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Michael Daugherty: Tribal Courts should Abolish Cash Bail

The targeted imposition of fines and fees on communities of color not only impacts the ticketed individual themselves but also impacts the efficacy of and public confidence in the judicial system as a whole within those communities. Michael Daugherty discusses the criminal justice system’s disproportionate impact on Indigenous peoples in “Tribal Courts should Abolish Cash Bail.” How does the excessive collection of fines and fees harm Indigenous peoples? What are other ways that fines and fees disproportionately affect people of color in the criminal justice system?

I am interested in understanding how Indigenous peoples' bail options are limited if they are unable to use their land as collateral for a bail bond. If so, it would not be surprising to learn that Indigenous peoples living in Indian Country have a harder time avoiding the "poverty penalty" than those who might be able to obtain a bond even when they can't pay cash bail. 



Michael mentions that the federal government tends to be a little hands off in terms of enforcement even where it might be warranted. Perhaps this is a silly concern, but if tribes move away from cash bail is there any concern that the federal government might see the aggregate increase in expendable income available to tribal members as a potential source of revenue, incentivizing greater enforcement going forward?

Daugherty does an excellent job in this article of describing the manner in which existing systemic-inequity issues with the criminal justice system have come together with other issues impacting Indigenous peoples to create deeper problems with the cash bail system. I wonder what other criminal justice issues have specific implications for Indigenous people that are unknown by the general public.

I know Chicago just voted to end cash bail. I am curious if other places which have taken this step are major cities as well, or if rural or tighter-knit communities have been able to do so.  Perhaps other tight-knit communities, like the Native communities Daugherty describes, have begun to navigate these challenges?  

I really appreciated how Daugherty pointed out that in addition to inequities inherent in a cash bail system, the cultural and demographic considerations of indigenous tribes makes cash bail even more nonsensical. When this consideration is paired with the fact that many indigenous communities are located in the most isolated and rural locales in the U.S., and the fact that some indigenous communities suffer from some of the most profound poverty in the U.S. such that many people do not have means of transportation, the risk of flight is exceedingly low. Abolishing cash bail in these communities–at least for many alleged crimes–transcends common sense. 

It was interesting to hear about how the European justice system has influenced the practices of Tribal courts, particularly in terms of their use of cash bail. I would be interested to learn more about other ways in which the Anglo justice system has impacted the practices of Tribal courts and how the Anglo justice system is inadequately suited to address Native American demographics and cultural practices. In particular, is the Anglo influence the result of direct pressure from neighboring states? How did that pressure manifest? Do some Tribal courts reflect a more Anglo-structured justice model than others and why?

I appreciated reading Daugherty's argument for the Tribal courts. As others have mentioned, there's a movement to abolish cash bail, including most recently a bill in Illinois that was passed by state legislature and is to be signed by the governor. Daughtery points out that Tribal courts have limited sentencing powers, and defendants "seldom face the types of charges that might encourage someone to flee." The Illinois bill grants judges some discretion in detaining someone pretrial if they pose a specific risk to someone or would skip town--would such a caveat exist in a Tribal court reform? Or, as Daughtery notes, would the close-knit community prevent such a perceived need, particularly in regards to someone thinking of fleeing town?