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 Colonialism Advantage
The Advantage is Colonialism—
Status quo Criminal Justice on Native lands is wholly insufficient.
Buckley 18 (Elena Saavedra Buckley is a contributing editor for the High Country News, 11-29-2018,
"Feds fail to prosecute crimes in Indian Country," High Country News,
https://www.hcn.org/articles/tribal-affairs-feds-fail-to-prosecute-crimes-in-indian-country)
In 2017, the U.S. D o J declined to prosecute more than a third of cases referred to
epartment f ustice

them in Indian Country. That’s business as usual according to a new report by the department. The report
reveals that U.S. attorneys’ offices left 37 percent of referred cases from Indian Country
unprosecuted in 2017 — a figure slightly up from 2016 and steady with data since 2011, after then-President Barack Obama signed the
Tribal Law and Order Act into law. The percentage continues to plateau despite funding for tribal law
enforcement from the Trump administration. Lawmakers like Sen. Tom Udall, D-N.M., see the department’s
prosecution rate as failing members of federally recognized tribes. “This report only confirms that Native victims
continue to fall through the cracks of our justice system,” Udall wrote to the Associated Press. Federal crime
data has long suggested that Indian reservations have higher rates of violent crime than the national average, especially when it

comes to violence against women . Of the cases that went unprosecuted, over a quarter were allegations
of sexual assault against children and adults . “Although difficulties in prosecuting physical assault, sexual assault,
and child molestation cases are not unique to Indian country,” the report reads, “structural barriers in Indian country may compound the
challenges.” The Justice Department attributes many of those barriers to the complex organization of law enforcement in Indian Country, which
In major crimes like murder or child abuse, which are managed by
stems largely from a tangled web of jurisdictions.

federal agencies, victims and witnesses often have to travel long distances to testify in federal

court. Federal investigators and prosecutors are also rarely based on reservations,
making it difficult for them to foster meaningful relationships with communities . Overall,
the report cited insufficient evidence as the top reason that cases were declined. The report follows mixed progress in the Justice Department’s
The 2010 Tribal Law and Order Act [TLOA] attempted to improve the
work with tribes.
relationship between tribes and U.S. attorneys’ offices by codifying tribal liaisons in Indian
Country districts, among other goals. But last year, the Office of the Inspector General criticized
the department’s response in a report that found that “the Department and its components still
lack a coordinated approach to overseeing the assistance it provides in Indian country.”
Before being ousted in early November, Attorney General Jeff Sessions launched multiple initiatives to strengthen law enforcement in Indian
Country. In April 2017, he began expanding tribes’ access to national crime databases, and the Justice Department released public safety grant
applications to tribal communities early this year. Trent Shores, U.S. Attorney for the Northern District of Oklahoma and chairman of the
Attorney General’s Advisory Subcommittee on Native American Issues, said in a statement that the department is also expanding cross-
tribal courts have increased their
deputization, funding for juvenile programs, and services to victims. In recent years,

own prosecution of non-Native offenders, a job often reserved for federal officials. That’s largely thanks
to the Violence Against Women Act [VAWA], but tribal prosecutors are still limited in their
abilities . Meanwhile, the act itself could lapse in less than two weeks unless it’s reauthorized during Congress’ lame-duck session.
 Scenario 1: Sexual Violence
Rapists can attack Natives on their own land without any accountability.
Clement and Drake 20 (Kaci A. Clement is a student at the University of South Dakota and
submitted a partial thesis that was edited by Jamie Turgeon-Drake who is a Professor at the University of
South Dakota, Spring 2020, " The Victimization of Native American Women in the United States: The
Impact and Potential Underlying Factors," USD RED, https://red.library.usd.edu/cgi/viewcontent.cgi?
article=1083&context=honors-thesis)
Violence against women in sexual, physical, and all other forms is devastating to individuals, families,
and communities . Women represent a strong majority, 89 percent (Rennison, 2002), of the individuals reporting sexual assault in the United States.
Not only are women more likely to be victimized in this way, women are also more likely than men to report an injury during their assault (Tjaden & Thoennes,

2000). The consequences of this violence in our society are pervasive and can extend into multiple realms .
Physical, emotional, and financial wellness are all endangered by the high rates of violence perpetrated against women. While women are at a higher risk of sexual
violence than men, there are other factors that make certain populations of women more likely to be impacted than others. Racial and ethnic affiliation are one

Surveys conducted nationally have found that there is a correlation

predictor of sexual violence in women.

between which racial group a woman identifies as and her likelihood to be victimized
at some point in her life. American Indian/Alaskan Native (AI/AN) women, in particular, are
impacted by violence at disproportionate rates (Tjaden & Thoennes, 2000). More than 80 percent of
AI/AN women have experienced some form of violence in their lifetime (Rosay, 2016). This violence
may include physical, psychological, or sexual forms, but they all negatively impact the wellness of the affected women. However, definitive reasoning for the high
rates of violence in this and other similar groups has not been fully investigated. Reasoning behind the high rates of violence perpetrated against minority women, and
specifically Native American women, is not easily explained. This issue is multifaceted and could include factors that stem from historical trauma reactions seen in
modern generations of Native Americans. Other factors involved may be the representation or lack thereof of these populations in the media or weak laws and policies

concerning the safety of AI/AN women. There also seems to be a lack of surveillance and dissemination regarding
sexual violence as well as other issues concerning Native American individuals. The problem of violence against indigenous women needs to be
recognized and fully investigated throughout the world. Within the United States this topic impacts many different states and individual organizations. With nine
federally recognized tribes within state borders, South Dakota is a major stakeholder in the health and wellness of the Native American women living in the state. The
University of South Dakota is another key stakeholder in this issue. The diversity and inclusiveness statement of USD recognizes the strong ties between the state, the
University, and Native American groups: Acknowledging and paying particular attention to our strong historical and cultural Native American roots, USD is
committed to strengthening existing relationships and developing new relationships with Native American tribes, organizations and communities within the state, the
region and the nation. (USD Executive Committee, 2013) This thesis will explore the topic of sexual violence perpetrated against AI/AN women and the public’s
awareness of this issue. A literature review will examine the prevalence and impact that sexual violence has in our society as well as several factors that may influence
Native American women’s rate of victimization. A survey was also conducted to better understand public awareness of areas of concern for women. Additionally, the
survey determined the respondents’ perceived prevalence of missing women in the United States. The results of the survey indicate that there is still much to be done
to better inform the public of the numerous issue facing women in the United States. More accurate and diverse media representation for minority populations is one
area that could improve how the general public perceives issues facing more invisible ethnic and racial groups. Understanding the perceptions that the public holds on
this issue is one step to bringing these issues to the public eye. The prevalence of violence against women in the United States has been a topic of major concern in
recent decades. Nationwide studies conducted in the last twenty years have been crucial for better understanding how violence, especially sexual violence, impacts
women in the United States. According to a summary produced by the Centers for Disease Control and Prevention (CDC), before the National Intimate Partner and
Sexual Violence Survey was conducted in 2010, the most recent detailed national data on the public health burden from sexual violence was obtained almost 15 years
previously from the National Violence against Women Survey conducted from 1995 to 1996 (Breiding, Smith, Basile, Walters, Chen, Merrick, 2014). This large gap
in data gathering demonstrates a need for better surveillance of information concerning this topic. Collecting data and fully interpreting it is crucial to understand the
complete impact of violence against women in our society. To understand the burden of violence against women, especially minority women, the scope of the problem
can be better grasped by understanding the total size of these specific populations in the United States. Using five-year estimates of the 2011-2015 American
Community Survey conducted by the U.S Census Bureau, the total population of individuals who identify as AI/AN alone or in combination with one or more other
races is 5,309,095 with a margin of error of 19,117 (2017). This indigenous population is split into 573 federally recognized American Indian and Alaska Native tribes
and villages (U.S Department of the Interior, n.d.). However, many individuals who identify as AI/NA are affiliated with a tribe but do not live on tribal lands. The
total population in the United States during the same period was 316,515,021 and the population of individuals who identify as white alone was 232,943,055 (U.S
Census Bureau, 2017). This same data set from the Census Bureau estimated that 50.5 percent of the AI/AN population is female, and 50.53 percent of the white only
population is female (2017). To put these numbers in perspective, 1.68 percent of the total United States population is represented by AI/AN and 73.60 percent of the
population identifies as white alone. The state of South Dakota and the women that live within the state are of special interest in this review due to the fact that the
authors of this paper are all residents of the state. In South Dakota, the American Indian population is a much larger percentage of the total population that what is
seen in the national as a whole. Using the same 2011-2015 estimates used for the United States’ data, 86,811 individuals in South Dakota identify as AI/AN alone or
in combination with one or more other races (U.S Census Bureau, 2017). This constitutes almost 10.3 percent of the total population of the state, which is a much
larger than the entire country’s composition of 1.68 percent. Furthermore, nine of the current 573 federally recognized tribes share geography with South Dakota. All
nine of the tribes have physical land that is organized into nine separate reservations in the state (see Appendix A). Each of these tribes represents a unique culture
with their own history, customs, and governmental structure. The caveat to understanding population estimates of different racial and ethnic groups, especially Native
Americans, is that some data sets composed by the Census Bureau are organized by single race only. That is, the groups that are detailed consist of American citizens
that identify as one racial or ethnic group. Therefore, this can become a problem when a citizen identifies as two or more groups. Depending on the questions asked by
the Census Bureau on a population estimate survey the total number of Native Americans that are accounted for in the census could be skewed, and even more so if
they do not live on federally recognized tribal lands. This limitation also impacts any other survey that relies on using population estimates and could be detrimental if
studies to not have a homogenous way of classifying American Indian populations. The National Intimate Partner and Sexual Violence Survey (NISVS) was
completed in 2011 and gathered data on experiences of sexual violence, stalking, and intimate partner violence in the male and female populations in the United
States. Results from this survey have produced several estimates about violence against women such as: · 19.3% of women report being a victim of rape during their
lifetime. · 15.2% of women have been a victim of stalking in their lifetime. · 43.9% of women have experienced a form of sexual violence, other than rape, in their
lifetime. (Breiding, et al., 2014) These statistics are shocking in and of themselves, but they are more troubling when compared to numbers from a study released in
The Department of Justice’s National Survey of Violence of Women published in 2000 found
2000.

that 17.6% of women were the victim of rape and 8.1% of women reported being stalked (Tjaden & Thoennes, 2000). If these reports are accurate, the rate of these
types of violence have risen in the last decade. Looking at violence against women under a racial lens, racial minorities often report sexual violence at higher rates.

American Indian/Alaska Native women were more likely than any other racial group to
report being a victim of sexual violence or stalking (Tjaden & Thoennes, 2000) As reported by the NISVS, looking at
the same three areas of violence, they are experienced by Native American women in larger percentages: · 27.5% of AI/AN women report being a victim of rape
during their lifetime. · 24.5% have been a victim of stalking in their lifetime. · 55.0% have experienced a form of sexual violence, other than rape, in their lifetime.
(Breiding, et al., 2014) This specific survey, like all surveys, has its strengths, weaknesses, and limitations. Because the report was compiled by the Department of
Justice, which is an authority on reliable research, it should be considered trustworthy. However, looking at surveys from similar time periods investigating similar
acts of violence the statistics can be biased depending on how the data was collected. Other published governmental reports have different estimates of the violence
perpetrated against Native American women. For example, another Department of Justice report, Violence Against American Indian and Alaskan Native Women and
Men, reported that 4 in 5 Native American women have experienced violence in their lifetime (Rosay, 2016). This would indicate that approximately 80 percent of
women have survived violence, but this reported statistic includes multiple forms of violence beyond simply sexual violence. However, knowing that abuse, especially
abuse as a child, is an indicator of future victimization is important in understanding why Native American women experience sexual violence at such high rates.

Physical and psychological aggression against AI/AN women is beyond the scope of this
project but also deserves further investigation. Another factor of interest in violence against American Indian women is who perpetrates these crimes against
them. It has been found that 86 percent of survivors in reported sexual violence cases involving AI/AN women report that their

attackers were non-Native American men (Amnesty International, 2007). In contrast, the majority of instances of sexual violence
reported by other races are committed by perpetrators of their own race (Amnesty International, 2007). More information is needed to better understand if changes in
prosecution of both Native American and non-Native American perpetrator of sexual violence could impact violence against American Indian women. Not only are
AI/AN women being victimized at higher rates in the context of sexual violence, there is another important aspect of the violence against indigenous women in the
United States and surrounding countries. The number of women officially reported missing to authorities or that
are missing but not recorded is troubling. According to the National Crime Information Center, which is a division of the FBI, there were 85,459 active

missing person’s reports at the end of 2018 (NCIC, 2018). During this same year, 9,914 individuals who were classified as the

race ‘Indian’ were included in the report as a missing person (NCIC, 2018). However, this report does not contain
any information about resolved cases by race, therefore no assumptions can be made about the number of active cases that were not investigated further. The issue of
lack of reporting in missing person cases involving AI/AN women has been examined in special reports, like the “Missing and Murdered Indigenous Women & Girls”
report developed by the Urban Indian Health Institute. In this report it was mentioned that the National Crime Information Center reported that there were 5,712
reports of missing AI/AN women and girls in the United States in 2016. However, only 116 of these reports were logged in into NamUs, the US Department of
Justice’s federal missing persons database (Urban Indian Health Institute, 2016). As of January 2020, there are 164 cases of missing AI/AN women that can be
Another environment that is important
accessed on NamUs, which includes six cases originating in South Dakota (NamUS, 2020).

to examine when considering crimes perpetrated against women are those formed by
the introduction of a new industry to a region . Specifically, extractive industries, that is industries that
involve the removal of non-renewable materials (e.g. oil, gas) from the earth, lead to the formation of
temporary communities or “boom towns” that draw large amounts of predominantly
male workers (TIP Office, 2015). Boom towns are often formed in inaccessible or remote areas of the country where enforcement of the law is difficult
(TIP Office, 2015). The influx of male workers and inability to effectively police the area can

create a climate that has a high demand for the sex trade or other violence . For example, the
Bakken formation in North Dakota near the Fort Berthold Indian reservation was discovered in 2010 and produces 1.1 million barrels of oil a day (Finn, Gajda, Perrin,

The rapid development of this oil industry in this area has resulted in a reported 75
Fredericks, 2016).

percent increase in reported sexual assaults perpetrated against women near the Fort Berthold reservation (Finn, et al., 2016).
The prevalence of violence against women in the United States has been shown to be a topic that needs more investigation. Many of the studies referenced in this
chapter did not give a definitive reason for the increased rates of victimization seen in minority women. One survey by the U.S. Department of Justice stated that data
on the victimization of Native Americans is limited and the factors involved in the increased rate of violence could be related to demographics, environment, or social
However, a common thread seen in many reports concerning sexual
influence (Tjaden & Thoennes, 2000).

