Major Crimes Act: Federal Authority over Indian Country Crimes

In the late nineteenth century, tensions between the United States and tribal nations had reached a fevered pitch, particularly in the Great Plains, leading to frequent military clashes. Federal officials were seeking techniques and tools to help them control the local Native populations and confine them to federally created reservations. One primary reasons tribal nations were difficult to “control” was due to their independent, separate governments which did not fall under the auspices of federal law. So, beginning in the late nineteenth century, Congress began to pass laws that explicitly usurped tribal authority—usually in violation of tribal inherent sovereignty and treaties signed with tribal nations.

The most significant law passed during this time period that still applies in cases of violent crime is the Major Crimes Act (MCA), currently codified at 18 U.S.C. § 1153, passed in 1885. MCA imposes federal criminal authority over certain serious crimes committed by Native people in Indian country.^{Footnote 2} This puts violent crime in the hands of the Federal Bureau of Investigation, the U.S. Attorney’s Offices, and the federal courts.

The backdrop of this statute is noteworthy, particularly when considering how this law applies in contemporary settings. The Major Crimes Act was largely made possible as a result of a controversial Supreme Court case from 1883, known as Ex parte KAN-GI-SHUN-CA, (otherwise known as Crow Dog). Crow Dog was a Brule Lakota Indian leader who was accused of murdering another Lakota leader on an Indian reservation in the Dakota territory (Harring Reference Harring1994). Although the tribal nation had already adjudicated and sentenced Crow Dog, the federal government also sought to prosecute him and sentenced him to death. Crow Dog appealed his federal conviction and capital sentence to the U.S. Supreme Court, arguing that federal laws did not apply to the crime since it happened wholly within the territory of the tribal nation. Surprising to many people, the Supreme Court agreed with Crow Dog, explaining that federal law had no force in Indian country.

Federal officials who sought to control the Indian population used this controversial Supreme Court decision as leverage for a brand new federal law—one that would basically provide the power that the Supreme Court said it lacked. The result was the MCA, a federal law that intrudes on the exclusive authority of a tribal nation to make laws and govern itself. MCA, passed in 1885, is still the primary law by which criminal jurisdiction is delineated on most Indian reservations in the lower forty-eight states. Thus, a law that was originally designed to control Indians is still used today in an effort to protect Indians.

The federal government, however, has a poor track record in terms of responding effectively to violent crime on tribal lands (Casselman Reference Casselman2016; Hermes 2013; Leonhard Reference Leonhard2012; Riley Reference Riley2016). Tribal governments have no legal standing to force the federal criminal justice system to act. Even today, one of the major problems faced by crime victims in Indian country is the high rate of declination of Indian country crimes by federal prosecutors (Hermes 2013). There are a variety of reasons why federal officials have traditionally done a poor job at responding to violence crimes. Part of the problem is the “culture” of the federal criminal justice system which was designed to address major interstate crimes (like white-collar crime or terrorism), not interpersonal violent crime which usually falls under state jurisdiction. Federal officials are also not politically accountable to the tribal nations. During the Obama administration, there began to be a prioritization of Indian country crime for federal prosecutors, such that the past few years have seen an uptick in follow through in the federal system and more transparent communications to tribal nations. But a new policy directive from the federal government can just as quickly turn attention elsewhere. Meanwhile, tribal nations technically retain concurrent jurisdiction over the “major crimes” committed by Native people because the MCA did not explicitly extinguish that authority (and double jeopardy does not apply because a tribe is a separate sovereign entity from the federal government). Some tribal nations pursue these kinds of charges independently, but the federal power has monopolized the response to violent crime.

Public Law 280

The Major Crimes Act stood in place for nearly seventy years. In the aftermath of World War II, the federal policy toward Indian tribes changed to what today is known as the “termination era” (Casselman Reference Casselman2016). The era was as ominous as it sounds. Essentially, the federal government sought to completely eliminate federal recognition of tribal governments and to encourage Native people to abandon their tribal lands and assimilate into the ‘melting pot’ of the United States.

