Sunday, April 22, 2018

Trump Administration challenges tribal sovereignty

As states begin to roll out work requirements for Medicaid recipients, tribal governments find themselves as a proverbial canary in a coal mine. Tribal communities and reservations are the most economically disadvantaged areas in the country, with high unemployment rates and levels of poverty. Recognizing the economic hardships that they currently face, many tribes are seeking exemptions from these requirements, arguing that forcing work requirements on tribal citizens would result in them losing access to health care. The Trump Administration has however denied these requests, claiming that tribes are a separate race, not a government, and that granting an exemption would be an unallowable racial preference. This decision by the Trump Administration is sadly apart of a deplorable (no pun intended) pattern of treatment of tribal people by Donald J. Trump.

To anyone even vaguely familiar with Indian law, it should be clear that the Trump Administration is blatantly mistaken in its characterization of Native tribes. Article I, Section 8, Clause 3 of the United States Constitution plainly gives Congress the ability to regular commerce with foreign nations, among the states, and with Indian tribes. The separation of Native tribes from states and foreign nations represents the creation of a unique legal status, which was later clarified in Cherokee Nation v. Georgia as that of a "domestic dependent nation." The right of the United States government to consider this special relationship when making decisions was re-affirmed in Morton v. Mancari when it was held that a preference for hiring Natives to work in the Bureau of Indian Affairs was essentially akin to a Senator having a preference for hiring someone from their home state. In that case, the Court explicitly rejected the notion that a preference for Native people necessitated a race based preference but was instead a preference based on political status.

Based on established precedent, the Trump Administration could legally exempt an entire tribe from Medicaid work requirements imposed by states. By tying exemption from the work requirements to tribal membership, the Administration would be honoring tribal sovereignty and recognizing the existence of tribes as separate political entities. Tribes exist separately from the states and should not be forced to honor onerous requirements imposed upon them by entities under whose jurisdiction they generally do not fall. Tribes after all exist in a direct government to government relationship with the federal government. As mentioned above, it has also been consistently held that tribal preference is not a matter of race but political status and it is shameful that the Trump Administration is either ignorant of or completely unwilling to follow that precedent.

To anyone who has followed Donald Trump, this ignorance of tribal sovereignty should honestly be no surprise. As President, not only has he placed a portrait of Andrew Jackson in the Oval Office but he has also regularly attacked Senator Elizabeth Warren by calling her "Pocahontas."  In 1993, Trump directly attacked tribal sovereignty in a testimony before the House Committee on Natural Resources by saying:
"I listen about sovereign nation, the great sovereign nation, and yet $30 billion to all of the various programs was contributed to the sovereign nation for education, for welfare, for this, for that. I listened as to sovereign nation, and yet the sovereign nation and the people of the sovereign nation have the right to vote in our country. I listen as to sovereign nation, all of the medical, all of the other treaties. I want to know, can Indians sign treaties with foreign nations? Can they go and sign a treaty with Germany? The answer is no. How is it a sovereign nation?"
In true Trumpian fashion, he later said, "Nobody is more for the Indians than Donald Trump."

A modern President being ignorant about tribal sovereignty is sadly not unprecedented. After all, in 2004, President George W. Bush was famously tripped up on a question about what tribal sovereignty means in the 21st century. What makes Bush different from Trump however is the intent behind the ignorance. In answering the question, Bush acknowledged that the relationship between the federal government and tribes is between two sovereign entities whereas Trump appears to question the entire basis of tribal sovereignty. Even though Bush appeared to lack an understanding of the intricacies of tribal sovereignty, he acknowledged and affirmed the notion that tribes exist in a government to government relationship with the federal government, a premise that Trump has repeatedly rejected.

You can argue that Donald Trump could have evolved on tribal sovereignty in the last 25 years, many people change their opinions as they learn more about a topic. However, the actions of his administration have only served to prove that Trump has remained consistent in his views of Native tribes and tribal citizens.

Monday, April 16, 2018

Assembling a SWAT team in rural South Carolina

Here is what the South Carolina Dept. of Corrections said about its 4-hour delay in responding to a prison riot in Bishopville, South Carolina on Sunday night.  Seven prisoners died and 17 were injured  in the melee.  Here's I'm quoting from the New York Times report by Richard Fausset: 
When the trouble started, Mr. Stirling [director of the South Carolina Department of Corrections] said later in a telephone interview, there were only two guards on duty in each of the three housing units, and they were armed only with pepper spray. Each housing unit holds about 250 inmates. 
Assembling an armed SWAT team in a rural area on a Sunday night takes time, he said.
Bishopville, population 3,238, is the county seat of Lee County, population 17,635, and is 40 miles from the state capital, Columbia. 

Saturday, April 14, 2018

Small-town government run amok (Part VI): Lake Arthur, New Mexico makes billionaire Robert Mercer a law enforcement officer

Bloomberg news reported this week on quite a little scandal out of Lake Arthur, New Mexico, population 436, on the state line abutting far west Texas.  It seems the tiny police department of tiny Lake Arthur has been been making reserve law enforcement officers of folks like Robert Mercer, the conservative billionaire, so that these folks are authorized to carry a concealed weapon anywhere in the United States.

Zachary Mider's story for Bloomberg begins with a firmly tongue-in-cheek description of the place and its law enforcement needs, along with the terms of Mercer's engagement there as a reserve officer:
If Mercer’s trips to Lake Arthur resembled my recent visit, he might’ve climbed into the passenger seat of [Police Chief] Norwood’s police truck, whose black-and-white paint job is fading in the wind-whipped sand. He and Norwood might’ve rolled past the house where someone reported spotting a stolen car—a false alarm, it turns out. While monitoring radio chatter, the plutocrat and the chief might have jawed about the latest news in a town so small it has no stores: the recent pursuit of a motorist across half the county; the record of the high school’s six-man football team; reports of stolen pecans. Pulling up a chair at an Italian restaurant in nearby Hagerman, the chief might’ve urged Mercer to try the lasagna. 
For most of the past six years, as Mercer became one of the country’s political kingmakers, he was also periodically policing Lake Arthur, according to the department. If he followed Norwood’s protocols—and Norwood insists no volunteers get special treatment—he would’ve patrolled at least six days a year. He would’ve paid for travel and room and board, and supplied his own body armor and weapon.
After the Bloomberg story was featured on WBUR on Mondaythe program--which apparently had 150 reserve officers at its peak--was abruptly ended on Tuesday.  (Read more here, too) The mayor of Lake Arthur put Chief Norwood on administrative leave, and his credentials were recalled.

Don't miss Mider's full report on the Lake Arthur program, with lots of details on Mercer's politics, too.  Turns out Mercer is quite the gun enthusiast, and getting this concealed carry opportunity through the back door circumvented his inability to get a concealed carry permit on Long Island, where he lives.  What Mercer is best known for, of course, is bankrolling Breitbart and being a king-maker vis a vis Donald Trump.   

Tuesday, April 10, 2018

During this week 5 years ago - New York Times highlights rural lawyer shortage

Facebook's On This Day feature is often a treasure trove of old memories and items that you thought important to share at one point in your life. Today as I looked through my memories, I found that I shared this article from the New York Times five years ago. At the time, I was a 1L at Michigan State University and incredibly excited to see that the Times had opted to cover an issue that I considered very important. Many of the issues addressed in this article have been expanded upon in this space on various occasions but I still think that it is important to share again because it highlighted, for a mass audience, so many of the issues that many of us care about. This also seems like a great opportunity to reflect on this issue, why it's important, and how it connects to other issues of rurality. I recommend this article to anyone who needs a primer on why this issue is important but may be unfamiliar with the underlying issues.