assault is the stressing of the need for further research into potential causative factors for
the high rates of violence against minority women.
Sexual assault exacerbates colonialism – history proves.
Deer 18 (Sarah Deer is a citizen of the Muscogee (Creek) Nation of Oklahoma and a University
Distinguished Professor at the University of Kansas. She is a co-author of four textbooks on tribal law
and has been published in a wide variety of law journals including the Harvard journal of Law and
Gender and the Yale Journal of Law and Feminism. She was one of the creators of VAWA and TLOA. She
also is a Chief Justice for the Prairie Island Indian Community Court of Appeals, 2018, " RETURN TO
WORCESTER: DOLLAR GENERAL AND THE RESTORATION OF TRIBAL JURISDICTION TO PROTECT NATIVE
WOMEN AND CHILDREN," Harvard Journal of Law and Gender,) https://harvardjlg.com/wp-
content/uploads/sites/19/2018/07/HLG179_crop.pdf)
From its very inception, non-Indian perpetrated violence against Native women has been used purposefully

as a tool to secure the destruction of Tribal Nations . Understanding the connection between
safety for Native women and tribal sovereignty , therefore, highlights the damage caused
by a decision such as Oliphant —a decision that truncates a Tribal Nation’s inherent right to protect
its women and children from the majority of violent assaults perpetrated against them. The
Nation shall be strong so long as the hearts of the women are not on the ground. TSISTSISTAS (CHEYENNE) The connection between safety for
Native women and tribal sovereignty has been articulated in many forms and fashions. Various oral
histories from modern Tribal Nations confirm that respect for women constituted both
tradition and law. 51 It has long been recognized that without women and children , Tribal
Nations would simply cease to exist . As former Eastern Band of Cherokee Indians Secretary of State Terri Henry explains: [S]overeignty
and safety are hand and glove. The sovereignty of Indian Tribes is connected to the safety of Native women. This
connection is the natural relationship of a People to their nation . It is also the natural relationship of a
government to protect and safeguard the lives of its citizens.52 United States government officials have acknowledged the connection between safety for Native
women and children and the preservation—or restoration—of tribal sovereignty.53 For instance, in 2014, former Senator Byron Dorgan, who headed the Attorney
General’s Advisory Committee on American Indian and Alaska Native Children Exposed to Violence, concluded that “[t]here is a vital connection between tribal
sovereignty and protecting [Native] children.”54 Non-governmental organizations have likewise recognized and affirmed the connection between safety for Native
women and children and the restoration of tribal jurisdiction and sovereignty. In 2007, Amnesty International published its report, Maze of Injustice, documenting
the incredibly high rates of violence against Native women in the United States.55 In its report, Amnesty International recognized that “[a]s citizens of particular
Native women are directly linked to the authority
Tribal Nations, the welfare and safety of American Indian and Alaska

and capacity of their nations to address such violence.”56 So long as the inherent
authority of Tribal Nations to prosecute violent crimes remains constrained by the legal
framework the Supreme Court has put in place, the safety of Native women and children
will continue to be diminished. For Tribal Nations, this continued threat to women and
children undermines the survival of their Nations politically, economically, physically, and spiritually. Because the Court’s
decision in Oliphant restricted the right of Tribal Nations to prosecute non-Indians who

commit acts of violence against Native women and children on tribal lands,57 Oliphant
threatens nothing less than the continued existence of Tribal Nations. B. Non-Indian
Perpetuated Violence Was Purposefully Used Against Native Women and Children as
a Form of Colonial Conquest Although Native women and children endure some of the highest
rates of violence, assault, rape, and murder in the United States today,58 these high rates of violence did not form
overnight—or even in the last few decades. Instead, these high rates of violence are centuries
old and trace their origins to the inception of the U nited S tates as a nation and colonial
conqueror. Understanding the violence perpetrated against Native Women in the fifteenth through
nineteenth centuries is critical to understanding the violence that continues today, as well as the full
impact of a legal framework that prohibits Tribal Nations from protecting their women from crimes that
trace their origins to the United States’ colonial conquest. The first non-Indians to arrive on what now
recognized the connection between safety for Native women and
constitutes United States soil

tribal sovereignty , and with this recognition, purposefully used violence against Native women in an
attempt to conquer and destroy Tribal Nations. Europeans targeted Native women for assault
and annihilation from the very early days of contact dating to the late fifteenth century.59 On the second voyage of Columbus ,
Michele de Cuneo, an aristocratic shipmate, boasted of kidnapping, beating, and raping a Carib (Native) woman.60

From that point forward, rape and murder were utilized as two of the primary techniques to

attack and conquer Tribal Nations , and were strategically deployed on a massive scale , coloring
nearly every conflict between Europeans and Native people.61 Following Columbus, the Spanish conquest of North
America was continually marked by sexual violence .62 Historic accounts of DeSoto’s army are brutal and graphic.63 These episodes of massacres

followed by mass rapes are well-documented and widespread.64 In fact, “[m]any Indian women first knew
the white man as a violent creature who killed their men-folk and seized by all force all
young and good-looking females.”65 Non-Indian perpetrated violence against Native
women has constituted a significant threat to tribal sovereignty from its very inception in
part because, prior to colonial contact, it was extremely rare.

The settler state morphed native courts into heteropatriarchal systems – only
sovereignty solves.
Robertson 16 (Kimberly Robertson is an activist and Assistant Professor in Women’s Gender and
Sexuality Studies at UCLA. She is a member of the Muscogee Nation, 2016, "View of The “law and
order” of violence against Native Women: A Native feminist analysis of the Tribal Law and Order Act,
Creative Commons, Volume 5, No.1, pp. 1-23
https://jps.library.utoronto.ca/index.php/des/article/view/22551/19734)
If we return to the jurisdictional structure that I outlined above, we can see the operation of this process. For instance, when PL 280 was passed in the 1950s, the federal government feigned that this was done in response to the
“lawlessness” of American Indian reservations. The legislative history of PL 280 is saturated with characterizations of reservations as “places of rampant crime and disorder” and tribal justice systems were described as “weakened and
ineffectual” (Goldberg-Ambrose, 1997). Similarly, when the Indian Civil Rights Act was passed in 1968, its primary purpose “was to impose the provisions of the Bill of Rights against tribal governments to cure alleged due process
abuses by tribal courts” (Hart, 2010, p. 153). The TLOA replicates this cyclical pattern of: (1) “identifying” unchecked criminal activity in Indian country, (2) citing the weakness and/or dysfunction of tribal criminal justice systems to
explain the crime, (3) further imposing settler colonial models of “law and order” to address the issue, and (4) ultimately causing ever-greater levels of so-called crime. These pieces of legislation rarely acknowledge the role that the

According to historical evidence , Native

settler colonial justice system plays in creating the “lawlessness” it purports to address time and time again.

nations had powerful and effective justice systems prior to colonization (Deer, 2004 , p.
19). It is the settler colonial need to eliminate Native peoples , in any way possible, that
has eroded these systems to such a degree that they barely resemble their prior selves .
An Indigenous feminist analytic unveils the way in which the erosion of tribal sovereignty
and the usurpation of tribal jurisdiction are specifically gendered and sexualized
processes. Deer (2005, 2015) argues that the sovereignty of Native nations is intimately
tied to their ability . In to address sexual violence against Native women fact, she posits,
“were it not for the widespread rape of Native American women, many of our towns, counties, and states
m ight not exist” (2005, p. 459). Centering the heteropatriarchal nature of settler colonialism,
as it manifests in violence against Native women, enables us to consider the particularly
gendered result of the settler state’s investment in maintaining “crime” so that it may
justify jurisdictional encroachment and “continue to make Native women particularly
vulnerable to violence” (Deer, 2004, p. 19). As Native feminist theories have demonstrated, that
Native women (as well as Native queer, Two - Spirit, and gender non - conforming
peoples) have been targeted for violent degradation that results in loss of status and
disempowerment is not coincidental ( Allen, 1986). Pre - contact , Indigenous peoples had complex
structures of kinship and governance wherein which Native women held considerable
social, cultural, political, economic, and spiritual authority (Agtuca, 2008). Thus, their
strong identities and important roles challenged the presumably “natural” and
“superior” hierarchal and oppressive organization of heteropatriarchal settler
colonial nations . To address this challenge, the settler state set about violently
imposing and naturalizing heteropatriarchal logics that disempower Native women
and eliminate Indigenous conceptualizations of gender and kinship.

Native courts reduce violence – empirics and a laundry list of reasons prove
- Localism
- Cultural values
- Accepting of psychological realities
- Removing racism
- Removing sexism
Tamborelli 20 (Deanna Tamborelli is J.D & Graduate in Womn’s Gender & Sexuality Studies at the
University of Boston Law, 11-15-2020, " BEYOND VAWA: LOCALISM AS AN ARGUMENT FOR
FULL TRIBAL CRIMINAL JURISDICTION," Boston University Law Review, Vol. 100
http://www.bu.edu/bulawreview/files/2020/11/TAMBORELLI.pdf)
The federal government’s sweeping jurisdictional control over crimes on tribal lands, and
limited grants of power through VAWA 2013, have reduced the tools that tribal governments have at

their disposal to address criminal activity in their communities. With domestic violence
specifically, this limited toolbox is problematic because it prevents tribal governments from employing the most effective methods of addressing
domestic violence—those rooted in theories of holistic problem-solving through localized and culturally appropriate approaches.
Cabining tribal jurisdiction to a specific list of crimes and specific individuals prevents them from
addressing contributing factors like alcoholism, drug abuse, and related crimes. This
impedes tribal governments’ abilities to adopt the very approach that many social
scientists and feminist scholars see as most effective in combatting domestic violence —
specialized domestic violence courts.123 Instead, as outlined above, most tribes must rely on federal law
enforcement and prosecutors to respond to the majority of domestic violence incidents which occur on their lands. But, the federal
government is not wellequipped to handle these cases.124 As it relates to prevention, intervention, and healing, federal
responses to domestic violence fall short where local responses could excel. Because domestic
violence is cyclical in nature,125 rapid response and intervention at the misdemeanor level can be essential to

ensuring survivor safety by reducing the number and lethality of violent episodes. Additionally, local approaches
better facilitate healing after incidents of domestic violence have occurred because they consider the
cultural and psychological realities of both survivors and offenders.126 Domestic violence is
“intimately connected with broader social structures that implicate all kinds of intersections with class and cultural, as well as gender,
The most effective judicial programs countering domestic violence collaboratively
relations.”127
engage multiple agencies to address “the many mental health and social issues, such as the effects on
family, children, finances, and psychological functioning, that are an integral part of domestic violence.”128 The most effective services for both
survivors and offenders will be those which are culturally appropriate, because they have the dual effects of taking into consideration the
while simultaneously removing fears that individuals will be
background of the individuals being served,129
subject to racism and marginalization at the hands of service providers.130 Failure to attend to
culturally appropriate issues of class and gender relations within communities can have the opposite of the desired effect, perpetuating issues that
Culturally appropriate responses may be
led to domestic violence in the first place rather than reducing them.131
particularly valuable to Native communities who fear loss of their cultural identity.132 While
there are close to 600 federally recognized AI/AN tribes living in more than 300 reservations and Native villages throughout the United States,
each with their own rich cultural history, “respect for the physical integrity of women is not an area where cultural values among tribes differ
significantly.”133 Most, if not all, tribes have deep cultural histories of valuing female members as
complementary equals, whose health and well-being are necessary for the success of the tribe.134 Violence against women is

condemned under such cultural frameworks .135 Using tribal courts or problem-solving fora to resolve
incidents of violence against women empowers tribes to reassert these values while using cultural practices of problem-
solving and community building, thereby strengthening their cultural heritage and rejecting changes imposed
through colonization.136 B. Specialized Domestic Violence Courts Exemplify Success of Localism In an attempt to lower rates of
domestic violence, jurisdictions across the United States have established specialized domestic violence courts.137 From Lexington County in
South Carolina to New York City, these specialized, locally controlled programs allow survivors to access innovative, multiagency justice
collaboratives. The variety in structures and approaches utilized by these courts is one indicia of how state and local criminal apparatuses can
creatively customize responses to the challenge of domestic violence according to their communities’ culture and needs. These examples of what
is possible with full local control over a community’s domestic violence response offer signs of hope.138 Quincy, Massachusetts was one of the
earliest localities to adopt a specialized domestic violence program, and its domestic violence court has seen tremendous success. In
Massachusetts, the number of domestic violence homicides rose from one every twenty-two days in 1986, to one every four days in 1995.139 But
within the jurisdiction of Quincy District Court’s specialized domestic violence program, only one
domestic violence homicide occurred in the sixteen-year period between 1979 and 1995.140 The court’s
success is largely attributed to the coordinated community response, which united efforts at all levels of the
criminal system, including social service providers and drug and alcohol monitoring through the probation office, in the service of survivors and
offenders.141 Unique in its innovative integrated “batterer substance abuse treatment program,” the Dade County, Florida
specialized domestic violence court is another example of success. A 1996 survey found Dade County’s
integrated program to be even more successful than the control group participating in a
standard specialized domestic violence court program in enrolling and retaining participants.142 Furthermore, participants in the
integrated program were found to reoffend against the same victims at a rate half that of
individuals in the control group (6% compared to 14%).143 Specialized domestic violence courts have also been successful in
rural communities. A statistical analysis of the specialized domestic violence program in Lexington County, South Carolina—a majority white,
working-class, rural county of 220,000 residents located in the midlands region of the state144—found that offenders who went through the
specialized domestic violence court process were 50% less likely to reoffend in the eighteen months immediately following their initial arrest.145
While varying in their form and policies, in addition to their geographic locations and the cultures of the communities they serve, the successes of
these programs indicate that localized, integrated, innovative responses hold huge potential for
communities seeking to reduce incidents of domestic violence. Unfortunately, for thirty-five years tribal
communities were not able to benefit from these innovations in domestic violence response because the lack of jurisdiction sidelined tribes from
prosecuting perpetrators.146 C. Tribes are Inherently Local in Their Responsiveness to Community Needs If localism is the best response to
domestic violence, it is worth asking, are tribes local? This Note argues that tribes should have criminal jurisdiction on par with states and local
municipalities because the practical ways in which tribes are similar to smaller governing entities are precisely those characteristics that make
local governments better suited to respond to violence in their communities. However, there are many ways in which tribal communities are
distinct from states or municipalities. Tribes are considered “domestic dependent nations,” residing somewhere between the status of a state and
that of a foreign nation.147 Like states, they have recognized inherent sovereignty.148 However, unlike state sovereignty, which is
constitutionally guaranteed, tribal sovereignty is “of a unique and limited character[, existing] only at the sufferance of Congress and is subject to
complete defeasance.”149 Additionally, tribes are said to have a special “trust relationship” with the federal government, in which the federal
government has a fiduciary—and possibly moral—duty to tribal communities.150 Finally, unlike states, tribes are also national in nature. When
tribal governments interact with the federal government of the United States, they do so via a unique nation-to-nation relationship.151 Despite
these differences, modern tribal governments parallel their state counterparts in many ways.152 While the structures of tribal governments vary
greatly, most share common characteristics with state governments. Tribes typically have an elected legislative body, often called a “tribal
council,” and an executive officer, called a “tribal chairman,” “president,” “governor,” or “chief,” both of which typically govern according to a
written constitution or code.153 In terms of size, the largest tribal Nations are similar to small-to-medium-sized states, while smaller tribes have
reservations that are similar in size to counties or even individual cities and towns.154 Furthermore, tribal governments serve many of the same
functions as their state and local government counterparts. Tribal governments are responsible for many of the governmental powers typically left
to states, including “education, law enforcement, judicial systems, health care, environmental protection, natural resource management, and the
development and maintenance of basic infrastructure such as housing, roads, bridges, sewers, public buildings, telecommunications, broadband
and electrical services, and solid waste treatment and disposal.”155 Tribes, like states, receive financial assistance from the federal government in
the areas of “health care, education, housing, economic development, and agricultural assistance.”156 The federal government has recognized
this local government-like responsibility of tribes for over a century.157 The structure, size, and responsibilities of tribal governments, all similar
to that of states or municipalities, enable tribes to be much more accountable to their communities than the federal government has been. Further,
although federal agencies are required to consult with tribes in the manner of governmentto-government,158 there is no direct representation of
tribal nations in federal legislative bodies. In the entire history of the United States, there have been only twenty-three members of Congress with
documented tribal ancestry or affiliation, with two women becoming the first female AI/ANs elected to Congress in November 2018.159 Without
their own elected representatives in the national government, tribes must rely on their state’s members of Congress to represent their interests at
the national level. There may be little incentive for these representatives to consider tribal interests because, even in the states in which AI/ANs
Tribal governments and law enforcement , as
are most numerous, they make up less than 16% of the population.160

inherently local in nature, are therefore in the best position to respond to the epidemic of domestic

violence occurring in their communities. The similarities between tribal governments and those of state and local
municipalities are strong indicators that tribal governments should have criminal jurisdiction over all crimes committed in their territories, just as
states do. There is no obvious reason why the general contours of power in the criminal system should not be the same throughout the United
States.161 Since local prosecutorial districts have the power to set priorities and develop programs aimed at reducing violence in their
communities, such as the specialized domestic violence courts discussed above, tribes should have similar controls and powers over the
Reauthorizing full tribal criminal jurisdiction is the
administration of criminal adjudications on their lands.

