Washington Law Review


A defendant in state and federal courts is entitled to a constitutional protection against self-incrimination. The Fifth Amendment establishes this privilege, which can only be overcome through a voluntary waiver or by the granting of an appropriate level of immunity. Those grants of immunity were made mutually binding on the state and federal governments in Kastigar v. United States and Murphy v. Waterfront Commission of New York Harbor. However, in Talton v. Mayes, the U.S. Supreme Court held that the Fifth and Fourteenth Amendments do not limit the conduct of the more than 560 federally recognized Indian tribes within the boundaries of the United States. In response, Congress exercised its plenary power and passed the Indian Civil Rights Act (ICRA). Under federal law, ICRA extended many, but not all, protections afforded under the Bill of Rights to tribal defendants without any required action from the tribes; many of the provisions are verbatim from the Constitution’s amendments. However, the complicated distribution of jurisdiction amongst sovereigns, as well as the tribal authority to create and implement unique constitutions and systems of justice, calls into question the standard by which to evaluate violations of the privilege against self-incrimination in tribal court. Furthermore, rare examples exist in which a court of any jurisdiction has considered or extended the mutually binding nature of grants of immunity and the use of testimony compelled by a separate jurisdiction to include tribal courts. This Comment suggests that violations of ICRA’s protections against self-incrimination be evaluated under a Fifth Amendment standard, utilizing U.S. Supreme Court precedent. This approach ensures a predictable analysis that is consistent with the legislative intent of ICRA and minimizes potential complications upon federal habeas review. This Comment further suggests that the universal application of Fifth Amendment precedent is a prerequisite for mutual and binding recognition of tribal, state, and federal grants of immunity. Mutual recognition places tribal courts on equal footing with state and federal courts. Further, a defendant facing prosecution in two or more courts exercising concurrent jurisdiction benefits when courts extend and recognize binding grants of immunity. Lastly, when grants of immunity apply in each jurisdiction, tribal courts and communities are empowered to pursue avenues of justice unique to tribal traditions and cultures

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