In 1968, Congress passed legislation codified as 25 U.S.C. §§ 1301-03, better known as the Indian Civil Rights Act (ICRA). Modeled after various portions of the amendments to the US Constitution that comprise the Bill of Rights, ICRA mandates protections for Tribal members such as freedom of speech, religion, press, and assembly. Subparagraph 7 of Section 1302 of ICRA provides that Tribal Courts shall not require excessive bail, impose excessive fines, impose cruel or unusual punishment, “and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and a fine of $5,000, or both.”
Murder, rape, armed robbery – a Tribal Court can only impose a maximum one-year jail sentence for these or any other crimes committed on a reservation. If the Tribe views such punishment as inadequate for what in most jurisdictions would be capital crimes, its only option is to surrender jurisdiction to a state or federal court and allow the matter to be adjudicated in those systems.
In the 21st Century, what legal, intellectual, or philosophical justification exists for restricting the power of Tribal Courts to administer reasonable justice in their sovereign territory? Outside the realm of Tribal lands, courts in even the poorest and least-educated counties in America have the full sentencing panoply (including life sentences and capital punishment) available to deal with criminal acts occurring within their jurisdictions. Yet Tribes with hundreds of millions of dollars in revenue and sophisticated judicial systems are only permitted to issue sentences equivalent to that which non-Native courts impose on habitual traffic offenders.
The ability to make and enforce laws to protect the security and possessions of the members of a nation is a basic and fundamental element of sovereignty. When a capital crime is committed on Tribal lands, the Tribe suffers twice – first from the act itself, and then from the humiliation of having to hand over jurisdiction to a foreign court as the only means to pursue reasonable justice. At what point do federal/Tribal relations move beyond the Oliphant standard, wherein Tribes are given authority only to the point “consistent with the safety of the white population with which they may have come in contact”? In the era when the United States has finally proven itself “ready” to elect a person of color to the highest office in the land, is it also now ready to provide Tribal Courts the same basic legal authority as any other tribunal in the land?