first step in empowering tribes to respond to the crisis of domestic violence in their
communities in a way that works for their unique needs. The early successes of expanded tribal
jurisdiction through the SDVCJ program are a strong indication of the power of localism to reduce
violence on tribal lands.
VAWA thumps all DA’s and proves that tribal courts are best – gave jurisdiction
against domestic abusers.
NCAI 18 (National Congress of American Indians is a 501©(4) nonprofit social welfare organization
made up of American Indian and Alaska Native tribal governments that was founded to resist federal
government pressure for termination of tribal rights, 03-20-2018, " VAWA 2013’s Special Domestic
Violence Criminal Jurisdiction (SDVCJ) Five-Year Report," National Congress of American Indians,
https://www.ncai.org/resources/ncai-publications/SDVCJ_5_Year_Report.pdf) *Change for readability
denoted in []
VAWA 2013’s limited reaffirmation of [reaffirmed] inherent tribal criminal jurisdiction over
non-Indians, known as Special Domestic Violence Criminal Jurisdiction (SDVCJ), has
fundamentally changed the landscape of tribal criminal jurisdiction in the modern era . By exercising SDVCJ, many

communities have increased safety and justice for victims who had previously seen little of either. SDVCJ has allowed tribes to

“ respond to long-time abusers who previously had evaded justice ” 5 and has given a ray of hope to
victims and communities that safety can be restored. To date, 18 tribes are known to be exercising SDVCJ (throughout this report these tribes are
referred to collectively as “implementing tribes”). ii Tribes are implementing SDVCJ with careful attention to the requirements of federal law and
in a manner that upholds the rights of defendants. In order to exercise SDVCJ, tribes must comply with a series of federal statutory requirements
that include, among other things, providing certain due process protections to non-Indian defendants. 6 Most of these implementing tribes have
worked closely with a group of over 50 other tribes as part of an Inter-tribal Technical-Assistance Working Group (ITWG) on SDVCJ that has
the implementing tribes
been an important forum for tribal governments to work collaboratively to develop best practices. To date,

report 143 arrests of 128 non-Indian abusers . These arrests ultimately led to 74
convictions, 5 acquittals, and 24 cases currently pending. There has not been a single petition for habeas
corpus review brought in federal court in an SDVCJ case. Although preliminary, the absence of habeas petitions suggests the fairness of tribal
Implementation of SDVCJ has had other positive
courts and the care with which tribes are implementing SDVCJ.

outcomes as well . For many tribes, it has led to much-needed community conversations
about domestic violence. For others it has provided an impetus to more comprehensively
update tribal criminal codes. Bipartisan
 Scenario 2: Environmental Damage
The federal government is allowing environmental destruction on tribal lands –
jurisdiction is key to prevent that.
Kronk 17 (Elizabeth Ann Kronk is an enrolled member of the Sault Ste. Marie Tribe of Chippewa
Indians in Michigan and serves as secretary of the FBA Indian Law Section. She also is an assistant
professor of law at the University of Montana School of Law, 2017," Returning to the Tribal
Environmental "Laboratory": An Examination of Environmental Enforcement Techniques in Indian
Country," Michigan Journal of Environmental and Administrative Law, Volume 6, Issue 2
https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1062&context=mjeal)
The environment is the most valuable resource available to mankind , and its exploitation has the
potential to be devastating to humanity. Recognizing this interconnection, many governments across the globe actively engage in regulation of
the environment. All three sovereigns located within the United States—the federal government, states, and tribes—have recognized this
interconnection and are engaged in efforts at various levels to effectively regulate the environment and deter polluters from releasing too many
Regulatory initiatives, however, are not enough to accomplish the goal
pollutants into the environment.
of protecting the environment. Enforcement measures must be enacted to prevent unwanted pollution. Much has been written
on environmental enforcement at the federal and state levels,1 but little has been said regarding environmental enforcement methods used by
tribes. Given that there are 567 federally recognized tribes2 and approximately 56.2 million acres held in trust for tribes in the United States,3
such oversight is significant. This Article seeks to fill the scholarly void by providing a descriptive discussion of the types of environmental
enforcement methods used by federally recognized tribes within the United States. Beyond a simple scholarly exercise, examining tribal
From a tribal perspective, it is valuable so that tribes may
environmental law is helpful for many reasons.
glean important information following review of how other tribes are developing their
environmental law. There are 567 federally-recognized tribes within the United States,4 which means that there may be a lot of tribes
experimenting with the development of tribal environmental law and others that are looking for examples of how tribes have implemented such
laws. Further, adoption and adaption of tribal environmental law can be a strong expression of tribal sovereignty. The existence of
tribal sovereignty allows tribes to enact laws and be governed by them.5 The
development and enactment of laws are fundamental expressions of sovereignty .6
Enacting any tribal law, therefore, would buttress tribal sovereignty. Finally, in addition to being expressions of tribal sovereignty, adoption

and adaptation of tribal environmental law may be particularly important for tribes
with cultural and spiritual connections to their environment and land .7 Although
certainly not always the case , native cultures and traditions are often tied to the
environment and land in a manner that traditionally differs from that of the dominant
society.8 For a variety of reasons, including legal, cultural and spiritual reasons, many tribal nations are “landbased.”9 Accordingly, for
tribes with connections to the land and environment, enacting tribal environmental laws (and learning from the experiments of other tribes) may
be especially helpful. Other sovereigns—states and the federal government—also benefit from our exploration of tribal environmental law.
Previously, the federal government engaged in significant experimentation related to environmental law. The period between 1969 and 1980 is
often referred to as “the environmental decade”; it was a time of tremendous federal innovation in the field of environmental law.10 During the
environmental decade, the federal government expanded environmental regulations, passing numerous environmental statutes such as the Clean
Water Act (CWA), Clean Air Act (CAA), and National Environmental Policy Act (NEPA).11 Since 1988, however, “there
has been little innovation in environmental programs,” especially at the federal level.12
Congress has only innovated in a few areas since the late 1980s, such as with the CAA amendments of the
1990s and hazardous waste and oil spill laws.13 Despite a demonstrated capacity for innovation in the field of environmental law, the
federal government has largely ceased such efforts for the past couple of decades. This
reduction in federal innovation is problematic given the emergence of new
environmental challenges that current federal environmental laws are not equipped to adequately address. Such challenging
contemporary environmental problems include, “climate change and associated greenhouse gases , environmental
inequities , ongoing struggles to clean America’s many areas plagued by degraded
rivers and substandard air quality , as well as widespread failure to enforce existing
laws. ” 14 Many existing federal environmental regulations are not properly designed to handle the nuanced environmental challenges of the
current era, given the segmented approach of federal environmental laws.15 As a result, “[m]ulti-media, multi-jurisdiction

problems strain the limits of the existing statutes ” because the federal statutes tend to
focus on only one resource. 16 Not only is the federal government failing to innovate in the area of environmental law, but the
existing environmental statutory structure is ill-positioned to address many of the modern environmental challenges. Given the modern realities,
the federal regulatory vacuum creates a need for increased environmental legal experimentation to address this ongoing harm. And states and
local governments are indeed experimenting with environmental law, developing “creative local and regional ad hoc environmental conservation
and ecosystem restoration experiments.”17 As a result, not only can the federal government learn from tribal environmental experimentation, but
states may also be well positioned to learn from and adopt strategies developed by tribes. For example, this Article demonstrates how some tribes
are experimenting with new ways of environmental enforcement outside of application of federal environmental law. Past articles have
demonstrated evidence of such tribal ingenuity outside of the enforcement context, such as in the development of tribal water codes to protect
cultural resources, and tribal climate adaptation plans.18 Tribal, federal, and state policy makers all benefit from examination of tribal
environmental law. Consideration of tribal environmental law is especially valuable because tribes are uniquely situated to engage in meaningful
greater diversity exists between tribal governments than between state
experimentation. First,

governments. The political structure of most states is nearly identical.19 Conversely, the political
structures of tribal governments can vary significantly, from theocracies to systems utilizing three branches of government, similar to the federal
system.20 Unlike the United States, which is “a heavily homogenized culture with high levels of normative consensus,”21 real variety
exists within tribal political structures . Tribes may also be more motivated to innovate and experiment with
environmental law given factors potentially driving tribes that do not have the same impact on states. Although certainly not true in every
instance,22 many tribes and individual Indians possess a strong connection to land and the environment for legal, cultural, and potentially
spiritual reasons, as mentioned above. Because of tribal heterogeneity and the strong connections to land and environment for many tribes, tribal
governments may be particularly well suited to experiment with tribal environmental law.23 This Article fills the existing scholarly void by
effective regulation of any
reviewing tribal environmental enforcement provisions.24 As mentioned above,

environment cannot occur without enforcement provisions , so it is helpful to look

closely at how tribes are enforcing environmental laws within tribal communities. To do this,
Part II of this Article introduces both environmental law generally applicable in Indian country, and the importance of effective enforcement.

Jurisdiction is key to enforce environmental laws – empirics prove.

Kronk 17 (Elizabeth Ann Kronk is an enrolled member of the Sault Ste. Marie Tribe of Chippewa
Indians in Michgian and serves as secretary of the FBA Indian Law Section. She also is an assistant
professor of law at the University of Montana School of Law, 2017," Returning to the Tribal
Environmental "Laboratory": An Examination of Environmental Enforcement Techniques in Indian
Country," Michigan Journal of Environmental and Administrative Law, Volume 6, Issue 2
https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1062&context=mjeal)
Having a general idea of the scope of environmental law applicable in Indian country, this subpart turns to a general discussion of the need for
effective enforcement of environmental provisions. As mentioned above, this Article is the fourth in a series of articles examining tribal
environmental law.67 Previous articles examined the scope of tribal environmental laws and the different types of laws being enacted by tribes
within the boundaries of Arizona, Montana, New York, and Oklahoma. This Article continues the tradition of focusing on federally recognized
tribes within these four states, but diverges from previous articles by examining the type of environmental enforcement provisions being used by
environmental law applicable to Indian country is not enough before
these tribes. As such, a general introduction to
launching into a discussion of such enforcement provisions; it is also necessary to discuss
the necessity of effective enforcement provisions . In addition to generally discussing environmental enforcement,
this subpart offers some insights into how tribal environmental enforcement may necessarily diverge from enforcement schemes used by other
The United States has been actively engaged in regulating the
sovereigns, such as the federal government.
environment since the late 1960s, and it is helpful to examine the evolution of federal environmental enforcement.68 Civil
fines and penalties have played an important role in the environmental enforcement

mechanisms used by the federal government. Initially, the civil fines and penalties were
 relatively insignificant .69 However, the federal government learned that relatively slight
penalties yielded ineffective enforcement , because many regulated industries would
prefer to pay a low fine than comply .70 In response, the federal government adopted stronger enforcement mechanisms
in order to increase compliance.71 Congress increased the complexity of the environmental regulatory
scheme and escalated some environmental crimes from misdemeanors to felonies.72 Further, the EPA increased
the number of its investigators and the Department of Justice (DOJ) created an Environmental Crimes Section.73 In making these changes, the
federal government acted on the theory that environmental compliance would only come with harsher potential sanctions, and sanctions that
the DOJ saw substantial increases
punished individual corporate officials rather than only the company itself.74 As a result,

in both the number of fines assessed and number of prison sentences for defendants in cases involving
environmental crimes.75 Although the appropriate “mix” of enforcement options may be a constant work in progress, the federal
government has come to rely on a combination of criminal offenses and civil fines to enforce its environmental laws. As discussed below, many
tribes may not be able to use
tribes have also developed enforcement systems using criminal penalties, civil fines, or both. Notably,

those penalties with the same latitude that the federal government can. In 1978, the Supreme Court
decided Oliphant v. Suquamish Indian Tribe, holding that tribes had been divested of their
inherent tribal sovereignty over non-Indians.76 At issue were the actions of Mark Oliphant, a non-Indian living as
a permanent resident on the Suquamish Indian Tribe’s Reservation.77 Tribal police arrested and charged Mr. Oliphant for assault on a tribal
officer and resisting arrest.78 Oliphant challenged the Tribe’s exercise of criminal jurisdiction, and won.79 Although criminal jurisdiction over
tribes today do not have criminal
non-Indians has subsequently been restored in very limited circumstances,80
jurisdiction over non Indians violating tribal environmental laws within the tribes’
territories as a result of the Oliphant decision. Accordingly, any criminal enforcement provisions adopted by tribes by
virtue of their tribal inherent sovereignty would be limited to Indians .81 Similarly, tribes may not have as broad civil
environmental enforcement capabilities as the federal government because of the Supreme Court’s decision in Montana v. United States. 82 As
the Montana decision found a general presumption against civil regulatory
discussed above,83
jurisdiction over non-Indians on non-Indian land within Indian country, unless one of the two exceptions applies. If not,
tribes cannot apply civil fines against Non-Indians on non-Indian lands within their territory. As discussed
below,84 many tribes now exercise civil jurisdiction over non-Indians by virtue of the second Montana exception, on the theory that
environmental pollution threatens the health and safety of their communities. So, while tribal enforcement mechanisms may look similar to
limitations exist due to constrain ts on tribal enforcement under
federal enforcement mechanisms,

the Oliphant and Montana decisions. With the necessary background information on the extent of environmental law
applicable in Indian country and the importance of effective enforcement mechanisms in hand, this Part discusses enforcement mechanisms being
used by federally recognized tribes located within the boundaries of Arizona, Montana, New York, and Oklahoma.85 This Part describes
enforcement provisions included in the tribal codes providing insight into the general scope and structure of such mechanisms. To be consistent
with past articles on the topic, this Part is generally limited to enforcement provisions related to the regulation of air, water, and solid waste, with
some helpful commentary also provided. This Part builds on this initial structure by taking a close look at the enforcement mechanisms used by
nine federally-recognized tribes. As a starting point, tribes located within Oklahoma may be more restricted in their
ability to enact laws under TAS status. Specifically, it may be that tribes located within the boundaries of Oklahoma develop fewer
environmental programs under the TAS provisions of various environmental statutes. If true, that is likely a result of the specific provision
requiring that any Indian tribe seeking TAS status must enter into an agreement with the appropriate Oklahoma state agency, and that the tribe
and state agency jointly administer the program requirements.86 This requirement is only applicable to federally recognized tribes located within
Oklahoma. Accordingly, if tribes located within Oklahoma seem to participate in TAS programs under federal environmental statutes at a lower
rate than tribes located within other states, there is a strong possibility that it is because of this requirement to obtain approval from the
appropriate Oklahoma state agency before a TAS application can be approved.87 In addition to enacting tribal code provisions regulating air,
water, and solid waste pollution, some tribes adopted overarching tribal code provisions speaking to environmental quality broadly. For
example , the Cherokee Nation of Oklahoma adopted the Environmental Quality Act
[ EQA ].88 One of the purposes of the Act is to make “pollution unlawful ,”89 and it
contemplates penalties where violations are found .90 The Absentee Shawnee Tribe of
Indians of Oklahoma also has a tribal code provision speaking generally to environmental
protection. Interestingly, the Tribe contemplates assessing monetary penalties against any violators of the Act (up to $5,000 per day for
each day of such violation or continued violation following noncompliance) in addition to any federal penalties that may be applicable.91 Some
tribes have enforcement provisions related to the general maintenance of the environment, in addition to mechanisms
associated with specific resources—such as air and water.

The Seminole Nation proves – authority is key.

Oklahoman Editorial Board 20 (The Oklahoman Editorial Board, 12-17-2020, "Opinion: Fears of
Oklahoma court case's impact being realized," https://oklahoman.com/article/5678532/opinion-fears-of-
oklahoma-court-cases-impact-being-realized)
The hope of state officials was that the tribes would negotiate compacts to resolve jurisdictional disputes over criminal and civil matters, but
progress has been slow. Some tribes, includingthe Seminoles, see that idea as potentially infringing on sovereignty. The Oklahoman’s
Chris Casteel reports that the tribe began telling oil and gas companies recently that they needed a
permit from the Seminole Nation to operate on Seminole land and must pay the tribe an
8% gross production tax if actively producing oil or gas. That tax “would be devastating to Seminole County,”
says state Sen. Zack Taylor, R-Seminole, who is a partner in a family oil and gas company. The head of the Petroleum

Alliance of Oklahoma [PAO] told his members that the tribe doesn’t have the authority
to do what it is seeking, and said the McGirt decision “threatens to undermine the
prosperity of non-Indians and tribal members alike.” A letter from Attorney General
Mike Hunter asks the Seminole Nation to stop sending the notices, saying it has no
authority to levy such a tax . Hunter also said it wasn’t clear whether the tribe was claiming jurisdiction within its historical
boundaries — most of Seminole County — or on land the federal government had taken into trust for the tribe.

