NYTs Op/Ed: Lawlessness in Indian Country


An excerpt:

Violence and crime rage unchecked in Indian country, yet the federal government, the primary law enforcer on reservations, is investigating and prosecuting fewer violent felonies, and reducing financing for tribal courts and public-safety programs. That is a scandal.

Important New Empirical Research on PL280’s Impact on Indian Reservation Crime and Economies

Valentina P. Dimitrova-Grajzl, Peter Grajzl, and A. Joseph Guse, have posted “Jurisdiction, Crime, and Development: The Impact of Public Law 280 in Indian Country” on SSRN. Here is the abstract:

Public Law 280 transferred jurisdiction over criminal and civil matters from the federal to state governments in selected parts of Indian country. Where enacted, the law fundamentally altered the pre-existing legal order. Public Law 280 thus provides a unique opportunity to study the impact of legal institutions and their change on socio-economic outcomes. The law’s controversial content has attracted interest from legal scholars. However, empirical studies of its impact are scarce and do not address the law’s endogenous nature. We examine the law’s impact on crime and on economic development in U.S. counties with significant American Indian reservation population. To address the issue of selection of areas subject to Public Law 280, our empirical strategy draws on the law’s politico-historical context. We find that the application of Public Law 280 increased crime and lowered incomes. The law’s adverse impact is robust and noteworthy in magnitude.

This is perhaps the most important piece of empirical scholarship on Public Law 280 in that the researchers are not recognized as supporting either side, as far as I can tell.

NYTs: Indian Country Crime High, Prosecutions Low


An excerpt:

“One of the basic problems is that not only are they declining to prosecute cases, but we are not getting the reason or notification for the declination,” said Jerry Gardner of the Tribal Law and Policy Institute in West Hollywood, Calif., which works with tribes to develop justice programs. “The federal system takes a long time to make a decision, and when it comes to something like a child sexual assault, the community gets the message that nothing is being done.”

Under federal law, tribal courts have the authority to prosecute tribal members for crimes committed on reservations, but cannot sentence those convicted to more than three years in prison. As a result, tribes usually seek federal prosecution for serious crimes.

GAO Report on Tribal Justice Systems

Here is the report, and the highlights.

The description:

The Department of Justice (DOJ) reports from the latest available data that from 1992 to 2001 American Indians experienced violent crimes at more than twice the national rate. The Department of the Interior (DOI) and DOJ provide support to federally recognized tribes to address tribal justice issues. Upon request, GAO analyzed (1) the challenges facing tribes in adjudicating Indian country crimes and what federal efforts exist to help address these challenges and (2) the extent to which DOI and DOJ have collaborated with each other to support tribal justice systems. To do so, GAO interviewed tribal justice officials at 12 tribes in four states and reviewed laws, including the Tribal Law and Order Act of 2010, to identify federal efforts to assist tribes. GAO selected these tribes based on court structure, among other factors. Although the results cannot be generalized, they provided useful perspectives about the challenges various tribes face in adjudicating crime in Indian country. GAO also compared DOI and DOJ’s efforts against practices that can help enhance and sustain collaboration among federal agencies and standards for internal control in the federal government.

The 12 tribes GAO visited reported several challenges in adjudicating crimes in Indian country, but multiple federal efforts exist to help address some of these challenges. For example, tribes only have jurisdiction to prosecute crimes committed by Indian offenders in Indian country. Also, until the Tribal Law and Order Act of 2010 (the Act) was passed in July 2010, tribes could only sentence those found guilty to up to 1 year in jail per offense. Lacking further jurisdiction and sentencing authority, tribes rely on the U.S. Attorneys’ Offices (USAO) to prosecute crime in Indian country. Generally, the tribes GAO visited reported challenges in obtaining information on prosecutions from USAOs in a timely manner. For example, tribes reported they experienced delays in obtaining information when a USAO declines to prosecute a case; these delays may affect tribes’ ability to pursue prosecution in tribal court before their statute of limitations expires. USAOs are working with tribes to improve timely notification about declinations. DOI and the tribes GAO visited also reported overcrowding at tribal detention facilities. In some instances, tribes may have to contract with other detention facilities, which can be costly. Multiple federal efforts exist to help address these challenges. For example, the Act authorizes tribes to sentence convicted offenders for up to 3 years imprisonment under certain circumstances, and encourages DOJ to appoint tribal prosecutors to assist in prosecuting Indian country criminal matters in federal court. Federal efforts also include developing a pilot program to house, in federal prison, up to 100 Indian offenders convicted in tribal courts, given the shortage of tribal detention space. DOI, through its Bureau of Indian Affairs (BIA), and DOJ components have taken action to coordinate their efforts to support tribal court and tribal detention programs; however, the two agencies could enhance their coordination on tribal courts by strengthening their information sharing efforts. BIA and DOJ have begun to establish task forces designed to facilitate coordination on tribal court and tribal detention initiatives, but more focus has been given to coordination on tribal detention programs. For example, at the program level, BIA and DOJ have established procedures to share information when DOJ plans to construct tribal detention facilities. This helps ensure that BIA is prepared to assume responsibility to staff and operate tribal detention facilities that DOJ constructs and in turn minimizes potential waste. In contrast, BIA and DOJ have not implemented similar information sharing and coordination mechanisms for their shared activities to enhance the capacity of tribal courts to administer justice. For example, BIA has not shared information with DOJ about its assessments of tribal courts. Further, both agencies provide training and technical assistance to tribal courts; however, they are unaware as to whether there could be unnecessary duplication. Developing mechanisms to identify and share information related to tribal courts could yield potential benefits in terms of minimizing unnecessary duplication and leveraging the expertise and capacities that each agency brings. GAO recommends that the Secretary of the Interior and the Attorney General direct the relevant DOI and DOJ programs to develop mechanisms to identify and share information related to tribal courts. DOI and DOJ concurred with our recommendation.


