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Excerpted From: Genevieve Frances Steel, Constructing the Trident of the Reasonable Person: Enough Is Enough! It's Time for the Reasonable Indian Standard, 12 Elon Law Review 62 (2020) (280 Footnotes) (Full Document)


GenevieveFrancesSteelAmerican Indians are the only minority group in the United States that suffer burdens unlike other groups. To start, they experience a number of illnesses caused by perpetual “Historical Trauma.” Indian tribes are sovereign nations originating prior to the American Constitution. They are not protected from “double jeopardy,” and as a result are often tried for the same offense in both state and federal court, while non-Indians only face state court for the same crime. Federal sentencing is harsher than state sentencing, and federal courts are often hundreds of miles from many Indian reservations, which impedes fair trials. Additionally, tribal members identify collectively where the best interests of the tribe are considered before themselves. This impacts dealings with “mainstream culture,” which is individualistic, and reduces the ability to successfully navigate through the American adversarial system with equal footing to those who communicate with an individualistic vantage point. The inability to navigate on equal footing often leads to “disparities,” which include frequent false confessions and guilty verdicts. The higher probability of an Indian making a false confession arises from growing up within the traditional way of life in a tribe. There are nuances and mannerisms that come to play as a tribal member that are contrary to the social norms of non-Indians. As a result of this conflict, communication is amiss when being interrogated by non-Indians. Statistics show that American Indians have the highest incarceration rates among minority groups. Therefore, it is highly likely that implicit biases contour the fate of an Indian being prosecuted, whether it be during interrogation by law enforcement, or while being evaluated by judges and jurors that have never experienced what it is to be Indian.

Now that science and medicine confirm the existence of Historical Trauma through epigenetic transfer in American Indians, it is the perfect time to bring to light a new theory called “the Reasonable Indian Standard.” Its purpose is to provide a bright-line rule which allows expert testimony in support of Historical Trauma, and also recognizes the delicate, yet prolific, conflicts with mainstream culture that members of a tribe experience when practicing traditional ways. This standard applies to both Indian plaintiffs and defendants and provides an explanation for the inherent flaws and fallacies that occur when non-Indian police officers, judges, and jurors preside over an Indian. Additionally, this standard also highlights an in-depth understanding of the nuances of the Indian culture that is unfamiliar to non-Indians in mainstream culture. The standard points out the flaws in diagnostic testing, which fails to adequately test an Indian properly, and recognizes the significance of Historical Trauma and its effects on an Indian brain and body. Further, it outlines where the status quo of mainstream society is counter-productive to the status quo of being Indian. Awareness of these factors provides alternative remedies to the reasonable person standard, which historically, and even now, defeat the Indian from legal perspectives. For purposes of this article, the Reasonable Indian Standard applies to both plaintiffs and defendants. Additionally, the discussion here is narrowly tailored to in-custody interrogation and the voluntariness analysis.

There are four primary areas of the Reasonable Indian Standard which should be administered by experienced practitioners in medicine, psychology, and science: (1) Historical Trauma; (2) Conflicts of Acculturation (different values and behavioral patterns among American Indians as compared to mainstream culture); (3) Individual Mindedness versus the Tribal Collective Mind; and (4) Cognition, Reasoning, and Emotional Control. By using this standard, it is my hope that American Indians and Alaska Natives can level out some of the disparities in the adversarial system that face them now and in future generations to come.

My hypothesis is that standard diagnostics, originally developed through testing on the non-Indian majority, only test for specific symptoms or conditions that have no template for epigenetic transfer or Historical Trauma. As a result, standard diagnostics fail to capture the subtle, yet profound, differences of the Indian body and mind, which have been exposed to multiple generations of Historical Trauma. This article explores these profound differences caused by“epigenetic transfer,” which modifies the human gene, marking it sensitive to “stress.” When “epigenetic markers” derived from Historical Trauma activate, they overload the brain and body with toxic levels of cortisol, which deactivates reasoning and emotional control. Standard diagnostic testing is usually performed in tranquil environments when the epigenetic markers on the gene are not activated. Therefore, the Reasonable Indian Standard is important because it attests to how the American Indian is affected during the event, and explains why Indians respond differently in comparison to America's reasonable person. For example, a judge would infer that a highly charged interview with an FBI agent is stressful, but not enough to cause an Indian suspect to make a false confession, because a reasonable person in like circumstances would never cave in. The necessity for a standard that distinguishes how Indians are affected came to realization after reading United States v. Woody. In this case, Mr. Woody, a Navajo criminal defendant, prevailed at a motion to suppress hearing. Mr. Woody used his Navajo background to show he was overborne by FBI interrogation, which was successful at the Arizona Federal Court but eventually overturned by the Ninth Circuit. Had the Reasonable Indian Standard been implemented during the federal government's appeal at the Ninth Circuit, he likely would have seen a different outcome.

Part II of this article presents the background on Indian statistics that reflect the effects of colonization and Historical Trauma and exposes how these problems are unaccounted for in the American justice system. These problems cause a severe disparity for American Indians navigating through the adversarial system.

