Federal Criminal Law and Tribal Self-Determination

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.

Keywords: Indians, Indian tribes, Native Americans, criminal law

JEL Classifications: K14

Accepted Paper Series