Section 1983 Claim against Off-Reservation Police Officer Engaged in On-Reservation Duty Survives

Because the officer had no jurisdiction in Indian Country: Jones v Norton (D. Utah).

An excerpt:

The Plaintiffs have filed this lawsuit against various Defendants in connection with the shooting death of Todd R. Mr. Murray which occurred while he was being pursued by police on the Uintah-Ouray Indian Reservation. Defendants Vance Norton and Vernal City move to dismiss the claims against them.

The court holds that Detective Norton did not have jurisdiction to seize Mr. Murray. Because there are disputed issues of fact concerning whether Mr. Murray was seized and whether exigent circumstances justified the seizure if it occurred, the court DENIES Defendants’ motion to dismiss the § 1983 claims. But the court holds that the Utah Governmental Immunity Act applies to state law enforcement on Indian reservations and accordingly GRANTS Defendants’ motion to dismiss the state law claims.

Profile on Criminal Justice at Colville

From the Wenatchee News:

NESPELEM — Charlene Bearcub looks out her office window in Nespelem and does not see justice.

A probation officer for the Confederated Tribes of the Colville Reservation, Bearcub lost her son to a gun nearly five years ago.

A few blocks away, she can see the small, gray house where her oldest son, Ronald D. Thomas Jr., was shot and killed Jan. 12, 2005.

Next to her office sit two pale yellow prefabricated buildings which house Colville Tribal Court, where a tribal jury acquitted the teenager arrested and charged with her son’s homicide.

They were both 18, and best friends.

Even if he had been convicted, the boy would have spent only a year in jail for the crime, at most, because he was tried in tribal court. Under terms of the Indian Civil Rights Act of 1968, no tribe may impose punishment greater than one year imprisonment. Serious crimes — like rape and murder — are supposed to fall to federal agents to investigate, and the U.S. Attorney for prosecution. But when the U.S. Attorney declines to prosecute, the only other option is tribal court.

Continue reading

ICT on Justice Dept. Grants to Indian Country

From ICT:

* * *

Tribal justice advocates largely agree that the funds are only a beginning.

“The funding is good and is an important step, but it is only a partial solution,” said Kirsten Matoy Carlson, a staff attorney with the Indian Law Resource Center.

“What is needed is real legal reform. In addition to funding shortfalls, the Oliphant v. Suquamish Indian Tribe loophole still remains.”

* * *

Matthew L.M. Fletcher, director of the Michigan State University Indigenous Law & Policy Center, is grateful for federal awards to address violence in Indian country, but is skeptical about their long-term effects.

“Federal grant money into Indian country is fantastic, and helps build tribal organizational capacity to combat domestic violence and violence against women. Continue reading

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.

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.

Michigan Indian Legal Services Fall-Winter 2008 Newsletter

Here it is — mils-newsletter-fall-2008

It features an article by Karrie Wichtman, a Sault Tribe member and an MSU law student, called “Cooperative Law Enforcement Agreements: An Indian Country Law Enforcement Solution.”