Separate But Unequal: The Federal Criminal Justice System in Indian Country

TROY A. EID & CARRIE COVINGTON DOYLE

In this Article, Troy Eid, a former United States Attorney for the District of Colorado, and Carrie Covington Doyle conclude
that the federal criminal justice system serving Indian country today is "separate but unequal" and violates the Equal Protection
rights of Native Americans living and working there.  That system discriminates invidiously because it categorically applies only
to Native Americans and then only to crimes arising on Indian lands.  It is unequalbecause it is largely unaccountable, needlessly
complicated, comparatively under-funded, and results in disproportionately more severe punishments for the same crimes,
especially for juveniles.
          
This Article traces the historical foundations of criminal justice in Indian country with emphasis on the Major Crimes Act
of 1885 (“MCA”) to demonstrate that Congress’s decision to extend federal jurisdiction to Indian reservations was ill-considered
and meant only as a temporary expedient.  Imposed by Congress with racist intentions in the late nineteenth century, that system
still fails to satisfy even the minimum standards of fairness and equality that the Constitution is commonly understood to afford
to all U.S. citizens under the Fourteenth Amendment.
 
A careful review of the MCA and its racist origins is long overdue and relevant to today's debate over the future of the federal
criminal justice system in Indian country.  Congress's extension of federal jurisdiction to Indian reservations was central to the
federal government's forced-assimilation policy and the destruction of traditional tribal institutions, values, and culture in the
late 1800s. Yet even as national policies toward Indians have changed dramatically in recent decades, the architecture of the
federal criminal justice system in Indian country has remained stubbornly frozen in time and poses a serious obstacle to tribal
sovereignty and self-determination.