There's a quote in the article that I cite frequently when I discuss this issue with people who are unfamiliar with why we should care about rural legal inequalities, "[a] hospital will not last long with no doctors, and a courthouse and judicial system with no lawyers faces the same grim future[.]" This quote from South Dakota chief justice David Gilbertson epitomizes why this issue is important and why we should continue to work until we have come up with a way to solve it. The ability to access justice is paramount for the survival of any community. When justice is inaccessible, the most vulnerable in our societies suffer the most and the bonds of cohesion that ties small towns together begin to weaken.

When trying to address the shortage, it is important to remember that this is also an incredibly complex issue that demands an interdisciplinary approach. The rural lawyer shortage is an outgrowth of many of the other issues affecting rural communities. To begin to study the issue, we need an understanding of:

  • The role of economic development in the growth of a regional legal market, which requires an understanding of economics. 
  • The general social structure of rural spaces, which requires an understanding of sociology. In fact, Thomas Barnett Jr., the Executive Director of the State Bar of South Dakota, noted in the linked article that rural lawyers serve not just in the official capacity as lawyers but, because of their status as lawyers, also serve other roles within rural communities. If you are going to understand the rural lawyer shortage, you need to understand the unique role that rural lawyers play in their communities.
  • That lawyers are also important political actors in rural communities so we need an understanding of political science. Even if a lawyer is not a politician, they still need to understand the local political dynamics in order to be change agents for their clients. In small towns, all politics are local. An organization could not just put a lawyer into a rural space without ensuring that they understand the local political dynamics and how to maximize their effectiveness.
  • The role of changing demographics in shaping America, particularly the affects of out-migration and the brain drain on making rural America older and less educated than other areas of the country. 
  • The law, particularly an understanding of the right to counsel in criminal cases and the disastrous effects of being pro bono in civil litigation

We have seen great progress on this issue over the past five years and other states have joined the call to address the rural lawyer shortage. I am currently working on a project that seeks to create greater awareness of this issue and work with public officials to address it. It was great re-reading this article, particularly because of its importance to my work and its role in bringing greater attention to this issue more broadly.

Monday, March 26, 2018

In 1954, John F. Kennedy talks about the relocation of textiles from New England to the South

As someone with a deep admiration for the Kennedy family and an interest in rural New England and the South, I was particularly interested in an article that I stumbled upon today in The Atlantic. In January of 1954, then-Senator John F. Kennedy wrote about the departure of textile mills from New England and their arrival in the South.

As Senator Kennedy notes, New England's loss of industry was largely due to the more lax labor standards in the South and the ability of the mills to get access to substantially cheaper labor. The lower influence of organized labor also served as a way to keep wages low in the South. North and South Carolina, two of the principal landing places of the textile industry regularly rank 49th and 50th in levels of union participation. This "race to the bottom" continues today with the spread of right to work legislation and the belief that unions are driving wages too high. New England, to its credit, has uniformly resisted "Right to Work."

Not surprisingly, the textile mills have largely left the Carolinas, largely due to cheaper labor in foreign markets. The parallels that one can draw from Senator Kennedy's descriptions of towns in New England that suffered the same fate is fairly obvious. Entire towns in North Carolina have lost their chief employer and are struggling to figure out how to replace that.

The lesson here is that if an industry chooses your community because of cheap labor, they will also leave when cheaper labor becomes available. I would hope that leaders in rural communities realize this sooner rather than later. I also highly encourage you to read Kennedy's article, it is an incredible snapshot in time of a rather huge economic shift in both New England and the Carolinas.

Monday, March 12, 2018

Elite hypocrisy about working class white and rural women? The case of the West Virginia teachers strike

I've been reading elite bashing of working class and rural whites for years now, and I published my first article about it as long as 2011.  But the election of 2016 brought this bashing by the chattering classes to a fever pitch, and I've occasionally blogged about the phenomenon, as here and here.

One "series" I see on Twitter begins:  "And in today's episode of:  I Bet I Know Who You Voted For..." That is the common preface to re-Tweets of headlines that could previously have appeared in the "Darwin Awards" or perhaps the petty crime pages of a local paper.  I'm pasting one below.  It re-Tweets a Fox News Tweet that reads "Substitute allegedly brought boxed wine to school, vomited in class."


Another re-Tweets this Fox News Tweet:  "Woman charged with choking teen for blocking view at Disney fireworks show."

On a related note, here's an item from Instagram just a few days ago, from the account called guerrillafeminism that reads "happy international women's day except the 53% of white women who voted for trump."


Pat Bagley, the cartoonist for the Salt Lake City Tribune (whose work I greatly admire, by the way), has referred to Trump's "idiot followers."

With that background, you can imagine my surprise--but also delight--when I saw this Tweet from Neera Tanden, President of the Center for American Progress, which bills itself as an
independent nonpartisan policy institute that is dedicated to improving the lives of all Americans, through bold, progressive ideas, as well as strong leadership and concerted action. Our aim is not just to change the conversation, but to change the country.
Despite the "nonpartisan" billing, I see it as clearly left leaning (a good thing in my book!).  Tanden's Tweet reads:
The teachers of West Virginia are heroes.  They deserve good pay and a real raise.  I stand with them.


Now, I don't recall any past Tweets by Tanden blasting Trump supporters, though I do recall some highly critical of Trump.  That's a line I've drawn myself--at least in the last year or so (I was a bit less discriminating--a bit more knee jerk--as I reeled in the wake of election of 2016)  I readily take aim at Trump but try to be more thoughtful and circumspect re: Trump supporters.  I'm looking to understand them, trying to listen empathically. (I've got a whole law review article forthcoming about female Trump supporters, delivered as the key note address at the Toledo Law Review symposium in October, 2017; hope to have the text posted soon on my ssrn.com page).

But the bottom line is that some things I saw on Twitter about the West Virginia teachers--many sympathetic comments of the sort Tanden shared--had me wondering if the lefties doing this Tweeting realized that many of the folks they were lauding and advocating for had no doubt voted for Trump.  That is, these newfound labor heroes with their wild-cat strike were one and the same with (many) reviled Trump voters.  Some 68% of West Virginians voted for Trump!  Could I possibly be seeing praise for these women--praise from the left?   These are the same women that many lefties on Twitter have said "get what they deserve" if they lose their healthcare (thanks to Trump's effort to dismantle Obamacare) or face further economic decline (thanks, for example, to the long-term consequences of Trump's tax reform law).

(Btw, I was at an Appalachian Justice symposium at West Virginia University College of Law in Morgantown from Thursday Feb. 22 'til Saturday Feb. 24th, and I got to see the picketing--and hear the honking in support--first-hand, which was pretty cool.  One of my favorite signs, this published in the Washington Post, is below )


Michelle Goldberg, a relatively new columnist at the New York Times who is writing a lot about gender issues, offered up this column under the headline, "The Teachers Revolt in West Virginia."  She called the strike "thrilling," noting that strikes by teachers are unlawful in West Virginia, which became a right-to-work state a few years ago, and where unions do not have collective bargaining rights. Yet, Goldberg writes,
teachers and some other school employees in all of the state’s 55 counties are refusing to return to work until lawmakers give them a 5 percent raise, and commit to addressing their rapidly rising health insurance premiums.
Goldberg further explains that the "obvious impetus" for action is West Virginia's awful pay of teachers, which ranks 48th in the nation (read more analysis here).  She also discusses the critical role that health care/health insurance plays in the labor dispute:
 In the past, solid health care benefits helped make up for low wages, but because West Virginia hasn’t been putting enough money into the state agency that insures public employees, premiums and co-payments have been increasing significantly.  
Ah, there's that health care problem again, by which I mean you should read this and this, among other sources cited and discussed in my forthcoming Toledo Law Review article.

