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Punishment and Tribal Law

A column by Sarah Deer about Native American tribal law.
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In a prior column, I offered an opinion about providing support and advocacy for survivors of violent crime in Indian country. One of the more significant aspects of women’s advocacy in tribal communities during the last few years has been the development of federal legislative reform for tribal criminal justice systems. The Tribal Law and Order Act and the pending Violence Against Women Act are the initial steps in long-overdue process to restore tribal criminal authority after decades of Congressional indifference.

However, one of the biggest challenges in tribal communities remains accountability. If our goal is to improve safety in tribal communities, then we must confront the inevitable question – what should happen to people who are convicted or otherwise found to be culpable of violent and abusive acts in tribal courts?

The American legal system has long relied on incarceration to punish and deter violent crime. Rehabilitative efforts have been uneven at best and often absent entirely. However, most tribal justice systems did not traditionally use jails or prisons in response to violent crime. Traditionally, tribal justice systems utilized restitution-based systems or, in extreme cases, banishment or death.

Incarceration is an extremely expensive method of responding to crime. For tribal governments without a consistent stream of funding, consistently locking up all criminals is simply not economically feasible. Moreover, incarceration (at least the American version) may run contrary to cultural and spiritual beliefs about restoration and harmony.

Still, there are dangerous people in tribal communities—both Native and non-Native. From a victim’s perspective, facing a perpetrator on a daily basis is traumatizing. In addition, many perpetrators are serial offenders – they are repeat offenders with dozens, sometimes hundreds, of victims. Incarceration may be the best way to ensure at least short-term safety for the community.

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However, the Indian Civil Rights Act (and subsequent amendment) limits tribal sentencing authority to 1 year per offense. The Tribal Law and Order Act expanded the potential sentencing authority to 3 years per offense (with a maximum of 9 years for a single criminal proceeding). This sentencing limit is arbitrary and I have yet to hear of an adequate explanation (other than funding). Why is a three-year sentence preferable to a one-year sentence? Why not 10 years or 25 years? The Congressionally imposed sentencing limitations suggest (wrongly) that tribal courts do not have the sophistication or integrity which must accompany lengthy prison sentences.

A survivor of abuse may choose not to report the crime if she knows the maximum sentence her perpetrator might receive is one to three years—especially if her offender will return without intervention to address violent behavior. Banishment might be a better solution in those cases, but an offender is still free to move to another community and continue committing acts of abuse and violence.

Suppose a tribal government takes advantage of the increased sentencing authority. Prosecuting felony crimes is also expensive, and a one- , three- or even nine-year sentence may not ensure safety for the community. Incarceration is therefore not the ultimate solution to violence (especially if a short sentence means that a dangerous person returns to the community too soon). Seeking greater sentencing authority may someday yield results, but what can we do today?

Tribal nations can continue to work with survivors of violent crime and community members to craft a system of sanctions that fits their unique needs. If that means taking advantage of increased sentencing authority (and there are funds to do so), it might be worth pursuing that avenue. But there are a variety of other forms of sanctions (including restitution and community service) that are being implemented successfully in tribal communities. Tribal people do not need permission from the federal government to create safe communities. I encourage tribal leaders to consider safety as the paramount issue in weighing the pros and cons of exercising restored authority in TLOA and VAWA.

Even if tribal governments don’t immediately amend their codes to allow for lengthier sentences, the federal reform is long overdue. But the American system and the federal reforms focus on incarceration and fines to the exclusion of other sanctions. Incarceration is one tool for addressing crime, and perhaps should be reserved for the most violent and predatory offenders. Tribal leaders can and should make decisions that are rational, affordable, and sustainable. Moving too quickly without the financial foundation to implement changes is not strategic. We must be in this for the long haul – it has taken over 150 years to create the criminal justice crisis in Indian country. It will take more than a few years to begin to turn things around. But we owe our ancestors and our children a commitment to safe nations. Criminal justice reform is key to sustaining self-determination.

Sarah Deer is a citizen of the Muscogee (Creek) Nation. She is an associate professor at William Mitchell College of Law in St. Paul, Minnesota and serves as the secretary for the Minnesota American Indian Bar Association.