One primary obstacle stood in the way of the plan—what to do with the millions of acres of land known as Indian country. The solution devised by Congress was to simply replace federal criminal authority with state criminal authority. Then, a reservation would simply be consumed by the surrounding state. In 1953, Congress passed what is today known as Public Law 280.^{Footnote 3} Public Law 280 is sometimes described as a Congressional pilot project whereby a few select states were identified in the legislation to replace the federal authority.^{Footnote 4} It conveys criminal authority to several states, essentially dissolving federal responsibility for crime control on those reservations (the MCA still applies to all other reservations).^{Footnote 5}

Unfortunately, Public Law 280 is largely characterized as a failure (Casselman Reference Casselman2016; Goldberg-Ambrose Reference Goldberg-Ambrose1997). Tribal nations objected to this change in law, particularly since states and tribes have historically had a tenuous relationship. Moreover, the selected states were suddenly saddled with the authority to police and prosecute large swaths of land with no additional revenue or financial support from the federal government. As a result, states were disinclined to provide effective and sustainable crime control for the reservations it affected. Professor Carole Goldberg (1997, p. 23) has characterized the aftermath as creating “lawlessness” on reservations. Tribal leaders have testified repeatedly in front of Congress that the law is an affront to sovereignty and has led to practical jurisdictional vacuums whereby essentially no effective law enforcement is present. Notably, Congress has never expanded the “pilot project” beyond the original states listed in 1953, indicating again that the approach has been problematic. However, they have also never repealed the statute, leaving a significant number of reservations and Alaska Native villages with ineffective crime control.

Indian Civil Rights Act (ICRA): Limits on Tribal Sentencing Authority

In 1968, Congress significantly limited the ability of tribal courts to impose incarceration and fines as sanctions for criminal violations as part of the Indian Civil Rights Act (ICRA) (Fortin Reference Fortin2013; Kronk Reference Kronk, Carpenter, Fletcher and Riley2012). This unilateral federal law was designed to statutorily impose language from the U.S. Bill of Rights (including due process and equal protection) on tribal nations. The necessity and efficacy of the law is still subject to debate. However, Congress added sentencing limitations as well. The original law limited tribal authority to a maximum of six months’ incarceration and/or a $500 fine for any offense—including convictions for violent crimes. In the Reagan administration, this was expanded to one year and/or a $5,000 fine as part of the War on Drugs. This limitation remains in place today (with the expansion to three years/$15,000 in the Tribal Law and Order Act, discussed below). The practical impact of this law is that, even if a tribal nation prosecutes a felony violent crime (for example, murder or sexual assault), the maximum penalty that can be imposed by the tribal court hardly matches the type of sentences that can be imposed by state and federal courts. The limitations imposed by ICRA are a major reason why only a few tribes tackle crimes like homicide and sexual assault—the resulting sentence is not appropriate. From the perspective of tribal nations, ICRA does not limit every type of sanction that might be imposed against an offender. ICRA only limits incarceration and the imposition of fines. This means that tribal nations are able to impose countless alternate ways to hold perpetrators accountable, including banishment, restitution, community service, and public or community apologies. Still, when considering crimes like murder and rape, the limitation on incarceration can be seen as a tremendous barrier in putting tribes in charge of crime control.

Oliphant v. Suquamish Indian Tribe: Prohibition Against Prosecuting Non-Indians

To make matters worse, in 1978, the United States Supreme Court issued a devastating decision that has wreaked havoc for Native victims that have the misfortune of being attacked by a non-Indian. The Court ruled that tribal nations are forbidden to prosecute non-Indians for any crime, no matter how heinous. Oliphant v. Suquamish Indian Tribe ushered a strangely racialized form of determining a criminal jurisdiction question (Riley Reference Riley2016).

