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Abstract:
The federal "Indian country" criminal justice regime, which governs hundreds of federal Indian reservations across the United States, gives federal prosecutors, federal judges and federal juries the important responsibility of providing criminal justice for serious local crimes on Indian reservations and also for many less serious offenses. Because Indian country offenses are, by definition, local crimes with little national impact, this work is an unusual part of the federal docket. If public safety is any measure, these institutions are utterly failing. For a variety of reasons, including history and geography, federal prosecutors and investigators face numerous practical obstacles in performing their jobs in Indian country. Likewise, because federal grand juries and trial juries for Indian country cases tend to be constituted from the general population of a federal judicial district rather than from within the boundaries of the courts' Indian country jurisdiction, these juries fail to represent fair cross-sections of the Indian country community. Such juries cannot serve the community-representative functions envisioned by the Constitution. As a result, federal Indian country trials operate in a manner inconsistent with basic American norms of criminal justice, such as those set forth in the First and Sixth Amendments to the United States Constitution. And federal Indian country convictions therefore lack important hallmarks of legitimacy and raise serious constitutional concerns. According to this constitutional critique, the federal criminal justice system on Indian reservations should be reconceived to give life to existing federal constitutional norms or repealed in favor of an approach more consistent with constitutional values and modern federal policy.

Indians, Indian tribes, Native Americans, criminal procedure, criminal law

Abstract:
The Supreme Court's landmark 1976 decision in Bryan v. Itasca County is known within Indian law academia for the story that Professors Phil Frickey and Bill Eskridge tell about the case: it reflects a dynamic and pragmatic interpretation of a termination-era statute to limit Congressional termination's harmful legacy during a more enlightened era of tribal self-determination. What is less well-appreciated about the case is that it provided the legal bedrock on which the Indian gaming industry was built. This article explores the genesis of the litigation and traces its path, describing how it came to produce a unanimous Supreme Court opinion of surprising breadth. It also demonstrates that the right to engage in gaming, which ultimately has produced vast tribal economic development and even riches for some tribes, had its roots as much in Indian poverty as in Indian sovereignty.

Indian gaming, Cabazon Band, Indian Gaming Regulatory Act of 1988, Indian law, Public Law 280

Abstract:
Though it is enshrined in the Constitution, the grand jury today is one of the least respected institutions in American criminal justice. In recent years, scholars and lawyers have treated the grand jury like doctors think about the appendix: an organ that is part of our constitutional make-up, but not of much use. Some scholars have proposed reforms that are ostensibly designed to re-invigorate this institution. However, most of the proposed reforms seem only very loosely related to the fundamental purpose of the grand jury. In an era in which plea bargains have made trials rare, the grand jury has the potential to serve a crucial role in insuring popular legitimacy in the criminal justice system in a way that trial juries cannot. In light of all the criticism, however, the grand jury seems to be failing in that role. This article theorizes that, as the United States has become more diverse, the grand jury has lost its role as the voice of the community. The grand jury has become instead a microscosm of the melting pot in which each community's voice is lost amid a cacophony of voices from other communities within the same jurisdiction. Since a grand jury functions by majority vote and is now generally drawn from the entire jurisdiction, the grand jury no longer serves as a counter-majoritarian force of the local community against central authority. The loss of this function may have had the most serious impacts on citizens in minority communities where legitimacy issues are most salient. Ironically, the root of this problem may lie in efforts to insure diverse representation in criminal justice - through unthinking adoption of the principle that trial juries should be drawn from panels representing a fair cross-section of the community. No jurisdiction is just one community, and no grand jury can serve its purpose of representing any community if it is drawn from all communities. The way to restore the grand jury's purpose may be to rebuild the grand jury's original role as a local check on central authority. This article proposes that grand juries be reconstituted so that each grand jury represents a neighborhood, or, in other words, an actual community of people who are likely to share common concerns about local issues of criminal justice.

criminal procedure, grand jury, fair cross section of the community

Abstract:
The tribal self determination initiative that began transforming federal Indian policy thirty years ago has reached a crossroads. Despite its transformative effects on tribal governments and the widespread belief that self determination has been a successful federal approach to Indian affairs, no new self determination initiatives have occurred, at least at the Congressional level, in several years. This Essay looks to self determination's past to gain insights about its future and concludes that far more work needs to be done to achieve tribal self determination. Drawing on the author's broader work, it argues that one fruitful subject for further work is the area of tribal criminal justice.

