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JOURNAL of COURT INNOVATION Volume 2 Number 2 Fall 2009 JOURNAL OF COURT INNOVATION Volume 2 Number 2 Fall 2009 SPECIAL ISSUE ON TRIBAL JUSTICE A Word from the Executive Editors Greg Berman, Juanita Bing Newton, Michelle S. Simon . v ARTICLES Full Faith and Credit and Cooperation Between State and Tribal Courts: Catching Up to the Law Paul Stenzel. 225 Treaties, Tribal Courts, and Jurisdiction: The Treaty of Canandaigua and the Six Nations’ Sovereign Right to Exercise Criminal Jurisdiction Carrie E. Garrow . 249 21st Century Indians: The Dilemma of Healing Carey N. Vicenti. 279 The State of Pretrial Release Decision-Making in Tribal Jurisdictions: Closing the Knowledge Gap John Clark . 297 Tribal Probation: An Overview for Tribal Court Judges Kimberly A. Cobb and Tracy G. Mullins . 329 INTERVIEWS Introduction Reflections on Tribal Justice: Conversations with Native American Judges . 345 Abby Abinanti, Chief Judge, Yurok Tribal Court, Klamath, California, and California Superior Court Commissioner . 347 P.J. Herne, Chief Judge, St. Regis Mohawk Tribal Court, Akwesasne, N.Y.. 359 B.J. Jones, Tribal Court Judge and Director, Tribal Judicial Institute at the University of North Dakota School of Law . 367 David Raasch, Judge, Stockbridge-Munsee Tribal Court, Bowler, Wisconsin . 381 Barbara Smith, Chief Justice, Chickasaw Nation Supreme Court, Ada, Oklahoma . 391 Korey Wahwassuck, Associate Judge, Leech Lake Band of Ojibwe Tribal Court, Cass Lake, Minnesota . 405 BOOK REVIEWS Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory by Christian W. McMillen Aaron Arnold . 419 Legal Accents, Legal Borrowing: The International Problem-Solving Court Movement by James L. Nolan, Jr. Ben Ullmann . 425 American Juries: The Verdict by Neil Vidmar & Valerie P. Hans David F. Eisenberg . 431 The Innocence Commission: Preventing Wrongful Convictions and Restoring the Criminal Justice System by Jon B. Gould Jeffrey D. Stewart . 439 pci2-2_cv_pci2-2_cv 5/13/2010 2:52 PM Page 3 (Black plate) JOURNAL OF COURT INNOVATION Volume 2 Number 2 Fall 2009 CENTER FOR NEW YORK STATE PACE COURT INNOVATION JUDICIAL INSTITUTE LAW SCHOOL EXECUTIVE EDITORS GREG BERMAN, Director, Center for Court Innovation JUANITA BING NEWTON, Dean, New York State Judicial Institute MICHELLE S. SIMON, Dean, Pace Law School MANAGING EDITORS JOY BEANE, New York State Judicial Institute LESLIE YALOF GARFIELD, Pace Law School ELISSA KRAUSS, New York State Office of Court Research ROBERT V. WOLF, Center for Court Innovation GUEST EDITOR AARON ARNOLD, Tribal Court Justice Exchange, Center for Court Innovation PUBLICATION MANAGER ANITA WOMACK-WEIDNER ADMINISTRATIVE EDITOR SALVATORE VETRINI EDITORIAL ADVISOR MICHAEL COLODNER EDITORIAL ADVISORY BOARD KEVIN BURKE, Judge, Hennepin County (Minnesota) District Court JEFFREY BUTTS, Executive Vice President of Public/Private Ventures BEN CLYBURN, Chief Judge, District Court of Maryland RON CORBETT, JR., Executive Director, Massachusetts Supreme Judicial Court SHARI SEIDMAN DIAMOND, Professor, Northwestern University School of Law A. ELIZABETH GRIFFITH, Bureau of Justice Assistance, U.S. Department of Justice FRANCIS X. HARTMANN, Senior Research Fellow, John F. Kennedy School of Government, Harvard University CHARLES J. HYNES, Kings County (New York) District Attorney MARY CAMPBELL MCQUEEN, President and CEO, National Center for State Courts TIMOTHY J. MURRAY, Executive Director, Pretrial Justice Institute NORMAN L. REIMER, Executive Director, National Association of Criminal Defense Lawyers SHELLI B. ROSSMAN, Senior Research Associate, Urban Institute MICHAEL D. SCHRUNK, Multnomah County (Oregon) District Attorney ROBIN G. STEINBERG, Executive Director, The Bronx Defenders PATRICIA TOBIAS, Administrative Director of the Idaho Courts JEREMY TRAVIS, President, John Jay College of Criminal Justice STUDENT EDITORS Senior Student Editor: David F. Eisenberg Student Editors: Tasha D. Fasce, Sarah J. Fetherston, Daniel P. Harvey, Lisa Hatem, Rachel Schwartzman The Journal of Court Innovation The Journal of Court Innovation is published by the Center for Court Innova- tion, the New York State Judicial Institute, and Pace Law School to promote and highlight innovative programs and strategies in court systems around the United States. Geared to both practitioners and academics, the Journal’s audience includes court administrators, attorneys, judges, scholars, non-profit executives, legis- lative and executive branch officials, and anyone interested in improving the administration and delivery of justice. The Journal invites submissions of articles about innovative programs and strategies in court systems. Topics of interest include, but are not limited to: jury issues, case management, judicial selection and evaluation, court struc- ture, judicial