ACLU/Lewis & Clark Law School Panel on TLOA and Indian Women

The L&C Law School ACLU student group will be hosting the ACLU NW Civil Liberties Conference October 29-30, 2010 at Lewis & Clark Law School. One of the panels we have scheduled is “Access to Justice for Native American Women and Alaska Native Women” and will include the following panelists:

*Barbara Creel, Associate Professor of Law, The University of New Mexico School of Law
*Troy A. Eid, Shareholder, Greenberg Traurig, Former United States Attorney for the District of Colorado
*Diane J. Humetewa, Of Counsel, Squire Sanders Public Advocacy Worldwide, Former United States Attorney for the District of Arizona
*Robert J. Miller, Professor of Law, Lewis & Clark Law School
*Tawna Sanchez, Director of Family Services, Native American Youth and Family Center
*David A. Voluck, Attorney and Chief Judge of the Sitka Tribe of Alaska Tribal Court

Conference flier here: ACLUFlier

ABA Perspectives Article on Violence against Indian Women

From ABA:

Crisis Situation for Native American Women in a Broken Legal System
Fall 2009
By Cynthia L. Cooper

Cynthia L. Cooper, an independent journalist in New York City, is a former practicing lawyer who writes frequently about justice topics.

The stories of Helen Parisien, manager of the Bridges Against Domestic Violence near one of the Lakota Indian reservations in South Dakota, stand out most for how common she says they are. She described her experiences in detail to the U.S. Senate Committee on Indian Affairs in September 2007.

“I received a call concerning a young woman who reported being physically beaten and raped. . . . I had to make numerous calls in an attempt to get cooperation from law enforcement. . . . When I finally reached the investigator, I was told he would be down that same afternoon to interview the victim. He did not come down. . . . The police never did do an investigation. In continuing conversations with this woman, she told me that she lived in daily fear of being found by her abuser,” Parisien said. “While it may seem to you that these incidents are extreme, I am sorry to say they are the norm.”

A broken system in handling sexual assault and domestic violence cases of Native Americans and Alaskan Natives is marked by confounding criminal jurisdiction and a woeful lack of resources. “Women and children bear the brunt of it because they are the ones with the least power,” says lawyer Caitlin Collier, who provided legal assistance to victims for the South Dakota Coalition Against Domestic Violence and Sexual Assault.

Violence against Native American women has reached crisis levels. The Department of Justice reported that Native American women face the highest rates of sexual assault in the United States, more than double the rates experienced by other women. One in three Native women is sexually assaulted in her lifetime, according to the Department of Justice. Advocates reported 44 rapes in a single weekend on the Pine Ridge Reservation in South Dakota.
“We’ve created an atmosphere for violence, and the victims are women,” says Loretta A. Tuell, a Washington, D.C., lawyer who represents tribes.

The federally recognized tribes — there are more than 550 — are sovereign nations with a special relationship to the United States. Tribal authority is both recognized and limited by federal law. But a crazy-patch scheme puts the prosecution for sexual violence in tribal, federal, or state jurisdiction depending on a confusing conglomeration of rules.

“It’s hard to know where to begin because it’s such a mess,” says Sarah Deer, an assistant professor at William Mitchell College of Law in St. Paul, Minnesota, and a scholar on women and Indian law. For example, tribal courts may not prosecute non-Indians, no matter what crimes they commit. Yet, according to reports from the Justice Department, more than 85 percent of the perpetrators of rape and sexual violence against Indian women are non-Indians. “For the tribes, their hands are tied,” Deer says.

The situation results in “rape with impunity,” according to Amnesty International USA, which in 2007 released a report, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA.