Having pored over many, many mainstream media reports of white working class Trump supporters in places like Appalachia (you guess it, all in that article forthcoming in the Toledo Law Review), I was struck by the women Goldberg identified and interviewed who did not appear to be Trump supporters.  Quite to the contrary, these women are held out as having responded to Trump's election by becoming part of what is popularly known as "the resistance." I was delighted to learn about and hear from these women, but was Goldberg unable to find any Trump supporters among the striking teachers?  I would very much have liked to have heard their attitudes about the strike, also in relation to their support for Trump.  Did they reconcile the two?

Here are excerpts/quotes about the two women Goldberg did feature, Jenny Craig, a special education teacher from Triadelphia (population 811, northern panhandle) and Amanda Howard Garvin, an elementary art teacher in Morgantown:
Craig described the anti-Trump Women’s March, as well as the explosion of local political organizing that followed it, as a “catalyst” for at least some striking teachers. “You have women now taking leadership roles in unionizing, in standing up, in leading initiatives for fairness and equality and justice for everyone,” she said.
Garvin commented:
As a profession, we’re largely made up of women. ... There are a bunch of men sitting in an office right now telling us that we don’t deserve anything better. 
Oh how I LOVE that quote.  In the wake of Trump’s election, Garvin added, women are standing up to say: 
No. We’re equal here.
I sure hope Garvin is right that the sentiment and movement are as widespread as she suggests--and Goldberg implies.  If this is accurate, liberal elites--including feminists--will have to give Craig, Garvin and so many more like them their due.  (Indeed, teacher strikes may be in the works in the equally "red" states of Oklahoma and Kentucky, too).  That will challenge deeply entrenched stereotypes about folks from this region (read more here and here), which will in turn serve all of us quite well.  

You can find more exciting coverage of the West Virginia teachers strike herehere and here.  And don't miss this by WVU Law Professor and education law expert, Joshua Weishart.  

By the way, the strike succeeded, with the teachers getting what they held out for.  

The question that all of this leaves me with is this:  What can the WV teachers strike teach us about how to build and sustain cross-class coalitions, including among whites?  How can these intra-racial coalitions interface with cross-race coalitions for even stronger pacts among progressives? And what role will gender play in that coalition building?  

Other hopeful news of change in relation to women and the national political landscape is herehere and here.  

Sunday, March 11, 2018

A shortage of work across small-town America, and immigration as part of the solution

I kicked off the "Working Class Whites and the Law" blog back in January with this post about the shortage of workers willing to do crappy work.  This shortage is obviously integrally linked to immigration and should inform our nation's immigration policy.  If native-born workers (of whatever color) are not available to do the work that needs to be done to keep our economy(ies) booming, then immigrant labor is a necessity if economies are to grow, or even tread water.  And growth seems to be the buzzword of the era, whether or not the growth is sustainable and whether or not such growth is good for the planet.

Never mind those concerns.   Two recent stories from two very different places--California and Missouri--illustrate the need for laborers.   

First, the California story:  well, could be any number of stories, but I'll settle on Darrell Steinberg's interview with NPR on Thursday morning, following Attorney General Jeff Sessions' speech to a group of law enforcement officers in Sacramento on Wednesday. Steinberg defended Sacramento's stance as a "sanctuary city" by noting that the municipality is standing up for immigrants who, among other things, contribute to the economy:
It's the people living in our communities that have lived here, by the way, for decades. These are people going to school, people going to college, people who are contributing to our tax base. And we have an obligation to stand up for those people. And that's exactly what we're going to do.
Here's another California story that links immigration with the economy, this one out of the town of Jacumba Hot Springs, population  561

The Missouri story is datelined Branson, Missouri, population 10,520, the self-proclaimed "live entertainment capital of the world." The headline for the Washington Post story is "Why a white town paid for a class called "Hispanics 101'," and it is fundamentally about a labor shortage in southwest Missouri, a region I've frequently written about, e.g., herehereherehere and here.  (It's a place of great interest to me because I grew up a little more than an hour away, in northwest Arkansas).   This Branson story, though by a different WaPo journalist, is somewhat similar in theme to this January report on a turkey processing plant in South Dakota recruiting Puerto Ricans to meet their labor needs.  The angle on Danielle Paquette's story out of Branson is that employers there are having to develop cultural sensitivity in order to recruit and retain Latinx workers, with a recent focus on those from Puerto Rico.  Here's an excerpt that explains that the economy depends on the success of the undertaking: 
As tourism season kicks off this month, the remote getaway known for dinner theaters, country music concerts and a museum of dinosaur replicas has 2,050 vacancies — and a lack of locals applying. 
So, like other areas with tight labor markets, Branson finds itself getting creative to fill jobs — in this case by recruiting people from a part of the United States with much higher unemployment.
But the plan to bring 1,000 workers from the island to overwhelmingly white, conservative Branson over the next three years has sparked unease, with critics saying that the newcomers will steal work from residents or drag down wages or bump up crime.
Paquette goes on to describe how desperate managers from Branson-area hotels, hospitals, hardware stores and banks have paid $50 each for the "Hispanic 101" workshop led by Miguel Joey Aviles.  Hilariously, Aviles is teaching his students--among other things--how to dance the merengue. 
Aviles advises bosses to check in often, ask about their mothers and request that grocery stores in the area sell plantains and Goya coconut water. 
“It’s not enough to invite them to the party,” Aviles said, twisting his body to the beat. “Bring them to the dance floor.”
Paquette goes on to focus on Branson's whiteness, with these details: 
[O]fficials acknowledge that some in the area, which is 92.4 percent white, are clinging to the past. Confederate flags adorn shop windows. A billboard outside town advertises “White Pride Radio.”

“We get nasty comments all the time,” said Heather Hardinger, programs director at the Taney County Partnership, which is working with the chamber on what it calls the “talent attraction” plan. 
States and companies from across the United States are competing for Puerto Rican workers, which had a jobless rate of nearly 11% in 2017, the highest in the nation. 

All of this highlights for me the gulf in understanding--broadly speaking--between California and Missouri, when it comes to the value--even necessity--of immigrant labor.  I'm also wondering how to bridge that gulf.  And I'm wondering--as I asked in that post back in early January--what happened to the good ol' working class whites who used to do jobs in places like Branson?  Have they succumbed to the meth (or other drug) epidemic (or here)?  gone soft?  moved to the city?  I'd like to know. 

Cross-posted to Working Class Whites and the Law

Friday, March 2, 2018

How rural students not attending college affects the rural lawyer shortage

Addressing the resource gap between rural and urban areas is going to largely depend on two possible outcomes: rural students deciding to return home after college graduation to work in their communities and rural communities attracting new migrants. The latter is already a challenge for many rural communities and as it turns out, the former is as well. As a recent NPR article notes (and Professor Pruitt covered here), it's a challenge because rural students are attending college at a rate lower than their peers in other locations. Only 59% of rural students pursue post-secondary education, a rate that lags behind urban and suburban communities, which send 62% and 69% of their students to college respectively.