The story behind the case is as follows: Two white men who lived on the Suquamish Indian Reservation in Washington state were convicted in Suquamish tribal court for criminal behavior, including assault on a tribal police officer. Oliphant and his co-defendant then appealed their conviction to the federal courts, arguing that they should not be subject to tribal authority since they were not members of the tribe and had no right to vote or sit on juries (Krakoff Reference Krakoff, Goldberg, Washburn and Frickey2011). From a political perspective, this is a peculiar argument that would not work in any other context. Imagine that I, as a Kansas citizen, committed a crime while visiting Oklahoma, Quebec, Canada, or Singapore. All three jurisdictions would unquestionably have the authority to prosecute me. My protest that I am not a citizen of those locales would not receive any credence from the courts (Rolnick Reference Rolnick2016).

However, the Oliphant court devised a new legal theory out of whole cloth, that is, tribal nations have lost certain attributes of sovereignty due to their dependence on the United States. The Court also overlooked substantial treaties and laws that had affirmed tribal jurisdiction over non-Indians (Leonhard Reference Leonhard2012). And the Court ignored the political status of tribes and converted the conversation to be one of race. The decision unilaterally stripped recognition of tribal criminal authority over non-Indians. Many experts believe that this decision largely explains the disproportionate amount of crime committed by non-Indians against Indians. On many reservations, there are far more non-Indians than Indians, but none of them can be held criminally accountable by the tribal nation (Riley Reference Riley2016). Some observers posit that non-Indian perpetrators became more emboldened after Oliphant—seeking out tribal reservations as a low-risk option for committing crime (Casselman Reference Casselman2016).

Unless a tribal police department has been deputized by a neighboring state or federal agency, tribal officials cannot even arrest a non-Indian suspected of committing a violent crime. Critics of the Oliphant decision have long argued that it was a poorly reasoned decision for a variety of reasons, including the curious racialization requirement for determining jurisdiction, which seems wholly inconsistent with the American concept of equal protection under the law (Rifkin Reference Rifkin and Barker2017).

Because the MCA and Public Law 280 provide for concurrent authority over crimes, there is technically a “back-up” for non-Indian crime. In theory, a non-Indian accused of an Indian country crime would fall under federal or state authority (via MCA or PL280). But, as discussed earlier, there is no guarantee that such governments will even investigate, much less prosecute, the crime.

By the close of the twentieth century then, the ability of tribal nations to intercede on behalf of victims of violent crime had been severely hampered by unilateral acts of the federal government (Casselman Reference Casselman2016). Under Oliphant, tribal nations were only able to prosecute Native people, and under ICRA, their sentencing authority was limited to a maximum of one year. Moreover, any questions about tribal jurisdiction are resolved through a matrix that would be laughable were it not for the high stakes at issue—requiring an analysis of “the type of crime, exactly where it occurred, the racial identity of the perpetrator and victim, and the nature of their relationship to each other and to the community…” (Casselman Reference Casselman2016, p. 46). Amy Casselman (Reference Casselman2016) argues, that the jurisdictional challenges amount to a “colonial phenomenon that actively maintains and inscribes colonial violence on the bodies of Native women” (p. 74). Amnesty International (2007) posited that the failure to prosecute sexual assault on tribal lands allowed predators to commit crimes pretty much with impunity.

In terms of federal authority, years of official indifference to the plight of Native crime victims by the federal and state governments left crime victims without a clear avenue for justice. All of these legal factors, combined with the overwhelming poverty experienced in most tribes, are believed to have led to the exorbitant crime rates suffered by Native people today.

In the end, concurrent criminal jurisdiction exercised by the federal or state governments will never truly solve the long term crisis. Chickasaw scholar and former Assistant Secretary for Indian Affairs Kevin Washburn argues that tribal courts are in a better position to address crime because:

There is ample anecdotal evidence that tribes, if provided with the right tools, can do a better job than neighboring governments. Seth Fortin (Reference Fortin2013) agrees, pointing out that the Tulalip Tribes in Washington were able to drastically reduce crime on their reservations by implementing their own effective criminal justice reforms. As such, tribal leaders and advocates have begun a long term project to restore tribal sovereignty.