Expansion of fossil fuel companies and rapid industrial innovation increases toxic
colonialism.
Fegadel 20 (Averi R. Fegadel is a professor at Arkansas State University, 03-13-2020, "Toxic
Colonialism and Green Victimization of Native Americans: An Examination of the Genocidal Impacts of
Uranium Mining," Proquest,
https://search.proquest.com/openview/4cfd54acf0ea1952198eec82a4b994ea/1?pq-
origsite=gscholar&cbl=18750&diss)
The expansion of the industrial global economy brought a desire for domination of the
natural world, requiring increased raw material inputs and more extraction of raw
materials , resulting in the subsequent expansion of destructive resource extraction industries.
Since tribal lands contain a variety of resources necessary for industrial development, they
are targeted by the government and commercial industries (Gedicks, 1993). As a result, Native
Americans are threatened by the ecologically destructive actions promoted by
multinational corporations (MNC) and governmental attempts to gain access to “cheap” resources
on their lands (Gedicks, 1993, p.15). In addition, native peoples and their lands are destroyed by agricultural expansion. Demands for
food and biofuels (e.g., ethanol; which is mainly derived from corn) continue to intensify as a result of the rapidly increasing human population,
requiring greater areas for cropland – thus,vast tribal lands are desirable for land clearing and cultivation ,
despite encroachment into native grasslands and wetlands. Native Americans rely on land cultivation and agricultural practices for cultural and
economic survival, with more than 200 federally recognized tribes participating in the production of raw agricultural commodities (National
Congress of American Indians). Several studies have shown that agricultural expansion has major adverse environmental impacts (Johnston,
expansion and land clearing threatens
2013; Tilman, 1999; Tilman, Balzer, Hill, & Befort, 2011). For example, cropland
biodiversity, increases soil erosion (which degrades soil quality and pollutes streams), increases the need for
fertilization and the use of pesticides (contributing to groundwater and river pollution), and accounts for about 25%
 These
ofanthropogenic (i.e., human generated) greenhouse gas (GHG) emissions (Johnston, 2013; Tilman, 1999; Tilman et al., 2011).
adverse environmental implications are increased for Native Americans whose traditional
lifestyle is intertwined with the environment through several factors such as diet,
health, medicine, and religion. Therefore, it should come as no surprise that environmental
spoliation and its detrimental impact on Native Americans, by way of industrialism and agricultural
expansion, are driven by capitalism. Here, the excessive consumption and pollution of

natural resources results in disruptions of the ecosystem and its ability to properly regenerate, culminating in
an outcome known as ecological disorganization (Lynch, Long, Stretesky, & Barrett, 2019; Schnaiberg, 1980). The term ecological
the negative cumulative impacts of an expanding capitalist
disorganization is employed to describe

treadmill of production (Schnaiberg, 1980). In addition, actions that contribute to ecological

disorganization have been identified as part of the metabolic rift (Foster, 2011; Foster, Clark, & York, 2011), where nature is
dominated by humans, and the constant exploitation of nature disrupts the natural processes of the

ecosystem . The expansion of the capitalist economy generates unnecessary and excessive
ecological disorganization and consumption that coexists with and contributes to the
division between social classes (Foster et al., 2011). To be clear, capitalism also produces a social rift,
where the domination of human being by human being is based on societal divisions of
class, inequality, and acquisition, which is reinforced by the exploitation of Nature (Foster et al.,
2011). As Foster (1999; 2000; 2005; 2012) has argued, neither human labor nor the labor of Nature can be exploited without both being exploited
simultaneously. As Foster demonstrated in his various works, to exploit labor, capitalism must exploit Nature in order to obtain the raw materials
required for production. At the same time, those raw materials cannot be extractedfrom Nature without the application of labor. Drawing from
Marx, Foster argued that the cojoined exploitation of Nature and labor is enabled by unequal ownership of the means of production. It is also
transformed into differential access to Nature through the product of laws regulating the ownership of, and access to Nature. Finally, the
exploitation of labor and Nature are linked through the (re)organization of work. Technological innovations that speed
up the work process increased the amount of labor performed in a period during which labor has been purchased, and the amount of
labor applied to the extraction of resources from Nature. In this way, intensifying labor increased its exploitation, and intensified
labor also accelerates the degree to which Nature can be exploited. Given the historical
discrimination against Native Americans, it is evident that they have faced a variety of
forms of social, political, and economic inequality. Unfortunately, Native Americans continue to
endure unequal and unjust treatment due to the interplay of poverty and race. Native Americans are
the poorest racial group. According to the U.S. Census Bureau (2016), over 40% of Native Americans live below the poverty threshold. Further,
26.2% of single-race American Indian/Alaska Native (AIAN) people were in poverty in 2016; the highest rate of any race group and almost twice
that of the nation as a whole (14.0%, respectively) (U.S. Census Bureau, 2016). Poverty increases their vulnerability to environmental racism,
which occurs when the poor and people of color endure the burdens of environmental degradation and the nation’s pollution problem (Chavis &
environmental racism includes
Lee, 1987; Pellow, Weinberg, & Schnaiberg, 2001; Steady, 2009). In addition,
discrimination in the application of environmental laws, practices, and policies by inducing
several concepts (Steady, 2009). For example, human rights violations, social injustice and inequality, and the ideology of
“structuralexpendability” – or the idea that some groups are expendable – are fostered by environmental racism (Steady, 2009, p. 48). This
problem of environmental racism perpetuates social and environmental inequality by deliberately targeting the poor or people of color, as
evidenced by waste disposal sites and transportation routes in these communities (Steady, 2009). The disproportionate exposure of Native
Americans to toxins is the result of the historical efforts to eradicate Native Americans (i.e., genocide) and its intersections with social, political,
and economic factors that influence the production, consumption, and distribution of natural resources. A 1987 study on toxic waste and race in
the United States found that 50% of Native Americans lived in communities with one or more uncontrolled toxic waste sites (Chavis & Lee,
1987; Reed, 2009). As of 2018, 1,972 of the 21,557 reporting facilities included in the Environmental Protection Agency’s (EPA) Toxic Release
Inventory (TRI) were located on or within 10 miles of tribal land (EPA, 2019). Six of these facilities were located on the list of top 100 facilities
for total on- and off-site disposal or other releases (in pounds), and all six facilities were within the top 50 (EPA, 2019). In addition,
approximately 40% of the 1,300+ Superfund sites – the most serious toxic waste sites – were located on tribal land (EPA, 2018b). While a large
percent of Superfund sites is located on tribal lands, Native American reservations comprise only about 2.3% of total U.S. land area. On its face,
this unequal distribution would seem to suggest some level of bias in the location of Superfund sites and hazardous activities in the U.S. that
adversely impact Native Americans. Uranium mining operations in the Southwest U.S. also have implications for
Native American health and well-being. Over 90% of the uranium mines and mills that ever
existed in the U.S. were located on or near tribal lands (Lewis, Hoover, & MacKenzie, 2017). Although the location of
uranium mines was determined by geological indicators, the failure to clean upabandoned mines after decades since their last use is indicative of
there are currently over 500 abandoned uranium mines (AUM)
environmental injustice. For example,
located on Navajo Nation that have yet to be cleaned up because the government continues to ignore protests and legal claims
regarding contamination from the AUM (EPA, 2017). Further, the siting of uranium processing facilities (mills), waste disposal sites, and
transportation routes are less determined by geological factors than mine siting, yet the location choices in relation to Tribal communities seem to
it can be argued that uranium mining is a form of toxic
be determined by social and economic factors. Here,

colonialism in the U.S. and has genocidal impacts for Native Americans . As previously
mentioned, a traditional Native American lifestyle is intertwined with the environment through
several factors. It is therefore possible that their traditional lifestyle puts them at a higher
risk of exposure to toxins compared to those with non-traditional lifestyles under certain
circumstances (i.e., through subsistence hunting and fishing on polluted lands; Harris & Harper, 2001). Several additional routes of
exposure include older housing on reservations (lead-based paints), mining sediments or tailings on or within close proximity of native lands
Environmental justice
(sediments in land and waterways), and soil, wild game and fish contamination (Harris & Harper, 2001).
attempts to address environmental issues faced by minority groups by shedding light on
environmental conservation and protection, as well as environmental connections to
human rights violations associated with unequal exposure to environmental hazards.
Environmental justice materialized as a social movement in the 1980s in the United States, calling attention to the disproportionate and/or
deliberate exposure of minority groups to unequal environmental quality in their communities and the exclusion of minority groups
inenvironmental decision-making (Bullard, 1993; Steady, 2009; Lynch & Stretesky, 2012). For example, several studies have demonstrated
the link between the distributions of hazardous waste facilities/dumping sites and minority communities (see Barrett, 2013; Boone & Fragkias,
2013; Bullard, 1993; Bullard, Mohai, Saha, & Wright, 2007; Lynch & Stretesky, 2012; Malcoe, Lynch, Kegler, & Skaggs, 2002; Pellow et al,
2001; Reed 2009; Steady, 2009). In other words, this literature suggests that poor people and racial/ethnic minority groups are more likely to live
in communities infected by adverse environmental conditions due to capitalist and colonial neglect for human beings and the environment at the
hands of multinational corporations (MNC). While the field of criminology has delved into environmental justice issues in black communities
through the exploration of urban exposure to toxins (see Ash, Boyce, Chang, & Scharber, 2013; Barrett, 2013; 2017; Lersch & Hart, 2014;
it has failed to expand this research orientation to examine
Stretesky & Lynch, 1998; 1999; 2004),

issues affecting peoples in different locations, which in the U.S. draws attention to
environmental harms experienced by Native Americans.
Plan
 1AC – Ptext – T-Sentencing
The United States federal government should enact substantial criminal justice
reform in policing and sentencing of felonies by reaffirming tribal criminal
jurisdiction on reservations over non-natives.
 1AC – Ptext – No T-Sentencing
The United States federal government should enact substantial criminal justice
reform in policing and sentencing by amending section 1301(2) of the Indian Civil
Rights Act to replace “all Indians” with “all persons and for any crime committed in
Indian Country” and to delete all language in section 1302(7) after “cruel and
unusual punishments.”
 Solvency
Second is solvency—

The plan solves – empirically proven with the Duro Fix. It would be a functional
overturning of Oliphant which was a statutory interpretation OF the ICRA.
Pisarello 10 (Laura E. Pisarello is an Attorney Advisor for the United States Tax court, 2010, "Lawless
By Design: Jurisdiction, Gender and Justice in Indian Country," Emory Law Scholarly Commons,
https://scholarlycommons.law.emory.edu/elj/vol59/iss6/4/)
Federal and state law enforcement have not and cannot adequately combat crime in
Indian Country. Thus, Congress should amend the I ndian C ivil R ights A ct and return to
the tribes their inherent sovereign power 163 to try all crimes and convict non-Indians.
In other contexts, Congress has countermanded Supreme Court decisions by passing
ameliorative legislation. 164 This has already proven to be a successful strategy in the
area of tribal criminal jurisdiction . 165 When the Supreme Court held in Duro that
tribes had no jurisdiction over nonmember Indians, Congress reacted by amending the
ICRA 166 and extending inherent tribal jurisdiction over nonmember Indians . 167 A similar
statute could “overturn” Oliphant and extend jurisdiction over non-Indians. Additionally, Congress
should address statutory sentencing limits and ambiguous provisions that suggest
crime-specific tribal jurisdiction. The most efficient way to accomplish these goals would
be to further amend the ICRA. Currently, the relevant portion of the statute reads as
follows: “[P]owers of self-government” means and includes . . . the inherent power of
Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all
Indians . 168 No Indian tribe . . . shall . . . inflict cruel and unusual punishments, and in
no event impose for conviction of any one offense any penalty or punishment greater
than imprisonment for a term of one year and [1] a fine of $5,000, or both. 169 Instead,
an amended ICRA could provide: “[P]owers of self-government” means and includes . . .
the inherent power of Indian tribes, hereby recognized and affirmed, to exercise
criminal jurisdiction over all persons and for any crime committed in Indian Country .

Unconditional amendment of ICRA is key to solve – anything else reinscribes colonial

power relations by making the tribes dependent on the USFG.
Kronk 07 (Elizabeth Ann Kronk is an enrolled member of the Sault Ste. Marie Tribe of Chippewa
Indians in Michigan and serves as secretary of the FBA Indian Law Section. She also is an assistant
professor of law at the University of Montana School of Law, March/April 2007, "Counterpoint-
Promoting Tribal Self-determination in a Post-Oliphant World: ...: EBSCOhost, The Federal Lawyer,)
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2167437
A congressional repeal of Oliphant without conditions or waivers of sovereign immunity is
consistent with self-determination . A long-term solution to the problems laid out in Eid's article
involves more than transforming tribal courts into agents, of state and federal courts.
Congress intended for tribal courts to develop their own systems, restrained by a minimum
of civil rights, when it passed the Indian Civil Rights Act. Unacceptable errors can be corrected by habeas review. Eid
suggests that habeas corpus relief from tribal court decisions would not be sufficient without the conditions he proposes, The reality of
practice, however, seems to suggest otherwise, as very few habeas petitions, from tribal court convictions-are filed every year. According to
Professor Matthew L. M. Fletcher, in the past 59 years, there has been less than one petition per year for habeas review of a tribal court
decision. Moreover, the executive and legislative branches of the federal government support tribal self-determination. On Sept. 23, 2004;
President George W. Bush released a memorandum articulating the. administrations commitment to the policy of tribal self-determination,
(FN1) The President's memorandum was merely the reiteration of a long-standing federal government policy of respecting tribal sovereignty

congressional legislation has consistently:

and promoting tribal sell-determination. Furthermore,

supported and articulated, the policy of tribal self-determmation .(FN2) Troy Eid's proposed remedy
also runs afoul of the principles of cooperation and mutual respect that were articulated at the Federal Bar
Association's 31st Annual Indian Law Conference held in Albuquerque. N.M., on April 7, 2006. At the conference, Clinstopher Chaney deputy
director of the Office of Law Enforcement Services at the Bureau of Indian Affairs; Matthew Mead, U.S. attorney for the District of Wyoming;
and Willie Noseep, a member of the Eastern Shoshone Business Council, discussed how federal government, state and local officials, and tribes
worked cooperatively. to dismantle substantial drug trafficking organizations. (See the discussion of Jesus Sagaste-Cruz in the accompanying
case study on the use of methamphetamines in Indian country:) Successes, such
as those presented at the recent Indian
Law Conference, show that tribal governments can work cooperatively with outside law enforcement
officials Without the need-to apply Western norms of criminal justice to tribes in a
unilateral manner. Accordingly, given the federal government's policy of promoting tribal self-
determination, suggestions--such as those made by Eid requiring tribes to conform to
Western norms of criminal justice--are misplaced . Congress has recognized that the policy
of tribal self-determination has been successful in promoting progress in Indian-
country .(FN3) Therefore, it would not seem prudent to abandon this policy now. Also, some tribes have,
as a sovereign and Selective choice, taken
steps to address some of the concerns raised by Eid; therefore, a
conditional, repeal of Oliphant is not Necessary . For example, § 7 of the Nyvajo Nation's Bill of Rights guarantees the right to
counsel, which has been recognized by the Navajo Supreme Court.(FN4) In fact, many tribal courts require more
protections from criminal procedures than federal or state courts ever did .(FN5) Tribal
judges have traditionally been, more empathetic to defendants and have understood, what
works and what does not work on the grounds of tribal justice. Moreover, There is evidence that
Western norms of criminal justice may not even be effective in Indian country . "Though
Congress has often justified imposition of the federal criminal justice system in Indian country on the
theory that federal laws are necessary to protect public safety, numerous statistical surveys suggest that
the federal Indian country criminal justice regime has not achieved any such purpose."( FN6) The
ineffectiveness of Western norms of criminal-justice in Indian country may be the result of divergent-additions. For example, according to one

analyst, "State and federal enforcement come from a long history and practice of coercing
confessions from suspects Cone of the reasons to guarantee an attorney and a jury of peers ) that is missing
from most [t]ribes."(FN7) In fact, asserting Western norms of criminal justice may actually stifle the development of more effective tribal
solutions to crime in Indian country by precluding tribes from creating models that more effectively incorporate their own tribal traditions. For

the Navajo Nation has developed a culturally sensitive model to address problems
example;

on the Navajo Nation Reservation, the largest Indian reservation in the United States. After the Western
police model that relied on power , force, and authority failed -- partly because of the alien
nature of that model -- the Navajo Nation developed a system of justice " based upon
discussion , consensus , relative need; and healing It is "restorative justice, which puts people in
good relations with each other, and in continuing relationships. The Navajo system is 'horizontal'
or egalitarian law." (FN8) The Navajo Nations new model of restorative justice has succeeded where the Western model failed.
Tribal norms of criminal justice, such as the restorative justice practiced by the Navajo Nation, are just as relevant
to non-Indians living in Indian country as they are to Indians. The vast majority of non-Indians over which a tribe would
have jurisdiction following a congressional repeal of Oliphant would be permanent members of the community, riot mere Vacationers. As
members of the tribal community, these non-Indians would have just as strong an interest in the
community's healing process as would Indian members of the community. Moreover, just as Indians
should be willing to accept Western norms of criminal justice when they are outside Indian country, so
too should non-Indians be prepared to accept tribal judicial norms when they are in Indian country. Thus,
given that Western norms of criminal justice have failed in Indian country and tribes have
Successfullydeveloped effective means of enforcement ; Congress should repeal Oliphant
without conditions , such as those suggested by Eid, that run afoul of the policy of self-determination
and would, in effect, make tribes agents of the federal government. An alternative post-Oliphant
solution that furthers the policy of self-determination would be an amendment to 25
U.S.C. § 1301(2) recognizing tribal jurisdiction over "all persons ." This proposed solution offers
multiple benefits: Unconditional congressional repeal of Oliphant increases tribal self-

determination, breaks down a significant hurdle to effective law enforcement in Indian country, and
will "help relieve burdened sheriffs offices that are currently primarily responsible for: policing non-Indian misdemeanants in Indian
country."(FN9)

