Law & Order: Indian Country

By Tristan Ahtone
November 13, 2013

For decades, tribal areas of the United States — Indian Country, for short — have been some of the most violent and dangerous places to live. Some of the biggest problems law enforcement officials face include issues of criminal jurisdiction, bad communication between tribal, state and federal officials, poor court sentencing powers, and of course, minimal funding. 

This week, the Tribal Law and Order Commission has released recommendations on how to curb violence in Indian Country:

The Commission finds that the public safety crisis in Native America is emphatically not an intractable problem…. We see breathtaking possibilities for safer, strong Native communities achieved through home-grown, Tribally based systems that respect the civil rights of all U.S. citizens and reject outmoded Federal command-and-control policies in favor of increased local control, accountability and transparency.

To understand the complexities of policing Indian Country, one has to rewind to 1881. That year, Lakota chief Spotted Tail was killed by Lakota sub-chief Crow Dog on the Rosebud Reservation. Lakota law ordered Crow Dog to pay for his crime through restitution, but a territorial court arrested him for the crime and sentenced him to hang.

Crow Dog's case wound up in front of the Supreme Court, which ruled that there was no federal jurisdiction over Indian-on-Indian crime in Indian Country, overturning Crow Dog's sentence. However, Congress had other ideas, and in 1885, passed the Major Crimes Act giving federal courts jurisdiction over Indian crime in Indian Country.

Since the Major Crimes Act, both Congress and the Supreme Court have created complex systems of jurisdiction in Indian Country through acts like the the Indian Civil Rights Act of 1968, which placed limits on what kind of justice tribal courts could dispense; and Oliphant vs. Suquamish in 1978, which established that tribes had no jurisdiction over non-natives who commit crime on tribal land.

Two acts signed into law under the Obama administration are beginning to remedy the extraordinarily complicated area of law that represents Indian Country jurisdiction: the first is the Violence Against Women Act, passed last year, which provides a partial fix to the above mentioned Oliphant vs. Suquamish. Now, a native woman victimized by a non-native man in Indian Country can take her abuser to tribal court. The second is the Tribal Law and Order Act (TLOA), passed in 2010, which aims to increase funding, provide enhanced sentencing capabilities for tribes, and improve communications between authorities.

In the report released this week, the Tribal Law and Order Commission  looks to gauge the effectiveness of the TLOA and find ways to close public safety gaps in Indian Country.

When Congress and the Administration ask why the crime rate is so high in Indian country, they need look no further than the archaic system in place, in which Federal and State authority displaces Tribal authority and often makes Tribal law enforcement meaningless.

The two big findings in the report:

• The Federal government is largely to blame for the decades-old public safety gap in Native America. 

• Whereas most U.S. citizens rely on local and regional criminal justice systems, tribes do the opposite and depend on federal or state laws from outside their communities making Tribal Nations less safe.

And the big reform recommendations:

•  Allow tribes to exit the Federal criminal justice system entirely while still allowing rights violations appeals to circle up through the U.S. Court of Indian Appeals

• Permit Tribal Governments to define their own criminal laws and sentences

• Ensure that Tribal prosecutors have access to Federal criminal justice information, including evidence and case files

• Replace Federal grant-funding to Indian country with a base-funding program

• Fix criminal justice data reporting and systems

And finally: 

The United States should set a bi-partisan national policy goal of eliminating the Indian country public safety gap by 2024 - the centennial of the Indian Citizenship Act, when all Native Americans could finally vote in Federal elections.

With nearly 200 tribes between Texas to California alone, these recommendations could bring huge changes to crime-ridden areas while empowering tribes to enforce justice as they see fit within their territory. It would also mean that the criminal justice landscape in Indian Country could significantly change as tribes take steps to becoming truly sovereign nations with the United States.

The next step will be for Congress, and President Barack Obama to adopt or ignore the Commissions recommendations.