Tribal Law and Order Act

In July of 2010, President Obama signed the Tribal Law and Order Act (TLOA). TLOA was a multifaceted piece of legislation with many moving parts, including directives to the Indian Health Service and the Department of Justice to improve their responses to crime victims in Indian country. It is considered by some to be the most significant reform effort in tribal criminal justice in several decades (Cushner and Sands, Reference Cushner and Sands2010; Hermes 2013). For the purposes of this article, I am focusing only on the section of TLOA that changes tribal sentencing authority. Recall that ICRA served to limit tribal court sentencing authority to a maximum of one year per offense. Congress justified TLOA on the grounds that the limitation on sentencing authority in ICRA meant that the applications of the law were “not sufficient deterrents to crime in Indian country” (Arnold Reference Arnold2014, p. 4). Now, under TLOA, tribal governments that meet certain benchmarks are authorized to give sentences of up to three years per offence, with the ability to stack sentences for multiple crimes up to nine years. While this reform is a far cry from a full restoration of tribal sentencing authority, the change provides tribal nations with more options for resolving crime. Of course, the three year sentences will only be possible for Native defendants, as nothing changed Oliphant until the 2013 reauthorization of the Violence Against Women Act.

2013 Reauthorization of the Violence Against Women Act

The Violence Against Women Act (VAWA) is a comprehensive package of federal legislation originally passed in 1994. VAWA was the first cohesive nationwide federal law that sought to address gendered violence, particularly domestic violence and sexual assault. VAWA was updated and reauthorized in 2000, 2005, and 2013. Each iteration of VAWA has included provisions that addressed domestic violence and sexual assault committed on tribal lands. For the purposes of this article, I will focus on the 2013 reauthorization, which restored tribal jurisdiction over certain non-Indian defendants.

Although efforts to legislatively reverse the Oliphant decision had been attempted several times, it was not until 2011 that the U.S. Department of Justice put forth a formal legislative agenda with regard to tribal authority over non-Indians (Leonhard Reference Leonhard2012). Building on the momentum of TLOA, the Oliphant fix idea finally gained traction in Congress. Activists and tribal leaders used the statistics about non-Indian defendants to argue that the restriction should be dissolved so that tribal nations would have the ability to prosecute anyone, regardless of race, who committed a crime on the reservation. In effect, the proposal was to enact a complete Congressional reversal of the Oliphant decision. The proposal was met with stiff opposition from the Republicans in Congress, and for nearly a year, the reauthorization efforts were in limbo (Devreskracht Reference Devreskracht2013; Rifkin Reference Rifkin and Barker2017).^{Footnote 6} Republicans raised questionable objections to tribal authority, making unsubstantiated claims that tribal courts could not be trusted to be fair to “outsiders” (Keyes Reference Keyes2013). Over the course of heated negotiations, a compromise emerged that would recognize tribal governments’ authority to prosecute non-Indians only in cases of domestic violence (including violations of protection orders). This compromise placated some concerns of some opposition, particularly since non-Indian perpetrators of domestic violence have either married a Native woman, dated a Native woman, or had a child in common with a Native woman. In other words, these particular non-Indians, it could be argued, made a conscious decision to fall under tribal jurisdiction.

The fight for VAWA 2013 was not easy. The political rhetoric about tribal governments showcased the persistent ignorance that the average American still holds about Native people and tribal nations. Unlike TLOA, which passed by the House and Senate by wide majorities (Hermes 2013), VAWA 2013 became the subject of the most partisan battle regarding VAWA to date. Clearly racist rhetoric was employed by some members of Congress who claimed, for example, that a tribal jury could not be fair to a non-Indian (Casselman Reference Casselman2016). Other opposition leaders claimed that tribal courts would most assuredly violate the constitutional rights of non-Indians, without providing any corroborating evidence to support the claim. Some opponents of the Oliphant fix even claimed that the data about violence against Native women was inaccurate, but rarely offered contrary numbers (Devreskracht Reference Devreskracht2013). Despite this opposition, VAWA 2013 ultimately passed both the House and Senate, and President Obama, who had championed the legislation, signed the law in March 2013.

