New Law Attempts to Bring Justice to Indian Country

Tristan Ahtone
12/1/11

This complex story begins in the summer of 1881, when prominent Lakota chief Spotted Tail was assassinated on the Rosebud Reservation by a Lakota subchief named Crow Dog.

According to Lakota law and custom, Crow Dog made arrangements for restitution, but a territorial court arrested, tried and convicted him, and sentenced him to hang. The U.S. Supreme Court overruled the sentence, saying there was no federal jurisdiction over Indian-on-Indian crime in Indian country. Congress struck back, and passed the Major Crimes Act in 1885, which gave federal courts jurisdiction over violent crimes committed by Indians in Indian country. Since then, the lines between tribal, state and federal jurisdiction in Indian country have become hopelessly blurred.

A raft of Supreme Court decisions and Congressional acts now form a complicated web of overlapping jurisdictions that vary from state to state, which is extremely bad news for Indian country, judging from the statistics. According to the Department of Justice, American Indians are the victims of violent crimes at rates that are more than double the national average for non-Native people, but tribal governments cannot prosecute violent crimes because of the Major Crimes Act, so most of those cases get kicked up to federal prosecutors. And the feds prosecute those violent crimes at a shockingly low rate.

Enter the Tribal Law and Order Act (TLOA), passed last year. Designed to enhance tribal law enforcement and prosecution, the TLOA has begun to address a number of problems when it comes to criminal jurisdiction, data and communication between tribes, states and federal officials as well as increasing tribal courts sentencing powers. Sarah Deer, who talks with Indian Country Today Media Network, was part of the effort to get TLOA passed, and is continuing to work for justice on Indian lands. An assistant professor at the William Mitchell College of Law and Muscogee (Creek) tribal member, Deer has been an activist in the field of violence against Native women for a little more than a decade. In 2007, she was involved with the Amnesty International report Maze of Injustice, which focused on sexual violence against indigenous women. That report was a catalyst to promote legislation to address disparities and high crime rates in Indian country, which grew to become the TLOA.

Sarah Deer

With the many decisions and laws that dictate criminal jurisdiction in Indian country, are things working properly?
I don’t think the system works. I think most people who have been really honest about what’s going on [in Indian country] have conceded that it’s a mess and that it’s broken.

How does prosecution typically work in Indian country?
Some of my fellow law professors will kind of joke that Indian country jurisdiction is the most complicated area of American law, and I tend to agree with them—it’s extraordinarily complicated, and [often] doesn’t make a lot of sense. Essentially, tribal governments have criminal jurisdiction over any crime committed by an Indian person. So whether that be a purse-snatching or an arson case or a child-rape case or even a murder case, if the defendant is Indian, the tribe can prosecute that person—but its sentencing authority is limited, so a lot of tribes don’t see the point in prosecuting a murder case in tribal court if the maximum sentence is one year.

If the tribe is located in a place like Wyoming, which has a federal jurisdiction framework—in other words the concurrent jurisdiction is with the federal government—the U.S. attorney’s office has jurisdiction over that crime in addition to the tribe’s authority. This is especially pertinent in cases in which the defendant is non-Indian, because if the defendant is non-Indian, the tribe cannot prosecute, no matter what the crime is.

The tribal government depends on the federal government to prosecute those crimes. In doing so, the federal government uses federal laws, not tribal laws, and the sentencing authority is anything that the federal courts would have, up to life in prison.

In theory, you could have both a tribal and federal prosecution for the same crime. That’s pretty rare, but it could happen: There’s no double jeopardy in those cases because the tribe is considered a separate sovereign. So the tribe and the federal government maintain concurrent, independent criminal authority over crimes on the reservation, and this can be incredibly confusing for a victim. So one of the things we’re hoping we can do—with legislation and with training—is to really make the roles of both the federal and the tribal government crystal clear and improve the communication between, say, tribal law enforcement and the FBI.

Between 2005 and 2009, federal prosecutors declined to prosecute 67 percent of all sexual-abuse and related matters referred to them by tribal courts. That’s a shocking number. Was that part of what drove your efforts to get TLOA in place?

Yeah, we were really concerned [about that]. It is a nationwide issue—if a Native woman reported a sexual assault that happened on reservation land or on trust land, it would be under the auspices of the federal government and those cases were more likely than not dropped.

Does TLOA fix the problem?

It’s not a panacea, there’s still a lot of work to be done, but one of the things that it did is give tribes the capacity to sentence a perpetrator to more than one year in prison or in tribal jail. That’s important because that limitation has been placed on tribes since 1968 basically. Well, if you’ve got a really violent offender, one year doesn’t seem like very much time—especially if it’s someone who has harmed a child and may be coming back to that community.

Another thing that’s important about the Tribal Law and Order Act is that it requires a better level of communication between federal prosecutors and tribal governments. Tribal governments felt that a lot of decisions about federal prosecution didn’t make sense or they weren’t clear—and it’s very disappointing from a victim’s standpoint to report a crime, have a federal investigation take place, and then see no prosecution and really no explanation as to why there wouldn’t be a prosecution.

The Tribal Law and Order Act mandates that each U.S. Attorney district that deals with Indian country provide detailed information about which cases they’re declining and why.

