The Criminal Jurisdiction of Indian Tribes

This is the third in a series of posts addressing commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post dealt with casinos, taxation, and hunting and fishing rights, while the second focused on the relationship between the unique legal treatment of Indian tribes or their members and the U.S. Constitution’s guarantee of equal protection. This post will explore the criminal jurisdiction of tribes, with the expectation that one or more future posts will similarly explore the criminal jurisdiction of the federal and state governments in relation to Indians or conduct on Indian lands.

Sovereignty, as conceptualized in the Western legal-political tradition, has customarily included the power to enact and enforce a criminal code against persons who, within the sovereign’s territory or against its citizenry, commit conduct injurious to health, safety, welfare, and morals. This is a theoretical standard, however, and today across the globe as well as in the United States—and not just with regard to Indian tribes—one can observe forms of sovereignty that include degrees of diminished (or less-than-plenary) criminal jurisdiction.

The most obvious domestic example involves the respective authority of the federal and state governments.

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Does the Legislature Lack the Power to Revise the Redistricting Law?

Republican lawmakers have asserted that they have no power to re-draw the election maps at issue in the ongoing Baldus v. Brennan litigation in federal court, despite a suggestion from the three judge panel hearing the case that the legislature make revisions to the law. The 1954 Wisconsin Supreme Court opinion that these lawmakers cite for this proposition does not decide the issue, and the unique factual situation of that case does not correspond to the present situation. In a familiar pattern, it appears that the fierce litigation between state Republicans and Democrats threatens to pull the courts deep into uncharted waters.

The Wisconsin Constitution provides:

“At its first session after each enumeration made by the authority of the United States, the legislature shall apportion and district anew the members of the Senate and Assembly, according to the number of inhabitants.”

(Article IV, Section 3).

In plain English, the legislature must pass a redistricting bill in the first legislative session after the federal census. Once it does so, the general rule is that a valid apportionment law may not be replaced with a law creating new districts until the time of the next census. Of course, if the legislature’s redistricting legislation violates the state or federal constitutions, it is not valid and the legislature must pass a new apportionment bill. The three judge panel in the Baldus case may rule the maps invalid, but it suggested that the legislature might consider passing a new redistricting plan rather than proceed to trial.

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Obama, Santorum Show Strengths in New Round of Law School Poll Results

New results from the Marquette Law School Poll show Wisconsin voters currently favor President Barack Obama over each of the Republicans seeking the presidential nomination, while former Senator Rick Santorum has moved into the lead as the presidential choice among the state’s Republicans.

The poll finds that 72% of those who responded had heard or read about the “John Doe” investigation of former aides of Governor Scott Walker while he was Milwaukee County executive. Fifty-two percent of those who were aware of the investigation called it “something really serious” while 40 percent said it is “just more politics.”

The results, released Tuesday, are from the second round of the Law School’s year-long polling project, the largest project of its kind in Wisconsin history. The new results include a decline from January in the percent of voters giving favorable rating to Walker and head-to-head results for possible US Senate match-ups this year. They also shed light on public sentiment about Wisconsin’s job climate and the proposed iron ore mine in northern Wisconsin.

Full results can be found by clicking here . Professor Charles Franklin, director of the poll and visiting professor of law and public policy at Marquette Law School, will talk about the result with Mike Gousha, distinguished fellow in law and public policy, in a session open to the public at 12:15 p.m. today at Eckstein Hall. The session will be shown live at law.marquette.edu and will be available for watching later on the Web page for the Law School poll.

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