In the end, VAWA 2013 added new important language to ICRA which explicitly recognizes tribal criminal jurisdiction in cases where a person of any race commits an act of domestic violence against a Native person in Indian country (Arnold Reference Arnold2014). Tribal nations were not authorized to begin implementing the legislation within the first two years unless they provided a series of documents to show compliance with the specific requirements outlined in the law. Like TLOA, VAWA 2013 also contains specific requirements and benchmarks that tribal courts must meet in order to exercise the restored authority. In addition, tribal nations still have no recognized authority over non-Indians who commit other crimes, including murder, sexual assault (outside the context of domestic violence), and child abuse.

It is far too early to ascertain whether the changes in TLOA and VAWA will have a demonstrable effect on crime rates on tribal lands. In fact, the first jury conviction of a non-Indian in tribal court did not occur until 2017, four years after VAWA 2013 became law. Implementation has been slow due to the expense of complying with the requirements in federal law and few tribes who are exercising the authority. Under both laws, tribal courts must have particular types of infrastructure in place before the federal government will recognize the restored authority. I focus on these requirements in a later section.

Full Restoration of Criminal Jurisdiction

One of the most common questions I receive about the TLOA and VAWA 2013 is “why the arbitrary limits?” TLOA, of course, picks a sentencing limit of three years per crime, which some argue is hardly sufficient when considering the extent of some violent acts. Some critics have noted that there should be no limit at all (Owens Reference Owens2012). Likewise, VAWA 2013 only applies to domestic violence, dating violence or violations of protection orders. It seems bizarre to have one jurisdictional rule for one set of crimes, and a completely different jurisdictional rule for other types of crimes.

In the case of TLOA, I believe that three years is an effective incremental change, but there is no doubt that it is arbitrary. The concern about VAWA is also cogent, as the limit on the crime of domestic violence is a peculiar outgrowth of the political battle over VAWA 2013. Other bills over the years (and early drafts of VAWA 2013) certainly sought to completely reverse Oliphant by enacting clear statutory language that recognizes tribal criminal authority over all persons who commit crimes on tribal lands, with no exceptions. The simple truth is that the opposition to such a plan received so much resistance in Congress that the strategy was forced to change. Advocates for VAWA found it necessary to seek compromise in order to move the bill forward. In the end, the restoration of tribal sovereignty over domestic violence crimes was thought to be a “first step”—but an important step based on the crisis Native women are experiencing. However, many observers find the compromise unpalatable for the primary reason that sovereignty should not come in pieces. If the goal is complete restoration of wrested tribal authority, does the slight restoration of tribal authority present philosophical problems? The question, then, is whether advocates for tribal criminal jurisdiction should refuse to compromise and demand full restoration without any limits. Or does the crisis of violent crime compel us to accept incremental changes with the hope that some lives can be saved?

A few tribal leaders have reported that VAWA 2013 has made a difference in their nations, but implementation has been slow. During the two-year pilot project for VAWA 2013, three tribes had a total of twenty-seven cases pursued against non-Indians (National Congress of American Indians 2015). Moreover, the first jury trial under VAWA 2013 actually resulted in an acquittal, establishing from the outset that tribal courts will not be unfair to non-Indians (National Congress of American Indians 2015). The first tribal nation to secure a jury conviction against a non-Indian for domestic violence was the Pascua Yaqui tribe in 2017. To the extent that people believed VAWA would solve the problem of non-Indian violence quickly, it has not been a quick fix. Yet there are reasons to continue to support tribal authority over non-Indians. For example, Chairman of the Pascua Yaqui Tribe of Arizona, Peter Yucupicio, explains generally:

Limiting tribal criminal authority only to crimes of domestic violence, however, will almost certainly not address the breadth of harm caused by non-Indians (Burton Reference Burton2016; Flay Reference Flay2017). Legislation is already being introduced to expand the VAWA coverage to include all crimes, but particularly sexual assault and child abuse.

