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Bursting the Naysayer Bubble (#4 in the TLOA & SAVE Series)

To a certain extent some of the opposition’s arguments are correct.  Certainly tribal courts would undergo changes in power and practice due to these acts, more so SAVE than TLOA.  The Tribal Law and Order law does allow for deputization of tribal law enforcement to make arrests for federal offense on tribal lands and adds two years to the maximum sentence handed down by tribal courts.  However, under TLOA, tribal law enforcement officers can still only make an arrest, not prosecute, for those offenses the federal government has jurisdiction over.  The three year maximum sentence still only applies to Indian offenders who can be tried in tribal courts, and the court must follow certain procedures which mimic state and federal courts for such a sentence to be used.

Professor Bruce Duthu, who teaches Law and Native American Studies at Dartmouth, explained that, “to sentence an offender to over one year, the tribe must essentially provide a law-trained attorney (a tribal court advocate will not do) and be tried by a law-trained judge (not all tribes require their judges to have law degrees).”  This means that tribal courts are required to uphold Constitutional rights in their sentences.  The same can be said when it comes to the trying of non-Indian offenders for crimes such as domestic violence and sexual assault.  SAVE also sets the maximum sentence at three years per offense and demands the same protections for defendants.  Thus, the Constitutional rights of those prosecuted by tribal courts are safe.

As to the claim of malpractice on the part of the BJS or those who utilize its findings to create legislation, it should be noted that the Bureau does not deny its pool of survey participants is diverse in terms of residence and to a far lesser extent race.  However, the BJS did mention that respondents are largely from the same 10 states that have had a large indigenous population for generations.  Many of these states hold numerous reservations, and one can safely assume the surveyors didn’t gather such a large amount of data only in the urban areas.  As to race, survey takers were allowed to choose their designation, yet the BJS report states that the majority of those questioned picked only one race and gave tribal affiliation instead of simply suffering from indecision or genealogical ignorance.  While the results of the BJS survey may not be perfect, it certainly seems no less accurate than any other government funded research report.

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