An American Indian attorney explains the complexities and challenges of law enforcement and justice in Indian Country.
Law enforcement can get stretched pretty thin in rural America. Insufficient funding and too much territory to patrol are the main reasons it is so hard to maintain adequate coverage. In Indian Country, when you add the challenge of checkerboard jurisdiction and additional funding challenges, it makes the idea of sufficient law enforcement just that – an idea.
Indian Country is, generally speaking, as rural as it gets. Therefore, we have all the problems that any other rural community has when it comes to law and order but more so.
A recent U.S. Department of Justice Study found that American Indians experience violence at a rate that is two and a half times greater than the general population. In that study, for every 1,000 American Indians, about 100 individuals experience violence. Compare that to the general population, which experiences violence at a rate of about 50 per 1,000 individuals. The Department of Justice also found that American Indian women are 2.5 times more likely to be raped or sexually assaulted than any other group in the Unites States. Currently, fewer than 3, 000 federal and tribal officers patrol 56 million acres of Indian lands. The Bureau of Indian Affairs estimated in a recent study that tribal police staffing meets about 58 percent of policing needs.
Unfortunately, we have a confusing patchwork of jurisdiction. In Indian Country, the Indian tribe and the federal government have jurisdiction over the majority of crimes. Way back when the Constitution was written, it provided that the federal government was responsible for dealing with Indian tribes, effectively cutting the state out of the law enforcement business on Indian reservations.
So law enforcement was left to the federal government and the tribes, whose roles in tribal law enforcement have evolved over the past two hundred or so years in the following way. The federal government exercises jurisdiction over what are called “major crimes” e.g. felonies, whose potential penalties include the possibility of more than a year in prison. The tribes retain and exercise jurisdiction over more minor crimes, generally known as misdemeanors.
There are a couple of exceptions to this general rule. When the crime committed in Indian Country involves a perpetrator and a victim who are both non-Indian, the state retains jurisdiction over the crime.
The other exception occurs in a handful of states. In these states, called Public Law 280 States, the state, tribes and the federal government all have jurisdiction. These include California, Minnesota, Nebraska, Oregon, Wisconsin and Alaska. In the 1950’s, the federal government decided to experiment and let the states take over jurisdiction. The result was appalling. When the federal government turned over authority to individual states, they did not provide them with any resources with which to exercise this new jurisdiction. As a result, many of the Indian reservations in these states no longer had any meaningful law enforcement. And as it turns out, the tribes were not and have not been in a position financially to fully assume those responsibilities. The situation is untenable.
Whether or not a tribe is located in a Public Law 280 state or has a more traditional jurisdictional framework, adequate law enforcement is still a problem. In the past in Public Law 280 states, the tribes relied on state and local law enforcement to help, but these agencies were underfunded themselves and often located far enough away from the tribal population bases to make emergency response meaningless. In some circumstances racism exacerbated the problem.
In states where the traditional allocation of jurisdiction is prevalent, the lack of law enforcement is even more apparent. The federal presence was limited to whatever presence the Bureau of Indian Affairs could provide, and to the involvement of the US Attorneys and Federal Bureau of Investigations personnel, who were generally located very far away (often hundreds of miles) in the city nearest the tribe.
This meant that many cases went uninvestigated and unprosecuted.
Starting in the 1970’s, tribes began to take control of this situation for themselves. No longer willing to be subject to the limitations of the federal government, they began to develop their own police departments and tribal courts. They also began taking over the operation of Federal programs by contracting to operate them on behalf of the federal government.
As a result, the situation has improved somewhat over the last thirty years or so, but there is still so far to go.
This all sounds very depressing, but there is some help on the way if Senator Byron Dorgan has any say about it. Senator Dorgan, the Chairman of the US Senate Indian Affairs Committee has introduced legislation in the form of the Tribal Law and Order Act. This bill seeks to address and resolve many of the problems currently faced by federal and tribal law enforcement agencies by enhancing consultation and communication between the Bureau of Indian Affairs Office of Justice Services and tribal communities. Under this Act, tribal justice officials would receive tools to fight crimes in their communities, expand tribal police authority to make arrests for crimes and allow them to call on the United States government to assist state governments in prosecution of major crimes. This legislation also includes a provision to address the epidemic of domestic violence and sexual assault in Indian Country.
In a letter to Indianz.com, a popular American Indian news website, Senator John Thune, Republican from South Dakota, notes that President Obama’s federal budget request does not contain funding for the federally authorized Emergency Fund for Indian Safety and Health. The fund is authorized to spend up to $2 billion over five years on public safety, health care and water resource development in Indian Country)
Aurene Martin is a member of the Bad River Band of Lake Superior Chippewa. Ms. Martin is a Washington, DC attorney, and served as the Acting Assistant Secretary of Indian Affairs. She currently works with Ietan Consulting as an advocate for Indian Tribes.