Indians, Indian tribes, Native Americans, criminal law

Abstract:
Under the rubric of "tribal self-determination," federal policy-makers have shifted federal governmental power and control to tribal governments in nearly all areas of Indian policy. Normatively, this shift reflects an enlightened view about the role of Indian tribes in Indian policy. As a practical matter, it has also improved services to Indians on reservations by placing functions with tribal service providers who are more knowledgeable and more accountable than their federal counterparts. Despite broad adoption of self-determination as the dominant federal policy, felony criminal justice on Indian reservations has remained an exclusive federal function, and a highly ineffective enterprise, according to critics, because crime is worse for American Indians than any other ethnic group. The failure to embrace self-determination in federal Indian country criminal justice is curious. Criminal law has a central role in shaping and expressing community values and identity. And a community that cannot create its own definition of right and wrong cannot be said in any meaningful sense to have achieved true self-determination. Tracing the history of the century-old Indian Major Crimes Act, it is clear that the Act's original purposes, increasing federal control and encouraging assimilation, are aimed at colonization and lack legitimacy in the modern era. Since the 1960s, mainstream federal Indian policy has become much more enlightened and the Major Crimes Act has become an embarrassing anachronism. Tribal self-determination strategies in criminal justice could help tribes get closer to true self-determination and help Indian country recover from the current criminal justice crisis.

Indians, Indian tribes, Native Americans, criminal law

Abstract:
Public safety and criminal justice on Indian reservations are better served when Indian tribes play a central role in these functions. Most of the successes of law enforcement in Indian country have involved careful cooperation and coordination between law enforcement agencies of different sovereigns. Even informal cooperation can be highly effective in improving public safety. Lack of cooperation undermines public safety.

crime, criminal justice, law enforcement, public safety, American Indians, Indian tribes, Native Americans

Abstract:
Public safety and criminal justice on Indian reservations are better served when Indian tribes play a central role in these functions. Most of the successes of law enforcement in Indian country have involved careful cooperation and coordination between law enforcement agencies of different sovereigns. Even informal cooperation can be highly effective in improving public safety. Lack of cooperation undermines public safety.

crime, criminal justice, law enforcement, public safety, American Indians, Indian tribes, Native Americans

Abstract:
The Department of the Interior's New Guidance on Off-Reservation Acquisitions of Land in Trust for Indian Gaming assumes that the principal value of Indian gaming is reservation employment. Although this assumption is mostly incorrect - Indian gaming operations, like state lotteries, are about public revenues, not jobs - off-reservation gaming can dramatically increase the number of public service jobs on Indian reservations. Indian gaming revenues are mostly expended on tribal services to tribal members, creating numerous public service jobs in tribal government. Off-reservation Indian gaming can also provide revenues for restoration of lands on Indian reservation, making up for limited public appropriations for land restoration. In many ways, off-reservation gaming is better for tribes than on-reservation gaming because it provides revenues but does not interfere with tribal culture and tribal communities. Interior's new policy is off base for these and other reasons explained more fully herein.

Indian Gaming, Indian Lands, Land-into-Trust, Indian Gaming Regulatory Act of 1988, Trust Land, Indian Tribes,

Abstract:
In a recent Senate hearing, Senator John McCain and Professor Washburn clashed about the federal role in tribal economic decisions involving Indian gaming. Professor Washburn, who was struck by decades of incompetent federal stewardship of tribal trust funds demonstrated so painfully in the Cobell litigation, questioned the wisdom of the existing gaming regulatory structure in which federal officials at the National Indian Gaming Commission (NIGC) exercise oversight of tribal economic decisions involving tens or hundreds of millions of dollars. Senator McCain sharply disagreed. Following his investigation of lobbyist Jack Abramoff, McCain was even more certain that tribes needed federal protection from outsiders like Abramoff. McCain argued that the need for such protection justified close federal oversight of tribal economic decisions. The dilemma inherent in this exchange between Senator McCain and Professor Washburn will haunt the relationship between the United States and Indian tribes in the post-Cobell (and post-Abramoff) era. The purpose of this panel discussion at Harvard Law School was to consider these issues in the context of the work of the NIGC. The NIGC reviews Indian gaming management contracts under strict statutory standards. It reviews other contracts for violation of the Indian Gaming Regulatory Act's "sole proprietary interest" standard. In an era of tribal self-determination and self-governance, what is the justification for NIGC review of tribal economic decisions? Does the NIGC exercise a "trust responsibility" toward Indian tribes? What are the practical ramifications of having federal public servants reviewing tribal economic decisions worth tens or hundreds of millions of dollars? Are the costs of such review justified by the benefits? Is federal oversight useful for tribal transactions in which tribes have obtained the advice of Wall Street investment banks and legal counsel at sophisticated law firms? Are federal public servants competent to review the increasingly complex financial arrangements created in such transactions? Is the NIGC accountable for its decisions? What remedy ought to be available to tribes if the NIGC makes an error? If such review is necessary to protect tribes, on what basis should federal public servants disapprove such agreements?