Full Funding to Exercise Criminal Jurisdiction

Many tribal leaders have told me that while the idea of restored jurisdiction is great in theory. The practical matter is that their tribal governments simply cannot afford the costs of running a comprehensive criminal justice system that complies with federal law. To be in “compliance” with VAWA and TLOA, tribal nations must have the appropriate amount of resources to be able to commit to the requirements. Unfortunately, this means that poor tribes simply will not benefit from the changes in law. Among the requirements are:

• • Effective assistance of counsel “to at least that guaranteed in the U.S Constitution”

• • Defense attorneys for indigent defendants

• • Published criminal law, rules of evidence, and rules of criminal procedure

• • Maintenance of records of the criminal proceeding

• • Rights to a jury trial

While a handful of tribal nations have achieved some level of economic self sufficiency through gaming and other business ventures, the vast majority of tribal nations still suffer from crippling poverty that has marked reservations for well over a century. Tribal economies were, for the most part, destroyed through colonial laws and policies, and today some tribal governments literally have to choose between a hospital or a law enforcement agency. Without adequate funding, ensuring that all requirements are in place requires financial resources that most tribal nations simply do not have (Fortin Reference Fortin2013; Hermes 2013).

The federal government is said to have a “trust responsibility” to tribal nations (Washburn Reference Washburn2017), but current funding levels for essential tribal government services, like justice systems, are often far too minimal to meet even basic needs. The U.S. Commission on Civil Rights issued a scathing 130–page report in 2003 titled “A Quiet Crisis”: Federal Funding and Unmet Needs in Indian Country,” which concluded that tribal nations are suffering on many fronts because the federal government is financially failing them. Fortin (Reference Fortin2013) argues that TLOA really only changes the playing field for wealthy tribes. Thus, future reforms should authorize an appropriate dollar amount to support the efforts of tribal nations that seek to provide criminal justice for their people.

Outstanding Questions about Assimilation and the Western Law and Order Model

Perhaps I have left the most difficult question for the end of this essay: do TLOA and VAWA force tribes to assimilate with the state and federal legal systems? TLOA and VAWA require tribal governments to adhere to certain Anglo-American notions of law and order, with federal oversight to ensure compliance (Casselman Reference Casselman2016; Fortin Reference Fortin2013; Riley Reference Riley2016). As noted above, TLOA and VAWA require tribal governments to adopt Anglo-American legal norms in order to take advantage of restored jurisdiction.

To be sure, none of the requirements imposed by VAWA and TLOA strike me as bad ideas as an American-trained lawyer—the right to an attorney, for example, seems relatively straightforward. Moreover, many of these principles have long existed in tribal nations already. Some tribes, for example, provide more protection for individual liberties than are provided for in state or federal systems. Still, there are many who find the premise of TLOA untenable, and would rather forego the expanded authority than adopt an American-style court or comply with federal guidelines.

An additional major critique of TLOA and VAWA is that both laws focus on punitive criminal system’s responses. For this reason, many people eschew the legislation as a positive change. For example, Liza Drake Minno (Reference Minno2011) argues “TLOA is a deeply neoliberal piece of legislation that appropriates the honorable work of anti-violence activists in order to fulfill the “colonial dream” of Indigenous fixity and settler control (p. 3). Likewise, Casselman (2016) writes, “TLOA acts out of a colonial fear of the inferiority of tribal justice systems and paternalistically dictates the ways in which Native nations may exert authority” (p. 19). While I disagree with these two writers about the extent of harm that comes with TLOA, these perspectives challenge us to deeply consider the potential downsides of such legislation.

