JS: You answered the next question I had on my mind [during part 2], which was regarding the comments and criticisms that this policy is considered a significant step in the direction of recognizing tribal authority, but it’s simultaneously a very small step because of the limited types of crimes that can be prosecuted.
Taking it from there, what will be the next step? Is it going to be an expansion of the program and expanding it to allow all tribes to prosecute crimes of domestic violence? Or is it going to be depth-oriented by allowing the same three tribes to prosecute all crimes committed by a non-native, especially those involving sexual violence?
BD: It’s a good question. I don’t know what’s going to happen after this but I do know that in the legislation, the government set a two-year limit in terms of when all tribes are going to be able to petition for this enhanced prosecutorial authority, leaving it open to any tribe to petition as these three tribes have done for an early head start.
The only thing that’s different is these three tribes took advantage of the provision for an early head start before every tribe will have that opportunity. This authority is coming for exercising this limited swath of authority for these enumerated crimes. It could very well be that this is Congress’ way of prepping the citizenry for an exercise of power that right now people don’t see coming because of Oliphant.
Oliphant took this power away.
It’s a very controversial decision and Congress is treading lightly to overcome it. This could be a manifestation of this reversal beginning with some low-level crimes, seeing how this experiment, if you will, in tribal self-governance in the criminal setting operates in practice with either the possibility of enhancing sentencing authorities that it could easily subsume felony crimes or removing the cap altogether and saying this authority now extends to all crimes regardless of category, restoring full Indian territorial sovereignty, and that principle says that when an offender enters the lands of a sovereign nation, he or she is subject to the law if a law is broken.
If I go to Canada, I break a Canadian law, I can’t claim that because I’m a non-Canadian citizen, Canada has no authority over me. Right now, that’s the law in the US for Indian tribes. Individuals walk onto an Indian reservation, they’re not members of the tribe, they commit a crime, they’re untouchable.
This is a baby step to correct that, to get us a little bit closer to full territorial sovereignty and perhaps Congress wants to see how this does play out and then we’ll revisit down the road. That’s a supposition.
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