JURIES, VENUE, AND THE MAJOR CRIMES ACT: RECENT SCHOLARSHIP

September 22, 2013 Comments Off on JURIES, VENUE, AND THE MAJOR CRIMES ACT: RECENT SCHOLARSHIP

A recent comment published in the Wyoming Law Review argues that federal law on jury pools and venue, when applied to Indian country criminal cases, is not consistent with Major Crimes Act. The Major Crimes Act gives the federal courts jurisdiction over most felonies occurring on reservation land and was upheld in United States v. Kagama, 118 U.S. 735 (1886). The Major Crimes Act is unique because it creates jurisdictional limitations based on geography (within Indian country) and racial-political identity (Indian v. non-Indian).

First, the author shows that the location—or vicinage—of a criminal case is so important in United States jurisprudence that the Founding Fathers included it in the Constitution. Under Article III and the Sixth Amendment, criminal cases must be tried in the “district wherein the crime shall have been committed.” In addition, the Federal Rules of Criminal Procedure call for criminal cases to be heard in a location that is convenient for the defendant, victims, witnesses, and the “prompt administration of justice.” The purpose of these rules is to promote public participation and scrutiny of the prosecutor and the legal process. The author then argues that, in light of the unique jurisdictional limitations of the Major Crimes Act, the victim of the crime should be seen as the reservation and the surrounding community and that the federal prosecutor is representing this specific community of Indians and local non-Indians.

Second, the author reviews the federal jury selection process. This process is designed to select a jury from a representative cross-section of the district or division where the court is situated (usually a state or a large portion of a state). The author then argues that the federal jury selection process is inconsistent with the Major Crimes Act because most crimes prosecuted under the Act occur in areas of a district or division that are more densely populated by Indians—raising a possible fairness issue under the Sixth Amendment. By contrast, in state-level cases, the venire (the pool from which the jury is selected) is drawn from citizens within each county. Since offenses under the Major Crimes Act would otherwise be prosecuted under state law, the author suggests this state-level contrast further supports an inconsistency between the federal jury selection process and the Major Crimes Act.

The author concludes by suggesting a number of changes intended to overcome these inconsistencies. One suggestion is that federal district courts hearing cases under the Major Crimes Act hold court in locations closer to the specific community affected by the crime. Under the Tribal Law and Order Act of 2010, federal prosecutors and courts are required to at least attempt to conduct trials and other proceedings in Indian country. Another suggestion is to improve the process of identifying jury venires in Major Crimes Act cases so that the venire is a more representative cross-section of the affected community. Possible solutions include identifying jury pools from federal income tax filings, tribal voter registration rolls, tribal membership rolls, or other public records related to Indian country.

For more information on the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please call (480) 275-8738 or use the “Contact Us” page on our website.

INDIAN COUNTRY INVESTIGATIONS AND PROSECUTIONS, 2011-2012: Annual Report to Congress by the U.S. Department of Justice

July 4, 2013 Comments Off on INDIAN COUNTRY INVESTIGATIONS AND PROSECUTIONS, 2011-2012: Annual Report to Congress by the U.S. Department of Justice

The U.S. Department of Justice (DOJ) recently issued its first annual report on Indian Country Investigations and Prosecutions as required by the Tribal Law and Order Act of 2010. The Tribal Law and Order Act (TLOA) is broad legislation designed to improve and enhance law enforcement in Indian country. Among many other measures to improve law enforcement, the TLOA seeks to hold federal agencies accountable by requiring the Department of Justice to file an annual report with Congress on criminal investigations and prosecutions in Indian country.[1]

The DOJ’s report, which covers only criminal matters reported to federal (and not tribal or state) agencies, reflects the increased priority placed on law enforcement efforts in Indian country and provides data showing an increase in the criminal caseload of federal agencies of 54% between 2009 and 2012. The report’s executive summary sets forth several major points based on the data:

  1. The FBI referred a “substantial majority” of Indian country criminal investigations to the U.S. Attorney’s Office (USAO) for prosecution.
  2. The USAO prosecuted a “substantial majority” of the Indian country criminal cases it opened.
  3. When the FBI did not refer a case to the USAO (but instead closed its investigation), the most common reason was the FBI’s conclusion that no federal crime had occurred.
  4. When the FBI investigated a death, but closed the investigation without a referral to the USAO for prosecution, the primary reason was a conclusion that the death was due to an accident, suicide, or natural causes.
  5. In 2011, the USAO declined to prosecute just under 37% of Indian country criminal cases submitted to it for prosecution. In 2012, the USAO declined to prosecute approximately 31% of Indian country cases submitted. The two most common reasons for declining to prosecute were insufficient evidence (61% of cases in 2011 and 52% in 2012) and referral to another prosecuting authority (19% in 2011 and 24% in 2012).

