Misplaced Jurisdiction

Justice in Indian Country needs an overhaul

  • Kevin Washburn writes and lectures on the failures of justice on tribal lands


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HCN: What was Oliphant v. Suquamish Indian Tribe and what effect did it have?

WASHBURN: In 1978, the Supreme Court said tribes don't have jurisdiction over non-Indians on Indian reservations.

HCN: They had jurisdiction (over non-Indians on the reservations) before then?

WASHBURN: Yes. During that century they still had jurisdiction. Congress acted to give the feds jurisdiction, but it didn't take away tribal jurisdiction. Tribes never negotiated that away in treaties. The Suquamish Reservation was having their festival, and two non-Indians were arrested, one for drunk driving and one for assaulting a police officer. The Supreme Court said summarily that the tribes don't have jurisdiction over non-Indians, and that was news to the tribes because they had routinely exercised jurisdiction. Suddenly, jurisdiction is no longer territorial and geographical, but it's a question of race or tribal membership of the perpetrator and/or the victim. That limited tribes' authority dramatically.

HCN: Would it be correct to say that's one of the reasons there's so much drug trafficking on Indian reservations?

WASHBURN:In a sense. Some people perceive that reservations are lawless places. They are kind of lawless because people are unclear about jurisdiction. State law enforcement officials often think, "Aw, that's the feds' problem. That's on an Indian reservation." Or, "That's the tribe's problem." (Thanks to a 1950s law, some states have jurisdiction over all crimes on Indian reservations.)

HCN: Could you explain the effects on tribal sovereignty and tribal self-determination? What are the effects on surrounding communities, and would changing the system benefit the wider community?

WASHBURN: Let me start with the last part first. One of the things suggested in pending legislation is cross-deputization of everyone involved in law enforcement in Indian Country. If state officers get cross-deputized by tribal authorities, and tribal officers get cross-deputized by county or state authorities, then suddenly it doesn't matter which cop pulls up to the scene of a crime. Either can handle it.

Federal police officers and state police officers tend to be OK with this. It's only when you get into the political realms that there are disputes. Cooperation is one of the things (Sen. Byron) Dorgan, (D-N.D., chairman of the Senate Indian Affairs Committee) suggested in his concept paper for an Indian Country crime bill. (Sen. Dorgan's concept paper will form the basis of legislation on law enforcement in Indian Country expected to be introduced next year.)

Another thing he suggested is that we do a better job of collecting data. Can we figure out where the crimes occurred so we'll have a better sense of whether the reservation communities are really worse than nearby communities? The data isn't good enough to be able to determine that because no one keeps track of exactly (where a crime occurred).

So now the self-determination question. Most everything that Congress has done in the past 30 years has been designed to further tribal self-government. The Bureau of Indian Affairs no longer runs the schools on Indian reservations. Many tribes now run their own hospital instead of the Indian Health Service. So we've had dramatic improvements in schools and in health care and many other areas in which tribal self-determination has been pursued.

Ironically, we have not pursued self-determination in criminal justice. I would argue that criminal justice is the most important place for self-determination because a criminal code and the processes we use for enforcing that code are key places where communities define themselves.

When you decide this is what is illegal in your community, you're saying, "This is who we are as a community." That's key to self-determination. In our criminal codes, we order our moral values and say, "If you violate these moral values, that violation is so serious that we're going to put you in jail." There's no stronger way to protect your moral code. That is one of the things we've denied Indian tribes. Congress or the courts are telling tribes what their values are and how they must define themselves. My argument is we've got self-determination in the environmental laws and health care and education, but self-determination as to crime is far more key - far more important than any of those things - if self-determination is the process of defining a community and letting a community say who it is.

When I say self-determination, I don't mean we necessarily need to restore tribal criminal jurisdiction over non-Indians. Self-determination is a community defining for its internal community how people deal with one another. Tribes don't necessarily need jurisdiction over non-Indians.

Most crimes are matters for the local community. From a good-government standpoint, it's just not sensible to have a foreign community, the federal government, trying reservation crimes. We've taken some of the most valuable tools to address serious problems on Indian reservations away from tribal leaders.

The author is a freelance journalist who has written extensively for 15 years about issues of concern to Native American communities.