Posts Tagged ‘Indian Civil Rights Act’

At least in Washington State, if a tribal member commits a crime on tribal land, he or she will either be prosecuted in Tribal Court or Federal Court.  In Tribal Court the sentences are generally limited to one year, while in Federal Court the punishments can be up to life in prison.   While the federal punishments are stiff, the federal government rarely takes cases into federal court.  This issue was addressed in an interesting article by K. C. Mehaffey of the Wenatchee World. In the article, the authorities in Nespelem (with the Colville Tribe) are quoted as sharing their frustrations that federal authorities are too slow to take a case federal.  In my experience county prosecutors in Ferry and Okanogan Counties feel the same way, and have felt this way for a long time.  The federal courts just don’t carry the same volume of cases.

A federal court in Arizona raises questions about a Tribe's ability to punish its own members.

For many cases Tribal prosecutors would like to see more than 1 year in jail.  Up until today, I always took it for granted that judges were free to sentence a defendant to one year per count.  I have seen some defendants be sentenced to more than one year for a complaint that alleges more than one offense.   I read a court decision today that suggests that a defendant in Tribal court can only be sentenced to one year total.   I received an email from an attorney who directed me to a post in Turtle Talk , a blog about Indian law and politics.  In this December 16th post, the blog discusses the case of Miranda v. Nielson.  In this case, the defendant Beatrice Miranda brandished a knife and threatened to cut two people.  She was convicted in a trial in Pascua Yaqui Tribal court of eight counts alleging aggravated assault, endangerment, threatening or intimidating and disorderly conduct against two separate victims.  She was sentenced to 910 days in jail (i.e. over one year).  The magistrate interpreted the 1 year maximum in the Indian Civil Rights Act as meaning 1 year per “criminal transaction” no matter how may counts are alleged.  Because a defendant in Tribal Court is protected by the Indian Civil Rights Act rather than the U.S. Constitution, Congress sought to limit the punishments that tribes could inflict.   The court noted that one of the rights that a Tribal member does not have under the Indian Civil Rights Act is the right to an attorney at public expense.   Beatrice Miranda was not represented by an attorney at her trial.

Congress is currently considering enacting the Tribal Law and Order Act which would allow Tribes to begin handing down sentences of up to 3 years in jail.  Much of the motivation seems to be the perceived inability of Tribes to protect Indian women from sexual violence due to jurisdictional problems, see e.g. the Amnesty International article on the subject.  At issue are the rights of the individual tribal member versus the powers of the tribe to self-regulate.  When I read the blog post about the Miranda case on Turtle Talk, I noticed that there was only one comment posted.  The blog is out of Michigan, but the comment was by attorney Brent Leonhard, who served as a public defender with the Colville Tribes around the same time I worked as a prosecutor for nearby Ferry County.  Brent states that he disagrees with the judges decision in the Miranda case that only one year can be imposed.

What does everyone think?  Should a Tribe be able to impose more than one year for a defendant?   If so, does it worry people that Beatrice Miranda did not have the right to an attorney at public expense?  The Colville Tribe does provide an attorney (or spokesperson) at public expense.   Would it be fair to require this of all tribes if Congress allows punishments of up to three years?