What’s the next step?
The Tribal Law and Order Act is really just a baby step. It’s a good baby step, but it’s a baby step.

Tribes need to have their criminal jurisdiction over non-Indians restored. Prior to 1978, tribal courts could prosecute anyone who came into their community, and that makes sense. If I go to Mexico and commit a crime in Mexico, I don’t get to say, “Well, I’m not Mexican, so they can’t do anything to me.” But that’s essentially what happens on Indian reservations. The Supreme Court made a decision that has been critiqued to death—Oliphant v. Suquamish Indian Tribe—that said tribes lacked criminal jurisdiction over non-Indians. This is a real problem, especially for predator-type perpetrators: People who really think about hurting others are attracted to loopholes in the law, and that’s what has happened in Indian country. Certain kinds of predators have realized that they can go into a community and commit a crime and the tribe can’t do anything about it.
If we can get Congress to once and for all acknowledge that this is not acceptable and that tribes need to have that jurisdiction restored, I think that will change the perception of lawlessness in Indian country.

Another problem is that tribal courts are chronically underfunded and sometimes tribes have to apply for funding from year to year. The tribal courts may be heavily dependent on federal dollars that are not guaranteed, and that makes it very difficult to set up a system that has the confidence of the community. Tribes need to have their systems funded so they can operate and enforce the law in tribal communities.

What do you hope the future will look like with the TLOA in effect?
The ideal situation would be that tribes would have full jurisdiction over all crimes committed in their community and they wouldn’t have any restrictions on the kinds of sanctions they could impose. That would be getting back to the kind-of pre-colonial status of tribal governments. They’ve done it for 10,000 years, you know? In a perfect world, tribes could handle all of this themselves and would not need any assistance from other kinds of governments. But that’s not a realistic goal at this point because tribes have really struggled to even have justice systems.

I don’t think we can fix that overnight, so it may be a long-term goal to put all of the power back in the hands of the tribal governments. I think that it would be a mistake, for instance, to just say, “Well, we’re not going to have any more federal authority on a reservation as big as Wind River—we’re going to pull out, and we’re going to leave the tribe to do that on their own.” I don’t think most tribes would be ready for that, and I think perpetrators would take advantage of that.

We need to move forward together, in a partnership, and I think that’s what the Tribal Law and Order Act begins to do. It says to the U.S. Attorneys’ offices, You need to be in communication constantly with your tribal counterparts so they understand what’s happening, and if federal prosecutors have, for instance, DNA evidence in a rape case and they decide not to pursue that case for whatever reason in federal court, that evidence would be provided to the tribal prosecutor so that they can proceed, if they so choose.

Maybe we’ll eventually get to the point where tribes don’t need that assistance anymore. If we get the jurisdictional questions fixed and we fund tribal courts properly, there may be a day—maybe not in my lifetime—when tribes are completely independent and are able to resolve even violent crimes without any outside intervention.

We need to ensure that the federal government provides the resources but doesn’t require a replication of the Anglo American criminal justice system. That’s never been a really good fit for most tribal communities, and I think tribes, in many cases, could do a better job than the Anglo American system. Traditionally, tribal courts were very victim-centered. In the state and federal system, the victim isn’t really a party to the criminal case, it’s the government versus the defendant, and the victim often is just a witness. But in traditional tribal law, the victim was put front and center and had a role to play in the adjudication of that dispute. I think that makes a lot more sense, and I think it fits better with tribal cultures.

I think the federal government needs to fund these programs and broaden its conception of what tribal justice is.

Do you think findings from the TLOA could be translated into useful policy?
I hope that the politics of this issue don’t become disruptive, because I don’t think this is a Republican or Democratic issue, I think it’s an Indian country issue and that everybody should care about Indian country. So I’m really pleased with this current administration and their efforts in this regard, and I hope that if the administration were to change that we wouldn’t lose a lot of ground. So [the Compendium of Tribal Crime Data] is really critical in terms of keeping people informed and encouraging Congress to address things head-on rather than through anecdotal information that may not be applicable nationwide.

But even if Congress agrees to improve the system, will it matter since the Supreme Court has handed down so many rulings that are anti-Indian and anti-sovereignty?
Indian law is one of the few places in American jurisprudence where Congress can override the courts. Usually it’s the other way around: Congress makes a law and the Supreme Court strikes it down, but Indian law is weird, right? So in Indian law the Supreme Court defers to Congress, and if Congress is vague we run into problems with the court because it’ll start putting its spin on things. But if Congress is explicit and says, “No, that’s not how we want Indian country to work.” They could overturn Oliphant. That’s why the political system is a better route than the courts for a contemporary Indian activist trying to address criminal issues.

When communities feel safer, when people say, “Hey, if you report a crime something might actually happen!” then we start to make a dent in the high rate of criminal activity. Accountability is key. We talk about prevention a lot. We can go into a community and tell kids that sexual assault is a crime, but if they don’t see the system holding people accountable for that behavior, prevention efforts don’t mean a whole lot.

I’m not saying we need to lock everyone up, but if people commit heinous acts of violence, there has to be some level of accountability, and the victims don’t really care where that comes from. They just want to know that they are safe.

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