Bolstering Federal Law Enforcement in Indian Country Nice, but Misplaced

Indianz (and the SF Chron) report that the Department of Justice and AG Eric Holder will be taking efforts to bolster federal law enforcement capabilities in Indian Country. This is good news, to some extent. The federal government should be focusing on the very, very serious problem of Indian Country crime. But we suspect increasing federal law enforcement still has serious limitations and will not do a whole lot to reduce Indian Country crime.

Consider last year’s testimony from Drew Wrigley, Tom Heffelfinger, and others on the reasons why Indian Country U.S. Attorney’s Offices are forced to decline to prosecute most Indian Country crimes.

Several points:

  • AUSAs decline many Indian Country cases because of the difficulty in proving additional elements of Indian identity and Indian Country status. Additional resources won’t improve that much.
  • AUSAs decline many cases because they don’t meet statutory requirements like the extent of serious injury in assault cases.
  • AUSAs decline cases because of the time and distance required to secure evidence needed to convict. Resources could help, but we believe they would have be sufficient to actually house a federal law enforcement agency on the doorsteps of every reservation to be effective.
  • According to Drew Wrigley, “The issue of resources is never a basis for a declination of a case in North Dakota, but violent Indian crime cases, we never decline any cases for resources.” If so (something Tom Heffelfinger rebutted somewhat), then more federal resources seems an unusual solution.
  • Nothing in the federal project does much to reduce the epidemic of violent crime against Indian women. Like Sen. Dorgan’s Tribal Law and Order Act, we think AG Holder’s initiative will focus on drugs, immigration, and the like. And that’s what the DOJ is best at doing, not violent person-to-person on-reservation cime.  Hopefully, tribal leaders will point the government to other serious crime problems. We’ll see.

Frankly, the real solution is tribal criminal jurisdiction. Once federal and state policymakers quit focusing on irrelevancies like the qualifications of tribal judges and the difficulty in finding tribal law or civil rights protections — all of which can be solved by recourse to the habeas remedy in the Indian Civil Rights Act — then we’ll see a real reduction in Indian Country crime.

5 thoughts on “Bolstering Federal Law Enforcement in Indian Country Nice, but Misplaced

  1. Sarah Deer August 20, 2009 / 3:11 pm

    Hear, hear.

    Why not bolster tribal law enforcement? Put the power to protect tribal citizens in the hands of the tribes.

  2. Steve Emery August 20, 2009 / 5:20 pm

    Let’s get together and support S.797 which would amend the Indian Law Enforcement Reform Act, the Indian Tribal Justice Act, the Indian Tribal Justice Technical and Legal Assistance Act of 2000, and the Omnibus Crime Control and Safe Streets Act of 1968 to improve the prosecution of, and response to, crimes in Indian country, and for other purposes. In so doing, it would reinvest Tribes with some of the authority taken away by the Major Crimes Act.

  3. James W. Zion August 23, 2009 / 8:02 am

    I’m sorry to day that the Justice Department’s crime initiative is not “nice” … it’s the same, old, warmed-up and cynical approach to attempt to make it look like something is being done when the basics are being ignored. We of the Indian Country justice community are locked out of the “consultations” and “listening” venues, so we need to speak up other ways.

  4. Steve Emery August 24, 2009 / 12:10 am

    18 U.S.C. § 1153 is predicated on the Act of March 3, 1885, § 8, 23 Stat. 385, and the earlier sections of 18 U.S.C. §§ 548 and 549. The Major Crimes Act took away the ability of Indian Nations to try felonies committed within their jurisdiction. S. 797 § 304, Tribal Court Sentencing Authority, (A) would ensure that any person in such a criminal proceeding would have the assistance of a defense attorney licensed to practice law in any jurisdiction in the United States, i.e., not lay attorneys. Then in § 304 (B) the bill would mandate that no Indian Tribe could empower its Tribal Courts to impose excessive bail, impose an excessive fine, inflict a cruel or unusual punishment, or impose for conviction of a single offense any penalty or punishment greater than imprisonment for a term of 3 years or a fine of $15,000, or both. In § 304 (C) no Indian Tribe could deny any person in such a criminal proceeding the due process of law.

    In § 304 (2) Authority- An Indian tribe exercising authority pursuant to this subsection shall–(A) require that each judge presiding over an applicable criminal case is licensed to practice law in any jurisdiction in the United States; and (B) make publicly available the criminal laws (including regulations and interpretive documents) of the Indian tribe.
    In § 304 (3) SENTENCES- A tribal court acting pursuant to paragraph (1) may require a convicted offender–(A) to serve the sentence–(i) in a tribal correctional center that has been approved by the Bureau of Indian Affairs for long-term incarceration, in accordance with guidelines developed by the Bureau of Indian Affairs, in consultation with Indian tribes; (ii) in the nearest appropriate Federal facility, at the expense of the United States pursuant to a memorandum of agreement with Bureau of Prisons in accordance with paragraph (4); (iii) in a State or local government-approved detention or correctional center pursuant to an agreement between the Indian tribe and the State or local government; or (iv) subject to paragraph (1), in an alternative rehabilitation center of an Indian tribe; or (B) to serve another alternative form of punishment, as determined by the tribal court judge pursuant to tribal law.

    The foregoing provisions in S. 797 certainly seem to restore to Indian nations some of the authority taken by the United States under the Major Crimes Act now codified at 18 U.S.C. § 1153.

    Isn’t enhancing Tribal sovereignty the point?

    Steve Emery

  5. M. Brent Leonhard August 25, 2009 / 11:14 am

    S. 797 is an excellent bill that could produce real systemic changes that both enhance tribal sovereignty and actually improve criminal justice in Indian Country. Unfortunately, Obama’s DOJ appears to be even more opposed to the bill than the Bush administration. Ronald Weich’s (Assistant Attorney General) June 23, 2009 letter to Chariman Dorgan shows that the current DOJ opposes sections of the bill geared toward forcing DOJ to provide detailed declination reports, opposes the creation of an Office of Indian Country Crime, appears to reflect concerns about enhancing tribal sentencing authority, and strongly opposes the use of the BOP for tribes to house convicted felons – which is key to tribe’s ability to sentence people to multi-year jail terms. We can only hope they don’t get their way, or change their positions. However, presently, it appears that the Obama DOJ is more of the same when it comes to ciminal justice in Indian Country. They may talk a good game and support increased resources, but they still appear to be opposed to real systemic changes.

Comments are closed.