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Non-Indian Defendants and Tribal Courts

When a non-Indian defendant is accused of a crime on tribal land, in what court should that case be tried?

There is a provision in the Violence Against Women Act reauthorization bill for certain crimes to be prosecuted in tribal courts.  House Majority Leader Eric Cantor is against that.  Jonathan Capehart at the WaPo has this over-the-top post contending that Cantor's position is "trying to protect white men from prosecution." 

Basically, right now, if you are a non-Native American man who beats up, sexually assaults or even kills a Native American woman on tribal land, you'll get away with it. That's because tribal courts do not have jurisdiction to prosecute non-Indian defendants. In addition, federal and state law enforcement have limited resources and might be hours away from a reservation.
That's a pretty far-fetched accusation.  The statement about law enforcement is irrelevant, because the dispute is not about the investigation of the crime but the prosecution of it.  It is not at all unusual for a crime to be investigated by law enforcement officers of one jurisdiction and prosecuted in the courts of another.  It happens all the time in drug cases, for example, when local police bust the drug operation and the U.S. Attorney takes the prosecution to federal court.

Capehart cites the percentage of cases declined by federal prosecutors to support his claim that lack of tribal court jurisdiction means the perpetrator gets away with it.  But the report he cites notes that the most common reasons for the declinations are weak evidence, "witness problems," no federal offense, or "suspect to be prosecuted by other authorities."  The last category obviously does not mean he gets away with it, and the next-to-last often does not.  The others mean reasonable doubt of guilt.  Is Capehart suggesting we dispense with the reasonable doubt requirement?

If these cases are being insufficiently prosecuted, that is a problem that needs to be addressed.  But Capehart has not made the case that the problem exists, and expanding jurisdiction of tribal courts to non-Indians is not necessarily the optimum answer.  Capehart's hyperbolic attack on Cantor is unwarranted.

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