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A Different Kind of Symmetry (Toward Sensible Recognition of Tribal Court Civil and Criminal Judgments)

35 Pages Posted: 30 Apr 2008  

Kevin K. Washburn

University of New Mexico - School of Law

Date Written: 2004

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.

Keywords: Tribal courts, recognition of judgments, sentencing

JEL Classification: K14

Suggested Citation

Washburn, Kevin K., A Different Kind of Symmetry (Toward Sensible Recognition of Tribal Court Civil and Criminal Judgments) (2004). New Mexico Law Review, Vol. 34, No. 2, 2004. Available at SSRN: https://ssrn.com/abstract=1127204

Kevin K. Washburn (Contact Author)

University of New Mexico - School of Law ( email )

1117 Stanford, N.E.
MSC11 6060 * 1 University of New Mexico
Albuquerque, NM 87131-0001
United States
505.277.3304 (Phone)

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