The article goes on to mention that 48% of people between 18 and 24 are enrolled in higher education  but only 29% of rural people in that age range are enrolled. While the gap between the different geographies in terms people choosing to pursue higher education isn't that great, the low percentage of people that are enrolled points to a broader issue. I have no reputable study to confirm this theory but it would appear that rural students are remaining in and ultimately completing college at a far lower rate than their urban and suburban peers. This is also troubling.

As the NPR article notes and I've seen in other studies as well as anecdotally, a lot of rural students grow up in environments where their role models were able to make a living without a college education. Many of them may be unaware of the economic trends that have made a lot of these industries non-viable in the long term and may assume that they can pursue the same career with the same results. They may also see higher education and high status career as something that is unattainable for them, a fact particularly true in low-income communities. Of course, the rural lawyer shortage almost becomes a self-perpetuating cycle because many rural students may lack role models such as doctors or lawyers who can show them that these careers are possible.

Nebraska has realized the importance of addressing the rural lawyer shortage through taking steps to get rural students into classrooms. In 2016, the State of Nebraska created a scholarship program, the Rural Law Opportunities Program, which sends high achieving students to rural colleges in the state where upon completion (and obtaining a 3.5 GPA and a minimum LSAT score), they would earn a scholarship to the University of Nebraska Law.

In order to address the rural lawyer shortage, early intervention is sorely needed. Hopefully this data combined with the efforts already being undertaken in Nebraska can show the way to addressing this critical issue.

Monday, February 19, 2018

How the rural lawyer shortage affects the expansion of tribal sovereignty under VAWA - Part III

Parts I and II are available here and here
----

III. The Solution

What can be done to adequately address the three distinct but intertwined problems outlined above? In order to adequately comply with the conditions of TOLA and VAWA and be able to address the sexual assault epidemic sweeping their reservations, tribes and the federal government will have to work together to find solutions that will enhance tribal sovereignty and ensure long term sustainability.

a. Funding

The first pressing issue is funding. While a minority of tribes have successfully engaged in profitable gaming enterprises, the majority are still reliant on federal government dollars to provide even the most basic services. With tribes having little to no discretionary money, Congress is going to have to step up and pass legislation that will fund the payment of lawyers that can represent indigent defendants. On July 1, 2013, South Dakota began to address its rural lawyer shortage by launching a program designed to offer financial incentives to recent graduates who are willing to move to the remote rural regions of the state. Under this program, participants would be entitled to “more than $13,000 a year for five years to practice in a rural area that has been identified as being underrepresented47.” This program is even modeled on similar programs that already exist within the federal government that are aimed at increasing the number of medical professionals in rural areas48. If the federal government would extend these programs to include legal professionals in underserved areas, it would go a long way towards easing the burden on tribes to find funding to hire lawyers.

It should also be mentioned however that an exact copy of the South Dakota program would not be sufficient for this problem. Since a $13,000 annual payment functions only as a subsidy, there is still a financial burden on the employer. For an idea of how much tribes would have to pay under this model, the average salary for an entry level public defender was $47,500 in 201049. This average does not take into account other fringe benefits that an employer could be expected to provide. Many firms, even public interest firms, provide generous benefits packages that can costs in the thousands of dollars for employers. In order to attract attorneys, it would be expected that tribes would offer similar compensation packages.

Since an investment in a single lawyer can cost a tribe thousands of dollars, it would stand to reason that exercising the extra jurisdiction allowed under the Tribal Law and Order Act and VAWA will be a substantial financial undertaking. In order to assist tribes that are not able to generate funding on their own, the federal government has to step up and provide more financial resources to tribes so this can become an attainable goal. The fallacy in suggesting this however is that it does nothing to address the earlier concern about tribes being overly dependent on the whims of federal government funding. The Tribal Law and Order Act begins to address these concerns by allowing the Legal Services Corporation to provide grants to tribes for non- felony offenses, this power however is misplaced. The Legal Services Corporation is frequently the subject of political battles and has frequently seen its funding dramatically cut and its existence threatened altogether. Allowing the LSC to provide grants is a good start but it still leaves tribes vulnerable to the whims of debate in Washington.

What should be done is the creation of an Indian Legal Services Unit within the Bureau of Indian Affairs (or Department of Justice) that would be primarily responsible for assisting tribes with complying with the provisions of the act that will afford them extra criminal jurisdiction. Given the legal history of tribal jurisdiction, a separate unit could be staffed by people who are experts in Indian Law who could even assist tribes as they attempt to comply with the act. How does this affect funding? In creating the unit, Congress has to make a commitment to fund it for at least five years. The legislation that creates the unit has to provide funding for a set period of time and this funding cannot be cut in budget negotiations. By allowing for an extended period of funding, the program can get started and begin providing funding to tribes without fear of losing money on a year to year basis. In order to prevent wasteful spending, the unit would only provide funding to tribes on a per-lawyer basis. In order to further incentivize working on a reservation and helping to overcome any barriers that may be related to training and learning new laws, the unit could also provide funding for any tribal bar exam related training. It can also provide support for new tribal lawyers who are attempting to learn the laws of a new tribal jurisdiction.

A separate unit would also assist with providing funding for law-trained judges. Since many tribes already share judges, this unit could also assist with recruiting already active tribal judges to work in underrepresented courts who may not otherwise be able to pay them. One way to structure this would be to simply have judges be employees of the federal government who are assigned to geographic “circuits,” which would be conscious of cultural differences between tribes. It would go without saying that this unit would have to have field offices on reservations so they could readily assist if any problems were to arise. The judges could work out of a regional field office and have that as their permanent office space or they could make other arrangements with the tribal entities.

b. Attracting Lawyers

The federal government would also do well to look at the model cultivated by Teach for America, a program which places high achieving college graduates in low income areas. While Teach for America acts only as a placing service, it does provide some lessons for how to direct people towards places that would be in need. Teach for America places students in some of the toughest schools in some of the toughest areas in the country and has a decent success rate at keeping people in their schools beyond the initial two year commitment. One methodology employed by Teach for America that would be useful for the federal government would be a centralized application that allows an applicant to apply and then be placed with an area in need of their assistance. This eliminates the information asymmetry that exists where applicants may not know of vacancies and thus never apply for them. Unlike Teach for America however, the federal government should not make any hiring decisions. Having this kind of service would be helpful because some of the more remote and impoverished reservations may not have an adequate web presence or even a way to announce openings. The lack of a web presence creates a situation in which many tribes may struggle attract attorneys who may otherwise be interested. After all, you cannot apply for a job that you do not know exists.

What are the logistics for how this would function? As mentioned above, a separate entity that deals exclusively with the compliance of this act should be created within the BIA or Department of Justice. A prospective applicant can go a website, choose whether or not to indicate a geographic preference and submit an application. An application can be taken even when no openings are posted. The applicant’s information can go into a central database, which all tribes will have access to. When a tribe wants to fill a vacancy, it can submit a posting to the website but also begin to review previously submitted applications. This process serves a couple of purposes. First of all, it creates a central database of people interested in Indian law, but it also creates a system where people may not otherwise seek out reservation jobs can submit an application. Submitting an application online that will be available to all is a lot easier than seeking out individual job openings. It also alleviates the financial burden that tribes would usually incur when attempting to advertise a job opening. Instead of committing financial resources to advertising an opening, a tribal entity could simply submit to a central database.

