Excerpted From: Mollie Goldfarb, Serving (In)justice: The Ills of a Federal American Indian Prosecutorial Power, 15 Washington University Jurisprudence Review 361 (2023) (114 Footnotes) (Full Document Requested)


MollieGoldfarbIt is a pity that so many Americans today think of the Indian as a romantic or comic figure in American history without contemporary significance. In fact, the Indian plays much the same role in our American society that the Jews played in Germany. Like the miner's canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith.

There have been countless debates on criminal justice, yet American Indian criminal justice is typically a minor topic in the national conversation. This Note examines the American Indian criminal justice system within the larger, paternalistic United States' criminal justice system. These two systems can be analogized to two trains on the same track facing collision--throwing their coach passengers off the train in the process, hopelessly waiting to be saved by those spared in first class. A historical approach, as used in this Note, is a common methodology to comprehend this catastrophic, modern-day injustice. American Indian victims live in sharp contrast to John Locke's theories on democratic governance--theories that inspired the founding generation. Hypocrisy and democracy seemingly go hand in hand.

Section I depicts early constitutional and legal theories on the relationship between American Indians and the federal government. Section II evidences the evolution of federal American Indian criminal jurisdiction. Section III denotes modern jurisprudence that expanded the federal American Indian prosecutorial power. Section IV discusses mid-twentieth century legislation that tugged and pulled at American Indian self-governance. Section V discusses more recent legislation that keenly focuses on various sources of power to administer justice in American Indian Country. Lastly, Section VI revisits Lockean social democratic theory to present the deficiencies of a non-consenting, homogenous criminal justice system.

Historically, Congress and the courts have notoriously grasped at straws-- colonist straws at best--to denounce and trivialize American Indian criminal jurisdiction. By forcing alien criminal norms onto these communities, American Indians are often given one version of justice that is almost entirely irreconcilable with their values.

This imposition of a foreign criminal justice framework has adversely affected tribal nations. Unfortunately, increasing crime in American Indian Country can be attributed to historical theories of assimilation, formulated into unilateral legislation and policymaking. Moreover, by failing to improve public safety and deter crime, these paternalistic laws and policies then serve the sole purpose of perpetuating colonialism. To that end, the federal system continues to act in blatant opposition to democratic values. Specifically, the system contravenes the Lockean theory of governance through voluntary consent.

John Locke famously outlined this social contract theory in Two Treatises of Government, a widely influential book. His theory rests upon the premise that the people (or majority of the people) consent to be governed by the presiding government. Therefore, the majority does not owe political allegiance to said government if it violates the people's will. Simply, the government may only exist if the people consent to it.

There is no legitimate social contract to adjudge and prosecute crimes in American Indian Country. Rather, through unilateral legislation such as the Major Crimes Act (MCA) and Public Law 280 (PL-280), the American Indian victim may likely be in a situation where the tribe may not have authority or adequate resources to prosecute and/or the state or federal government may forego prosecution altogether. The U.S. Department of Justice reported that U.S. attorneys' offices declined to prosecute 37% of American Indian cases in 2017. The Justice Department cited that a quarter of those declined cases were reported sexual assaults.

Simply, because American Indians have not consented to this extension and scheme of justice and are hampered in executing their own scheme of justice, it has led to inadequate crime deterrence, intervention and resources. For example, in 2016, 55.5% of American Indian and Alaska Native women suffered from physical violence by an intimate partner, and 56.1% suffered from sexual violence. American Indian and Alaska Native women are in dire need of certain legal services, but over a third have a hard time accessing or receiving them. In simplest terms, it is a break down of law and order because of prosecutorial declination, jurisdictional tripwires, and meager local resources.

Nonetheless, the Supreme Court of the United States has ironically recognized American Indian self-determination as the force to counteract paternalistic treatment and subjugation. As articulated in Ex parte Crow Dog, the Court held that if American Indians are adjudged by those beyond their communities and norms, then prejudice and injustice will permeate the social and legal landscape:

It tries them not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to the law of a social state of which they have an imperfect conception, and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man's revenge by the maxims of the white man's morality.

Just as the Court predicted more than a century ago, it is the very erosion of self-governance that has significantly harmed American Indians, especially women, in maintaining public safety. Furthermore, the unilateral imposition of laws--a system that “tries them not by their peers”--gnaws at the functionality and viability of attempted self-governance.

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As discussed thus far, the United State is notorious for selecting self-serving democratic processes to serve its assimilationist polices. Yet, the Government has consistently asserted that these policies are not to force assimilation, but to ensure the safety of American Indians. However, safe according to whom? How should safety be defined? Who is exactly safe?

Instead of the mosaic of democratic processes the federal government has relied on to define safety, we should instead look to John Locke's social contract theory on democratic governance to determine what it means to be safe. In Two Treatises of Government, Locke mentions that humans must consent to the political order to remain safe and secure against those that do not consent:

Men being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent. ... [This is done only] by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it.

Consequentially, those that consent to the political systems of the United States, often non-American Indian offenders, are adjudged by federal and state systems of criminal justice. They are, in theory, protected by these systems, often in the form of the Bill of Rights, because of their implied political consent to them. However, American Indians are subject to these same systems absent consent. This imposition absent consent requires us to question not whether these systems are good or bad for American Indians, but whether they should be thrusted upon them at all:

[E]ven if prosecutors performed their work in accordance with sensible criminal justice policy, and even if juries were selected in accordance with the Sixth Amendment, these actors would nevertheless be enforcing laws not made by Indian tribes.

As Locke opined, if some do not consent, then they cannot be safe from the outset. The policies may be improved; but if they have not been consented to, the policies are not as credible as those that have been entered into via consent. People are less likely to pipe up in support, and even may discourage enforcement, because no one consulted them in the first place.

The hyperfocus on due process is an obvious byproduct of democracy. In fact, Lockean concepts on popular delegation inspired the Constitution. However, these Lockean theories, in favor of the non-American Indian offender, deeply impact American Indian communities; communities that have neither consented to the Constitution, nor to unilateral legislative policies.

However, some may argue that it is a mere impossibility to satisfy the Lockean social contract theory for both the American Indian victim and non-American Indian offender. How do we afford constitutional and customary/traditional protections to both at the same time? Do we administer different procedural and substantive rules for the victim and offender? Would doing so create more inequities in a system that is already scarred by discrimination and racism?

The answers to these questions may not provide a clear path, but it is, at the very least, important to consider them. This Note does not propose a balancing test or a specific policy initiative. It is more concerned by the process itself, and more specifically, in creating criminal justice rules and laws that are consented to by all affected parties. If there is a focus on consent, then later decisions about retribution, punishment, deterrence and the like may be met with respect, or at least credibility.

Drawing on the safety-consent rationale, there is a clear and strong relationship between consent and values. If rules or laws are the embodiment of what a community values, then these rules or laws inspire consent to them. Plainly, people are happy to consent to rules or laws that define what they can and cannot tolerate. To that end, a homogenous criminal justice system cannot impose rules and laws on a group if that group does not believe it embodies their perspectives on justice. The system must then be reconfigured and redesigned to resonate with and complement this agreement. By demonstrating an understanding of and tolerance to this set-up, through conversations and double-sided consent, both communities can then feel safer throughout the process itself and in its aftermath.