“The issues of sexual assault and domestic violence are certainly very serious issues in Indian Country and within Alaska Native communities,” says Sen. Lisa Murkowski (R-Alaska), a former prosecutor now serving on the Senate Committee on Indian Affairs. “The jurisdictional scheme on Indian reservations provides law enforcement challenges, as well as a lack of adequate resources to cover remote and rural communities on Indian reservations,” she adds.
Tuell is more blunt: “People who want to commit crimes go onto reservations.”

Determining Jurisdiction

Jurisdiction is a primary part of the mess. Indian tribes retain the power to establish tribal courts, and about 350 exist, many of which include appellate systems. However, in 1883 Congress placed authority for most felonies in Indian Country — as the land is known in federal law — in federal courts in the Major Crimes Act. Public Law 280 in 1953 assigned jurisdiction for certain reservations to selected states (California, Minnesota, Nebraska, Oregon, Wisconsin, and later Alaska). In addition, all states had the option to take over jurisdiction between 1953 and 1968, and a number did so. A 1968 law, the Indian Civil Rights Act, limited the sentencing authority of tribal courts: currently one year’s imprisonment or a $5,000 fine.

Other complications for sexual assault victims came after the 1978 ruling of the U.S. Supreme Court in Oliphant v. Suquamish Indian Tribe (435 U.S. 191), holding that tribal courts do not have criminal jurisdiction over non-Indians absent specific congressional approval. The case arose from a Pacific-Northwest tribe that charged a non-Indian with assault on a tribal police officer. Writing the 6-2 majority opinion, then-Associate Justice William Rehnquist said that the guarantees of due process were not the same in the tribal court, noting for example that non-Indians were excluded from juries. Id. at 194.

Lack of jurisdiction over non-Indians is a problem, says Matthew Fletcher, an associate professor at Michigan State University College of Law and director of the Indigenous Law and Policy Center at the university in East Lansing, Michigan. “Large numbers of people who are not tribal citizens reside or conduct business in Indian Country, or have Indian spouses and intimate partners who reside there.”

Note that Amnesty International reports that 3,600 of the 9,000 residents of the Standing Rock Reservation in the Dakotas were non-Native.

Continue reading

Briones v. U.S. Cert Petition

This involves crimes committed on and around the Gila River Indian Community, prosecuted under the Major Crimes Act. Here is the petition: Briones v US Cert Petition.

It looks like a pair of interesting questions. There may be a decent shot for review if the petition’s representations are correct.

Questions presented:

1. Whether the District Court and the Circuit Court erred in admitting the out-of-court statements of Arlo Eschief to the jury by the prosecution through testimony of a law enforcement agent constituting hearsay testimony in violation of the Sixth Amendment Confrontation Clause?

2. Whether the District Court had the jurisdiction under the General Crimes Act 18 U.S.C. § 1152 and the Major Crimes Act 18 U.S.C. § 1153, to apply federal statutes of crimes on Indian land not expressly authorized by Federal statute?

Deputy AG Memorandum re: Indian Country Crime Initiative

Here, with text:

This memorandum implements a critical component of the Attorney General’s initiative to improve public safety in tribal communities by setting forth new policy for U.S. Attorneys’ Offices (USAOs) with Indian Country jurisdiction, and by identifying as a Justice Department priority the goal of combating violence against women and children in tribal communities.

The Department of Justice recognizes the unique legal relationship that the United States has with federally recognized tribes. As one aspect of this relationship, in much of Indian Country, the Justice Department alone has the authority to seek a conviction that carries an appropriate potential sentence when a serious crime has been committed. Our role as the primary prosecutor of serious crimes makes our responsibility to citizens in Indian Country unique and mandatory. Accordingly, public safety in tribal communities is a top priority for the Department of Justice.

Indian Country Law Enforcement Initiative Continue reading

News Profile of Barriers to Justice for Indian Women

From the Lincoln Journal Star:

She needs to call 911. She needs police to arrest the drunken boyfriend who assaulted her. She needs to go to the hospital, because she might be pregnant and he might be HIV-positive. And she needs a lawyer.

She could be one of so many women on Native reservations, where alcoholism and domestic violence often are rampant. In fact, Amnesty International reported in 2007 that Native women were 2 1/2 times more likely to be sexually assaulted.

Yet when a Native woman dials 911, a series of legal obstacles arise. Many stem from laws governing tribes — laws that can amplify the horror of sexual assault on Native reservations.

Among them is a 1950s federal regulation allowing government agencies, such as Indian Health Services, to avoid testifying in state and tribal courts.

The perceived benefit: Less courtroom involvement keeps agencies neutral.

But critics say information being withheld can include forensic evidence that could convict a rapist.

“So we have serial rapists that stalk our women,” said Charon Asetoyer, whose South Dakota-based group fights for Native women’s reproductive rights. Continue reading