Native Self-Determination comes first – disempowerment traps indigenous folk into

subordination and cascading negative health outcomes
Murphy 14 (Michael Murphy is a Professor in the Political Science Program and an Adjunct Professor
in the Natural Resources and Environmental Sciences Program at UNBC. From 2006 to 2015
he held the Canada Research Chair in Comparative Indigenous-State Relations," E-international
Relations, http://www.e-ir.info/wp-content/uploads/2014/05/Restoring-Indigenous-Self-Determination-E-
IR.pdf)
when people lack autonomy —when
The basic message that emerges from both of these research programs is that

rather than feeling in control of their own lives, people instead feel that they are being
controlled or dominated by others or by their social, economic, or political circumstances —their
mental and physical health tends to deteriorate , and for those who feel the least autonomous, the outcomes
are generally the worst (Marmot 2007: 1155–6; Ryan and Deci 2011: 59; Deci and Ryan 2012b: 85, 100–1). It should therefore come as no
surprise that indigenous peoples, who are amongst the most socio-economically marginalized and politically disempowered
peoples in the world, also have some of the worst health outcomes . And not only do indigenous people

suffer from the same mental and physical ailments the foregoing theories would lead us to anticipate, they suffer, and die, from them

disproportionately in comparison with the relatively more empowered non-indigenous

populations with whom they co-exist (see, e.g. Marmot 2005: 1100–1). The ongoing denial of indigenous
self-determination would therefore appear to be doubly destructive of indigenous health. It
inflicts its damage, first of all, by eliciting feelings of anger , resentment , injustice , hopelessness , and

despair that are the triggers for chronic stress and the negative health behaviors that
prevail amongst those seeking to cope with chronic stress ; and second of all, by maintaining
indigenous peoples in a condition of domination and subordination , thereby denying them
the most fundamentally important political means of satisfying their basic
psychological need for autonomy .

Court action causes judicial subjectivism because of arbitrariness in law and

complexity pertaining to jurisdiction
Faz 20 (Micheal Faz is a J.D Candidate at University of Nebraska college of Law and had assistance
from Mallory Rechtenbach who is a first amendment fellow at the Institute of Free Speech, 05-21-2020, "
Conquering a Legislative Court: Murphy and an Opportunity for Clarity in Indian Country," University of
Nebraska Law Review, https://lawreview.unl.edu/downloads/Conquering%20a%20Legislative%20Court
%20by%20Michael%20Faz.pdf)
The judiciary’s role is to apply the law as written by Congress and interpreted by
higher courts . Accordingly, the Tenth Circuit’s decision was correct under the common law
principle of stare decisis. Under this principle, courts must follow earlier judicial decisions of higher
courts covering their jurisdiction when the same point arises in later litigation—even if
they disagree with that decision. 189 The Tenth Circuit’s decision adhered to Solem and Parker. Solem compelled the Tenth Circuit to follow its framework.
The court, therefore, must analyze the statutory text, surrounding circumstances , and, to a lesser
extent, the subsequent developments of the disputed land.190 The Tenth Circuit did just that. In conducting their analysis, the panel properly and extensively applied Solem to the facts. During
oral arguments, the panel asked if the State could provide specific language showing congressional intent to diminish the Creek reservation.191 The State replied that “[o]ther than the entire
context of what happened,” they could not.192 The State, however, continued to argue that based upon the context of the several statutes, Congress disestablished the Creek reservation.193 Such

Parker shows that, under the first factor, a court analyzes the text of a
“context” based argument is unavailing.

statute, not its context, but the words itself .194 An intent to diminish must be clear.195 Here,
the State did not provide any diminishment language and, therefore, failed the first, and most probative, factor. Under step two, the court committed error. Such error, though, was harmless.196
In stating that “[b]ecause no clear textual evidence shows Congress disestablished the Creek Reservation at step one,” the court incorrectly applied Parker and treated the State’s failure to present
compelling, step-one evidence as dispositive.197 Parker, however, did not declare the first Solem factor as dispositive, but stated that the second factor may show diminishment so long as the
evidence “unequivocally supports a finding that the existing boundaries of the reservation would be diminished.”198 This misapplication of Parker bore little effect on the outcome because the
court continued its analysis and found that “[n]one of the step-two evidence . . . show[ed] unmistakable congressional intent to disestablish the Creek Reservation.”199 Solem’s second factor

An ambiguous record “of subsequent treatment of

requires historical evidence that “unequivocally reveal[s]” congressional intent.200

the disputed land cannot overcome” statutory text that is “devoid of any language
indicative of Congress’ intent to diminish.”201 Thus, the State failed to carry its burden of providing an unambiguous record showing
Congress’s intent to diminish the reservation. Finally, since the State failed to satisfy either the first or second Solem factor, the Tenth Circuit properly applied Parker. Parker is clear in stating
that courts cannot “rel[y] solely on this third consideration to find diminishment.”202 Oklahoma failed to provide evidence showing disestablishment under the first or second Solem factor;

therefore, Oklahoma cannot use the third Solem factor to win. Conclusively, the “panel opinion faithfully applie[d]
Supreme Court precedent” and such “precedent precludes any other outcome.” 203 Oklahoma lacks
jurisdiction and the Eastern District of Oklahoma has jurisdiction. The Creek reservation persists. Overruling Solem in Support of Traditional Means of Statutory Construction. Federal

Indian law is in shambles. Commentators declare that “[m]ore than any other field of
public law, federal Indian law is characterized by doctrinal incoherence and doleful
incident .”204 It is a “rudderless exercise in judicial subjectivism.” 205 Justice Scalia even
described the current state of Indian affairs as not bound by the rule of law , but as a
judicial search “to discern what the current state of affairs ought to be.”206 Solem is no exception.
Murphy provides a starting point for the Court to begin the process of creating coherent
Indian jurisprudence that strictly follows the law passed by the political branches and
allows the Court to remove itself from judicial lawmaking . The Court must extinguish Solem and revert to traditional
canons of statutory construction to determine diminishment and disestablishment for several reasons.207 To begin, Solem’s third factor—subsequent history—is highly controversial and
completely ignores all standards of judicial interpretation and canons of construction. In Parker, the Court was correct in stating that subsequent history is “the least compelling” evidence of
diminishment for “[e]very surplus land Act . . . degraded the ‘Indian character’ of the reservation.”208 Solem’s third factor, though, is a mere ruse to oust tribes from jurisdiction.209
Commentators continually criticize the Court’s continued use of subsequent history to find diminishment.210 The Court itself has repeatedly denounced the use of subsequent history, yet retains
it. In Solem, Justice Thurgood Marshall, writing for a unanimous Court, exclaimed that “[r]esort to subsequent demographic history is, of course, an unorthodox and potentially unreliable method
of statutory interpretation.”211 Accordingly, even the author of Solem denoted the peculiarity of using subsequent history. The use of subsequent history inevitably deals a fatal blow to tribal
rights. By using subsequent history to infer earlier congressional intent, the Court creates a harmful precedent whereby individuals with greater power may oppress more vulnerable individuals.

Chief Justice John Marshal indubitably proclaimed that

Subsequent history will nearly always favor diminishment.212

federal courts are “courts of the conqueror.”213 Using subsequent history as a basis of
statutory interpretation will lead to incorrect rulings and discrimination against the
weaker party—the Indian tribes. Accordingly, Brown v. Board of Education214 is a good example of the dangers of using current demographics and
society’s current state as a means of statutory construction. In the 1950s, the American public largely favored retaining the subservient status of African-Americans.215 It is undisputed that
American society treated African-Americans as lower-class citizens due to the color of their skin. After Brown, views among white-Americans towards blacks altered significantly.216 If Brown
used a standard like Solem’s third factor, the Court would inevitably find that the subsequent history—the continued discrimination after the passage of the multitude of civil rights acts and
constitutional amendments calling for equality—showed that persons of color remained subservient. A Solem-like standard would support retention of Plessy v. Ferguson’s “separate but equal”

By allowing the third factor to persist, the Court allows a

notion. 217 The oppression of minorities would continue.

majority to continually oppress minority rights—a notion antithetical to our democracy.218

Solem’s third factor is harmful to the proper functioning of our judicial system—to ensure equal justice for all. Further, courts continually misapply Solem’s second factor by substituting
executive intent for congressional intent. Solem’s purpose is to discover a congressional intent to diminish a reservation, not executive intent. 219 In Solem, the court used executive materials—a
report—not to support a finding of diminishment, but as a mere statement that Congress did not consider it in its floor debates or legislative reports. 220 The Court did not use executive materials
to evince a congressional intent. The intent of the executive branch does not necessarily reflect the intent of Congress. The Supreme Court’s decisions in Hagen and Yankton Sioux Tribe
exacerbated this issue of confusing congressional and executive intent. In Hagen, the Court used a presidential proclamation coupled with a prior Act of Congress to support a finding of
diminishment—even though Congress intentionally deleted the diminishment language in the new Act.221 Similarly, in Yankton Sioux Tribe, the Court considered negotiations between the
Commissioner of Indian Affairs, an executive branch official, and the Tribe to rule in favor of diminishment. 222 Even in Murphy, the Tenth Circuit considered a 1900 attorney general opinion,
an opinion by the executive branch. 223 Emphatically, executive intent is not always consistent with congressional intent—in some instances, their interests may even conflict. The Court’s usage
of executive materials likely flows from treaty interpretation methods by which the Court attempts to discover congressional and executive intent.224 Surplus lands Acts are not treaties but Acts

The era of Indian U.S. relations governed through treaties (the Treaty Era) is over.
of Congress.

225 Now, Congress governs tribes by legislative enactments. 226 Accordingly, using

executive material to show congressional intent leads the Court to place the will of the
chief executive over the will of the legislature. Such usage gives the executive branch a role in domestic law-making through judicial
subjectivism. 227 This conduct is contrary to the Separation of Power principles inherent in the Constitution.228 Additionally, the use of legislative history to discover intent complicates
diminishment analyses by assuming “that the legislature even had a view on the matter at issue.”229 For example, in Parker, the State “cherry-picked statements by legislators” to evince a
congressional intent to diminish the reservation.230 In this manner, the Court’s quest to discover a unified congressional intent through legislative history opens their decisions to “manipulation

and distortion.”231 Further, “because there are no rules about which categories of statements are
entitled to how much weight , the [legislative] history can be either hewed to as
determinative or disregarded as inconsequential—as the court desires.”232 Legislative
history “increases the scope of manipulated interpretation , making possible some
interpretations that the traditional rules of construction could never plausibly
support.”233 In Murphy, the State relied on the legislative history, or the “context” of the
various statutes. 234 The Tenth Circuit, though, found that the State failed to provide a
specific statute containing diminishment language—even ambiguous language. 235 Courts should not
“inquire what the legislature meant . . . only what the statute means.”236 The idea that legislative reports may present a unified congressional intent is “fantasy.”237 Each

legislator votes on laws for varying reasons—some of which may be directly contrary to
other legislators voting in the same direction. The words of the statute govern, not the
words of the legislature in debate. Here, Oklahoma failed to provide a statute, therefore,
the Creek reservation did not diminish . Allowing a context-based, legislative history argument to prevail would upset separation of power
principles by allowing the Court to make the law through judicial subjectivism238 while giving the legislature a role in interpreting that law. 239 If the Court allows legislative history to
influence its decisions, the Court opens the door to interpreting outlandish remarks made to empty congressional chambers by congressmen attempting to structure future court decisions. This is

impermissible. In the absence of a statute , courts should not rely on legislative materials or the
surrounding circumstances of acts to find diminishment. Congress must be explicit
by the words they enact . Statutory Text Must Control and the Court Must Restore the
Creek Reservation. The Court does not make the law; it interprets the law. 240 In Murphy
and subsequent diminishment cases, the Court should take a straight-forward approach and analyze cases

using traditional canons of construction with consideration to special Indian canons . This
method ensures that judges do not legislate from the bench and the rights and privileges
of the Indian population remain bound by legislative enactment, not judicial
subjectivism . Courts cannot declare laws created on their own volition but are bound to
interpret the laws enacted by the sovereign of the United States: the People . Chief Justice
John Marshall recognized that federal courts are “courts of the conqueror.”241 Public
opinion, acting through Congress, provides some protection for oppressed parties to
assert their rights. Following basic statutory interpretation principles ensures that the
law follows the will of the populace and not the will of a single judge or a panel of
judges appointed by the conquering body . Under traditional canons of construction, the
Court looks to the plain meaning of a statute’s words to determine its applicability.242
Under Indian canons, laws are “interpreted in light of the parties’ intentions, with any
ambiguities resolved in favor of the Indians.”243 Further, “Congress [must] clearly evince an
‘intent . . . to change . . . boundaries’ before diminishment will be found.”244 The Court
may only find such intent through explicit statutory language. 245 Accordingly, “‘[a]scertaining the “intention of the
legislature” . . . boils down to finding the meaning of the words used.’ If courts do otherwise, they engage in policy-based

lawmaking .”246 Allowing courts to engage in lawmaking “run[s] the risk of

perpetuating a history of colonialism that by its nature contradicts democratic
principles .”247 Thus, under the appropriate canons of construction, the Court must apply
the words of a statute with deference to the indigenous tribes . Under this approach,
Murphy is simple. The State failed to provide explicit—or even ambiguous—statutory
language showing Congress diminished the Creek reservation.248 Accordingly, the Supreme Court
must apply the law—in this case, the absence of law—and rule in favor of Murphy and
the Creek Nation. The State cannot prevail. Even under this analysis, Oklahoma lacks jurisdiction and the federal courts have jurisdiction to hear Murphy’s case because
Congress did not disestablish the Creek reservation. VI. Part VI: The Implications of the Tenth Circuit’s Decision Murphy will have extensive implications that may extend well beyond Murphy
and the Creek and effect a sizable portion of Oklahoma. Numerous commentators suggest that a ruling for Murphy would affect the historical reservations of all Five Civilized Tribes because all
five tribes lost their reservation by similar means.249 Such repercussions, many argue, would affect approximately forty-two percent of Oklahoma, including the city of Tulsa.250 An inquiry into
these practical effects is necessary to understand the importance of the potential rights and privileges Murphy may alter. In Murphy, the parties dispute the severity of a ruling affirming the Tenth
Circuit’s decision for Murphy. Generally, the Supreme Court tends to resist recognition of land as Indian country when such “conclusion would seriously disrupt the justifiable expectations of the
people living in the area.”251 This, however, leads to speculation and causes judicial lawmaking—which is not the Court’s role.252 During the first Supreme Court argument, the State contended
that the effects of ruling against diminishment “would be dramatic” and “several thousand convictions . . . might be called into . . . question.”253 In contrast, Murphy’s counsel downplayed the
effect of any implications.254 This section will lay out a few implications of declaring the dispute land as Indian country in general.255 This Note intends to cover criminal and civil

