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 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.
