Alex Skibine on “Indians, Race, and Criminal Jurisdiction in Indian Country”

Written by: Matthew Fletcher

Primary Source : Turtle Talk, August 15, 2016

Alex Skibine on “Indians, Race, and Criminal Jurisdiction in Indian Country” | Turtle Talk

Alexander Skibine has posted “Indians, Race, and Criminal Jurisdiction in Indian Country,” forthcoming in the Albany Government Law Review, on SSRN.

Here is the abstract:

With the possible exception of the Indian Major Crimes Act, the classification of “Indian” for the purposes of the ICCA and the Duro Fix is not “racial” even if it includes non-enrolled people of Indian ancestry with significant connections to tribal communities. Furthermore, although the first prong of the Rogers test should be eliminated on policy grounds, the holding of the Zepeda court that the first prong could be satisfied by proof of blood quantum from any Indian tribe, recognized or not, is highly suspicious, seems to be arbitrary, and boosts the argument that the classification of “Indian” in such cases is a racial classification.

Acknowledging the problems plaguing current law enforcement on Indian reservations, this article has endorsed a position which would allow Indian tribes to determine the meaning of “Indian” for the purpose of the Duro fix. The Article also argued that the universe of “Indians” for the purpose of federal jurisdiction should be limited to enrolled tribal members and those eligible for such membership unless the relevant tribe has enacted precise standards delineating who is an Indian for the purpose of federal jurisdiction on its reservation.

Highly recommended.

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Matthew Fletcher
Matthew L.M. Fletcher is Professor of Law at Michigan State University College of Law and Director of the Indigenous Law and Policy Center. He is the Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Pokagon Band of Potawatomi Indians, the Hoopa Valley Tribe, and the Nottawaseppi Huron Band of Potawatomi Indians. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians, located in Peshawbestown, Michigan. In 2010, Professor Fletcher was elected to the American Law Institute.