Murphy’s dispute centers on

ramifications generally and will not cover every aspect of these areas nor will it cover every effect. a. Criminal Implications

criminal jurisdiction. Specifically, whether the State or the Creek, through the federal
government, has jurisdiction to prosecute and sentence Murphy for his crime.256 An opinion in favor of
the defendant-respondent would expand tribal and federal criminal jurisdiction while reducing state prosecutorial and law enforcement powers In general, Indian

country criminal jurisdiction analyses implicate two major statutes: the Indian Country
Crimes Act (ICCA)257 and the Major Crimes Act (MCA). 258 Under these statutes, four
situations generally arise dictating proper jurisdiction in criminal cases. First, if an Indian defendant commits
a major crime, defined by the MCA, federal courts have jurisdiction.259 If the crime is not a major crime and the matter involves an Indian defendant and Indian victim, tribal courts have
jurisdiction.260 Next, under the ICCA, if the victim or the defendant is an Indian and the other is not, federal courts have jurisdiction.261 Finally, if neither the victim nor defendant is Indian,
state courts will have jurisdiction.262 These final two scenarios involving non-Indian defendants contain a critical exception. Under the Violence Against Women Reauthorization Act of
2013,263 a tribe may elect to prosecute non-Indians for domestic violence, dating violence, or violating a protective order if the perpetrator has “ties to the Indian tribe” as defined by the
statute.264 Given this background, one commentator argues that a ruling for Murphy means that “every state conviction of an ‘Indian’ who committed a ‘major crime’ within the 1866 boundaries
of the Creek Nation is void” and federal officials would need to “reopen, reinvestigate, and reprosecute those cases—numbering in the thousands—many of which are decades old.”265 Further,
the State even declared that a ruling for Murphy would cause the federal government to reopen the cases of “155 murderers, 113 rapists, and over 200 felons who committed crimes against
children” as well as over “2,000 prisoners in state court . . . who self-identify as Native American” and “it [is not] clear that the federal government could retry any of these.”266 Other
commentators, though, are skeptical of the criminal implications espoused by Oklahoma and argue that the implications of any ruling are unclear.267 Murphy even argues that “Oklahoma’s
claims are mostly rhetoric”268 and the “decision below [at the Tenth Circuit] only modestly realigns criminal jurisdiction.”269 Further, “the federal government has ample resources to handle
additional prosecutions.”270 Murphy’s contention, therefore, is that the State’s argument concerning criminal implications are mere hyperbole to force the Court to maintain the status quo. Both
sides are (obviously) exaggerating. The impacts of this case are substantial, but overstated. If the Supreme Court rules for the Creek, Creek courts and the Eastern District of Oklahoma will need
to vastly increase their staff, prosecutors, public defenders, and other critical individuals to maintain proper judicial efficiency and due process. Many, if not all, crimes involving an Indian as
victim or defendant would transfer from Oklahoma state courts to federal or Creek courts.271 It is highly unlikely, however, that the Creek or federal government will allow violent criminals to
simply avoid the criminal justice system as the State implies. Neither the Creek nor the federal government possess an interest in releasing murderers, rapists, or child abusers. Here, it would be

Those supporting Murphy’s side are not supporting him, but the
difficult to find an individual sympathetic to Murphy.

indigenous tribes of Oklahoma. In terms of criminal implications, though, a ruling for Murphy will transfer his case to the federal court system. b. Civil and
Tax Implications Murphy will also have important civil and tax implications. During oral arguments, the State declared that a decision for Murphy would have “earth-shattering consequence[s]
on the civil side.”272 “Affirmance,” the State contends, would “raise[] a specter of tearing families all across eastern Oklahoma.”273 Further, the State asserts that businesses are wary of the
effects of the decision below in topics ranging from taxation to construction permits.274 Murphy’s counsel even contended that affirmance would cause a “significant,” but not “existential,” shift
over the authority of the state to lay income and sales taxes on tribal members.275 Murphy’s counsel contends that Oklahoma overstates the civil implications because current precedent already
limits tribal authority over nonmembers.276 Outside of Indian country, a tribe’s authority extends to matters involving treaty rights, the internal concerns of tribal members, and to consenting
nonmembers.277 Nondiscriminatory state laws apply to both non-Indians and Indians outside of Indian country unless preempted by federal statute or treaty.278 Within Indian country, the
authority of the State and tribe become puzzling. State jurisdiction is (relatively) straight-forward. The State’s civil jurisdiction over non-Indians continues in Indian country; however, the State
generally lacks civil jurisdiction over Indians in Indian country.279 Tribal jurisdiction relating to nonmembers, though, is unclear. Montana v. United States280 limits a tribe’s power to regulate
nonmembers in Indian country. Under Montana, the “inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.”281 Two exceptions to this rule
exists. First, “[a] tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through
commercial dealing, contracts, leases, or other arrangements.”282 Second, a tribe may “exercise civil authority over the conduct of non-Indians on fee land within its reservation when that
conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”283 Unless one of these two exceptions—or a congressional
statute or treaty— apply, the Creek will not have civil jurisdiction over non-Indians in Indian country.284 Courts remain confused, though, as to the scope of these exceptions and are generally
prone to limit tribal exercise of regulatory and adjudicatory civil jurisdiction.285 Further, an issue arises over the taxing authority in Indian country. The Creek’s taxing authority would be
absolute when applied to Indians in Indian country. Nonmembers, though, present a puzzling issue. The Court recognizes the power of tribal governments to tax nontribal members in Indian
country as a core aspect of tribal sovereignty.286 The State may also tax nonIndians in Indian country. Taxation by the State, though, is subject to a “flexible preemption analysis sensitive to the
particular facts and legislation involved” and the Court will void any tax that would interfere with the tribe’s ability to exercise their sovereign powers.287 Accordingly, the Creek and the State
may have concurrent taxing authority over non-Indians in Indian country depending upon the particularized facts of the situation. Like its criminal counterpart, Murphy’s implications involving
civil jurisdiction and taxation are dubious. Unquestionably, a decision for the Creek will expand their ability to regulate and tax Indians.288 By restoring the original Creek reservation, the Creek
would strip the State of its power to regulate and tax its members in the area prior to the Tenth Circuit’s decision. The justifiable expectations of individuals and businesses to due process and
enforcing their judgment will continue. Federal law requires the Creek and Oklahoma judicial systems to comport with the essential principles of due process.289 The Creek and Oklahoma even
agree to enforce the judgments of one another.290 Regarding taxation, Oklahoma’s persistence in this fight is understandable. Oklahoma will lose taxing authority over every Indian in the “new”
Creek reservation. Further, Oklahoma would need to second-guess its revenue statutes because Oklahoma would need to comport with the federal and common law requirement that their taxes
not infringe upon the sovereignty of the Creek Nation or its member. Given this, the Creek will have an expansive ability to generate revenue at the expense of Oklahoma, thereby, requiring the
state to reassess its budgetary needs—scaling back some essential services provided to citizens.291 Further, the justifiable expectations of individuals and business regarding taxation, while
noteworthy, are not as severe as promulgated by the State. The State and the Creek would exercise concurrent taxing authority over non-Indians in Indian country. A second taxing authority is
burdensome.292 In many instances, though, the Creek code provides tax credits to individuals and businesses whom pay a tax to the State of Oklahoma.293 In sum, the State’s “end-of-the-
world” argument is unavailing; however, Murphy’s argument that the Court’s decision will have little, if any, effect is also incorrect. Courts will decide the implications on a case-by-case basis
and by applying a straight-forward statutory analysis, the Court will reach the right result. Any change in that result lay solely at the feet of Congress. Hopefully, a strict application of the law
will spur Congress to act to mitigate any harmful effects to the citizens of Oklahoma as to protect their justifiable expectations. c. Recourse A decision for the Creek and Murphy does not
foreclose the possibility of congressional action. Upon issuing its ruling, the Court may issue a stay on its decision to allow Congress, the Creek, and the State time to mitigate any potential

Congress has “plenary and exclusive” authority to regulate

implications that may result due to this decision.294

and legislate tribes and Indian affairs. 295 Theoretically, Congress may abrogate any, or
all, jurisdictional boundaries of a tribe’s reservation. Congress may also allow the state of
Oklahoma to share concurrent jurisdiction with a tribe in a variety of matters including
criminal, civil, and regulatory jurisdiction. 296 In any case, Oklahoma’s recourse is not judicial, it is political.297 Part VII: Conclusion Whether
any of the Five Civilized Tribes of Oklahoma have jurisdiction is fact intensive and the courts will decide those issues as they arise. 298 One thing is clear: “A

well-defined body of principles is essential in order to end the need for case-by-case
litigation which has plagued [Indian] law for a number of years.”299 The law governing
tribal affairs must begin to comport with traditional notions of fairness and justice that
our court system strives to achieve. Since the founding of the United States , courts have
taken the initiative to make law concerning tribal affairs, thereby, creating incoherent and
inconsistent rulings. This must stop.
Congress key to funding
NCAI 18 (National Congress of American Indians is a 501©(4) nonprofit social welfare organization
made up of American Indian and Alaska Native tribal governments that was founded to resist federal
government pressure for termination of tribal rights, 03-20-2018, " VAWA 2013’s Special Domestic
Violence Criminal Jurisdiction (SDVCJ) Five-Year Report," National Congress of American Indians,
https://www.ncai.org/resources/ncai-publications/SDVCJ_5_Year_Report.pdf)
, only 18 tribes have
While over 50 tribes have been actively participating in the ITWG, as of the date of this report

implemented the law. The primary reason tribes report for why SDVCJ has not been more broadly implemented is
a focus on other priorities and a lack of resources. During and beyond the implementation phase, tribes need funding,
 access to resources, and services to support implementation. A lack of resources is one of the burdens
facing many tribes. According to the U.S. Commission on Civil Rights, “[t]ribal justice systems have been

underfunded for decades,” and revising tribal codes and then ultimately taking on additional cases comes with a set of both
predictable and unforeseen costs for tribes.49 The Pascua Yaqui Tribe has described the costs this way: In addition to the direct costs of
substantial indirect costs are also
complying with the prerequisites (indigent defender systems, jury trials, incarceration, etc.),
likely to be required. For example, who will review and propose changes to your laws and procedures? Who will train
law enforcement, prosecutors, judges, court staff and defense counsel on the new laws and procedures and how they work? What
funding will be required to make these changes? To pay for any additional prosecutors , judges, defense counsel, and court

staff? To pay to publish the laws and regulations? To process the licensing and educational
requirements? To implement the jury selection process? To pay for incarceration? Where will these funds come from? Is that source of
funding stable and reliable?50 Tribes with fewer resources have been able to implement SDVCJ by relying on support from others. Many were
able to cut code drafting costs by relying on the codes of the first few implementing tribes as a starting point. Some tribes have also been able to
rely on contract attorneys to do the majority of their defense counsel work, thereby minimizing the amount the tribe is required to pay to keep
defense counsel on call.

Monetary reparations never work AND aren’t targeted

Antkowiak, 14 – Law professor at Seattle School of Law (Thomas, ‘A Dark Side of Virtue: The Inter-
American Court and Reparations for Indigenous Peoples’, 2014,
https://digitalcommons.law.seattleu.edu/faculty/723/ )//hecht
With respect to non-monetary remedies and equitable relief, the Court has ordered the restitution of communal lands and otherpowerful measures,
such as legislative reform, health care programs, cultural promotion initiatives, and public apologies. Yet the Court’s monetary
reparations frequently disappoint . Examples include token sums ordered for plundered ancestral resources
and a neglect of individualized compensation . In Saramaka People v. Suriname, the Court granted only $75,000 to
the Saramaka community in compensation for timber valued in the millions.6 Market value was ignored by the Court,
despite the petitioners’ requests, submitted evidence, and international legal standards.7 Nevertheless, only a few years later, the
Court ordered the payment of nearly $19 million for a state’s expropriation of private land.8 When not enforced with

sufficient remedies, rights are diminished or even disregarded entirely .9 By

undercompensating indigenous petitioners in these ways, the Court fails to recognize them as
full-fledged rights bearers. Fully entitled to collective and individual rights, they accordingly require appropriate remedies on
both communal and individual levels. The Court’s crystallizing approach towards indigenous peoples demands prompt reform. This critique is
urgent because indigenous cases continue to flow to the Court, and its criteria are increasingly adopted by UN authorities, regional human rights
institutions, and national courts.

Oliphant was a ruling on the ICRA that set statutory precedent

 Framing
Third is framing—
Impact is the natural log of the magnitude times probability – avoids serial policy
failure and is most real world.
- Magnitude times probability is Expected Value (EV)
- Magnitude times ln(probability) is Expected Utility (EU)
- EV leads to bad and irrational decisions – proven with decisions that lose money
- EU is the reason that we take risks – that’s why we go in cars
Phillips and Pohl 20 (Peter Phillips, Doctor of Philosophy. We believe that "thinking about thinking"
is central to counter-terrorism, intelligence and national security., & Gabriela Pohl, Doctor of Philosophy.
Our research is placed at the intersection of economics, criminology and terrorism studies. (2020).
Intelligence Sharing: Networks, Teams and Ambiguity. //ArchanSen
https://www.researchgate.net/publication/344325089_Intelligence_Sharing_Networks_Teams_and_Ambi
guity)
Expected utility theory and prospect theory generate orderings over alternative risky
prospects that obey rules like those we just discussed. How does this work? A risky prospect
is anything that has a range of outcomes (outcomes are denoted 𝑥𝑖 ) that are expected to
occur with some probability (probabilities are denoted 𝑝𝑖 ). A risky prospect could be a
military action against potential targets, an extraction of an agent by one or more
potential methods or more run of the mill intelligence tasks such as choosing which
sources to interrogate first. Any prioritisation task involving a range of risky or uncertain outcomes
is amenable to one of the models that we have been talking about.

It is best to think, at first, in terms of mathematical expectation or expected value (𝐸𝑉). At a basic level,
you might choose to rank alternative prospects based on their expected value. The expected value of a
coin toss where the player wins $20 for heads and $5 for tails is 0.50 × $20 + 0.50 × $5 = $12.50. The two
outcomes, the 𝑥’s, are $20 and $5 and their two associated probabilities are 0.50 and 0.50, which is just
the odds of flipping a heads or tails. More generally,

As a model of choice , though, we cannot get far using expected value [EV] . It doesn’t
consider the decision-maker’s preferences for risk. As such, if we were to order prospects
according to expected value, we would not expect much alignment between such an
ordering and human choices. Simply, people don’t choose the option with the highest
expected value without considering the risk. Often, the option with the highest expected
value is also the riskiest. Only some decision-makers will take the plunge. In fact, as a
model of risky choice, expected value ran into problems back in the 18th century. The so-
called St Petersburg Paradox was noticed by the Swiss mathematician Nicholas Bernoulli
when he found that people would only pay a small amount to participate in a gamble that
had an infinite expected value.

Expected utility (𝐸𝑈) theory is, in a sense, an improvement upon this basic idea of
mathematical expectation such that it can be used to produce orderings that take the
decision-maker’s risk preferences and the riskiness of each risky prospect into account .
We can see the similarities in the formal expression:

While expected value [ EV] is the weighted average of outcomes (weighted by their
probability of occurrence), expected utility [EU] is the weighted average of the utility of
outcomes (weighted by their probability of occurrence). The function, 𝑢(𝑥𝑖), transforms
outcomes into utility index numbers. Utility functions have certain mathematical properties (e.g.
concavity) that are analogues for risk preference and so take the decision-maker’s risk
preferences into account. We could use a utility function such as ln (𝑥) or we might choose
some other permissible function.5 We can visualise this transformation of outcomes, whatever they may
be,6 into utility numbers as follows:

What is the expected utility of the coin toss gamble where the player wins $20 for heads
and $5 for tails? Using the utility function ln (𝑥), the expected utility of the risky prospect
is 0.50 × ln($20) + 0.50 × ln($5) = 2.30. How does this compare with another risky prospect,
say, a coin toss where the player wins $30 for heads and $1 for tails? While the top payoff of
$30 is higher, the range of outcomes is greater and, as such, the game is riskier. The expected utility
of this risky prospect is 0.50 × ln($30) + 0.50 × ln ($1) = 1.70. The first coin toss game is
preferable because it has a higher expected utility. Importantly, the first coin toss game has the
higher expected utility even though the expected value of the second coin toss game is slightly higher
($15.50 versus $12.50).