The Teach for America model also provides another lesson that the federal government would be wise to heed. Once in the program, Teach for America will provide no-interest loans to assist with relocation50. Relocation is a huge expense, particularly for someone moving to a completely new location that can be hundreds, if not thousands of miles of home. Teach for America also provide continued education and support to Corp members51. By providing these things to lawyers, it helps make the move to a reservation much more financially feasible and less isolating.

How successful is Teach for America? The results are mixed but slightly encouraging. A 2008 study conducted by the Harvard Graduate School of Education found that 43.6 percent of Corp members remained in their low-income placement beyond the initial two year commitment52. However, only 14.8 percent remained for more than four years53. It would be important for tribes to have consistency and low turnover. It is important for a couple of reasons. Perhaps most importantly, more experienced attorneys are likely to be better advocates. They have more experience, they know the judicial system and likely know the judges that they will be practicing in front of. It is also important because of the requirement that tribes have law trained judges. An experience tribal defense attorney could transition into being a judge later on in his or her career.

How can tribes address the turnover problem that Teach for America encounters? By introducing incentives to stay. The federal government already offers loan forgiveness for public service through the Public Service Loan Forgiveness program (PSLF), which allows for the forgiveness of student loans after 120 successful monthly payments as long the applicant is employed in a qualifying public service job54. Monthly payments are further indexed to ten percent of discretionary income55. Programs like this make it possible to work in the public interest without risking bankruptcy. It is no secret that law students graduate with tremendously high amounts of debt and often struggle to pay it back. For the federal government to attract people to work on reservations however, they have to introduce loan forgiveness programs that rival what is offered to medical professionals who undertake similar endeavors. For example, Indian Health Services offers $40,000 (or $20,000 per year) in student loan forgiveness to qualified professionals who make a two year commitment to working on a reservation56. To attract lawyers to work on the reservation, the federal government could consider a similar program. Offering $20,000 per year in loan forgiveness for every year that you work on the reservation would almost certainly result in loans being almost completely forgiven by the time the ten year forgiveness period arrives. By offering graduates a chance at an even shorter forgiveness schedule, working on a reservation becomes competitive with many other lines of employment that lawyers may seek. The price of investment per lawyer is even a relative bargain for the United States government. Even if you pay the median starting salary for a public defender, you are still investing less than $70,000 per year per attorney.

There are also alternative methods that could be used to fill these positions. These methods are less preferable however because they do little to address the problem of high turnover, but they do provide attorneys in the short term. There are various fellowships that allow one to work for a non-profit entity, often at the expense of an outside entity. These entities could form partnerships with agencies that may already work to provide legal assistance to tribal members.. The federal government could further amend the Legal Services Act to allow for existing legal aid organizations to provide criminal assistance to tribal members. This alleviates the burden of tribes to find someone to fill the position while still ensuring that it is filled. There are other grant programs but they often require matching funds to exist. The federal government could subsidize the matching funds in order to ensure that someone fills the job. By doing this, the federal government is essentially providing tribes with a free lawyer at half the cost to themselves. Since they would be competing with virtually every other public interest firm in the country, the federal government will need to publicize this information and provide incentives for people to pursue fellowships on Indian reservations. Extending the above loan forgiveness program to include people on one-year fellowships would be a tremendous start. The lack of attorneys in Indian Country is a crisis that needs a quick and swift response.

IV. Why Should We Invest?

This all sounds like a huge investment by the federal government. What obligation does the federal government have to invest this much money to help an entity comply with an act that it passed? In Seminole Nation v. United States57, the Court stated that “[u]nder a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, it has charged itself with moral obligations of the highest responsibility and trust58.” Inherent in this trust responsibility is the notion that the federal government should look out for the best interest of tribes. As outlined above, tribes are currently going through a crisis that threatens the safety of their citizens. The fix to this problem will require tremendous expense on behalf of the federal government and an actual honoring of the trust responsibility. The federal government has a responsibility to look out for the best interests of tribes and ensure their citizens are safe.

V. Summary and Conclusion

The best and most efficient way to address the shortage of lawyers in Indian Country is to create a unit within an existing governmental agency that deals exclusively with providing lawyers to Indian tribes. This agency could be created with legislation that will fully fund it for five years, after which a study will be done that will measure its effectiveness. The results of this study will inform Congress as to whether or not the agency can be renewed. Through its initial legislation, the agency will be endowed with funds that it will disburse to tribes to assist with the salary and benefits of attorneys. It will also fund and oversee the loan forgiveness programs that will be created. In regards to hiring judges, the agency will directly employ the judges and assign them to culturally sensitive circuits. The judges will rotate within that circuit.

The agency would also create a website that will allow participating tribes to advertise positions and take applications. While it will not act as a hiring agency, it will collect and disburse applications to tribes as they are requested. Once an attorney is hired, the agency will also fund any applicable training that the applicant might need, particularly in regards to passing any tribal bar exams. The agency will also use the aforementioned field offices as means to providing support to attorneys, who will almost certainly be working in very rural conditions.

It is important that we create programs that addressing the sexual assault epidemic in Indian Country. By creating a streamlined process for tribes to recruit and pay attorneys and judges, we can begin to give tribes the tools they need to address this issue. 

47 Black Hills State University Communications, Chief Justice Gilbertson discusses efforts to attract attorneys to state’s rural communities, BHSU News and Events, Oct. 18, 2013 http://www.bhsu.edu/AboutBHSU/NewsEvents/tabid/3454/articleType/ArticleView/articleId/5099/Chief- Justice-Gilbertson-discusses-efforts-to-attract-attorneys-to-states-rural-communities.aspx48 Id.
49 NALP Bulletin, New Findings on Salaries for Public Interest Attorneys, The Association for Legal Career Professionals, Sept. 2010 http://www.nalp.org/sept2010pubintsal
50 Snapshot of Salary and Additional Benefits, Teach for America, http://www.teachforamerica.org/why-teach-for- america/compensation-and-benefits (last visited May 5, 2014)
51 Investing in Leaders, Teach for America, http://www.teachforamerica.org/our-mission/investing-in-leaders (last visited May 5, 2014)

52 Study Finds Teach For America Teachers Stay in the Classroom Past Initial Commitment, Harvard Graduate School of Education (May 21, 2008), http://www.gse.harvard.edu/news_events/features/2008/05/21_project.php 53 Id.
54 Public Service Loan Forgiveness, U.S. Dep’t of Education, https://studentaid.ed.gov/repay-loans/forgiveness- cancellation/charts/public-service (last visited May 5, 2014)
55 Defined as 150% of the poverty line minus your salary.
56 Loan Repayment, Indian Health Services, https://www.ihs.gov/loanrepayment/ (last visited May 5, 2014)

57 316 U.S. 286 (1942) 58 Id. at 296-97


Sunday, February 18, 2018

How the rural lawyer shortage affects the expansion of tribal sovereignty under VAWA - Part II

Yesterday - I began posting, in three parts, a paper that I wrote in law school where I analyzed how the rural lawyer shortage is endangering public safety in tribal communities by preventing tribes from exercising the supplemental jurisdiction offered by the 2013 reauthorization of the Violence Against Women Act. The paper was written in early 2014 so I apologize for any anachronisms, I've tried to correct them where I could. As I said yesterday, I was re-reading it and thought that the information contained within was very important to share and a great illustration of WHY the rural lawyer shortage is such a big problem. 

