Separate But Unequal: The Federal Criminal Justice System In Indian Country

51 Pages Posted: 7 Jan 2011  

Carrie Covington Doyle

affiliation not provided to SSRN

Troy A. Eid

affiliation not provided to SSRN

Date Written: January 5, 2011

Abstract

In this Article, Troy Eid, a former United States Attorney for the District of Colorado, and Carrie Covington Doyle conclude that the federal criminal justice system serving Indian country today is “separate but unequal” and violates the Equal Protection rights of Native Americans living and working there. That system discriminates invidiously because it categorically applies only to Native Americans and then only to crimes arising on Indian lands. It is unequal because it is largely unaccountable, needlessly complicated, comparatively under-funded, and results in disproportionately more severe punishments for the same crimes, especially for juveniles.

This Article traces the historical foundations of criminal justice in Indian country with emphasis on the Major Crimes Act of 1885 (“MCA”) to demonstrate that Congress’s decision to extend federal jurisdiction to Indian reservations was ill-considered and meant only as a temporary expedient. Imposed by Congress with racist intentions in the late nineteenth century, that system still fails to satisfy even the minimum standards of fairness and equality that the Constitution is commonly understood to afford to all U.S. citizens under the Fourteenth Amendment.

A careful review of the MCA and its racist origins is long overdue and relevant to today’s debate over the future of the federal criminal justice system in Indian country. Congress’s extension of federal jurisdiction to Indian reservations was central to the federal government’s forced assimilation policy and the destruction of traditional tribal institutions, values, and culture in the late 1800s. Yet even as national policies toward Indians have changed dramatically in recent decades, the architecture of the federal criminal justice system in Indian country has remained stubbornly frozen in time and poses a serious obstacle to tribal sovereignty and self-determination.

Eid and Doyle explore how this “separate but unequal” federal criminal justice system systematically discriminates against Native American crime victims and offenders alike. There is a constitutional imperative, they argue, to end the federal government’s role in Indian country as it currently exists. The remedy for this lingering injustice is for the President, Congress, and Supreme Court to return to constitutional first principals.

Eid and Doyle recommend that Indian tribes and nations be provided with far greater freedom to choose when and how to design and run their own criminal justice systems within the federal constitutional scheme. This includes the option of abandoning the MCA and exiting federal criminal jurisdiction entirely for offenses that would otherwise be purely local in nature, substitution tribal law and institutions in place of federal command-and-control policies.

Keywords: Major Crimes Act, Tribal Law and Order Act, Indian Country, Criminal Justice, Oliphant, Crow Dog, Kagama, Plenary Power, Unconstitutional, Equal Protection

JEL Classification: K14

Suggested Citation

Doyle, Carrie Covington and Eid, Troy A., Separate But Unequal: The Federal Criminal Justice System In Indian Country (January 5, 2011). University of Colorado Law Review, Vol. 81, No. 4, 2010. Available at SSRN: https://ssrn.com/abstract=1735678

Carrie Covington Doyle (Contact Author)

affiliation not provided to SSRN ( email )

Troy A. Eid

affiliation not provided to SSRN

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