Statement of the Michigan State University College of Law Indigenous Law and Policy Center on the Tribal Law and Order Act (2011)
15 Pages Posted: 28 May 2020 Last revised: 23 Sep 2022
Date Written: November 10, 2011
Abstract
In this Statement, we argue that the Tribal Law and Order Act is a necessary first step for the restoration of general tribal criminal jurisdiction over Indian country. We argue there are two general barriers to the restoration of tribal jurisdiction – structural and legal. Structural barriers largely involve the limited governmental capacity of Indian tribes to administer justice systems, which includes resource limitations on providing due process guarantees, adequate jail space, and other infrastructure questions. The terrible irony of TLOA is that the American Indian reservations with the worst crime problem are the same reservations that do not have the structural capacity to implement the Act. Legal barriers involve the federal judiciary’s constitutional concerns about subjecting nonmembers to tribal justice systems. We believe a modest, careful approach to restoring tribal jurisdiction is the best bet over the long term, perhaps utilizing methods and processes developed in accordance with the various Indian Self Determination Acts. The federal government should adopt a process to favor the tribes in the worst condition, rather than a process that favors the tribes with the greatest capacity. We also propose a possible expansion of federal habeas review of tribal court convictions a useful way to jumpstart the process and allay constitutional concerns.
Keywords: Indian Law and Order Commission, Tribal Law and Order Act
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