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

See all articles by Matthew L. M. Fletcher

Matthew L. M. Fletcher

Michigan State University - College of Law

Kathryn E Fort

Michigan State University - College of Law

Wenona T. Singel

Michigan State University College of Law

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

Suggested Citation

Fletcher, Matthew L. M. and Fort, Kathryn E and Singel, Wenona T., Statement of the Michigan State University College of Law Indigenous Law and Policy Center on the Tribal Law and Order Act (2011) (November 10, 2011). Available at SSRN: https://ssrn.com/abstract=3589488 or http://dx.doi.org/10.2139/ssrn.3589488

Matthew L. M. Fletcher (Contact Author)

Michigan State University - College of Law ( email )

648 N. Shaw
East Lansing, MI 48824-1300
United States

Kathryn E Fort

Michigan State University - College of Law ( email )

648 N. Shaw Lane
Ste. 215K
East Lansing, MI 48824-1300
United States

Wenona T. Singel

Michigan State University College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
19
Abstract Views
195
PlumX Metrics