Tribal Nations as Lords of the Fee: A Common Law Argument for Tribal Discretion in Spending Federal Forfeiture Funds

Federal criminal forfeiture is a powerful tool meeting at the nexus of criminal law and property law. Courts justify its use based on its English common law history. After seizing and selling assets, the federal government doles out payments from its Assets Forfeiture Fund to cooperating law enforcement agencies through equitable sharing agreements that bind recipients to use funds for law enforcement purposes. Tribal Nations have compelling legal and policy arguments for their entitlement to greater access to and discretion over forfeiture funds obtained through seizures in Indian country.

These legal arguments are grounded in: (1) federal criminal forfeiture’s failure to mirror English common law forfeiture’s split ownership interest between national and local sovereigns; (2) treaty rights and the federal trust responsibility; and (3) other legal arguments including the Clear Statement Rule, the major questions doctrine, and Tribal civil jurisdiction for civil forfeiture. These legal arguments have supplemental policy arguments based in Tribal sovereignty and self-determination, the nature of criminal jurisdiction in Indian country, and Tribal methods of justice. Tribal Nations can achieve greater access and discretion over forfeiture funds through changes to the federal statutory framework, exercise of prosecutorial discretion and DOJ policy changes, advocacy to Congress for broader access, or formal legal challenges under the Tucker Act.