could include gifts from the individual’s family to restore peace. The main point here is the emphasis is on restoring harmony to the community and not on proving someone’s guilt or innocence.

Some tribes focus on healing the wrongdoer and the Ojibway is one of these. Their point of reference was if they could heal the individual, they could restore him and peace to the community. This way people can forgive the wrongdoing as their notions of blame differs to more Western thought.

The Cheyenne focus as well on restoration and rehabilitation. While banishing a person from the community might restore peace, the individual might be introduced back after rehabilitation. Stigma, used as an enforcement tool, as well as social control, since a community’s ridicule served as a strong deterrent to social harm.

An interesting element to this book is the author’s use of native anecdotes to show an example of how tribal law might have been decided. This book serves as not only a comparative analysis of the differences between Western legal practice and traditional Native applications of the law, but it also gives us more cultural insight into various tribal practices and historic parables used to show an example of thought and practice.

Using American criminal law to control Indian Nations

Conflicts over land and resources led the American legal system (and their Spanish, French and British predecessors) to use criminal law as a tool of destruction against Native peoples. Western criminal justice systems were used to not only outlaw cultural practice and tradition but to punish those who wished to continue practicing their Native spiritual beliefs. Federal officials attempted to control the Native people. Western legal systems imposed their values of punishment to outlaw tribal mechanisms used to address problem behavior within the Tribe. Additionally, Western criminal law was used by the Feds to confine native people to reservations, however, it did not protect them from harm and was rarely used to protect them from the criminal conduct of the settlers, this author states.

The American system of law worked as a method of indirect rule over Native nations, leading to massive distrust of modern criminal justice systems and even to distrust of their own tribal systems in some cases when funded by the Federal government. Culminating in the Office of Indian Affairs, which later became the Bureau of Indian Affairs; the OIA created Courts of Indian Offenses or CFR courts. (Courts of Federal Regulations) and it was this code of regulations that outlawed many cultural practices. At least twenty of these courts still exist today. The Courts of Indian Offenses imposed federal regulations to prohibit misdemeanour offenses, as well as cultural practices that they deemed immoral. The author cites a Congressional report which lists some of these types of offenses from 1892.

This author also references other texts detailing technology used by the OIA for controlling Indian behavior, such as Thomas Biolsi’s “Organizing the Lakota: The Political Economy of the New Deal on the Pine Ridge and Rosebud Reservations.” While this book reviews additional literature on the subject giving anyone with an interest in this topic more resources to investigate for further reading.

Ultimately, federal agents under the BIA wanted federal courts to have jurisdiction over Native people using American laws in criminal cases. A decision made by the US Supreme Court called Ex parte Crow Dog in an 1883 ruling resulted in tribal exclusive criminal jurisdiction over a murder case. This controversial decision brought about the BIA convincing Congress to enact the Major Crimes Act in 1885, which imposed federal criminal jurisdiction on Tribal nations without their consent. For further reading on the Crow Dog case, see Harring’s Crow Dog’s Case (2)

Traditional law today and Traditional criminal jurisdiction

Chapter 4 discusses how traditional tribal values and beliefs have been included in contemporary criminal law. Introducing coercive American law enforcement disrupted tribal governance. This resulted in the Tribes developing their own strong criminal justice system. The biggest challenge is how to incorporate traditional indigenous principles. Many are working to restore traditional practices in a modern context. The author gives many examples throughout this chapter, which makes for interesting reading.

Chapter 5 discusses various types of jurisdiction and goes into detail about different tribal criminal jurisdiction and specific criminal code used by Tribal courts. Chapter 6 discusses in detail traditional criminal jurisdiction.

• Limitations on Tribal criminal jurisdiction imposed by the US
• Exercising jurisdiction over crimes committed by non-Indians
• Criminal jurisdiction as defined by Tribal Courts.
• Tribal restorative justice

Each chapter contains a section on terms used and suggested further reading which I found very interesting and useful for anyone interested in studying the intricacies of Tribal Law. Jurisdiction is defined in the traditional sense before Europeans settled in America and is detailed with examples from various Tribal Laws. The Haudenosaunee Great Law is referenced as well as Osage practices by the leaders known as the Little Old

Men who developed their laws and decided jurisdiction. The Choctaw Nation developed a constitution in 1860 dividing its government into three branches. The Treaty of 1866 and the Treaty of Separation (1859) which further designated Choctaw law and jurisdiction over other tribes residing within including Chickasaws, Cherokees, Creeks, and Seminoles are discussed in detail. Many tribes had strict geographical boundaries, which they held jurisdiction over. So they did use and practice the concept of jurisdiction, which must have been problematic once the settlers and Federal government decided to impose their on jurisdictions both geographically and legally over the tribes.

Chapter 7 defines the limitation of tribal criminal jurisdiction as imposed by the United States, discussing ‘Indian Country’ as defined by Federal Law for the purposes of criminal jurisdiction; the General Crimes Act; the Major Crimes Act; Intrusion of State Jurisdiction in Indian Country: Public Law 280; upholding Tribal sovereignty with the United States v Wheeler435 US 313 (1978); Oliphant v Suquamish Indian Tribe et al 435 US 191 (1978); Duro v Reina 495 US 676 (1990) and the Congressional Duro-Fix.

Chapter 8 discusses jurisdiction over non-US citizens and Treaties as a basis for criminal authority, again using case examples, while Chapter 9 goes over jurisdictions as defined by tribal courts. Chapter 10 leads on from the two preceding chapters by detailing Tribal criminal jurisdiction reform citing The Tribal Law and Order Act and the Violence Against Women Act. Since 2006, the Federal law began to address criminal jurisdiction scheme in Indian country and the laws are changing slowly with tribal leaders pressing for inherent sovereignty. Chapter 11 builds on this topic discussing building collaborative bridges between States and Tribal courts. This only covers half of this comprehensive text, which spans 629 pages.

(1) Newell, W. B., 1965 Crime and Justice among the Iroquois Nations 47.

(2) Harring, S. L., 1994. Crow Dog’s Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century. Cambridge University Press. 129 – 141.

Authors:

Author Sarah Deer is a lawyer and professor of law at William Mitchell College, and a 2014 MacArthur fellow. She advocates in Native American communities and has been credited for her instrumental role in the 2013 re-authorization of the Violence Against Women Act and testified for the passage of the 2010 Tribal Law and Order Act. She received her BA and JD from the University of Kansas and is a citizen of the Muscogee (Creek) Nation.

Carrie E. Garrow is a Visiting Assistant Professor at Syracuse University College of Law. She is the Chief Appellate Judge for the St. Regis Mohawk Tribal Court. Previously she served as the Executive Director for the Center for Indigenous Law, Governance & Citizenship at Syracuse University College of Law.

She received her undergrad degree from Dartmouth College and her law degree from Stanford Law School. She has a Master’s in Public Policy degree from the Kennedy School of Government at Harvard University.

She has worked as a deputy district attorney for Riverside County in Southern California, and a tribal justice consultant for several non-profit organizations, including the Harvard Project on American Indian Economic Development, the Native Nations Institute, and the Tribal Law and Policy Institute.