Total extinction risks are 0.2%

Fergus Simpson 16, 11-1-2016, "Apocalypse Now? Reviving the Doomsday Argument," arXiv.org,
https://arxiv.org/abs/1611.03072
Whether the fate of our species can be forecast from its past has been the topic of
considerable controversy. One refutation of the so-called Doomsday Argument is based on the
premise that we are more likely to exist in a universe containing a greater number of observers. Here
we present a Bayesian reformulation of the Doomsday Argument which is immune to
this effect. By marginalising over the spatial configuration of observers, we find that any preference for
a larger total number of observers has no impact on the inferred local number. Our results remain
unchanged when we adopt either the Self-Indexing Assumption (SIA) or the Self-Sampling Assumption
(SSA). Furthermore the median value of our posterior distribution is found to be in
agreement with the frequentist forecast. Humanity's prognosis for the coming century is
well approximated by a global catastrophic risk of 0.2% per year.
Reject your bias to discount Native lifeways – overcompensate your calculus.
Obomsawin 20 (Mali Obomsawin is a Smithsonian Folkways Recordings artist with the band Lula
Wiles. She is a full-time touring musician and a freelance writer on Indigenous issues. She has also
taught workshops on Indigenous issues in the United States and Quebec. Mali grew up in Farmington,
Maine, and is a citizen of the Abenaki First Nation at Odanak, 5-4-2020, "Native Land, Native
Leadership: Restructuring the Climate Movement," Smithsonian Center for Folklife and Cultural
Heritage,) https://folklife.si.edu/magazine/native-land-leadership-climate-movement
In the face of this environmental crisis, the liberation of peoples and the liberation of the
earth must happen concurrently . Native resistance has always fought for both. In North America,
an Indigenous continent, the ideas of racial and environmental oppression are alien, having been imported from
Europe and applied recklessly to a land that was once in balance with its Native people. To this end, Nishnaabeg author Leanne Betasamosake

Simpson writes, “Real solutions require a rethinking of our global relationship to the land, water, and
to each other. They require critical thinking about our economic and political systems. They

require radical systemic change .” She urges global citizens to no longer deny the congenial connection between
colonialism and ecological catastrophe. “[It’s] a mistake to think of global warming in historical isolation, as merely the carbon cycle gone awry
thanks to an excess of CO2 emissions. Climate change is the name we've given to the constellation of ecological crises that emerge as capitalist
modernity runs out of new places to despoil.” In 2020, we have come to the moment that our ancestors foresaw in the seventeenth century,

warning that “a system of individual land ownership” and accumulation-based society would lead to ecological apocalypse. Yet, for
centuries , Native science, agricultural practice, and culture were attacked by settlers. While
Indigenous prophecies all around the world have predicted ecological apocalypse, Western science’s late revelations about environmental

crises have been insufficient and corrupted by capitalistic incentives. The devaluation of Native perspectives,
sciences, and lifeways has “nothing to do with its predictive ability,” Betasamosake Simpson insists. The fact is
that Western society “ simply will not put its own system up for debate .” Colonialism has led a long,
gruesome road to environmental collapse, and the best environmental policy America can pursue is to finally dismantle it through rematriation.
As I have argued, this means overturning the power structure symbolized in the dated Roosevelt statue. It means putting in charge of this
country the Indigenous peoples, whose stolen land we are on, and Black Americans, whose ancestors were stolen from their own land and
forced in bondage to build a country that still refuses to protect them. Fighting for Indigenous sovereignty inherently
means fighting against the exploitation and degradation of land . It means fighting for
Indigenous authority in policymaking over sacred rivers, mountains, and natural spaces where water should be drinkable,
ceremonies are performed, and ancestors are buried. It means supporting Native initiatives to redesign new economies
that are sustainable and regenerative. Supporting Indigenous sovereignty is climate activism and environmental justice. And it
could mark the beginning of America’s reconciliation process with Native people, too.

We access extinction
Ray 16 (Gene Ray is an associate professor at the Geneva School of Art and Design. He is also the
director of the critical studies master degree program, 2016, "Writing the Ecocide-Genocide Knot:
Indigenous Knowledge and Critical Theory in the Endgame," ResearchGate,
https://www.researchgate.net/publication/310461711_Writing_the_Ecocide-
Genocide_Knot_Indigenous_Knowledge_and_Critical_Theory_in_the_Endgame)

Climate chaos , globalized toxicity , mass extinction. A global social process has
altered the earth’s biophysical systems, destabilizing the climate and shifting the course
of evolution. Ironically, knowledge of planetary meltdown emerged from the science
projects of Cold War weapons development.1 “ There is a direct relationship ,” writes
Anishinaabekwe (Ojibwe) scholar and activist Winona LaDuke, “ between the loss of cultural
diversity and the loss of biodiversity. Wherever Indigenous peoples still remain, there
is a corresponding enclave of biodiversity .”2 The converse also holds, in Amazonia and
everywhere else: “Since 1900,” notes Chickasaw poet and novelist Linda Hogan, “ more than half of
the tribal people of Brazil have become extinct.”3 A decade ago, Ahmed Djoghlaf, Executive
Secretary of the UN Convention on Biological Diversity, was already warning that up to 55,000
species are lost every year, a rate of extinction that is as much as 1,000 times that of the
natural background extinction rate.4 Biologists now routinely speak of the Sixth Mass Extinction in
the planet’s history. The last one was the Cretaceous–Tertiary (K–T) event that wiped out the dinosaurs
sixty-six million years ago.5 If Auschwitz and Hiroshima were demonstrations of genocidal
tendencies unfolding within the logic of modernity, then the ecocidal character of the
global social process is now also beyond doubt. Critical theory is just beginning to think
about the relation between ecocide and genocide.6 But Indigenous voices are telling us ,
perhaps have always told us, that these processes are inseparable . Evidently,
Indigenous peoples have understood the problem more clearly , and felt it more deeply,
than the critical theorists. Speaking out, addressing us moderns directly, struggling massively
to defend the biosphere , Indigenous peoples see the emergency and are resurgent, from
Idle No More and the Indigenous Environmental Network to La Via
Campesina .7  Few political developments anywhere today are as inspiring as this.

Fourth are thumpers—

Gun Control thumps
Parnes and Bolton 4-14 (Amie Parnes and Alexander Bolton are senior reporters for the Hill, 4-14-
2021, "Inside the surprisingly close Biden-Manchin relationship," TheHill,
https://thehill.com/homenews/administration/548091-inside-the-surprisingly-close-biden-manchin-
relationship)
Manchin and Biden face a number of tests . They differ on taxes, the minimum wage and gun control.
Manchin in 2013 voted against amendments to restrict assault-style rifles and high-capacity magazines —
two proposals Biden endorsed last week. Manchin has also said a House-passed bill to expand background checks for all

firearms transactions, which is widely supported by Democrats, went too far. Manchin doesn’t support requiring background checks for
sales and transfers between family members and friends.

So, does immigration

Sotomayer 4-15 (Marianna Sotomayor reports on Democratic and Republican leadership in the House
of Representatives for The Washington Post, 04-15-2021, "Joe Biden releases two immigration-focused
plans," NBC News, https://www.nbcnews.com/politics/meet-the-press/blog/meet-press-blog-latest-news-
analysis-data-driving-political-discussion-n988541/ncrd1099821#blogHeader)
a Biden administration would spend his first year in office trying to
After the first 100 days,

tackle “four pillars”: legislative immigration reform , strengthen communities, steps to secure the border in a sensible manner
and focus on the causes of migration in Central America. Notably, Biden's plan breaks with some of his Democratic
opponents who have called for restructuring if not abolishing Immigration and Customs Enforcement (ICE).
Biden instead calls for increased training and oversight of ICE and Customs and Border Protection.

Afghanistan thumps as well

Wise 4-15 (Alana Wise is a politics reporter on the Washington desk at NPR, 4-15-2021, "'It's Time To
End This Forever War.' Biden Says Forces To Leave Afghanistan By 9/11," NPR.org,
https://www.npr.org/2021/04/14/986955659/biden-to-announce-he-will-end-americas-longest-war-in-
afghanistan)
The United States will withdraw all remaining troops from Afghanistan by the 20th anniversary of the Sept. 11
attacks, President Biden announced Wednesday, turning the page on a conflict that has cost trillions of

dollars and the lives of more than 2,300 American troops. "We went to Afghanistan because of a horrific attack that happened 20
years ago. That cannot explain why we should remain there in 2021," Biden said. "We were attacked, we went to war with clear goals," he added.
"We achieved those objectives. Bin Laden is dead and al-Qaida is degraded in Afghanistan, and it's time to end this forever war.'' Speaking from
the Treaty Room of the White House — where former President George W. Bush first informed the nation of U.S. strikes on al-Qaida training
Biden sought to make the argument that a continued military
camps in Afghanistan in October 2001 —
strategy was no longer sustainable. "We cannot continue the cycle of extending or expanding
our military presence in Afghanistan hoping to create ideal conditions for the withdrawal and expecting a different result,"
he said. "I'm now the fourth United States president to preside over American troop presence in Afghanistan, two Republicans, two Democrats. I
The withdrawal of U.S. troops represents the most
will not pass the responsibility onto a fifth."

consequential military decision that Biden has made since taking office, and will complete a process that
began under the Obama administration, starting with a drawdown from a peak of more than
100,000 U.S. service members in the country in 2011. It's a decision that makes good on a campaign pledge
to end "forever wars," but carries significant political and national security risks if Afghanistan backslides into a haven

for terrorists intent on attacking the United States, a concern raised even by Biden's Democratic allies in
Congress. Biden outlined a drawdown that will begin May 1 and conclude by Sept. 11, but he said it would not be a "hasty rush to the
exit." The U.S. will leave Afghanistan "responsibly, deliberately and safely," he said. As of 2021, some 2,500 U.S. troops remain in Afghanistan.
As many as 1,000 more special operations forces are also reported to be in the country. Biden said the U.S. will continue diplomatic and
humanitarian work in the country, including assistance to the Afghan National Defense and Security Forces. But he said it was also now time for
other countries to play a bigger role in Afghanistan — Pakistan in particular, but also Russia, India, China and Turkey. Each of those countries
has its own overlapping interest in the country — interests that don't necessarily intersect with U.S. goals in Afghanistan. Biden's predecessor,
former President Donald Trump, had pledged to the Taliban a full withdrawal of U.S. troops by May 1, which Biden had previously said would
be "tough" to meet. A senior administration official told reporters on Tuesday that the withdrawal would not be conditions-based, as Biden had
deemed such an approach "a recipe for staying in Afghanistan forever." Some U.S. personnel will remain in the country, which the administration
official said would be necessary to protect America's diplomatic presence in the country. The president also said the U.S. would look to
Reaction from
reorganize its counterterrorism operations in Afghanistan to help prevent the reemergence of threats to the homeland.
Congress News of the president's planned withdrawal has drawn stinging rebukes from
leading Republicans in Congress. Addressing reporters on Wednesday, Rep. Liz Cheney of Wyoming, the No. 3 Republican
in the House, called it "fundamentally dangerous." "Any withdrawal of forces that is not based on conditions on the ground puts American
security at risk," Cheney said. "He's further, apparently, going to announce that the date for the withdrawal will be Sept. 11. Now I'm not sure
why the White House has selected that date, but I can tell you that that is a huge victory, huge propaganda victory, for the Taliban, for al-Qaida."
Senate Minority Leader Mitch McConnell, R-Ky., called the plan "a grave mistake." "It is a retreat in the face of an enemy," McConnell said
from the Senate floor on Tuesday. "Foreign terrorists will not leave the United States alone simply because our politicians have grown tired of
Among Democrats, the plan has exposed long-simmering rifts in the
taking the fight to them."

party about the American presence in Afghanistan. Some have cheered the plan, with progressives
such as Sen. Elizabeth Warren , D-Mass., saying the decision shows, "President Biden recognizes the
reality that our continued presence there does not make the U.S. or the world safer." Others have
been much more critical. "Withdrawal of U.S. troops must be based on the facts on the ground , not

arbitrary deadlines," Sen. Maggie Hassan , D-N.H., tweeted. "After all that our service members have sacrificed, we must
ensure that Afghanistan does not once again become a safe haven for terrorists who seek to harm America." Rep. Elissa Slotkin , a

moderate Democrat from Michigan, said she will be looking for the White House to provide
more details on how the administration plans to keep Afghanistan from once again becoming a staging ground for attacks on the U.S.
"While most people I know want to get out, no one wants to have to go back in, as we did with Iraq," said Slotkin, who previously served in both
the CIA and the Pentagon.

Policing reform bill thumps

Erickson and Perry 4/09 (Bo Erickson and Tim Perry are writers for CBS, 04-09-2021, "Police
reform stalls in Washington a year after George Floyd's death," CBS News,
https://www.cbsnews.com/news/police-reform-white-house-congress/)
a year after the killing of George Floyd, the officer accused of his murder is on trial,
Almost 
but nationwide police reform remains at an impasse. Floyd's death while in police custody galvanized calls for
racial justice that became a major focus of President Biden's campaign. According to the White House, Mr. Biden and Vice President Harris have
been monitoring former Minneapolis police officer Derek Chauvin's trial, while a promise that the president made during his campaign to address
police reform remains unfulfilled. At his first in-person gathering during the COVID-19 pandemic on June 1, 2020, Mr. Biden promised if elected
he would stand up a police oversight board within his first 100 days in office. But with weeks to go before Mr. Biden reaches the 100-day mark,
he hasn't yet announced a board, and outside criminal justice and civil rights groups told CBS News they do not expect one. "I don't have an
update on the commission," White House Press Secretary Jen Psaki said on Wednesday when asked about the status of the campaign promise. A
the administration is " working  in a thoughtful manner"   on  the
White House official told CBS News 

"important priority " of passing the police reform proposal in the House and are
advocating with some Republicans but did not directly comment on the status of the board. Susan Rice, head of the
Domestic Policy Council, and senior advisor Cedric Richmond are the point people on police reform for the White House, according to three
people familiar with the process, but it's Congress that is  hammering out  the details  of potential
federal legislation. The House police reform proposal Mr. Biden supports is the George Floyd Justice in Policing Act, reintroduced in
the House in February by Representative Karen Bass of California after it failed to pass last summer. Bass and Senator Cory Booker of New
Jersey, both Democrats, have been talking about a possible compromise on police reform with Republican Senator Tim Scott from South
Carolina, who introduced his own proposal last year, according to two congressional aides. Their discussions are continuing as Chauvin's trial
enters its third week. Bass told CBS News that this latest round of conversations about police reform is different because when it was debated last
summer, it was "too close to the election, which took up all the oxygen in the room." But now, after meeting with Scott and the House Problem
Solvers caucus over the past few weeks,  she's predicting movement on police reform soon -- "in the next few
weeks" -- though she declined to divulge any details. "We absolutely feel the urgency because as we are having our discussions the backdrop
is the trial," Bass added. The House bill would ban different types of  police  neck holds , including

choke holds to impede breathing and carotid holds to temporarily cut off blood flow to
the brain, and would also outlaw the  no-knock warrants  in drug-related cases that
currently allow police with warrants to enter private property without announcing
themselves. This bill would also change the police misconduct standard from
"willfulness" to "recklessness," make lynching a federal crime, and would also end
" qualified  immunity ," which largely prevents civilians from suing public servants like
police officers. The proposal also mandates use of police dashboard and
body cameras, streamlines federal prosecution of excessive force cases and organizes
registries and data on problematic officers and use of force instances. Last year, Scott introduced
alternative police reform legislation, the JUSTICE Act, that would also have increased the use of police body cameras and better data, as well as
making lynching a federal crime. Scott's proposal called for studies into no-knock warrants and used federal funding and retraining to root out
Though the two proposals shared
some issues like the police chokeholds, instead of outright banning the maneuvers. 

many similarities, the  legislative process deteriorated into  recrimination , with the
parties accusing each other of trying to score political wins and not reforms.