Part III discusses how Woody establishes the framework for the Reasonable Indian Standard and offers an in-depth analysis of why the Ninth Circuit is incorrect. Here, Part III discusses why a Reasonable Indian Standard is an appropriate remedy for an Indian being overborne by an interrogator. The conclusion discusses how J.D.B. v. North Carolina supports a justification for creating a third variation of the reasonable person.

[. . .]

In Miller v. Alabama, Graham v. Florida, and Roper v. Simmons, the United States Supreme Court relied on scientific data proving that cognitive and emotional maturity factors in juveniles were drastically different than those in adults. In Mr. Woody's case, he was a juvenile during his adolescent years, was a son to a single-Indian mother, and attended boarding school, which has a reputation for adverse childhood experiences. He began drinking and smoking marijuana during his formative years, which was bad for the brain and may have even been attempts to self-medicate. If he was self-medicating, then it is possible he was suffering from responses to Historical Trauma as well as present-day trauma and acculturation. Dr. McIntyre testified that “intergenerational trauma suggests that some Native Americans experience depression, substance dependence, dysfunctional parenting, and unemployment as a result of unresolved trauma ....” Dr. Brave Heart addresses the impact of unresolved grief on Indians and describes it as “a component of the [H]istorical [T]rauma response.” Science Daily reports that early childhood trauma may stunt intellectual development. Further, clinical research at Duke University reports that early exposure to trauma stunts emotional development, which in turn stunts emotional maturity and control.

Dr. McIntyre opined that “Woody's low average intelligence makes it difficult for him to resist the kinds of stresses and pressures a subject might experience during a police interrogation. Historical [T]rauma and cultural differences amplify his susceptibility to coercive interrogation techniques ... and may have contributed to Woody's will being overborne.” In 2017, after Mr. Woody's statements were no longer suppressed, he accepted a plea of seventy-one months in prison and lifetime supervision. Consequentially, had the Reasonable Indian Standard been available at the Ninth Circuit level, his involuntary statements would have remained suppressed. This dilemma shows why the Reasonable Indian Standard should be recognized and implemented by judiciaries and jurors across the nation.

In J.D.B. v. North Carolina, the Supreme Court of the United States deviated from the reasonable person standard for the first time in history by creating the reasonable juvenile standard. The reasonable person standard is paramount to custodial interrogation because it controls how judges and jurors view defendants and determines whether crucial statements become convicting evidence. The unveiling of the reasonable juvenile standard sheds light on different cognitive and emotional capacities when adjudicating whether a defendant feels free enough to leave the interrogation. The United States Supreme Court found that the former standard failed to represent young adults because they differ in experience, cognition, and emotional maturity.

If juveniles have a different standard to be judged, then so too should American Indians. The Court in Roper, a seminal case leading up to the juvenile standard, determined that “juveniles have less control, or less experience with control, over their own environment.” Adverse childhood experiences have been proven to stunt emotional maturity at the age the trauma originally occurred. Based on the factors and circumstances this article has covered, all of the traumatic experiences each Indian faces, especially in their youth, is enough to stunt emotional growth to a degree necessitating that American Indians diagnosed with these issues are given the same Constitutional protections afforded to juveniles. In considering the plight American Indians faced it is reasonable to conclude that American Indians suffering from Historical Trauma have less control, and less experience with control over their own environment. This is because previously, they faced removal from lands, genocide of generations of Indians, and their children being ripped from families to attend boarding schools that abused them physically, psychologically, and sexually. Currently, they face living in remote reservations where statistics prove they are highly victimized. These conditions promote a cycle of living within a fatalistic view of life where studies prove that the existence of epigenetic transfer and Historical Trauma is plaguing Native people in America today unless something can be done to stop the cycle.

The Supreme Court recognizes two significant characteristics that influenced their decision to create a bifurcation from the original reasonable person standard: a limited decision-making capacity and susceptibility to outside influences. As discussed in Part III of this article, the epidemic of Indians suffering from Historical Trauma has long-term afflictions, including limited decision-making capacity and susceptibility to outside influences. Outside influences are seen in epidemics or tidal waves of substance abuse, victimization, and the kidnapping of Indian women for the sex trade. Further, domestic violence against Native women is mostly perpetrated by non-Indian offenders. Susceptibility to outside influence is also manifested in high concentrations of depression and the highest suicide rates in the country as a result of Historical Trauma and acculturation. Additionally, depending on what the Court referred to as susceptibility, Indians are the most likely to be killed by law enforcement--more than any other minority. As a result, they are highly susceptible, and downright vulnerable, to pressures from forces outside their reservation when living on the reservation and when within mainstream culture outside of the reservation.

In conclusion, the Reasonable Indian Standard presents essential factors regarding Historical Trauma that must be considered to fairly evaluate and judge Indians with debilitating backgrounds. This standard sheds light on paramount differences between mainstream culture and tribal living, individualistic and collective consciousness, and tribal social mores. Therefore, the Reasonable Indian Standard should be implemented to address and account for the disparities facing American Indians and Alaskan Natives in the adversarial system today and among future generations.

Genevieve Frances Steel received her juris doctorate while specializing in Natural Resources and Indian Law from Lewis and Clark Law School located in Portland, Oregon in 2019 and an LL.M. in International Arbitration from the University of Miami School of Law in Miami, Florida in 2020.

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