Incorporation by Any Other Name? Comparing Congress’ Federalization of Tribal Court Criminal Procedure with the Supreme Court’s Regulation of State Courts

60 Pages Posted: 29 Mar 2021

See all articles by Jordan Gross

Jordan Gross

Alexander Blewett III School of Law at the University of Montana

Date Written: February 1, 2021


The Bill of Rights, as enacted, only constrained the national government prosecuting crimes in its own courts; it did not apply to the states. The Fourteenth Amendment, ratified in 1868 following the Civil War, redefined the relationship of the states to the national government and created an opening for federal oversight of states’ criminal justice systems. The Fourteenth Amendment, among other things, prohibits any state from depriving any person of life, liberty, or property without due process of law, or denying any person the equal protection of the laws. The Supreme Court initially interpreted the Fourteenth Amendment to allow states to diverge from what the Bill of Rights required from the national government in federal court prosecutions as long as states provided some basic level of fairness to the accused. Today, however, the contours of state court criminal procedure are tethered, for the most to by the Bill of Rights by the Supreme Court’s “incorporation” jurisprudence.

Since the 1960s, Congress’ stated policy has been to support Tribal nations’ self-determination interests. One way it has expressed this policy is by promoting and encouraging the development of Anglo-European court systems in Indian country. Since the U.S. Constitution has no force in Indian country, criminal procedure in tribal courts is not constrained by the Bill of Rights or the Court’s Fourteenth Amendment incorporation jurisprudence. Tribal court criminal procedure is nonetheless heavily regulated by Congress, through the Indian Civil Rights Act of 1968 (ICRA). Congress enacted ICRA during the Civil Rights era against the backdrop of the Court’s incorporation jurisprudence, and its original version imposed most, but not all, of the criminal procedure provisions of the Bill of Rights on tribal governments.

This Article examines the different experience of states and tribes with uniform national standards of criminal procedure imposed by the federal government. Part I describes the federal government’s displacement of indigenous justice in service of colonialist political goals, a policy that has contributed to the public safety crisis in Indian country today.

Part II explains the constitutional criminal procedure jurisprudence the Court developed for states on which Congress has modeled ICRA’s criminal procedure provisions, including amendments to ICRA under the Tribal Law and Order Act (TLOA) of 2010 and the Violence Against Women Re-Authorization Act of 2013 (VAWA 2013), Congress recognized that restoring tribal autonomy over wrongdoing in Indian country must be part of the federal policy response to the violence indigenous people experience in Indian country within the United States. Part III asks whether Congress’ efforts to further federalize tribal court criminal procedure is aligned with its stated commitment to support tribal self-determination and make Indian country safer.

This Article asserts that requiring tribes to adopt even more trappings of Anglo-European justice norms as the exclusive means to access increased authority over wrongdoing in their communities is counterproductive to Congress’ stated goals in two ways. First, it constrains tribes’ ability to adapt their court practices and processes to reflect their individual community’s normative values. This can undermine tribal courts’ internal legitimacy and, ultimately, their effectiveness. Second, Congress’ approach puts residents in low-resource and rural tribal communities at even greater risk of harm. Some of the additional procedures TLOA and VAWA 2013 require tribes to adopt as a pre-condition to exercising increased authority are extremely costly to implement. Thus, the promise of increased authority and restored sovereignty Congress has held out can only be accessed by tribes with adequate revenue sources to pay for them, that are willing to re-direct funds from other public services to fund TLOA and VAWA 2013 upgrades, or that are situated near urban areas where they can access additional human and institutional resources in neighboring communities.

Keywords: criminal procedure; criminal jurisdiction; tribal courts; ICRA; VAWA; TLOA; Indian Country; incorporation; fourtheenth amednment

JEL Classification: k00

Suggested Citation

Gross, Jordan, Incorporation by Any Other Name? Comparing Congress’ Federalization of Tribal Court Criminal Procedure with the Supreme Court’s Regulation of State Courts (February 1, 2021). Kentucky Law Journal, Vol. 109, No. 299, 2020, Available at SSRN:

Jordan Gross (Contact Author)

Alexander Blewett III School of Law at the University of Montana ( email )

Missoula, MT 59812-0002
United States

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