Retribution for tribal sovereignty: Settler colonial policing and civil justice impacts

Abstract

Unique among marginalized groups, American Indians are both citizens of the United States and citizens of sovereign tribal nations, as recognized (but not granted) by federal Indian law. However, even as tribal nations exert increasing economic and political power, criminal legal outcomes for tribal members—who interface with an array of tribal, local, state, and federal law enforcement and justice systems—remain detrimental or are worsened. These outcomes also include increased contact with state courts and the delegitimization of tribal courts, which uniquely implicate the civil justice context. We use the settler colonial framework to investigate how tools of state criminal law, such as heavy policing and disparate punishment, may impact the civil justice needs of Indigenous people, and more broadly, the very sovereignty these policies aim to protect. Drawing on interviews and observations in tribal and county-level courts, we examine the experiences of American Indians and other stakeholders in Indian country. We identify how enforcement practices, surveillance of space, and the complexities of layered policing within a “jurisdictional maze” contribute to the deterioration of tribal sovereignty. We contextualize our findings by considering the historical, cultural, and socio-economic factors that influence the experiences of American Indians in the criminal justice system, and by examining the civil justice implications.