One such example is crystal clear when we consider TLOA’s emphasis on incarceration as a tool to address violent crime. Incarceration, in and of itself, has not, and likely will not, be the panacea that will solve the criminal justice crisis on tribal lands. While Native people are the most victimized population in the United States, Native people are also incarcerated in federal and state systems at elevated rates when compared to the general population of the United States. (Bureau of Justice Statistics 1999, 2004; Franklin Reference Franklin2013; United States Commission on Civil Rights 2003). Native people are also sentenced to harsher penalties than non-Indians, primarily because the federal criminal justice system carries longer sentences than state justice systems (Droske Reference Droske2008; Frosch Reference Frosch2015; Kornmann Reference Kornmann2000). Indeed, the carceral criminal justice system has been used as a tool to oppress and marginalize people of color throughout the history of the United States, and Native people are no stranger to this dynamic (Ross Reference Ross1998).

In fact, the concern about reliance on incarceration and the “law and order” model has been a cogent critique of VAWA from its inception in 1994 (Burns Reference Burns2013). Women of color, in particular, have criticized the VAWA approach to gendered crime because the central focus is the criminal justice system—a system that has historically done great harm to people of color. In 2013, anti-carceral feminist scholar Beth Richie explained in a recent interview:

This critique is salient when applied to Native people. It is no secret that the Anglo-American criminal justice system has historically been used as a weapon against us. Recall that the passage of the Major Crimes Act in the late nineteenth century was intended to root out and punish “bad” Indians who opposed the policies of the federal government. For these reasons, many scholars and advocates have expressed deep concern about the trend of encouraging tribal nations to adopt Anglo-American norms (and punishments) as a method to solve crime (Robertson Reference Robertson2012). Angela Riley (Reference Riley2016) notes, “tribes are right to be wary of encroaching laws that seek to turn tribes only into mini models of state or federal tribunals” (p. 1614).

On the other hand, tribal nations themselves have not been a party to the mass incarceration and mistreatment that occurs in the mainstream American criminal justice system. In fact, incarceration, as a concept, did not exist in tribal nations prior to contact with Europeans (Echo-Hawk Reference Echo-Hawk1995). Typical traditional criminal justice for tribal nations sometimes did include harsh penalties (including capital punishment) for serious crimes, but there was no concept of a jail or prison as a way of containing someone’s movement. It would be more likely that a perpetrator of violent crime would be banished from the tribe than be a prisoner of the tribe. To the extent that tribal leaders conclude that incapacitation (temporary, long term, or permanent) is necessary for at least some violent offenders, perhaps it is not too late to consider whether tribal nations can develop contemporary methods of incapacitation that do not mimic the harsh, unforgiving nature of mass incarceration in the United States.

For example, tribal nations could create therapeutic treatment centers for offenders, using language, culture, and tradition to cultivate a truly rehabilitative system that is designed to reduce recidivism rather than punish for punishment’s sake. If tribal nations can conceive of and implement alternative conceptions of incapacitation, this could provide lessons for the world at large, with tribal nations serving as “laboratories of democracy”—free to reconceptualize criminal justice.

It is important to note, however, that nothing in ICRA or TLOA requires tribes to incarcerate at all. While ICRA and TLOA restrict the amounts of incarceration and fines, there is no restriction on the ability of tribes to impose other types of sanctions, and no requirement that tribal courts impose incarceration at all (Fortin Reference Fortin2013). This means that tribal nations can explore countless alternative ways to hold perpetrators accountable, including banishment, restitution, community service, and public or community apologies.

Today, tribal nations find themselves at a curious crossroads. Congress has begun to move toward a restoration of tribal authority, but the federal courts may stand in the way. While TLOA and VAWA do not offer a quick fix to resolve the high rate of violent crime in Indian country, their passage signals an important sea change in the approach to tribal sovereignty. To that extent, the conversations about strategy for tribal crime control become even more important in the next decade. Tribal nations must wrestle with difficult questions about compromise and safety. And while federal law reform is a major part of those conversations, we must also consider how tribal nations can strengthen internal laws to restore what has been lost.