Part I is available here

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II. Exploring The Difficulties

The interplay between financial and locational resources will help influence what solutions the tribes should take in addressing these concerns. The solving of the sexual assault epidemic will first require figuring out how to solve these difficulties in order to take advantage of the enhanced sovereignty offered through the act. The solution to these problems will require in- depth analysis of historical and current issues facing tribes.

a. The Financial Problem

The paltry funding given by the Tribal Law and Order Act essentially leaves tribes with an unfunded opt-in. They are essentially given the option to take part in a program that can provide them with more rights, but at a cost that can be prohibitively expensive. Entities that already struggle with providing even the basic necessities are expected to pay even more money to hire people that will allow them to comply with the act so they can begin to exercise the enhanced sovereignty that will allow them to begin the crime epidemic that is currently plaguing the reservation.

Many tribes also struggle to even have the basic structures that will allow them to exert jurisdiction, and many of these tribes will struggle to pay for the law trained people that will allow them to be in compliance with the act. For example, many tribes lack even a court system. The lack of a court system could be an indicator of the lack of capital to undertake such an endeavor. Creating a court system requires paying to research and develop strategies for implementing a court into your current governmental structure. For these tribes, complying with this act will be prohibitively expensive and very difficult (if not impossible). For tribes with court systems, complying will still represent a great financial burden.

Some tribes will be able to tap into gaming revenue in order to fund expansion of services. Many are familiar with the Seminole, Mohegan and Pequot and their successes with generating revenue through gaming. However, these tribes are generally the exception to the rule. Many tribes are unable to engage in profitable gaming enterprises and for these tribes, gaming will never be an option to raise revenue. For many tribes, gaming may be their only option for economic development, a reality which has been accepted by both the Courts and Congress. In Chemehuevi Indian Tribe v. Wilson, the Court stated, “Congress recognized that for many tribes, gaming income ‘often means the difference between an adequate governmental program and a skeletal program that is totally dependent on Federal funding.27

For tribes who have gaming, it has also not been significantly successful in increasing tribal governmental revenue and many struggle to even break even with their gaming enterprises28. In fact, even for tribes who are able to raise money through gaming, the revenue has started to decline29. In order to generate the revenue needed to pay for law trained attorneys and judges, tribes will have to diversify their economic development and generate additional funding.

To examine the difficulty that tribes often have in generating revenue and the difficult choices that come with a limited budget, we can look to the Pine Ridge Indian Reservation, home of Oglala Sioux. Located in rural South Dakota, economic development can be prohibitively difficult for the tribe. Many tribes who successfully rely on economic development are either located in heavily populated regions (such as the Northeast) or have abundant natural resources. Pine Ridge in located in an area that has neither. In 2012, the Oglala Sioux had a budget of $80 million, $70 million of which came from the federal government30. This dependency on federal funding results in the tribe not having much budget leeway. For example, when the automatic spending cuts (negotiated through a previous debt ceiling deal) took effect on March 1st, tribes all over the country had to grapple with the fact that while the federal government exempted many of the programs that benefit the poor, they did not exercise the same care for programs that benefit American Indians31. Because of the automatic spending cuts, the tribe had to cut not only services to children and the elderly but also their tribal police force32. The inability to supply a sufficient police force is troubling enough, but expecting them to be able to hire additional lawyers would be wrong. Putting additional requirements on a tribe in that financial predicament can result in them being unable to fill that gap.

It is without dispute that tribes in the same situation as the Oglala Sioux are going to encounter an insurmountable amount of trouble raising enough revenue to comply with the act. For tribes already dependent on federal government, they are certainly unable to find the additional money needed to comply with the act. These tribes also face the geographical challenges that make engaging in economic development prohibitively difficult.

b. Attracting Attorneys

Even assuming that tribes were able to find the financial resources needed to hire attorneys, they would still face incredible difficulty attracting qualified candidates to assume the available positions. It should come as perhaps no surprise that the population of the United States is urbanizing and that the population of educated young professionals is urbanizing at an even faster rate than the rest of the American population. In many metropolitan areas, the center city population of young educated professionals is growing at a rate twice as fast as the rest of the metropolitan area33. Young educated people are also moving to certain types of cities, ones that are often based on a high-tech economy or that are young, vibrant college towns34. The legal profession is also urbanizing at a rate that is leaving rural areas as a whole behind. This problem has been noted as far back as the late 90s35. It should be much of a stretch to figure out why both of these trends would pose significant problems for tribes and their ability to attract young professionals to want to move to and work on the reservation.

Indian reservations are often located in the most remote parts of the United States and are hardly boom towns. Some of the most crushing poverty in the country can be found on Indian reservations. In fact, poverty on Indian reservations is so pervasive that it cannot be measured by the standard poverty rate definition that is often cited in studies to define how impoverished an area is. Reservations also have high rates of “extreme poverty,” which for a family of four is defined as making under $11,000 per year36. The number of people in extreme poverty on reservations is four times the national average37. Further, many citizens lack what many of us would consider basic amenities; fourteen percent lack electricity and twenty percent lack running water38. Perhaps the best way to fully understand the conditions on the impoverished reservations is to look at an actual example. In 2013, Washington Post reported on conditions on the Fort Peck Indian Reservation in Montana and described conditions in its populous city by stating that “[s]tray dogs wander the streets ... [it]has a few tiny markets, a bar and several gas stations. The streets are littered with the charred remains of buildings because there is no money to clear away debris after a fire39.” These conditions are in stark contrast to what the average young, educated professional is looking for in a new place.
The extreme poverty also feeds into other issues, as briefly touched above when the expense of hiring lawyers was discussed. The extreme nature of the poverty on reservations makes it so tribes cannot afford to provide basic services to their citizens. The inability to collect sufficient tax revenue creates a situation where funding is often short. The sector where this problem is most apparent and where it will be difficult to retain people long term is the education. When people look for a place to start a family, they often look to see what the local schools. Schools on Indian reservations are underfunded and heavily reliant on the federal government to subsidize what the local school board cannot. The average school in the United States receives only ten percent of its funding from the federal government, for a reservation school however, this number can be as high sixty percent40. A study conducted in 2003 by the United States Commission on Civil Rights found that Native students often face “deteriorating school facilities, underpaid teachers, weak curricula, discriminatory treatment [and] outdated learning tools41.”

There are other issues that would be problematic for attracting young people to move to the reservation. Housing is another great example of a barrier that tribes might encounter. In 2003, it was found that forty percent of reservation housing was considered inadequate, this compares unfavorably with just six percent nationwide42. A shortage of adequate housing would certainly hinder a place’s ability to make itself look appealing to new residents, particularly those who may have options elsewhere.

It is next important to consider where tribes are located and how that might pose a challenge to recruiting lawyers. Reservations are predominantly located west of Mississippi River, in the rural Southwest and Plains and far away from metropolitan areas. In the western half of the country, the remoteness is exacerbated by the population distribution of the United States. The Plains are sparsely populated and you could easily be a full day’s drive away from a major metropolitan area. In their attempts to attract lawyers, tribes will have to consider many of the struggles that other rural areas face when trying to attract lawyers.

