DOJ Punts Tribal SORNA Implementation to States

A deadline is approaching for tribes to implement the sex offender registration requirements (SORNA) of the Adam Walsh Act, a 2006 bill aimed at enhancing the powers of states and law enforcement states to monitor and civilly commit "sexually dangerous persons."

Tribes who enact their own systems will retain a degree of autonomy, although at least five tribes have explicitly opted out of implementing the requirements independently, and nine tribes have allowed the option to lapse by failing to file a Resolution of Other Enactment. These tribes will have their SORNA requirements handled by the states, after consultation with the Department of Justice's Office of Sex Offender Sentencing, Monitoring, Apprehension, Registering and Tracking (SMART). Persistent ambiguity in tribal law can lead to ad hoc transfers of power and jurisdiction, in this case from from the Attorney General to the states. Even tribes who opted in to the program, but who have failed to implement according to the DOJ's timeframe, will lose their sovereignty to the states in this case.

The deadline to implement, or be deemed capable of doing so in a reasonable amount of time, is July 27, 2011.

Blackfeet Nation Enters Into Cross-Border Law Enforcement Pact

The Blackfeet Nation has entered into a ground-breaking agreement with neighboring Glacier County for fully reciprocal cross-deputization, a law enforcement pact that both parties called unprecedented. "This is truly a historic document," Tribal Attorney Sandra Watts told the Blackfeet Business Council. "It goes beyond anything else in the nation. In the past, there have been one-way agreements, but nothing that's truly reciprocal."

The agreement formalizes a working agreement that's been in effect for the past month, but it's also limited to the next 60 days as a trial period. "When their deputies come onto our reservation, they become officers of the Tribe and they can enforce both the tribal and state laws," Watts told the council. "And when our Tribal police officers are off the reservation in Glacier County, they can enforce state laws."

Previously, county deputies had been issued commission cards from the Tribe allowing them to enforce state law on non-Indians living on the Blackfeet Indian Reservation, but those cards were revoked last year. That left deputies unable to arrest non-Natives living on the reservations who committed crimes or who had warrants against them in state courts. The major difference is that race is a factor on the reservation — Native Americans are issued warrants for Tribal Court, while non-Natives are issued warrants for magistrate court or district court . Off the reservations, all warrants are for magistrate or district court.
 

Wondering If You're An "Indian"? Ask The Ninth Circuit

                                                                            

 (Billy Mills; Sitting Bear

Articles on this site have previously commented on the troubling fact that race continues to be an actively-considered element in both substantive and jurisdictional issues of law affecting Native Americans. The recent 9th Circuit case of United States v. Cruz demonstrates that the phenomenon of “race laws” continues to haunt the national landscape.

The Cruz case involves the analysis of whether a criminal defendant could be tried by a federal court under the laws of the United States. The federal government contended that Mr. Cruz is an “Indian” and committed an assault on Tribal land, thereby subjecting him to federal jurisdiction under 18 U.S.C. § 113(a)(6). Mr. Cruz appealed, alleging that he is not an “Indian” and therefore not subject to federal jurisdiction under the statute. The 9th Circuit Court of Appeal offered the following preface to its analysis:

“At first glance, there appears to be something odd about a court of law in a diverse nation such as ours deciding whether a specific individual is or is not “an Indian.” Yet, given the long and complex relationship between the government of the United States and the sovereign tribal nations within its borders, the criminal jurisdiction of the federal government often turns on precisely this question — whether a particular individual “counts” as an Indian — and it is this question that we address once again today.”

The Court then plunged into an analysis of Mr. Cruz’s racial heritage, determining that

“His father is Hispanic and his mother is 29/64 Blackfeet Indian and 32/64 Blood Indian. The Blackfeet are a federally recognized tribe based in northern Montana; the Blood Indians are a Canadian tribe. Given his parents’ heritage, Cruz is 29/128 Blackfeet Indian and 32/128 Blood Indian.”

The Court ultimately found that the evidence in the case “does not demonstrate that Cruz is an Indian”, and remanded the matter back to the lower court with directions to acquit Mr. Cruz of the federal charges.