A copy of the DOJ’s report is available here.

For more information on the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please call (480) 275-8738 or use the “Contact Us” page on our website.

[1] Other steps to improve law enforcement under the TLOA include increased training and funding for Bureau of Indian Affairs and tribal law enforcement officers, improved communication and coordination of efforts between the U.S. Attorney’s Office and tribal officials, increased sentencing authority granted to tribal courts, deputization of tribal prosecutors that allows prosecution in federal court, and prevention and treatment programs focusing on at-risk youth and drug and alcohol problems.

MODEL TRIBAL SECURED TRANSACTIONS ACT AND TRIBAL ECONOMIC DEVELOPMENT

December 22, 2012 Comments Off on MODEL TRIBAL SECURED TRANSACTIONS ACT AND TRIBAL ECONOMIC DEVELOPMENT

Does the Model Tribal Secured Transactions Act (MTSTA) really promote tribal economic development? The drafters of the MTSTA believe it will provide certainty and protection for lenders and borrowers in Indian Country, but at least one law-review article has taken a critical view of the MTSTA. In the end, however, each tribe must make its own choice whether to adopt the MTSTA.

The Model Tribal Secured Transactions Act

In 2005, after several years of work, a committee of the National Conference of Commissioners on Uniform State Laws (NCCUSL) produced a final draft of the MTSTA.[1] Based primarily on Article 9 of the Uniform Commercial Code (UCC), the MTSTA provides a consistent and predictable legal framework for secured transactions involving a tribe or tribal member and personal property on tribal land.[2] Secured transactions are agreements between creditors and debtors in which the debtor gives some property interest (called a security interest) to the creditor as collateral for a loan or other financial arrangement.[3]

In some ways, the MTSTA is unique because it is a model law proposed for adoption by Indian tribes. To be suitable for use by tribes in Indian Country, the drafters had to consider issues such as tribal sovereignty, custom, and cultural traditions, yet also provide consistency and uniformity with state commercial laws and the UCC.[4] For example, in recognition of sovereign immunity, the MTSTA provides that, if a tribe is a party to a transaction with a non-member, the parties may agree whether the transaction will be governed by the MTSTA or by the law of the other party’s state or tribe.[5] For a detailed discussion of the MTSTA, see Tim Berg, Growing Indian Economies: The Model Tribal Secured Transactions Act, Ariz. Att’y, Mar. 2006, at 30-35.

The main purpose of the MTSTA is to promote economic development on tribal land. As early as the mid- to late-1990s, the NCCUSL had identified a need for a “sound legal and business infrastructure to accommodate [the] growing cross-border commercial activity” between Indian Country and businesses located outside of Indian Country.[6] Because of the importance of loans and other financing for business and entrepreneurship, the NCCUSL viewed the development of consistent and predictable commercial laws as essential to tribal economic development. As Arizona attorney Tim Berg stated in a 2006 article:

Access to financing and capital is key to economic growth, and such access is hampered in Indian Country by the lack of standard laws governing business and lending transactions. Lenders and other sources of capital want the protection of commercial laws with which they are familiar. When it comes to loans on personal property . . . they are looking for enforceability of their security interest. And when a dispute arises, they seek assurance that they have sufficient recourse to enforce that security interest.[7]

Criticism of MTSTA

At least one commentator has strongly criticized the MTSTA, arguing against tribal adoption of this model act.[8] In a 2010 law-review comment, Aaron Drue Johnson argued that tribes should “just say no” to American capitalism and to the MTSTA because the MTSTA will promote predatory lending practices by non-Indian businesses to tribal members residing on tribal land.[9]

In particular, Johnson cites data suggesting that Native Americans often lack financial literacy, have limited English proficiency, and are not experienced at dealing with off-reservation banks.[10] Off-reservation creditors, according to Johnson, will consider loans in Indian Country to be high-risk and charge higher interest rates compared to the rates offered to off-reservation debtors.[11] As further support, Johnson points to a federal study that concluded that unfair lending practices are often directed toward ethnic and racial minorities.[12]

