When Tribal Disenrollment Becomes Cruel and Unusual

• Publication year: 2021
• Citation: Vol. 97

97 Nebraska L. Rev. 820. When Tribal Disenrollment Becomes Cruel and Unusual

When Tribal Disenrollment Becomes Cruel and Unusual

Judith M. Stinson(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 821

II. The Eighth Amendment's Prohibition on Cruel and Unusual Punishment ................................. 824

III. The Prohibition on Cruel and Unusual Punishment Applies to Tribes via the Indian Civil Rights Act ....... 832

IV. Tribal Punishment .................................... 836
A. Historical Methods of Addressing Criminal Conduct ........................................... 837
B. Modern Methods of Addressing Criminal Conduct . . 839
1. Adoption of Western Notions of Criminal Punishment ................................... 840
2. The Trend to Disenroll for Conduct ............ 842

V. Tribal Disenrollment is Equivalent to Revocation of Citizenship ........................................... 848

VI. Conclusion ............................................ 856

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I. INTRODUCTION

Headlines expressing outrage over tribal disenrollment abound.(fn1) Most disenrollments are based on lineage(fn2)-evidence surfaces suggesting that a tribal member's ancestor was not actually enrolled or eligible for enrollment-or political controversies, such as when one faction within a tribe challenges the current leadership.(fn3) In these contexts, most scholars argue that the solution to the disenrollment problem is to provide greater due process protections.(fn4)

There is a growing trend, however, to punish tribal members by revoking their membership as a result of criminal convictions-or even criminal conduct absent a conviction.(fn5) Tribal disenrollment for

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criminal conduct has not attracted the same attention and does not provoke the same ire as lineage-based or political-based disenrollment. Commentators and tribal members themselves seem to take for granted that it is proper for tribes to disenroll members for criminal convictions or "bad" conduct.(fn6)

This Article argues that tribal disenrollment for criminal conduct constitutes cruel and unusual punishment in violation of the Indian Civil Rights Act.(fn7) This Article proceeds in five parts. Part I traces the development of the cruel and unusual punishment doctrine, which established that the United States cannot revoke citizenship as a result of criminal conduct.(fn8) In Trop v. Dulles,(fn9) the Supreme Court held that the federal statute resulting in loss of citizenship was unconstitutional, even though the underlying criminal conviction was wartime desertion.(fn10) In the sixty years since Trop, the Court has found that a growing number of punishments qualify as "cruel and unusual" because they offend the "dignity of man" based on "evolving standards of decency."(fn11)

Part II explains that, although federal constitutional limitations are not generally applicable to American Indian tribes, the Indian Civil Rights Act extends certain Bill of Rights protections and makes them expressly applicable to tribes.(fn12) The prohibition on cruel and unusual punishment is one of those protections.(fn13)

The various methods used by tribes both historically and currently to punish members engaged in criminal activity are described in Part III. Historically, tribes responded to criminal (or other anti-social) conduct with peacekeeping and restorative justice mechanisms aimed at solving the underlying problem and restoring harmony.(fn14) In extreme cases, banishment-prohibiting a tribal member from being present on all or a portion of tribal lands-was used both to incapacitate and

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rehabilitate the offender.(fn15) However, banishment was almost always temporary. Many tribes have retained, or are returning to, historical methods of addressing crime in Indian country, but many also employ more traditional western responses to criminal conduct, such as arrest, trial (or plea bargaining), and sentencing in a formal court of law, with punishments including incarceration. Disenrollment-the permanent removal of a tribal member from tribal rolls-is a relatively recent response to criminal activity, and one that is growing in both consideration and use.(fn16)

Part IV argues that tribal disenrollment is equivalent to the loss of citizenship. Citizens of tribal nations share a national identity, just as Americans do. Citizenship entails significant tangible and intangible features in both the tribal context and the federal context, including providing individuals with a culture, an identity, and a community, and distinguishing citizens from outsiders.

This Article concludes that although membership is within tribes' sovereign powers, once a tribe decides to grant membership to an individual, disenrollment imposed in response to criminal behavior constitutes punishment forbidden by the Indian Civil Rights Act.(fn17) Revoking citizenship for reasons other than mistake, fraud,(fn18) or some voluntary act relinquishing citizenship goes beyond the sovereign power. Despite the reality that criminal conduct on most reservations is a significant problem, Congress has significantly limited the available tribal responses, and federal and state law enforcement has been woefully inadequate at addressing the problem. Historically, temporary banishment has been one option, but the trend to permanently disenroll tribal members (or consider disenrollment) as a means to deal with criminal conduct is problematic.

How can tribes effectively combat crime on their reservations? This Article suggests that consistent with their sovereign status, tribes ought to have expanded criminal jurisdiction-at least over their own members. This solution protects tribal members from cruel and unusual punishment and, at the same time, provides a mechanism for tribes to address the problem creating the impetus for disenrollment.

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II. THE EIGHTH AMENDMENT'S PROHIBITION ON CRUEL AND UNUSUAL PUNISHMENT

The text of the Eighth Amendment states simply that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."(fn19) The U.S. Supreme Court has struggled to interpret this phrase. As noted by one scholar, "the Court's treatment of the Cruel and Unusual Punishments Clause" has been described "as 'embarrassing,' 'ineffectual and incoherent,' a 'mess,' and a 'train wreck.'"(fn20)

Despite this uncertainty, a few key principles are evident in the Court's Eighth Amendment jurisprudence. First, although retribution and deterrence are legitimate penal interests,(fn21) the prohibition on cruel and unusual punishment means that even convicted criminals are entitled to "civilized treatment" respecting the "dignity of man."(fn22) Second, punishments that were appropriate even fifty years ago may not be today, as the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."(fn23) As communities (local, national, and international) come to view certain punishments as inappropriate under any circumstances, those punishments are deemed "cruel and unusual."(fn24) Third, drawing on these principles of civilized treatment respecting the dignity of man, using evolving standards of decency and recognizing some punishments are never proper, an individual cannot be stripped of his U.S. citizenship as a result of criminal conduct.(fn25)

The Supreme Court only declared one punishment cruel and unusual in violation of the Eighth Amendment before 1958.(fn26) Admittedly, the opportunities for the Court to consider the issue were limited, in large part because most punishments were meted out at the state and local level, and the Eighth Amendment was not held to apply to states until 1962.(fn27) But cruel and unusual was a difficult standard to meet.

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In a 1910 case finding a punishment cruel and unusual, the facts were extreme: a Coast Guard disbursing officer entered two false amounts in the ship's cash book and was sentenced to fifteen years of hard labor with painful chains around his wrists and ankles.(fn28) The Court held, in Weems v. United States, that such a punishment was cruel and unusual.(fn29)

The Court in Weems acknowledged that it had not yet decided what punishments were cruel and unusual,(fn30) then discussed at length congressional intent,(fn31) dicta from earlier decisions,(fn32) the views of various commentators,(fn33) and state court decisions.(fn34) The Court noted that "inhuman and barbarous" treatment ("torture and the like") was implied in the prohibition but also considered the possibility of a disproportionate sentence constituting cruel and unusual punishment.(fn35) Ulti-

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mately, the Court determined that the sentence imposed "exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice."(fn36) Significantly, the Eighth Amendment is not static but is "progressive" and "may acquire meaning as public opinion becomes enlightened by a humane justice."(fn37) The Court concluded that the punishment imposed in this case for fraud "amaze[s] those who have formed their conception of the relation of a state to even its offending citizens from the practice of the American commonwealths."(fn38)

Yet, despite finding only one violation of the Eighth Amendment in almost two centuries, in 1958, the...