Spatial isolation is a major barrier to overcome and functions as an additional barrier to tribes. As outlined above, young professionals are not just moving to urbanized areas, but are moving to center cities with a certain cultural vibe. Reservations are often located in far rural places that do not offer the same kind of lifestyle that one can find in a center city. It seem obvious that rural South Dakota or Montana would not offer the same nightlife and socialization opportunities as high tech cities like San Francisco or Raleigh or college towns like Ann Arbor or Madison. The legal profession as a whole is struggling with attracting lawyers to rural areas. Even in predominantly rural states, a majority of lawyers are clustered in just a few metropolitan areas43. For example, in Georgia, seventy percent of lawyers are in the Atlanta metropolitan area44. This of course leaves just thirty percent of the lawyer population for the rest of the state. In South Dakota, there are entire counties without lawyers, a situation which forces many clients to travel hours just to meet with legal counsel45. In that state, sixty five percent of lawyers are in the state’s sixty five metropolitan areas46. This points to the fact that lawyers are increasingly deciding that working for a firm in a city is preferable to working in rural America, a trend which will prove troubling to Indian tribes because they are competing for a small pool of lawyers. 

27 Matthew Fletcher, Tribal Economic Development: Nuts & Bolts, Michigan State University College of Law Indigenous Law and Policy Center Working Paper Series, Oct. 25, 2006 at 3-4 (citing Chemehuevi Indian Tribe v. Wilson, 987 F. Supp. 804, 808 n. 4 (N.D. Cal. 1997))
28 Id.

29 Stephen Singer, Report: Revenue growth slows at Indian casinos, falls behind non-tribal properties, Reno Gazette-Journal, Mar. 26, 2014 http://www.rgj.com/story/money/gaming/2014/03/26/report-revenue-growth- slows-at-indian-casinos-falls-behind-non-tribal-properties/6918583/30 Annie Lowrey, Pain on the Reservation, N.Y. Times, July 12, 2013 http://www.nytimes.com/2013/07/13/business/economy/us-budget-cuts-fall-heavily-on-american- indians.html?pagewanted=all&_r=0
31 Id. 32 Id.
33 Morgan Brennan, Downtowns: What's Behind America's Most Surprising Real Estate Boom, Forbes, Mar. 25, 2013 http://www.forbes.com/sites/morganbrennan/2013/03/25/emerging-downtowns-u-s-cities-revitalizing- business-districts-to-lure-young-professionals/34 William Frey, Young Adults Choose "Cool Cities" During Recession, Brookings Institute, Oct. 28, 2011 http://www.brookings.edu/blogs/up-front/posts/2011/10/28-young-adults-frey
35 Steven R. Sorenson, If They Won't Come, We've Failed, Wis. Law., APRIL 1998, at 5
36 Native reservations: poorest places in the country, Liberation, June 20, 2012
http://www.pslweb.org/liberationnews/newspaper/vol-6-no-9/native-reservations-poorest.html
37 Id.38 Id.39 Lyndsey Layton, In Montana, an Indian reservation’s children feel the impact of sequester’s cuts, Wash. Post, Mar. 21, 2013 http://www.washingtonpost.com/local/education/in-montana-an-indian-reservations-children-feel- the-impact-of-sequesters-cuts/2013/03/21/90b61722-916e-11e2-bdea-e32ad90da239_story.html
40 Id.41 A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country, U.S. Comm’n on Civil Rights xi (2003) 42 Id. at 50

Saturday, February 17, 2018

How the rural lawyer shortage affects the expansion of tribal sovereignty under VAWA - Part I

After viewing "Sovereignty," a play that dealt with Cherokee history and focused on the reauthorization of the Violence Against Women Act and the expansion of tribal sovereignty that is made possible by it, I decided to dig up an old paper that I wrote for an independent study while in law school. This paper is about 4 years old so I apologize for any anachronisms that are present, I tried to correct them where I could. This paper looked at how the rural lawyer shortage can hinder the ability of tribes to avail themselves of the expanded sovereignty that VAWA provides for. The paper looks at the problem from the side of lack of resources for tribes and also the the inherent difficulty that all rural spaces face in attracting young lawyers to move there. This is perhaps the best example of how the rural lawyer shortage has created a public safety crisis. 

I am sharing here to increase awareness about this issue and because after re-reading it, I felt that the information was too important to not be made available in some venue.

I have decided to keep the original footnotes in order to preserve the paper as much as possible and allow my audience to check my data. I apologize in advance for the deviation from my usual posting format. 

This is part 1 of 3. I hope you enjoy. 
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I. Introduction to Tribal Jurisdiction

The right of a sovereign to make and enforce its laws is foundational to its existence. The structural integrity of the system is bolstered only by the trust of people who exist within its sphere. After all, the United States of America is nothing but a collection of sovereigns co- existing under a hierarchical but yet confusing system. Many Americans are familiar with the rights afforded to the federal government, states, counties and towns, but fewer are familiar with the rights of tribes. In Cherokee v. Georgia1, Chief Justice John Marshall defined tribes as “domestic, dependent nations” that exist outside of the influence of the states, but yet are “dependent” upon the United States government. Despite being affirmed as quasi sovereign nations by the United States Supreme Court, tribes have historically encountered barriers to making and enforcing their own laws. All three branches of government have waged war on the rights of Indian tribes to exercise the most fundamental right afforded to a sovereign, the ability to make and enforce laws. This process has resulted in a lack of trust in their system and the degradation of their rights as a sovereign entity.
At particular issue is the right of tribes to assert criminal jurisdiction over crimes within their lands. In Ex parte Crow Dog2, the Supreme Court held that tribes had exclusive jurisdiction over crimes committed by Indians against other Indians on tribal land. Congress responded to this by passing the Major Crimes Act3, which placed the right to try and punish certain crimes within the jurisdiction of the federal government. The Supreme Court upheld this intrusion into tribal sovereignty with United States v. Kagama4, which established that tribal rights exist at the mercy of the federal government and can be diminished or even eradicated at any time. Over the next century, the federal government would continue to take away the right of tribes to exercise even the most basic rights of a sovereign entity. When the question of the tribe’s rights to exercise tribal jurisdiction over non-members came up in Oliphant v. Suquamish Indian Tribe5, the Supreme Court said that tribes lack criminal sovereignty over non-Indians without explicit permission from Congress, this logic was extended further in Duro v. Reina6 when the Supreme Court held that tribes lack jurisdiction over non-member Indians. In the latter case, Congress almost immediately fixed it by passing a law which extended tribal jurisdictions to all Indians. What was not fixed however was the gap that did not allow tribes to prosecute non-Indians who commit crimes on the Reservation.

a. Sexual Assault on the Reservation

According to the United States Department of Justice, Native American women are two and a half times more likely to be sexual assaulted than a non-Native and one in three will be sexually assaulted in their lifetime7. The sexual assault epidemic on Indian reservations is the product of a perfect storm of factors: the Major Crimes Act8 placing rape as one of the major crimes under which the federal government can assert jurisdiction over Indian defendants, the provision of the Indian Civil Rights Act9 that limits tribal courts to one year sentences and the Oliphant v. Suquamish Indian Tribe10 decision which stripped tribes of the right to prosecute non-Indians for crimes committed on the reservation.