Examining the MTSTA itself, Johnson contends that the model act is inadequate on three grounds. First, he argues that the MTSTA is inadequate because it does not distinguish between the debtor in a commercial transaction and the debtor in a consumer transaction—leaving the latter at higher risk of predatory lending. Second, the model act is inadequate because it does not limit the type of property that can serve as collateral, exposing Indian Country debtors to financial disaster. Third, Johnson argues that the MTSTA is inadequate because the term “default” is not clearly defined, which allows a creditor to define the term in a favorable way.[13]

Although he acknowledges the need for tribal economic development, Johnson believes that “the negative consequences of the MTSTA will likely outweigh its practical economic benefits.”[14]

Economic Development, Self-Determination, and MTSTA

Since the 1970s, the prevailing policy toward Indian tribes has been to foster tribal self-determination, and tribal economic development is best seen within the context of the self-determination policy.[15] Viewed from the perspective of self-determination, Johnson’s rejection of the MTSTA seems to have a rather narrow—and perhaps even protectionist—view. Johnson seems to ignore the purpose of self-determination, which allows tribes to make their own choices and determine their own future. Those choices include decisions regarding whether and how to pursue economic development on tribal land.

Since its final draft, the MTSTA has been considered important to tribal economic development. In 2006, William H. Henning, former Executive Director of NCCUSL, reported that one tribe had adopted the MTSTA, that eight tribes were considering whether to adopt it, and that eleven other tribes were seeking funding from the Department of the Interior “with a view toward ultimate enactment.”[16] Currently, the Bureau of Indian Affairs and the Federal Reserve Bank are jointly sponsoring a series of training workshops on the MTSTA for tribal judges and attorneys.[17]

Contrary to Johnson’s suggestion, the MTSTA will not force American capitalism onto the Indian tribes, thereby exposing them to inevitable exploitation. Rather, like all uniform laws, the MTSTA is offered as a choice to those Indian tribes that desire to promote the economic development on tribal land. Very few people, if any, will deny the existence of predatory lending, but the choice for Indian tribes is one between continued dependent nation status with few good options and the opportunity for self-directed economic development. Given the number of tribes interested in the MTSTA, a significant number of tribes appear to be pursuing in the latter. The reason is simple: they do not want to be left behind as a complex and technological global economy rushes into the future.

In the end, the policy of self-determination allows each tribe to make its own choices about its social and economic interactions with the off-reservation world. Based on this policy, a tribe’s decision to adopt the MTSTA should be left to the tribe.

For more information on the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please visit our website.

Endnotes

[1] Tim Berg, Growing Indian Economies: The Model Tribal Secured Transactions Act, Ariz. Att’y, Mar. 2006, at 32 (Mr. Berg is the chair of the NCCUSL committee that drafted the MTSTA), available at http://www.myazbar.org/AZAttorney/PDF_Articles/0306Tribal.pdf.

[2] Nat’l Conference of Comm’rs on Unif. State Laws, Implementation Guide and Commentary to the Model Tribal Secured Transactions Act 13 (2005) [hereinafter Implementation Guide], available at http://www.uniformlaws.org/shared/docs/mtsta/mtsta_implemguide_jun05.pdf.

[3] Id.

[4] Berg, supra note 1, at 34.

[5] Model Tribal Secured Transactions Act § 9-117 (2005), available at http://www.uniformlaws.org/shared/docs/mtsta/mtsta_aug05_final.pdf.

[6] Implementation Guide, supra note 2, at 14.

[7] Berg, supra note 1, at 32.

[8] Aaron Drue Johnson, Just Say No (to American Capitalism): Why American Indians Should Reject the Model Tribal Secured Transactions Act and Other Attempts to Promote Economic Assimilation, 35 Am. Indian L. Rev. 107 (2010).

[9] Id. at 120-23, 140.

[10] Id. at 116-18.

[11] Id. at 118-20.

[12] Id. at 119-20.

[13] Id. at 120-23.

[14] Id. at 107.

[15] Nell Jessup et al., Cohen’s Handbook of Federal Indian Law § 1.07 (2005 ed.).

[16] William H. Henning, A History and Description of the Model Tribal Secured Transactions Act Project 3 (2007) (presentation at 2007 annual conference of Int’l Ass’n of Commercial Adm’rs), available at http://www.iaca.org/iaca/wp-content/uploads/MTSTA_Article.pdf.

[17] Fed. Reserve Bank of San Francisco, Tribal Courts and Secured Transactions Law Workshops, http://www.frbsf.org/community/resources/2013/0131-Tribal-Courts-and-Secured-Transactions-Law-Workshops/index.html (last visited Dec. 22, 2012).

Where Am I?

You are currently browsing the Tribal Self-Determination Policy category at James D. Griffith, Associate Attorney.