The Cruz case is merely the latest in a long series of cases where judges have attempted to determine who is and is not Native American through subjective racial analysis. Leaving aside the glaring issue of why race is a jurisdictional factor in the first place, courts have also failed to create any uniform standard for this tortured arithmetic. In Sully v. United States, 195 F. 113 (8th Cir.1912). 1/8 “Indian” blood was held sufficient to be Indian; in Vezina v. United States, 245 F. 411 (8th Cir.1917), women 1/4 to 3/8 Chippewa were held to be Indian; in Makah Indian Tribe v. Clallam County, 73 Wash.2d 677, 440 P.2d 442 (1968), 1/4 Makah blood sufficient to satisfy the “Indian blood requirement”, in Goforth v. State, 644 P.2d 114, 116 (Okla.Crim.App.1982), the requirement of Indian blood was satisfied by testimony that a person was slightly less than one-quarter Cherokee; and in St. Cloud v. United States, 702 F.Supp. 1456, 1460 (D.S.D.1988), 15/32 of Yankton Sioux blood was held sufficient to establish one as an “Indian”.

Conducting mathematical calculations on a human being’s racial ancestry for the purpose of deciding which laws apply to that person harkens back to the darkest days of American jurisprudence. For those who thought America had moved beyond Plessy v. Ferguson, when the Supreme Court decided that a person who was “7/8ths White” could be consigned to both a separate train car and a separate legal standard, it is clear that much work still remains to be done. It has become typical for courts to “punt” the obvious problems with race laws involving Native Americans by saying “it’s Congress’ responsibility, not the courts.” This justification for abdicating judicial responsibility is not only legally fallacious, it directly contradicts the clear legal precedent of cases such as Brown v. Board of Education where legal policies based on race were declared inherently unconstitutional. Courts clearly have the legal authority to put an end to race-based laws, all they need is the courage.

A far better way for Tribal/federal jurisdiction questions to be analyzed is based on treaty status, with Tribal members being subject to either Tribal or federal jurisdiction based on agreements between their Tribe and the US government.  These are the same principles used when citizens of Canada, Mexico, or other sovereigns  are charged with crimes within the United States, and the procedures for determining jurisdiction are well established. Such a policy would properly acknowledge the sovereign status of Tribes, and eliminate the embarrassing and intellectually-unsupportable notion that a person’s race should determine their legal status in America.
 

Why Are Tribal Courts The Last Race-Based Jurisdiction In The United States?

If an American enters the sovereign territory of Canada or Mexico and commits murder, he or she can expect to face the full weight of that nation's laws and be punished through that nation's court system.  But if a non-Native American enters the sovereign territory of a Tribe and murders a Tribal member, what punishment can that person expect to receive from the Tribe's Court and legal system?

 

None whatsoever.

 

Due to a unique set of federal legal decisions and policies, Tribal Courts have no jurisdiction to impose criminal penalties against "non-Indians", even when the crimes are committed on Tribal land or against Tribal members.  Crimes committed by "non-Indians" on Tribal land are subject to state and/or federal jurisdiction and the perpetrators face punishment under state and/or federal law, but the affected Tribe has no legal standing to pursue justice for wrongs committed against its own people.

In no other area of American jurisprudence is race - in this case "Indian" or "non-Indian" - a factor in determining whether a court has jurisdiction over a criminal defendant.  Decades ago the Civil Rights Movement helped sweep away race-based segregation and "Jim Crow" laws, but seemingly had no impact on the use of race as a jurisdictional consideration in the realm of Tribal Courts.  Indeed, the seminal Supreme Court opinion that confirmed the restrictions on Tribal Court jurisdiction was issued in 1978, more than a decade after the Civil Rights Act liberated the rest of America's population from racial discrimination in its governmental institutions.  In addition to the basic question of why race is a factor in Tribal justice, numerous other issues arise in this paradigm: Who exactly is a "non-Indian"?  Is a person with a drop of Native blood in the family lineage considered an "Indian" under this system?  What "race authority" should have the final word on determining such questions?

The US Supreme Court's opinion in Oliphant v. Suquamish Indian Tribe provides startling insight into the policies and mind-set that resulted in the limited jurisdiction of Tribal Courts.  It is striking that nearly all of the legal authority on which the court relied was from the 19th Century, when the attitudes of the American government toward Native Americans were anything but enlightened.  Citing In re Mayfield, 141 U.S. 107, 115 -116 (1891), the Oliphant Court noted that the policy of Congress had been to allow the inhabitants of Indian country "such power of self-government as was thought to be consistent with the safety of the white population with which they may have come in contact, and to encourage them as far as possible in raising themselves to our standard of civilization."  The Supreme Court's decision in 1978 also cited the view Congress took toward the state of Tribal Courts in 1834: "With the exception of two or three tribes, who have within a few years past attempted to establish some few laws and regulations among themselves, the Indian tribes are without laws, and the chiefs without much authority to exercise any restraint." H. R. Rep. No. 474, 23d Cong., 1st Sess., 91 (1834).   The idea that such antiquated and ill-informed perspectives could still be the basis for American legal policy in the 21st Century is difficult to fathom, and is a sad reflection of the persistent racial discrimination that lurks even in the land that produced the Bill of Rights.

