A community responsibility for justice
Sen. Byron Dorgan, D-N.D., is currently conducting hearings about public safety and justice in Indian country. The Senate Committee on Indian Affairs wants to develop legislation to address law and order issues on Indian reservations. Dorgan, SCIA chair, has gathered together a document titled ''Indian Crime Concept Paper'' on law and order issues. The paper is a collection of issues regarding crime and administration of justice offered by tribal leaders, and contains some proposed solutions. Readers are invited to view the report online at http://indian.senate.gov/public/index.cfm?FuseAction=Journal.Home. Comments or suggestions, including attachments can be sent to comments@indian.senate.gov or faxed to (202) 228-2589.
At the same time, Sen. John Thune, R-S.D., recently marshaled through Congress an amendment to the 2009 Budget Resolution authorizing $99 million to fund more prosecutors, train police officers, fight against meth and reduce crime in Indian communities. Congress is poised to take action on crime and justice issues in Indian country. We applaud these efforts; many tribal leaders cite law enforcement battles as a primary concern on their reservations.
Justice administration in Indian country is a hodgepodge of jurisdictions, a mixture of work by federal, state, county and tribal agencies. For the most part, state police and local governments are not providing effective law and order under Public Law 280, under which tribes, the federal government, and state-county governments hold concurrent jurisdiction. There are similar problems on the law side. U.S. attorneys are overburdened with cases, do not specialize in Indian cases, often do not communicate well with tribal justice personnel, and lack coordination with the justice and law enforcement needs of tribal communities.
In recent years, funding for significant law and order programs has significantly declined. Alcohol and drug abuse are associated with the vast majority of crimes in Indian country, yet the Indian Alcohol and Substance Abuse Act has not been funded since 2005. Tribal jails are seriously underfunded and in need of hundreds of millions of dollars, and there are too few police and corrections officers. The BIA has very little funding for courts, police and jails, and no funds whatsoever for rehabilitation programs. While the BIA is working on a new crime data collection system, historically few reliable crime and justice data have been systematically collected or analyzed, limiting law enforcement officials to spot trends or patterns within their jurisdictions. There is need for more systematic research of crime, culture, government and justice in Indian country.
The administration of justice in Indian country may never have been as effective as it was when Indian nations were free to manage their own justice systems. Justice in Indian country is now a system of overlapping tribal, federal or state jurisdictions. Often, federal and state officials do not take enough responsibility for policing, justice, or public safety. They are underfunded and overwhelmed with too many other responsibilities, and generally have little interest in or understanding of crime and justice issues on reservations.
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Tribal courts are restricted by the American Indian Civil Rights Act in their ability to sentence or fine. The maximum sentences allowable for Indian courts are one year in jail or a $5,000 fine, or both. Tribal courts have no criminal jurisdiction over non-Indians who commit crimes on Indian reservations. Most crimes against Indians, especially against Indian women, are perpetrated by non-Natives. Increasingly, the courts have ruled that non-Indian U.S. citizens are not subject to tribal criminal law. And labor union jurisdiction within tribal territories is gaining support throughout the U.S. justice system. The present system of justice in Indian country is created by many diverse legislative acts and court cases that do not resolve themselves into a coherent or effective set of rules or actions.
The time has come for a comprehensive re-evaluation of the purpose and goals of justice in Indian country. Congress needs to enact a reconstruction of tribal justice and public safety on Indian reservations that is consistent with tribal sovereignty and the promising future of indigenous peoples in the United States. Present solutions to justice issues are primarily aimed at providing additional resources to a system that has not been working for many decades if not for centuries. Increased abilities, modern administration and legal jurisdiction should be encouraged among tribal communities as they are ready to assume greater control and management of their justice systems.
A comprehensive bill should include a reconsideration of federal, state and tribal criminal jurisdictions and shared responsibilities. Now, the federal, tribal and, in PL 280 areas, state and county governments share concurrent jurisdiction on criminal issues. Such a system of inherent overlapping jurisdictions can work, but must be accompanied by cooperative agreements that clearly define rules and responsibilities. All parties must be invested in the success of the system. Otherwise, the likelihood of failure increases.
It is critical that any policy for Indian country must foster the recovery of tribal justice traditions wherever tribal communities want to re-institute them. A justice policy needs to bring tribal leadership and communities back into the business of upholding community justice and, in particular, providing protection to women and children. American-style justice has taken justice out of the hands of families and communities, and has not provided an effective substitute. Additional funding will prop up the existing justice system, but Indian communities will receive justice only when they uphold and carry out justice every day for themselves.
Many Indian governments are trying to recover languages and culture, but also should be working to recover community-based policing, justice and government. Funding, administrative reform and alleviation of alcohol and drug addictions will improve criminal justice administration in Indian country, but justice for tribal communities will come only when the communities assume the responsibilities and display the leadership and unity it takes to live in a culturally informed, just way. We must demand state and federal justice systems to respect our ways of administering justice within our communities.