For a non-Indian, a reservation represents a place where they have virtual free reign. The only jurisdiction that can prosecute them for their crimes is the federal government and the task for doing this often falls in the laps of often overworked US Attorney's offices that are often located in distant cities far away from the confines of the reservation. According to a policy brief prepared by the National Congress of American Indians in 2013, 67% of Native sexual assault victims describe their attacker as non-Native11. These are people over whom the tribe has no jurisdiction whatsoever, they cannot be prosecuted by the tribe for assault or any other related offense. These men are also not strangers who are wandering onto the reservation and then leaving. According to the same policy brief cited above, 39% of Native women will be subjected to sexual violence by a romantic partner and in 71% of instances of sexual assault, the perpetrator is known to the victim12. 46% of reservation residents are also non-Native13.

The jurisdictional black hole that exists has historically had to be filled by the federal government. This is problematic for a number of reasons, the most obvious of which is the spatial isolation that exists for many tribes. Indian reservations are often located in the most remote locations in the country and are often hundreds of miles away from the closest U.S. Attorney’s Office. There are some instances however where a closer jurisdiction can assert control. In Public Law 280 states, the state authorities can assert jurisdiction over crimes committed on reservations but these states are the minority and far from the norm. The inability of tribes to assert jurisdiction differ from the situation present in most locales where the county prosecutor (often located within very close proximity) can prosecute the crime. In 2013, the Department of Justice found that only 69% of criminal cases referred by tribes to the federal government were actually prosecuted14. The problem however is that there is no recourse for tribes when the federal government declines to prosecute. Citing previous data, the New York Times found that only one-third of sexual assault cases are actually prosecuted by the federal government15.

b. Congress Responds

In 2010, Congress responded to many of the problems outlined above by passing the Tribal Law and Order Act. The act authorized tribes to sentence a defendant to up to three years for each offense committed (to a maximum of nine total years)16. However, this provision did not immediately apply to all tribes. In order to take advantage of the enhanced sentencing provision, tribes have to meet certain guidelines. First of all, they have to be able to provide counsel to defendants that meet certain competency standards17. For indigent defendants, the tribe must (at their own expense) provide counsel that are licensed in a jurisdiction whose standards ensure “competence and professional responsibility18.” Finally, the tribes must be able to provide law-trained judges to preside over the proceedings19. Tribes that unable to meet these guidelines are required to continue to adhere to the sentencing restrictions established under ICRA. Given the huge expenses involved, the Tribal Law and Order Act is hardly a cure all or the enhancement to tribal sovereignty that it appears to be.

The Tribal Law and Order Act also did not address one of the most pressing problems in Indian Country: crimes committed by non-Indian defendants. The provisions of the Tribal Law and Order Act only spoke to crimes committed by Natives and did not authorize tribes to exercise jurisdiction over non-Indian defendants. In 2013 however, President Obama signed into the law the reauthorization of the Violence Against Women Act (VAWA). Contained within the bill is a provision that allows tribes to exercise jurisdiction over non-Indian defendants who commit crimes against Indian victims with whom they are in an intimate relationship20. There are of course the following limitations: “[the defendant must be someone who] (a) resides in Indian country (b) is employed in Indian country, or (c) is the spouse, intimate partner, or dating partner of an Indian living in Indian country or a Tribal member21.” There are also certain requirements that tribes must meet in order to exercise this extra jurisdiction, many of these requirements are similar to what was prescribed in the Tribal Law and Order act. For example, tribes must be able to provide competent counsel for indigent defendants and have trials presided over by law trained judges22.page5image15240 page5image15400 page5image15560
c. The Difficulty with Compliance

While both of the pieces of legislation outlined above are major victories for tribal sovereignty, they also provide tribes with a mandate that may prove difficult to meet. Tribes can only take advantage of the provisions outlined in the Tribal Law and Order and Violence Against Women Acts if they can provide for law trained judges and be able to afford counsel for indigent defendants. It is no secret that Indian reservations are some of the most impoverished places in the country. In order to comply with the act, tribes have to expend a significant amount of revenue to hire law trained lawyers and judges. The Tribal Law and Order Act did provide some additional funding to tribes to pursue hiring law trained judges and advocates. The Act allowed the Legal Services Corporation to provide grants to tribes and other entities that serve defendants in Indian Country to fund the defense of criminal defendants23. However, it does not provide for grants to legal services for anything above a misdemeanor offense24. It does provides grants to tribes (outside of the LSC framework) to hire defense council and other “tribal court personnel25.” However, the funding is paltry compared to the funding allocated to the other provisions of the Tribal Law and Order Act26.

Tribes may also encounter difficulties that are external to their financial resources. Since the statute requires that tribes be able to provide law trained judges and lawyers, it is important that tribes be able to make their reservations appealing places to live for law school graduates. Attracting lawyers to live in rural South Dakota, the Upper Peninsula of Michigan or northern Maine is a challenge in and of itself. Tribes not only have to expend revenue to pay the salaries and benefits of the law trained people that they hire, but they also have to pay to provide amenities that would make their reservation competitive with other places that a lawyer may decide to live. Reservations are not only competing with urban areas, but even other rural areas that may lure a potential lawyer away. The cost of hiring a team of lawyers can go far beyond the face value of salaries and benefits but can extend into a value far beyond what was originally expected. page6image18936 page6image19096
30 U.S. 1
109 U.S. 556 (1883),

18 U.S.C.A. § 1153 (West) 
118 U.S. 375 (1886)
435 U.S. 191 (1978)
495 U.S. 676 (1990)

Patricia Tjaden & Nancy Thoennes, Full Report of the Prevalence, Incidence, and Consequences of Violence Against Women: Findings From the National Violence Against Women Survey 22-23 (United States Dep’t of Justice 2000) https://www.ncjrs.gov/pdffiles1/nij/183781.pdfSupra, note 3
25 U.S.C.A. § 1302 (West)
10 435 U.S. 191 (1978)
11 Policy Insights Brief: Statistics on Violence Against Native Women 4 (NCAI Policy Research Center, 2013) http://files.ncai.org/broadcasts/2013/February/Policy%20Insights%20Brief_VAWA_020613.pdf12 Id.at3,5
13 Id. at 6

14 Timothy Williams, U.S. Says It Pursues More Prosecutions on Indian Lands, N.Y. Times, May 31, 2013 http://www.nytimes.com/2013/06/01/us/justice-dept-reports-rise-in-prosecutions-on-indian-lands.html?_r=0 
15 Id.16 Seth Fortin, The Two-Tiered Program of the Tribal Law and Order Act, 61 UCLA L. Rev. Discourse 88, 95 (2013) 
17 Id.18 Id.
19 Id.20 Winter King & Sara Clark, Navigating VAWA's New Tribal Court Jurisdictional Provision, Indian Country Today (Mar. 31, 2013) http://indiancountrytodaymedianetwork.com/opinion/navigating-vawas-new-tribal-court- jurisdictional-provision-148458
21 Id.22 Id.
23 Seth Fortin, The Two-Tiered Program of the Tribal Law and Order Act, 61 UCLA L. Rev. Discourse 88, 97 (2013)
24 David Patton, Tribal Law and Order Act of 2010: Breathing Life into the Miner's Canary, 47 Gonz. L. Rev. 767, 786 (2011)
25 Seth Fortin, The Two-Tiered Program of the Tribal Law and Order Act, 61 UCLA L. Rev. Discourse 88, 97 (2013)
26 Id.