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Radical Plan to Make Tribal Lands Safer

Walter Lamar
1/8/14

Despite delays, shutdowns, underfunding and bureaucratic tangles, the bipartisan Indian Law and Order Commission has spent the past several years steadily gathering data on how to fix the dire public safety crisis that plagues tribal lands. The Commission's report, entitled A Roadmap for Making Native America Safer, is finally complete and available for download. Although this wide-ranging document was created specifically for Congress, its radical recommendations will also provide plenty of food for thought to Tribal and state leaders; attorneys, prosecutors and court personnel; Tribal and state law enforcement; and Federal employees in the Department of Justice, the DOI's Office of Justice Services, the Federal Bureau of Investigation, the U.S. Attorneys' offices, and the Bureau of Indian Affairs.

The report, which was written as a critical part of the Tribal Law and Order Act, has as its stated goal, "To end the public safety gap – the legacy of failed Federal laws and policies – that makes Native American and Alaska Native communities frequently less safe, and often dramatically more dangerous, than the rest of our country." A safety gap is a nice way of describing the unsettling statistics on mortality, rape, depression, substance abuse, juvenile delinquency and safety the Roadmap describes. Since ICTMN's readers are familiar with the grim reality of crime in our communities, let's skip right to the proposed solutions.

The topics covered extensively in the report include: jurisdictional reform, making Alaska Natives safer, intergovernmental cooperation, detention, and juvenile justice reform. Two themes are emphasized throughout the report. One is that Tribes need more control when it comes to law enforcement—in fact the report calls for Tribes to have the "freedom to exit the Federal criminal justice system entirely"—and the other is that funding should be stable and non-competitive. Both these recommendations would be sound in an ideal world, but raise a number of questions when being put into practice. Each tribe, nation, pueblo, village and rancheria would choose when—and if—to implement these reforms.

Under the heading of jurisdictional reform, the Commission asserts that the public safety gap can be reduced, "By respecting and reinforcing the power of locally based Tribal criminal justice systems to protect all people and land within Tribes' borders..." Their recommendations would allow any Tribal government, including those in Washington, Oregon, California, Idaho, Nebraska, Minnesota, Wisconsin and Florida (also known as PL 83-280 states) to define their own criminal laws and sentences. A proposed new Federal court—the U.S. Court of Indian Appeals—would allow Tribal courts to appeal directly for defendants whose constitutional rights have been allegedly violated. Another recommendation would make criminal proceedings in Tribal courts subject to the Federal Speedy Trial Act.

Recommendations for strengthening the judiciary to support this system include suggestions for both Federal and Tribal attorneys. Deputizing Tribal prosecutors as Special Assistant U.S. Attorneys would give them access to evidence and case files to support assertions of concurrent jurisdiction. Similarly, Tribal defenders would be deputized to receive sensitive criminal justice information. On the Federal side, agents would be able to serve as witnesses in Tribal courts and would receive improved training in working with Tribes and looking for ways to enhance Indian Country court proceedings. Both Federal and state government would be required to notify Tribes at each stage of criminal proceedings, and vice versa.

Funding these kind of judicial and jurisdictional adjustments is covered quite extensively. The Commission pulled no punches when describing the current funding model as "broken" and suggesting that the difficult, competitive, and uncertain grant system sets Tribes at cross-purposes, undermines successful programs, and prevents long-term planning. Instead, the report sketches a funding system that would include a stable baseline funding level, on par with what similar non-Tribal jurisdictions receive now. The Commission suggested consolidating redundant programs, which are currently managed under both the Interior and the Justice departments, into a single program under the Department of Justice. A critical element of streamlining this system involves both differentiating the data collected from Indian Country so trends can be tracked, and bringing that data into line with Federal standards.

The Commission also heaped scorn on the Indian Country juvenile justice system, pointing out that our youth are the "most incarcerated" and the "least well." Again, the recommendations are for Tribes to take a heavier hand in their children's fate, by asserting jurisdiction even in felony cases. Tribes in PL 83-280 states are also encouraged to part from the existing system and create their own juvenile justice laws, institutions and programs. Any Federal prosecution of a juvenile would require the youth's Tribe to consent, and if the case might involve sentencing, the Federal court would be required to establish pretrial diversion trials that would allow for alternatives to incarceration.

The Commission identified the "disappearance" of children involved in criminal cases as a major factor in the ongoing distrust Native Americans have toward the state and Federal systems. Too often, juvenile delinquency results in a youth landing in a state or Federal facility, far from any family support structure. The report recommends amending the code to require both the Federal government and the states to notify Tribes at all key stages of juvenile justice proceedings. In addition, the Roadmap calls for the expansion of the Indian Child Welfare Act (ICWA) so that Tribes are notified—and have the right to intervene—when states initiate delinquency proceedings against a Native youth, whether the alleged crimes took place on the reservation or not. Funding for juvenile justice is also addressed, with the suggestion that funding follow the offender or victim through the system so Tribes can make sure their youth receive appropriate services.

Similarly, Tribes would be notified when Tribal members enter and leave the Federal prison system, so they can plan for placement, supervision and re-entry. Tribal courts would be encouraged to seek alternatives to incarceration, such as restitution or Healing to Wellness programs. Federal courts would be able to sentence offenders to Tribal corrections facilities and Tribal courts would be able to sentence offenders to Federal prison. Federal corrections would be consolidated under the Department of Justice, along with the judicial services.

The parity that this system would give to the Tribes would require a tremendous amount of inter-governmental cooperation. Cross-deputization programs have already proven effective in many areas, and the Roadmap recommends enhancing and expanding these programs. New insurance/risk management programs would remove many barriers to cross-jurisdictional cooperation.

Whatever public safety gap Indian Country has, Alaskan Natives have it worse. The Commission recommends improving the situation in Alaska by ending the exemption for Alaska Natives from Federal public safety laws. By expanding Indian Country to include Alaska, these remote communities would be able to develop the same kind of local law enforcement and criminal justice systems outlined in the Roadmap. Native communities would get baseline funding, concurrent jurisdiction, cooperation from state and Federal courts, and access to Federal data, resources, training and technical assistance.

The Commission is honest about how many people across Congress, the executive branch, the states and the Tribes will have to agree to enact these recommendations. No doubt these reforms will look very different when and if they are ever enacted. But this bipartisan Commission believes that whatever it takes to make it happen, it's worth it to tackle one of the "great unfinished challenges of the Civil Rights Movement."

Walter Lamar, Blackfeet/Wichita, is a former FBI special agent, deputy director of BIA law enforcement and is currently president of Lamar Associates. Lamar Associates' Indian Country Training Division offers culturally appropriate training for Indian country law enforcement and service professionals with both on-site and online courses.

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