Denver Post

News Coverage of Senate Passage of Tribal Law and Order Act

Matthew L.M. Fletcher

From the Denver Post (Michael Riley; link to 2007 articles in the Post on this question):

WASHINGTON — With spiraling crime rates battering Indian reservations across the West, the Senate on Wednesday passed legislation designed to plug gaping holes in the way crimes are investigated and prosecuted on Indian lands.

The legislation requires federal prosecutors to justify dropped cases to tribal leaders and allows tribal courts to impose sentences of up to three years, expanding authority that has been limited for more than 100 years.

It gives tribal police access to a key national crime database and allows felony crimes to be tried for the first time on the reservations where they occur.

“This will signify a dramatic change in the years ahead in the personal safety of a lot of American Indians who

have been abused, who have been victims of crime,” said Sen. Byron Dorgan, D-N.D., who chairs the Senate Indian Affairs Committee.

The system for investigating and prosecuting crimes on Indian reservations is complex — even arcane, according to some critics.

Felony crime is the sole responsibility of federal prosecutors, often based in cities hundreds of miles away. Under a law passed in 1885, the authority of tribal courts is severely limited and they can impose sentences of no more than a year.

Tribal leaders for years have accused U.S. attorneys of doing their jobs poorly, often showing little interest in prosecuting the rapes, assaults or small-time drug peddling that devastate some tribal communities.

In 2009, federal prosecutors declined to prosecute nearly half of all Indian Country felony cases presented to them, while federal crime statistics show that some reservations have violent-crime rates that are 20 times the national average.

But there is also wide disagreement on fixing the problem.

Expanding the authority of tribal courts has long been considered controversial, because in many cases tribal prosecutors and even judges aren’t required to have law degrees. Tribal court decisions in many cases are not appealable to federal court.

The Tribal Law and Order Act approved Wednesday — it passed with unanimous consent, meaning there was no formal, recorded vote — attempts to address those concerns.

Only tribal courts that meet certain standards, including minimum training requirements and the guarantee of counsel for indigent defendants, will be granted the new authority.

For the first time, the legislation also requires the Justice Department to make public yearly statistics on the number of Indian Country cases declined by federal prosecutors — and each declination must be reported to tribal leaders.

The bill also makes it easier to deputize tribal police so that they can enforce federal laws, including giving them jurisdiction over non-Indians.

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Ongoing Denver Post Series: US Attorneys’ Firings

Matthew L.M. Fletcher

From the Denver Post:

Grasping for a way to explain the breakdown of justice on America’s Indian reservations and the role of the Justice Department in that failure, Paul Charlton, the former U.S. attorney in Arizona and a Bush appointee, picks this moment:

Talking with superiors about a gruesome double murder on the Navajo reservation, Charlton was stopped midsentence and asked by a high-level Justice Department official why he was involved in a case on the reservation in the first place.

To Charlton, it was suddenly clear that the official didn’t understand the most basic aspect of federal Indian law — that on most reservations, U.S. attorneys are the sole authority empowered to prosecute felony crime there.

***

Of the eight fired U.S. attorneys, five had played leadership roles pushing for aggressive Indian Country prosecutions or systemic reform — Charlton, David Iglesias of New Mexico, Margaret Chiara of western Michigan, Daniel Bogden of Nevada and John McKay of western Washington, according to testimony before the Senate Indian Affairs Committee.

As U.S. attorney for western Michigan, Margaret Chiara, right, made violent reservation crime a priority but said a bureaucratic culture resisted her efforts. She was one of eight U.S. attorneys whose firings sparked a Capitol Hill uproar. (Grand Rapids Press / Kary Batdorff)

 

 

 

 

 

Denver Post Profile on Tribal Justice

Matthew L.M. Fletcher

From the Denver Post:

 

1885 law at root of jurisdictional jumble

Much of the law that governs America’s Indian lands starts with a trade-off.

In the 18th and 19th centuries, tribal chiefs signed treaties giving away their rights over vast stretches of territory, and in turn the federal government took on specific obligations. Much of Indian Country policy since has been an effort to resolve the inevitable tensions: the federal government as guardian of Indian interests versus the tribes’ view of themselves as sovereign peoples.

Nowhere is the myth of sovereignty so apparent as the sphere of justice. Shocked that the murderer of a Brule Sioux chief was set free under tribal custom, Congress in 1885 gave the federal courts power to prosecute the most serious crimes in Indian

 

 

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  • Watch video and see photos that detail the justice crisis that plagues Native American reservations in the United States.

Country, declaring that many Indians would “be civilized a great deal sooner by being put under (federal) laws.”The reach of that power was codified in a series of court cases and laws stretching over the next 90 years, which limited tribal court sentences to one year and stripped tribes of any authority to arrest or prosecute non-Indians.

One result was to create perhaps the most complicated jurisdictional regime in the country. It’s the only legal system under which the race of the victim and perpetrator determines the court of jurisdiction.

Police working on or around Oklahoma’s patchwork reservations have to carry GPS devices because the change by a few feet in the location of a crime can determine whether it’s under state, tribal or federal authority.

Another result was to short-circuit the relationship between prosecutors and the communities they serve. There are no elected district attorneys accountable to the community. And it’s among the rare arenas where federal prosecutors routinely deal with ordinary violent crime, usually the purview of state courts.

It’s a job the federal system wasn’t designed to do, experts say, and in many cases does poorly.

Blurred lines of responsibility

Take the case of the investigation of major crimes.

With several agencies potentially involved – both tribal and federal – major investigations offer an opportunity for broad mutual support. Instead, they are hampered by cross-cutting jurisdictional lines, poor communication, thin resources and a vast lack of accountability.

Strictly speaking, the FBI is responsible for serious Indian Country crime. In practice, lines of both authority and responsibility often blur.

Both tribal police and the federal Bureau of Indian Affairs have the authority on some reservations to investigate felony crime, alongside the FBI. The agencies often cooperate, but there are few hard-and-fast rules to allocate cases, and with all three elements badly undermanned, serious crimes tumble through the cracks.

For those felony crimes that are fully investigated and forwarded to U.S. attorneys for prosecution, two- thirds are rejected out of hand. If both the victim and defendant are American Indian, the cases can be taken through tribal court and the suspects charged with any crime covered by the tribe’s legal codes – including murder, arson, rape and drug trafficking. But limitations on sentencing effectively turn all of those crimes into misdemeanors, and tribal jails’ chronic overcrowdedness can reduce the time behind bars to a few months, even weeks.