Lecture on criminal justice in Indian Country

01/08/2008

Criminal justice in Indian Country focus of lecture

Kevin Washburn 
Kevin Washburn
     Kevin Washburn, a prominent law professor and expert in Indian legal issues, will speak on criminal justice in Indian Country for the first annual William C. Canby Distinguished Scholar Lecture at the Sandra Day O'Connor College of Law at Arizona State University.     
     "I have worked for more than five years on scholarship focused on the serious problems with criminal justice in Indian country, and I intend to provide an overview of those findings," Washburn said. "In the course of this work, I've looked at federal prosecution, sentencing, trial juries and many of the practical challenges facing criminal justice in Indian country."
     The lecture, "American Indians, Crime, and the Law: Five Years of Scholarship on Criminal Justice in Indian Country," will be held at 4:30 p.m. on Thursday, Jan. 24, in the Great Hall in Armstrong Hall. The event is sponsored by the Indian Legal Program at the College of Law. It is free and open to the public, but registration is recommended. Register online at www.law.asu.edu/ILP/Canby or call 480-965-7715.
     Two other distinguished experts on criminal justice in Indian Country - Diane J. Humetewa, an alumna of the College of Law and newly appointed U.S. Attorney for Arizona, and Jon M. Sands, Federal Public Defender for the District of Arizona - will comment after Washburn's remarks.
     Washburn is on leave from the University of Minnesota Law School where he is an associate professor, and is serving as the Oneida Indian Nation Visiting Associate Professor of Law at Harvard Law School.
     He was chosen as the first William C. Canby Distinguished Scholar in Residence, an honor named for Judge William C. Canby Jr. of the 9th U.S. Circuit Court of Appeals.
     Canby, who earned his LL.B. at the University of Minnesota in 1956, developed a lifelong interest in Indian law when, as clerk for Justice Charles E. Whittaker of the U.S. Supreme Court, Canby watched the Court decide Williams v. Lee , a landmark decision affirming the right of reservation Indians to make their own laws and be governed by them. He came to Arizona in 1967 as a founding faculty member of the College of Law. He taught one of the first courses in Indian law, was instrumental in the creation of the College's Indian Legal Program and established himself as a nationally recognized expert in the field. Hehas testified before Congress in Indian legal issues and authors West's Nutshell on American Indian Law , now in its fourth edition.
      Canby said the Indian legal system is a critical part of the overall justice system in Arizona and many other states.
     "Tribes need working justice systems to function as working societies, and they require a lot of attention and resources," Canby said. "If they break down, there will be a huge gap."
      Canby said Washburn, who clerked for Canby in 1993-94, is an excellent selection for the first lecturer.
      "He has had a superb career since he left me," Canby said. "He joined the Department of Justice, where he worked on environmental issues with tribes. Then he wanted more intense courtroom experience and became an Assistant U.S. Attorney in Albuquerque, where he prosecuted violent crime. Then he became general counsel for the National Indian Gaming Commission and was on the front line of the burgeoning American Indian gaming industry. And then he decided to go into teaching at my alma mater, the University of Minnesota."
     Professor Robert Clinton of the College of Law, who helped establish the annual lecture on Indian law issues, said Washburn was a consensus choice because of his scholarship and abilities.
     "The fact that he is a former Canby clerk made the choice all the sweeter," Clinton said. "It was the perfect opportunity to honor both great Indian law scholars and one of the great early contributors to the field, Judge William C. Canby.
     "It should be widely of interest to Arizona citizens who care about effective law enforcement on Indian reservations, including at the burgeoning economic development sites located in Indian country from casinos to malls."
      Washburn said tribal legal systems often are poorly understood.
     "Many tribes now have systems in place that Anglo-American lawyers and judges would easily recognize," Washburn said, "but tribes have been dealing with criminal justice issues for many centuries.  Crime presumably did not arrive with Columbus." 
     One of the myriad issues that arise under the current, federalized system is a simple political accountability problem, Washburn said.
     "By making Indian Country justice primarily a federal responsibility, we have taken tribal officials off the hook, given them an easy scapegoat, and discouraged - and debilitated - them from being able to address these serious problems themselves,"  he said.
     "Re-establishing local control is essential. Criminal justice is inherently local. It should be handled not in Washington, D.C., and not at the statewide level, but locally. Indeed, crimes in regular communities outside Indian country are addressed not by the FBI or federal prosecutors, but local police and, in most states, locally elected prosecutors."
     As an example, Washburn offered the case of a Navajo charged with a crime.
     "He is likely to be tried in a courthouse in Phoenix, and chances are there will be no Navajo sitting on the jury. Such a defendant will not feel the incredible moral weight of the judgment of a jury of his peers," Washburn said. "You also wonder if the pronouncement of 'guilty' has the same effect of justice in the community when the community isn't there to see it.
     "Furthermore, if he is sentenced to incarceration, he may well be shipped to a federal prison hundreds of miles from any of his family members that might be key in supporting him as he attempts to rehabilitate himself. "
     Distance also poses a hardship to witnesses, investigators and prosecutors. Washburn said it is much more sensible to place criminal justice authority - and accountability - in local tribal leadership.
     "In most of the areas where government works - roads, health care, education, social services - the federal policy has been to increase tribal self-determination. But not for criminal justice. And I would argue that criminal justice may well be the most important area where self-determination is needed. It's far more central to who a community is.  A criminal code is where a community codifies the values most important to it. Indeed, if you want to know what a community believes, look at the criminal code."
     Washburn said that money is an issue.
     "Tribes have the problem every small town has," Washburn said. "Some have described it as 'the Mayberry problem,' with Andy and Barney. The thin blue line that protects citizens from crime is, in Indian Country, especially thin.  In some places, it is so thin that it may actually be a dotted line."
     Washburn is a member of the Chickasaw Nation of Oklahoma and earned his J.D. at Yale Law School in 1993, but he didn't always plan to focus on Indian law.
     "When you grow up poor and Indian, you crave a legitimacy one can perhaps only get outside this field," Washburn said. "But if you're Native American, you also want to help your people. Eventually, those of us who are Indians and lawyers begin to realize, I'm probably here for a reason."
     At Harvard, Washburn is teaching first-year criminal law, and gaming law.
     "This is the first time Harvard has offered a general course in gaming law," Washburn said. "It's one of the fastest growing industries in the United States, but law tends to lag commerce. Five years ago, only 15 law schools taught any kind of gaming law, today it's 30."
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