Indian gaming, Indian Gaming Regaultory Act of 1988, National Indian Gaming Commission, Indian gaming management contract, sole proprietary interest, IGRA, NIGC

Abstract:
Felix Cohen and his work and legacy are discussed in several new books, including an important intellectual biography of Cohen by Dalia Tsuk Mitchell. Using the Mitchell biography as a starting point, this essay discusses an important episode in Cohen's life, involving apparent anti-Semitism at the Department of Justice. Because the episode is not fully explored in this otherwise excellent biography, Cohen and his motivations in Indian law remain a mystery in some respects. The essay also discusses some of the paradoxes of Cohen's key involvement in federal Indian policy and the contemporary importance of some of his legacies in American Indian law.

Federal Indian law, Native American law, anti-Semitism, jurisprudence, tribal constitutions, tribal consultation

Abstract:
Congress was first confronted with the issue of sex offender registration following an incident at a BIA Indian school on the Hopi reservation after a BIA school teacher was convicted of molesting 142 Indian boys during a six-year period in the 1980s. The case, which resulted in a criminal conviction and a $50 million civil settlement, left a scar on the national consciousness. Despite this history, Congress all but ignored the needs of Indian victims and Indian tribes when it enacted the Sex Offender Registration and Notification Act as part of the Adam Walsh Act, mandating sex offender registration nationally. This essay criticizes this legislation and the undeliberative and unconsultative process that produced it. It concludes that the legislation might have been far more effective in dealing with sex crimes victimization on Indian reservations if Congress had embraced tribes as equal partners with states in implementing the law's provisions. In the end, the law is likely to help least the very people who suffer from sex crimes the most. This tragedy could have been averted with a more thoughtful approach and greater recognition of the nuances of jurisdiction and insititutional capacity in Indian country.

sex offender, sex offender registration, Indian country, reservations, Indian tribes

Abstract:
The United States Sentencing Guidelines treat convictions from tribal courts with little respect in determining a defendant's criminal history for purposes of federal sentencing. Unlike state and federal sentences, tribal court convictions are not routinely counted in evaluating criminal history. Because a tribal conviction reflects the normative judgment of the defendant's own community, such a conviction ought to be considered far more legitimate as a normative matter than a federal or state conviction. Therefore, it ought to be treated with at least as much status as a state and federal conviction.

The Guidelines currently treat tribal courts like foreign courts. While this may seem, at first glance, to reflect respect for the unique sovereign status of Indian tribes, it actually seems to mask discrimination against tribal courts and it fails to appreciate the important place of tribal courts in American justice. Tribal courts have federally recognized criminal jurisdiction on American soil and they work hand-in-hand with federal and sometimes state authorities to exercise this authority. Tribes are simply more similar to state and federal courts than to foreign courts.

True, the Constitution's Bill of Rights does not apply directly to Indian tribes, as the Supreme Court has held, because tribes predate the Constitution and are not parties to the constitutional compact. Nevertheless, other federal laws require tribal courts to function in a manner nearly identical to state and federal courts and require tribal courts to incorporate most of the individual rights protections found in the Bill of Rights. Given the inherent clash between American-style individual rights and traditional tribal communal values, the federally mandated respect for individual rights no doubt comes at great cost to tribal sovereignty and prevents tribal courts from acting as they might wish in certain cases. But since tribal courts must bear the burdens of behaving like other American courts, they are entitled to the same recognition and respect for their work that these other courts receive.

The United States Sentencing Commission should take a lesson from the Executive, Legislative, and Judicial branches of the federal government and even from other independent federal regulatory agencies. Most of these actors have embraced policies favoring tribal self-determination that show great respect for tribal governments and their courts. The Commission should amend the guidelines to grant appropriate respect to tribal courts.

This article is followed in the Federal Sentencing Reporter with brief comments by a federal court of appeals judge, two federal district court judges, and a federal public defender.

Indian, tribe, sentencing

Abstract:
Congress must shore up NIGC regulatory authority over Class III gaming, guard against regulatory capture in tribal regulatory commissions, and reconsider the legitimacy of federal oversight of tribal economic decision-making. Congress should give the NIGC greater authority over licensure of those involved in Indian gaming and circumscribe the federal role over tribal economic decisions.

Indian Gaming Regulatory Act of 1988, National Indian Gaming Commission, IGRA, NIGC, Gambling, Indian gaming, Class III Gaming, Indian law, Indian tribes, American Indians, Indian tribes, Native Americans

Abstract:
This essay is a lightly-edited and footnoted draft of the inaugural Canby lecture presented by Professor Washburn as the inaugural William C. Canby, Jr., Scholar in Residence at the Sandra Day O'Connor College of Law at Arizona State University in 2008. It briefly praises Judge Canby and his influences on the author and then presents some of the highlights of Professor Washburn's critical commentary on Indian country criminal justice, which reflected Professor Washburn's most important work in the first five years of his career. It also briefly summarizes legislation recently introduced in the United States Congress that is intended to respond to several of Professor Washburn's concerns.