What is to be done to correct this glaring discrepancy?  Reading between the lines in the Oliphant decision, it seems that the Supreme Court of the time felt that the restrictions on Tribal Court jurisdiction were no longer appropriate, but that under the doctrine of separation of powers an act of Congress was required to rectify the situation.  Thirty years later, Congress has obviously failed to take the hint.  In all likelihood, removing race from jurisdictional considerations for Tribal Courts will require concerted pressure and lobbying of Congress by Tribes all across the country, acting in a coordinated and united front to claim this basic element of sovereignty.

Washington State Extends Sentencing Enforcement To Tribal Lands

In a reversal of the decision of the state Court of Appeals, the Supreme Court of Washington has ruled that prohibitions entered against a Tribal member in civil court sentences can be enforced by the state on Tribal lands. In State v. Cayenne, a prohibition against the defendant’s use of gillnets for fishing in state rivers was enforced when he subsequently used a gillnet within his Tribe’s territory.

Gerald Cayenne is an enrolled member of the Chehalis Indian Tribe, which has its reservation in southwest Washington. The Chehalis Tribe enjoys an exclusive right to fish within its reservation boundaries. As a non-treaty Tribe, Chehalis members are subject to state laws when fishing on non-tribal lands. In 2005, Washington State Department of Fish and Wildlife officers alleged that Cayenne unlawfully used gillnetting in the Chehalis River while on non-tribal land. The officers arrested Cayenne, the State charged him with two counts of felony first degree unlawful use of nets to take fish, and a jury convicted him on one count.

As part of Cayenne's eight-month sentence, the trial court prohibited him from owning gillnets during the term of his sentence, on and off the reservation. Cayenne appealed, arguing the trial court exceeded its authority to impose a crime-related prohibition restricting his on-reservation behavior with respect to fishing. The appellate court agreed and vacated the crime-related prohibition as it extended "[o]r could be interpreted to extend, to fishing within the Chehalis Indian Reservation." State v. Cayenne, 139 Wn. App. 114, 124, 158 P.3d 623 (2007).

Neither party disputed the power of the trial court to impose crime-related prohibitions on non-Tribal lands. However, Cayenne argued that the trial court lacked authority to extend the prohibition to his activities within the boundaries of the Chehalis Indian Reservation. This position was based on the opinion in State v. Stritmatter, 102 Wn.2d 516, 688 P.2d 499 (1984), which held that “the non-treaty fishing rights of the Chehalis Tribe are subject only to reasonable and necessary conservation regulations and that burden is on the State to demonstrate the regulation is reasonable and necessary.” Under this standard, it was argued that the state did not meet its burden of proving a connection between Mr. Cayenne’s gillnetting and a legitimate conservation concern, and therefore the state had no legal basis for regulating Cayenne’s conduct in waters running through Chehalis lands.

The state Supreme Court rejected this approach. The Court held that :


“the crime-related prohibition on gillnets is merely a sentencing condition placed on a convicted felon (who happens to be a tribal member) for an off-reservation crime. Notwithstanding Stritmatter, the defendant was personally before the trial court and subject to its full authority, which includes crime-related prohibitions. Limiting the trial court's sentencing authority, as Cayenne requests, would create the unwanted result of permitting tribal lands to be havens for criminals avoiding justice after violating state laws. As such, we hold when sentencing a tribal member for an off-reservation crime, the trial court may impose crime-related prohibitions to the extent they serve the purpose of sentencing and the crime related-prohibitions follow the individual during the prohibition's validity.”

The Cayenne decision raises significant jurisdictional and sovereignty questions, as well as issues of basic equity. The holding extends state court authority over the conduct of Tribal members on Tribal lands, yet Tribal Courts still possess little to no legal authority to punish non-Native actors who commit crimes within Tribal territory. It also impacts federal treaty rights negotiated between the Tribes and the US government (e.g. the right of Tribes to fish their waters according to their custom), and the extent to which concurrent jurisdiction can be used as a basis for increased state control over Tribal activity.