training, technology, problem-solving courts, and efforts to cre- ate stronger links between courts and communities. Submissions, which can be anywhere from 8 to 35 pages, will be reviewed by the executive and man- aging editors as well as outside reviewers. For complete submission guidelines, visit http://www.courtinnovation.org/ submission.htm. Inquiries or submissions can be directed to: Journal of Court Innovation, 520 Eighth Avenue, 18th Floor, New York, New York 10018, 212.373.1683, Attn: Article Submission, or e-mailed to [email protected]. The Journal of Court Innovation is published twice a year. Annual subscrip- tions within the U.S. and Canada are $50. Foreign subscriptions are $60. Single issues are available for $25. To subscribe or order a single issue, mail a check made out to “Center for Court Innovation” to: Journal of Court Innovation, 520 Eighth Avenue, 18th Floor, New York, New York 10018, Attn: Subscription Processing, or visit http://www.courtinnovation.org/submission.htm to or- der a subscription on line. The Journal, its editors, editorial advisory board, publisher and printer dis- claim responsibility and liability for any statements of fact or opinion made by contributors. © 2009 Journal of Court Innovation ISSN 1938-9078 Printed by Joe Christiansen Inc., Lincoln, Nebraska 68521 Special Issue on Tribal Justice Contents A Word from the Executive Editors Greg Berman, Juanita Bing Newton, Michelle S. Simon ....... v ARTICLES Full Faith and Credit and Cooperation Between State and Tribal Courts: Catching Up to the Law Paul Stenzel ............................................... 225 Treaties, Tribal Courts, and Jurisdiction: The Treaty of Canandaigua and the Six Nations’ Sovereign Right to Exercise Criminal Jurisdiction Carrie E. Garrow .......................................... 249 21st Century Indians: The Dilemma of Healing Carey N. Vicenti .......................................... 279 The State of Pretrial Release Decision-Making in Tribal Jurisdictions: Closing the Knowledge Gap John Clark ................................................ 297 Tribal Probation: An Overview for Tribal Court Judges Kimberly A. Cobb and Tracy G. Mullins .................... 329 INTERVIEWS Introduction Reflections on Tribal Justice: Conversations with Native American Judges Abby Abinanti, Chief Judge, Yurok Tribal Court, Klamath, California, and California Superior Court Commissioner ...... 347 P.J. Herne, Chief Judge, St. Regis Mohawk Tribal Court, Akwesasne, N.Y. ........................................... 359 B.J. Jones, Tribal Court Judge and Director, Tribal Judicial Institute, University of North Dakota School of Law .......... 367 David Raasch, Judge, Stockbridge-Munsee Tribal Court, Bowler, Wisconsin ......................................... 381 Barbara Smith, Chief Justice, Chickasaw Nation Supreme Court, Ada, Oklahoma ..................................... 391 Korey Wahwassuck, Associate Judge, Leech Lake Band of Ojibwe Tribal Court, Cass Lake, Minnesota .................. 405 BOOK REVIEWS Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory by Christian W. McMillen Aaron Arnold ............................................. 419 Legal Accents, Legal Borrowing: The International Problem- Solving Court Movement by James L. Nolan, Jr. Ben Ullmann .............................................. 425 American Juries: The Verdict by Neil Vidmar & Valerie P. Hans David F. Eisenberg ........................................ 431 The Innocence Commission: Preventing Wrongful Convictions and Restoring the Criminal Justice System by Jon B. Gould Jeffrey D. Stewart .......................................... 439 A WORD FROM THE EXECUTIVE EDITORS This special issue of the Journal of Court Innovation is devoted to tribal justice. The articles and interviews in this issue examine some of the pressing challenges facing tribal courts as well as the changing relationships of federal, state, and tribal justice systems. Innovation is a common thread running through this issue, as tribal communities across the country are exploring new ways to balance traditional values and practices with new thinking and contemporary needs. Recent events confirm that we are in the midst of a critical pe- riod for tribal justice systems. In October 2009, the United States Department of Justice convened a Tribal Nations Listening Ses- sion in St. Paul, Minnesota. This gathering was attended by nearly 400 tribal leaders and close to 100 Department of Justice officials. In his official remarks, U.S. Attorney General Eric Holder lamented that “crime statistics in Indian Country are staggering,” and he vowed to work with tribal leaders to find “immediate solutions” and “long term answers to the problems facing tribal communities.” Interest in tribal
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