Multiple thumpers – takes out perception AND partisanship

NILL 21 (The National Indian Law Library (NILL) of the Native American Rights Fund is a law library
devoted to federal Indian and tribal law. NILL maintains a unique and valuable collection of Indian law
resources and assists people with their Indian law-related research needs, 1-6-2021, "116th Congress
Legislation Related to Native American Law; Indian Law Bulletin, National Indian Law Library, Native
American Rights Fund," National Indian Law Library,
https://narf.org/nill/bulletins/legislation/116_uslegislation.html)
Little Shell Tribe of Chippewa Indians Restoration Act of 2019 Summary: This
H.R.297/S.51 Title:

bill extends federal recognition to the Little Shell Tribe of Chippewa Indians of Montana. The bill

makes the tribe and its members eligible for services and benefits provided to federally
recognized tribes and their members, without regard to the existence of a reservation or the location of the residence of any member.
The service area of the tribe is considered to be the area comprised of Blaine, Cascade, Glacier, and Hill Counties, Montana. The tribe must
submit a membership roll to the Department of the Interior as a condition of receiving recognition, services, and benefits. The tribe must maintain
the membership roll. Interior must take into trust for the benefit of the tribe 200 acres of land within the tribe's service area to be used for a tribal
land base. News Articles: Little Shell recognition long overdue (Bozeman Daily Chronicle) 1/2/20, Montana Tribe Recognition bill passes US
House (U.S. News) 3/27/19, The struggle of the Little Shell Tribe (The Week) 3/23/19, House set to clear first Indian Country bills under
S.RES. 190
Democratic control (Indianz) 3/22/19, Tester, Daines reintroduce bill recognizing Little Shell (U.S. Senator Jon Tester) 1/8/19

Title: A resolution promoting minority health awareness and supporting the goals and ideals

of National Minority Health Month in April 2019, which include bringing attention to the
health disparities faced by minority populations of the United States such as American Indians ,
Alaska Natives, Asian Americans, African Americans, Hispanics, and Native Hawaiians or other Pacific Islanders. Sponsors: Sen. Cardin,
Benjamin L. [D-MD] Latest Major Action: Senate - 05/06/2019 Submitted in the Senate, considered, and passed without amendment and with a
S.RES.144 Title: A resolution designating May 5,
preamble by Voice Vote. (All Actions) Summary: In progress.

2019, as the " National Day of Awareness for Missing and Murdered Native American
Women [MMIW] and Girls". Sponsors: Sen. Steve Daines [R-MT] Latest Major Action: Senate - 05/02/2019 Resolution agreed to in
Senate without amendment and with a preamble by Unanimous Consent. Summary: This resolution designates May 5, 2019, as the National Day
of Awareness for Missing and Murdered Native Women and Girls. H.R.2030 Title: Colorado River Drought Contingency
Plan Authorization Act Sponsors: Rep. Grijalva, Raul M. [D-AZ-3] Latest Major Action: 04/16/2019 Became Public Law No: 116-
14. (All Actions) Summary: Passed Senate (04/09/2019) Colorado River Drought Contingency Plan

Authorization Act This bill requires the Department of the Interior to carry out the
Colorado River Drought Contingency Plan which was submitted to Congress on March 19, 2019, by Arizona,
California, Colorado, Nevada, New Mexico, Utah, and Wyoming. Interior must execute the plan without delay and operate applicable Colorado
River System reservoirs accordingly. News Articles: Trump signs bill endorsing Colorado River drought plan (USA Today) 4/16/19, Cronkite
S.RES. 37 Title: A resolution
News: Congress passes Colorado River drought plan that includes tribes (Indianz) 4/9/19
designating the week beginning February 3, 2019, as "National Tribal Colleges and
Universities Week". See Also: H.Res.104 Sponsors: Sen. Tester, Jon [D-MT] Latest Major Action: Senate - 01/31/2019 Submitted
in the Senate, considered, and agreed to without amendment and with a preamble by Voice Vote. (All Actions) Summary: Passed Senate
(01/31/2019) This resolution designates the week beginning on February 3, 2019, as National Tribal Colleges and Universities Week. S.227 Title:
Savanna's Act Summary: This bill directs the Department of Justice ( DOJ) to review, revise, and
develop law enforcement and justice protocols to address missing and murdered Indians. The bill
requires DOJ to take the following actions: provide training to law enforcement agencies on how to record
tribal enrollment for victims in federal databases; develop and implement a strategy to notify citizens of the
National Missing and Unidentified Persons System; conduct specific outreach to Indian
tribes regarding the ability to publicly enter information through the National Missing and
Unidentified Persons System or other non-law enforcement sensitive portal; develop guidelines for response to cases of missing
and murdered Indians; provide training and technical assistance to Indian tribes and law enforcement
agencies for implementation of the developed guidelines; and report statistics on missing and murdered
Indians. Federal law enforcement agencies must modify their guidelines to incorporate the guidelines developed by the DOJ. The FBI shall
include gender in its annual statistics on missing and unidentified persons published on its website. S.209 Title : PROGRESS for
Indian Tribes Act Summary: Became Public Law No. 116-180 on 10/21/20. This bill replaces the Tribal Self-Governance
Demonstration Project with the Tribal Self-Governance Program. Under the program, Native American tribes or

organizations may receive grants to plan for participation in self-governance and to

negotiate the terms of participation. News Articles: Rep. Haaland introduces bipartisan Progress for Indian Tribes Act
(Native News Online) 4/4/19

Fifth is our method—

Reject vague alts – they reinscribe colonialism – clear steps to resolve problems fight
back against epistemic violence.
Hartman et al 20 (William E. Hartman is a professor at the School of interdisciplinary Arts and
Sciences at the University of Washington, 01-01-2020, "American Indian Historical Trauma: Anti-
Colonial Prescriptions for Healing, Resilience, and Survivance," PubMed Central (PMC), He has multiple
research partnerships with rural and urban American Indian community and mental health organizations
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6338218/)
Advancing this anti-colonial initiative in concert with, rather than in opposition to, other
HT research programs has promise and challenges. Since introduction of the HT concept
to the literature opened a door to considering histories of oppression in psychological
inquiry into AI hardship, scholars engaging HT as a critical discourse have proven adept
at uncovering colonial arrangements in popular framings of AI hardship (e.g., Gone, 2014;
Prussing, 2014; Waldram, 2014). More challenging, then, is critiquing HT research where
similar problem dynamics emerge and offering clear implications for different contexts
of colonialism. The challenge of critique requires that critical engagement be constructive
to facilitate mutual understandings of anti-colonial initiatives and how they might be
brought into alignment to cajole psychology and health fields into better serving AI
interests. This endeavor requires well-articulated alt s to the status quo , for which
ernative

Waldram’s (2014) proposal for engaging HT as an idiom of distress rather than a clinical
syndrome or disorder is exemplary. One barrier to progress in this direction may be the
lack of collaborative initiatives pairing scholars engaging HT as a critical discourse with
those engaging HT as a clinical condition or life stressor. This could be resolved in joint
efforts of public scholarship or community-based mixed-methods research that captures
different engagements with HT and their psychological or health properties. Through
such collaborations, critical dialogue regarding the nature and function of HT could be
grounded in relevant clinical, health, and community contexts to inform a more precise
and impactful HT literature. Moving in this direction may also help address the second
challenge of clarifying implications for different contexts of colonialism, not just AI
peoples contending with U.S. settler-colonialism, but also Indigenous peoples contending
with different manifestations of structural and epistemic violence that echo common
patterns of colonial and settler-colonial violence and anti-colonial resistance.

Methodological pluralism is good

Reiter 14 (Keramet Reiter is a professor at the University Of California–Irvine, 2-7-2014, "Making
Windows in Walls: Strategies for Prison Research," SAGE Journals,)
https://journals.sagepub.com/doi/10.1177/1077800413515831/
The key to more, and more robust , prison research in the 21st century, especially in the United States, is
collaborations—across disciplinary, methodological, and institutional boundaries . First,
the calls that have been made across disciplines from anthropology to history and law for greater prison
research suggest that prison research is ripe for interdisciplinary collaboration . Understanding
both the arc of mass incarceration and the specific impact on institutions and individuals
requires research rooted in multiple disciplines , if not collaboration across disciplines. Similarly, the
challenges of prison research and the barriers to prison access discussed in the preceding section suggest that
prison studies are also ripe for mixed-methods approaches; by combining historical, legal, interview, and statistical
data collection and analyses, prison researchers can approach prisons from a variety of angles , seeking
access at multiple points . Finally, the access barriers discussed in the previous section also suggest that networking and
collaboration, with prison staff, prisoners, and even anti-prison activists , is critical to overcoming access
barriers to prisons. To explore various modes of collaborative research, I will present and discuss two examples of cross-disciplinary,
mixed methods, thoughtfully networked approaches to prison research: one from a recent study of transgender prisoners in the California
Department of Corrections and Rehabilitation (CDCR) and one from my own research work studying supermax prisons in the United States.
Jenness (2010), a sociologist working
within an interdisciplinary department of Criminology, Law and Society ,
described how she was able to carry out a multi-methods research design , collecting official quantitative data about
the numbers and locations of transgender prisoners in the California prison system, as well as qualitative interview and self-report data about
these prisoners’ day-to-day lived experiences. Through this work, which involved ongoing access to 28 prisons, Jenness also
collected “serendipitous ethnographic observations” of prisoners and prison staff alike (2010, p. 534). She argues that thisunexpected
data gathering ultimately informed her research questions, theoretical frames, and analyses. For instance,
conversations with correctional officials about how to identify transgendered prisoners revealed that the
officials rarely distinguished between “homosexual” and “transgender” prisoners, conflating gender and
sexuality (Jenness, 2010, pp. 529-531). While Jenness describes this “soft mixed methods” approach as “serendipitous,” her careful
explanations of the way she conducted her fieldwork and the kinds of ethnographic encounters she drew on from within her field notes provide
a roadmap for more carefully planned out research that replicates this “serendipitous” approach. She presents a model of prison-oriented data
collection, which pays careful attention not just to the specific research subject, but also to institutional context, carefully documented from
firsthand observations. Jenness’s work about transgender prisoners renders concrete the problems Simon describes with a modern prison
research agenda involving primarily quantitative analyses. The quantitative analyses are important, especially in a system encompassing 2.3
million people, but the context of the data is also critical to shaping the questions asked, the data collected, and the analyses imposed.
Overcoming the existing academic image of prisons as pixelated, or as “black sites,” practically requires this kind of mixed-methods approach
that (a) bridges quantitative and qualitative data and (b) seeks first-person researcher access to prison, to contextualize the data, however it is
collected. In addition to describing a mixed-methods approach to prison research, Jenness also describes the importance of collaborating across
networks in conducting prison research. She acknowledges the many access challenges that prison researchers face, explaining that she gained
access and CDCR funding for her own research through a convergence of three critical events: (a) evidence of the particular vulnerability of
transgender prisoners to sexual assault (collected as part of an earlier research project), (b) a high-profile federal court case brought against
CDCR by an abused transgender prisoner, and (c) and “the increasing visibility of transgender inmates in prison” (Jenness, 2010, p. 523). This
explanation suggests a few key tactical methods for gaining access to prison. First, establishing ongoing relationships with correctional officials,
though research or policy projects, is one means to both open avenues of access and cultivate the kind of trust that might encourage prison
officials to collect and share relevant data. Through these relationships, Jenness was able to obtain data about transgendered prisoners in a
collaborative, rather than a litigious manner, avoiding the time-consuming and often confrontational process of filing formal Freedom of
Information Act requests. Second, paying close attention to the safety-and-security concerns of prison officials, and connecting research
agendas to these concerns, can facilitate research access. In this case, Jenness capitalized on highly publicized concerns about prison rape,
especially of transgendered prisoners, to achieve unusually collaborative and open access as a prison researcher. This is not to say that the
concerns of prison administrators should dictate research agendas; rather, being aware of these concerns and addressing them through
research proposals is key to facilitating access to otherwise closed institutions. My
own work to understand one element of
mass incarceration in the United States—the design and proliferation of supermaximum security prisons , which
house prisoners in long-term solitary confinement—provides another example of a collaborative approach to prison research. Through
disciplinary, methodological, and institutional collaboration, I have gained access to a category of American imprisonment that is usually
invisible, literally hidden as a prison within prison, and colloquially referred to as “the hole.” When I initially sought to study supermax prisons
in California, I was interested in who was housed in supermax prisons and why .
I immediately encountered a number of the
barriers to prison access discussed in the preceding section: no data about who was in these supermax facilities was publicly
available; the state archives contained no information about the supermax prisons I was interested in; prison officials
were not willing for me to interview or consult the files of individual prisoners in supermaxes; my IRB was hesitant to approve contact with

these prisoners, even via phone or letter. Overcoming these barriers first required methodological creativity .
Finding no archival resources about the prisons themselves, I looked to the archives of the legislators who authorized the buildings of supermax

sought out individuals who had worked on designing the facilities, collecting oral histories
prisons, and I
about their roles in the project. Finding no official data about who was in the facilities, I contacted the statisticians working within
the department of corrections, and discussed what data were collected, and what kinds of aggregated reports could be produced. And facing
resistance to interviewing people housed in supermaxes, I obtained permission from my university’s IRB to find and
interview former prisoners , who had previously been housed in supermaxes. My methodological
creativity bridged a variety of disciplines. I looked to historians and historical methods to
contextualize the legislative and political development of the supermax at the state level; to sociologists,
anthropologists, and ethnographic methods to understand the impact of the institutions on individuals
and prison culture; to quantitative criminologists and statistical methods to understand the
relationship between supermax use and racial segregation, recidivism, and violence; and to legal
scholars and case law analyses to understand the relationship between litigation and modern
incarceration techniques. Drawing on multiple disciplines allowed me to take one piece of mass
incarceration, the supermax prison, and to understand it from multiple perspectives , each
informing the other . And drawing on multiple methods allowed me to use a variety of tools and resources
to overcome the barriers to prison access discussed in the preceding section. In addition to methodological and
disciplinary collaboration, I also developed networks across institutions, including state-level correctional
leaders, prisoners’ rights lawyers, prison advocacy and education organizations, and criminal justice
journalists. I volunteered as a college instructor in a medium-security California prison; this work was outside of the scope of my
research, but gave me context for understanding state prison culture generally. I attended an annual meeting of the
California correctional officer’s union, building contacts within the prison system. And I volunteered to conduct legal
monitoring visits for a local prisoners’ rights organization, which gave me a chance to visit a prison whose history I had
researched and written about, based largely on interviews and archival documents. Maintaining independent networks around the prison
community, both among people who work in prisons and among people who work against prisons, kept me informed of what was happening
throughout a given state prison system. These networks also provided me with a broad range of experts to tap when I needed more
information about data I was collecting—whether clarifications about a set of quantitative data I was analyzing, information about how a
corrections department official interpreted a policy, or strategies for identifying former prisoners who had spent time in supermaxes. Like
Jenness, I
looked for the intersection of legal challenges , media attention, and security concerns as
entrance points for making contacts and starting conversations, as well as justifications for information requests.
For instance, in the summer of 2011, prisoners in one of California’s supermax prisons conducted a well-publicized hunger strike, which
provoked op-eds in the New York Times and Los Angeles Times, inspired commentary from the United Nations Special Rapporteur on Torture,
and became the foundation for a new lawsuit challenging the conditions of confinement in the prison. This high-profile event precipitated the
public release of new data about the prisoners housed in supermaxes in California and opened up opportunities for journalists, as well as for
me, to visit California’s main supermax, Pelican Bay State Prison. In sum, as I conducted research about supermax prisons, I worked to stay
generally connected to prison-related organizations in the states I was studying. This served two important purposes. First, with a subject
matter for which research and analyses are scarce, every bit of context helps in understanding data collected and trends studied. Second, a
wide range of organizational connections provides a network of contacts through which greater degrees of access can be gained. Jenness’s
work and mine provide two concrete examples of the value of collaborating—across disciplines, methodologies, and institutions—in conducting

in-prison research. These collaborations can be non-traditional , both academically and socially , but
they are also critical to overcoming barriers to prison research.