Where Tribal Justice Works
In 2011, a man in northeastern Oregon beat his girlfriend with a gun, using it like a club to strike her in front of their children.
Both were members of the Confederated Tribes of the Umatilla Indian Reservation. The federal government, which has jurisdiction over major crimes in Indian Country, declined to prosecute.
So the tribes stepped in. The man was convicted in their courts and sentenced to 790 days in federal prison.
But had the assault happened a week earlier, the case could never have gone to trial.
The Umatilla tribes had recently enacted new provisions from a federal law, the Tribal Law and Order Act, that allowed Native American courts to try their own people for felony crimes instead of relying on the federal authorities.
Without those provisions, once federal prosecutors declined the case, the woman would have had no other legal recourse.
Brent Leonhard, the general counsel for the Umatilla tribes, is proud of the conviction: “I personally was concerned that the victim at some point would end up dead,” he said.
“People here were pretty happy to see the person held accountable.”
A Century, and a Patchwork of Laws
The government’s most recent census of tribal justice agencies, done in 2002, found that about 60 percent of tribes had some form of judicial system in place, and 84 percent had the capacity to try misdemeanor cases. Tribes come up with their own system, sometimes incorporating traditional practices. Most are modeled after state governments.
Still, justice on Native American reservations is different than it is in the rest of the country. In many communities, attorneys and judges aren’t required to be trained in the law, and tribes don’t have to provide defendants legal counsel. Many tribes also incorporate their own traditional law, which in some cases focuses on reconciling aggrieved members, not punishing offenders.
Since the 1800s, tribal rule has been overshadowed by three federal laws that took jurisdiction from tribal governments and gave it to federal authorities.
One of them, passed in 1885, determined that major crimes committed on reservations by and against Native Americans fell under federal jurisdiction. Congressman Byron Cutcheon (R-Mich.), who sponsored the act, suggested at the time that Native Americans would “be civilized a great deal sooner” if they were subject to federal criminal law.
By 2010, more than one century later, the best organized tribal authorities were able only to prosecute misdemeanors and assign penalties of up to one year in jail. The rest was left to the state in some cases, and mostly the federal government.
But federal authorities didn’t always step in. They declined more than half of the cases referred for prosecution from Indian Country, according to the most recent government data (pdf), helping build what tribal justice experts describe as a culture of impunity that has most endangered women and children.
Overall, the violent crime rate in Indian country is more than 2.5 times the national rate, according to a 2011 report by the departments of Justice and Interior, which share oversight of that territory. Women are often on the receiving end of that violence.
An estimated 46 percent of Native American women have been abused — raped, beaten and/or stalked — by an intimate partner in their lifetime, according to a 2010 survey on intimate partner violence from the Centers for Disease Control and Prevention.
American Indian or Alaska Native children have the second-highest rate of abuse, at 11 per 1,000 children, and the second-highest fatality rate nationwide, according to federal data (pdf). (African-American children are first). White children are abused at the rate of 7.8 per 1,000.
These figures are likely underreported. A federal survey (pdf) on abuse reporting determined that the government receives only about 60 percent of the data on abuse and neglect of American Indian children.
“There’s a pattern of people getting away with not being held accountable,” said Diane Payne, director of the Justice for Native Children Project in Alaska.
New Laws, New Order
In 2010, under President Barack Obama, the federal government’s approach to tribal justice began to shift.
In January 2010, prosecutors working in Indian Country received a memo from David Ogden, the deputy attorney general, instructing them to come up with an “operating plan” to deal with violence on reservations and make offenses against women and children a priority.
“Although sexual assault offenses may often occur outside the presence of witnesses and may present other prosecutorial challenges, these factors should not deter law enforcement personnel from diligently and thoroughly investigating the crime or pursuing prosecution,” it read.
Later that year, Congress passed the Tribal Law and Order Act, allowing tribes to take on felony cases, and hand down sentences up to three years. A pilot program with the Bureau of Prisons allowed them to jail convicted criminals in county or federal prisons, since tribal jails are notoriously understaffed and overcrowded, according to a 2011 inspector general report (pdf).
The Justice Department also awarded more than $245 million to tribes to improve their justice systems to ensure they’d be able to take on more serious cases, and strengthen their law enforcement capabilities. U.S. attorneys have also begun to work more closely with tribal prosecutors and tribal officials to improve coordination on cases and streamline systems.
“Have we solved these problems? Well, no. This is a longterm issue,” said U.S. District Attorney Tim Purdon, who covers the North Dakota region. “We are taking a first step here with many of the tribes and many of the reservations there.”
In a few years, due to new provisions in the Violence Against Women Act, some tribes will gain additional jurisdiction allowing them to try non-Natives who live on the reservation in their own courts.
“No Longer Do We Have to Wait”
The Hopi people, who live on a 1.5 million-acre reservation in northern Arizona, have one of the stronger tribal justice systems in the country. They are a small community, living in 12 villages governed by a tribal council.
Once the Tribal Law and Order Act passed, the Hopi brought their code into compliance, spending $600,000 of their own funds. “No longer do we have to wait for the federal government to determine whether we can prosecute an individual,” said LeRoy Shingoitewa, chairman of the Hopi Tribal Council. “We can take that case into tribal court and start the prosecution.”
The Hopi court once allowed paralegals to work as judges and prosecutors. Now the chief justices, prosecutor and public defenders all must have bar certification. The tribe relies on the Bureau of Indian Affairs, the federal government branch, to investigate criminal cases.
Shingoitewa said the improvements had strengthened his people’s confidence in the justice system. “We had neglected to do those things to protect our people,” he said, and as a result, “many crimes were committed that were never prosecuted.”
Shingoitewa said the tribe is now also working to adjust its code to allow it to prosecute non-Natives, as the new VAWA provisions allow. It hopes to begin prosecutions in the next 1-2 years.
“I Let ‘Em Have It”
Despite many tribe’s increasing sovereignty, the federal government continues to play a major role in tribal justice, even when tribes are strong enough to stand, as best they can, on their own.
Bernadine Martin, the chief prosecutor of the Navajo Nation, recalled her first clash with federal authority came during the area’s infamous “nun case.”
The Navajo reservation spans parts of Utah, Arizona and New Mexico and is home to about 178,000 tribal members. Despite rampant poverty and an estimated 45 percent unemployment rate, Martin said, the nation has its own tribal police, and a structured court system.
In 2009, Navajo police had picked up a man for reckless driving. He’d crashed into a tree and damaged some property on the reservation. He was put in jail, and the tribe planned to prosecute him for the crime.
But the 18-year-old driver was already a wanted man. The FBI suspected him of killing a nun at her home in an attempted burglary. Because the Navajo Nation is a sovereign entity, federal authorities would have to file extradition paperwork to take the suspect into their custody for a murder trial.
Instead, they came to the jail, showed their credentials, and took the man away, in a move tribal officials refer to as “badging out.”
Martin was furious. “I let ’em have it,” she said. “Our courts are competent jurisdictions.”
The matter was resolved in court, and the suspect was ultimately handed over to federal authorities to be charged with murder. Martin said it hasn’t happened again. Patrick Schneider, assistant U.S. attorney for the region, said “badging out” wasn’t a practice he supported and that he tries to work with tribal prosecutors on such cases. Giving the tribes increased jurisdiction, he said, even if it doesn’t increase the number of cases, can only help.
“I think we all have a lot of room to improve,” Schneider said. “You have to remember, the challenges they face are huge.”