Indian country, crime, criminal justice, prosecution, juries, American Indians, Native Americans

Abstract:
Indian gaming provides a lens through which to consider the implications of divided federal executive power. The Indian Gaming Regulatory Act is implemented by at least three federal agencies, each of which has somewhat different interests. Moreover, none of these agencies is monolithic and each must reconcile competing interests within its own domain. In examining the culture of three federal agencies, the author seeks to shed light on divided executive branch governance. The article briefly addresses three different issues: the 'independence' of an independent agency, the NIGC, which lacks litigating authority; the problem with shared subject matter jurisdiction by DOJ and NIGC over game classification, and shared decision making by NIGC and DOI on Indian lands questions. The author concludes that divided federal power creates substantial coordination problems at the federal level. These problems often prevent the federal government from speaking with one clear voice that would generate deference to executive power, and sometimes prevent the exercise of executive action. If governmental power in Indian affairs is a zero sum game, one clear consequence of divided federal power is increased tribal sovereignty.

Indian Gaming, Department of Justice, National Indian Gaming Commission, Department of the Interior, Bureau of Indian Affairs, game classification, independent agencies, separation of powers, Indian Gaming Regulatory Act

Abstract:
State governments have an inherent conflict of interest in the regulation of Indian gaming. Strict regulation of Indian gaming can be good for the long term health of the industry, but may impact short term revenues. States have a strong short term interest in maximizing gaming revenue.

Tribal governments should bear the primary responsibility for regulating Indian gaming. However, tribal regulators also have a weakness, namely, a myopia to the interests of other tribes and the national interests of the Indian gaming industry. Federal regulators can best protect the integrity of the industry nationally and ought to have a strong oversight role.

Federal regulators must support the independence of tribal gaming commissions within tribal governments and must remain vigilant against regulatory capture of tribal commissions. Congress should shore up regulatory authority over Class III Indian gaming.

Indian Gaming Regulatory Act of 1988, Indian Gaming, National Indian Gaming Commission, Gambling, Indian tribes, American Indians, Indian law, Nativer Americans, Indian tribes

Abstract:
Federal and tribal regulation is likely to be more successful than state regulation of Indian gaming because tribal governments and the federal government have a greater interest in the long term success of Indian gaming. Uniform federal minimum internal control standards can protect the integrity of the Indian gaming industry nationwide. While federal regulators should exercise a powerful role, they must be respectful of tribal governments.

Indain Gaming Regulatory Act of 1988, National Indian Gaming Commission, Gaming, Gambling, Indian gaming, NIGC, IGRA, Indian law, Indian tribes, American Indians, Native Americans

Abstract:
Robert DeGiacomo was a remarkable federal judge who began his career in Boston, Massachusetts after graduating from both Boston College and its law school. He served in the Marine Corps in the Pacific in World War II, as an Assistant City Attorney in Boston, and as Bar Counsel in Massachusetts from 1974 to 1979. From 1980 to 1986, he served as a United States Magistrate Judge in the District of Massachusetts, until leaving the bench for health reasons. After having recovered, Judge DeGiacomo resumed the bench in the District of New Mexico, serving from 1995 to 2002. Upon retirement, he moved to Vashon Island, Washington, outside of Seattle. Judge DeGiacomo passed away in March of 2007. These are some recollections of him by Professor Kevin Washburn, a former federal prosecutor who appeared regularly before Judge DeGiacomo in New Mexico and grew to admire him greatly.

Abstract:
More and more, state courts and legislatures have begun to recognize tribal criminal convictions in state criminal proceedings. While state courts and legislatures have spent significant time deliberating about whether to recognize tribal civil judgments, recognition of tribal criminal convictions has been occasioned by very little hand wringing. Recognition tends to occur in the following settings: 1) assessment of an offender's general criminal history in sentencing, 2) use as a predicate offense for prosecution for an aggravated offenses, such as aggravated DWI or domestic violence, 3) in proceedings for driver's license suspension or revocation, 4) as evidence to determine whether to treat a juvenile as an adult for felony prosecutions, and 5) in sex offender registration regimes. Given that protections for liberty interests which are at play in criminal proceedings are constitutionally prioritized much higher than the mere property interests at play in most civil proceedings, states that are willing to rely on tribal criminal convictions in subjecting criminal defendants to greater jeopardy ought to be willing to extend at least as much trust to civil judgments from tribal courts.

Tribal courts, recognition of judgments, sentencing