On a Proposed U.S. Attorney for Indian Country

Some commentators have proposed that there should be a United States Attorney’s Office for Indian Country (h/t Indianz). Any kind of dedicated law enforcement structure for Indian Country would be a dramatic improvement, but there are still serious issues that must be addressed. This is an interesting proposal, and it should be looked at from a historical perspective.

The proposal recalls Title 4 of H.R. 7902 of the 73rd Congress, the original bill of the Indian Reorganization Act, in which the drafters (primarily Felix Cohen) proposed a Federal Court of Indian Affairs. As we all know, that part of the bill went nowhere. As Vine Deloria and Clifford Lytle noted in 1984, the federal court of Indian affairs would bring the federal courts to Indian Country, the framers of the bill recognizing that Indians had extreme practical difficulty in appearing in federal court due to georgraphic isolation.

That geographic isolation remains, as does the difficulty in traveling to appear in federal court. Part of the reason, according to present and former U.S. Attorneys, that the declination rates in Indian Country crime are so high is this geographic isolation. Any proposal must acknowledge this factor and take steps to respond.

Another practical diffculty, not present in the same degree in the 1930s as it is now, are the jurisdictional quandries created by the checkerboarding of lands and jurisdiction. Questions about the jurisdiction of the proposed USAIC will be raised by the USAs already in Indian Country (ND, MI, WA, ID, AZ, NM, and so on). Declinations also result from the added difficulty of proving Indian Country status as an element of the crime committed. The new USAIC will not help this problem.

We continue to firmly believe that any Indian Country law enforcement program must involve the reaffirmation of tribal criminal jurisdiction. Expansion of federal capacities, while an improvement, cannot solve the problem.

3 thoughts on “On a Proposed U.S. Attorney for Indian Country

  1. Fred U. September 29, 2009 / 12:33 pm

    2 cents: (perhaps not a “sovereign” solution, but a possible road in that direction)
    Sattelite federal courts in remote areas. If a magistrate can be posted in Yosemite National Park, I assume with an AUSA, they can be posted in Indian Country. In fact, such an arrangement would enhance cooperation and coordination, with the tribal legal community having access and “face” communication, ala MDT’s and law enforcement task forces. How can you point a finger at someone sitting across the same table? It is also hard to make excuses in such a setting. This would encourage cross-training, a greater role for tribes, and it would take away the mystery of federal prosecutions. Accountability + visibility.

  2. M. Brent Leonhard September 29, 2009 / 2:28 pm

    Or another inremental avenue, short of full control: Secti0n 103(a) of the Tribal Law and Order Act both clarifies that US Attorney’s may appoint tribal prosecutors as Special Assistant Untied States Attorneys and encourages them to do so. Section 103(b) also authorizes and encourages US Attorneys to coordinate with US magistrates and district courts to hold trials and other proceedings in Indian Country, as appropriate. If this passes, and US Attorneys actually start doing what they are encouraged to do, all we need is to get US District Courts to appoint qualified tribal judges to serve as magistrates on crimes arising out of their jurisdictions (I don’t know if the law currently could allow this). Then we have tribal prosecutors prosecuting non-Indian midemeanor defendants in tribal courts in front of tribal judges – albeit, they are all exercising federal powers, but it would be a step toward full control.

  3. Art September 29, 2009 / 4:09 pm

    I’d prefer to see those financial resources go toward enhancing tribal justice capacity so as to complement (aspirational at this point) tribal jurisdiction; something that is inevitable in the hopefully enlightened future. Greater capacity in tribal jails, police, prosecutors’ offices, courts, court services, etc., simply to accommodate the “increases” Dorgan’s Bill proposes is itself a daunting task. Right now there are a lot of tribes that aren’t close to ready to take on the challenge and funding is one main impediment.

    Pendancy of that legislation practically forces a decision on which path to take; ($$) for more feds or increasing tribal justice capacity. With much respect to a valued colleague, Fred, I like your thinking but dispute the conclusion it fosters. – Art

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