U.S.

A broken system: Why law and order is faltering on the rez

Panel finds federal government largely to blame for safety gap on Native American reservations

An 1875 Lakota delegation to Washington, D.C., headed by Spotted Tail, center. His murder by another Lakota man and the subsequent trial determined principles of the court system used by Native Americans to this day.
U.S. National Archives and Records Administration

Gilbert Peck wanted to help her. He really did.

She was a mail-order bride from Vietnam who had finally summoned the courage to leave her abusive husband. Peck was a police officer at the Wind River Reservation in central Wyoming, one of nearly 30 officers tasked with keeping the peace among 26,000 people spread across an area slightly larger than Puerto Rico.

Getting to her wasn’t the problem. Where she lived was the problem. The 2.2 million acres of Wind River are home to both the Northern Arapaho and Eastern Shoshone tribes as well as some nontribal residents.

Because of that checkerboard of jurisdictions — tribal-owned land next to nontribal land within the reservation’s borders — Peck could do little but stand by.

“Once I crossed through that gate, across the cattle guard on that property, I was actually outside of my jurisdiction, with zero authority,” he said.

Peck called on the county sheriff’s department, the only agency with jurisdiction, for assistance, but quickly learned it had no intention of entering the reservation, leaving Wind River officers powerless to help.

“He could just walk up — in our presence — knock her out and walk away,” Peck said. “And that’s it.”

That was 2011. Since then, Peck and more than 20 other police officers have left their posts on Wind River after their funding dried up. According to him, about six cops are now patroling the reservation.

Stories like Peck’s are the basis for “A Roadmap for Making Native America Safer,” a new report by the Indian Law and Order Commission (ILOC) documenting crime and security in Indian Country, as well as detailed recommendations for how to fix a broken criminal justice system, a report mandated by the Tribal Law and Order Act signed by President Barack Obama in 2010.

The commission’s key finding: “The federal government is largely to blame for the decades-old public safety gap in Native America.”

Maze of jurisdiction

Rewind to 1881, Lakota territory. “Crow Dog, a Brule Lakota man, shot and killed Spotted Tail, a fellow member of this tribe,” reads the ILOC report. “The matter was settled according to long-standing Lakota custom and tradition, which required Crow Dog to make restitution by giving Spotted Tail’s family $600, eight horses and a blanket.”

However, non-Indians living in the territory decided tribal restitution wasn’t sufficient. Crow Dog was tried in territorial court and sentenced to hang.

The Supreme Court ultimately stepped in and ruled that federal courts do not have jurisdiction over Indian defendants. However, Congress, unsatisfied with the ruling, passed the Major Crimes Act, giving federal courts jurisdiction over crimes like murder, rape and arson committed by Indians in Indian Country.

That list of crimes has grown since the 1880s, and other laws and Supreme Court rulings have further hampered efforts by tribes to police their own territory.

In 1953 Public Law 280 was passed, giving some states the ability to extend their criminal jurisdiction to tribal lands. And in 1968 the Indian Civil Rights Act limited sentencing to six months in jail or a $500 fine or both.

By 1978, the Supreme Court ruled that tribes had no criminal jurisdiction over non-Indians who commit crime in Indian Country. The decision, Oliphant v. Suquamish Indian Tribe, effectively stopped tribal courts from being able to punish non-Indian criminals in tribal territory.

The result: an extremely complicated maze of criminal jurisdiction.

A haven for predators

Native American, law, justice, reservation, violence, indigenous
Troy Eid, chairman of the Indian Law and Order Commission.
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“This is a legacy federal system that’s out of pace with the times, and it needs to be reassessed,” said Troy Eid, chairman of the ILOC.

Because of jurisdiction, neither the federal government nor the states are usually the first responders to Indian Country crime. It’s typically tribal police or, in some cases, nobody.

What that means is that the first responders, the tribal police doing the investigation, witness collection and testifying, are not the people who will adjudicate the case.

And what that means is predators have a safe haven to call home.

“Sexual predators are invading Indian country, human traffickers are invading Indian country, repeat domestic-violence violators are in Indian country, and nobody can do anything to stop them,” said Matthew Fletcher, a law professor and the director of the Indigenous Law & Policy Center at Michigan State University. “Nobody does anything to stop them because the tribes can’t do it and the feds and the state are not competent to do it.”

According to the Department of Justice, Native Americans experience violent crimes each year at a rate about 40 percent higher than the rest of the nation. Native American women see rates of violent victimization more than twice that of all women. About 60 percent of Native victims described their attacker as white. And from 2005 to 2009, of all crimes referred to authorities for prosecution, nearly 50 percent were declined.

“Just taking sexual violence as one example — the system is completely broken,” said Hallie Bongar White, director of the Southwest Center for Law and Policy. “Native women just expect that they will be raped and that their children will be raped and that their grandchildren will be raped, that there will be no accountability for perpetrators, that they will not have good access or any access to emergency sexual-assault health care and follow-up.”

One answer to this problem, according to the ILOC: Allow tribes to exit the federal criminal justice system entirely.

“Tribes that choose to go this direction … and assert full territorial jurisdiction over adults and juveniles, or one or the other, they should be able to just do that,” said Eid.

In other words, break the law in tribal territory, face tribal justice. It would be no different from committing a crime in another country.

Alaska as example

Alaska Native, crime, rape, predators, law enforcement, justice
This graphic from the ILOC report highlights how much land law enforcement officers have to cover in Alaska, where there are funds for 1.4 officers per milllion acres. And many Alaska Native villages can't be reached by car.
courtesy ILOC

“I remember there was a case where there was a young woman who was raped by an elder,” said Walt Monegan. “The young woman said, ‘Just understand that this is the way it is. Get used to it.’ Her older sister said, ‘It happens. It happened to me. So just deal with it and move on with your life.’”

Monegan serves as the president of the Alaska Native Justice Center and is a former Alaska commissioner of public safety. According to him, crimes like that happen several times every week.

“There might be a shooting or a disturbance or a threatening or a major assault or a sexual assault, and the distance and weather conditions to get out to that community might delay a response by several days.”

Nearly half the 566 federally recognized tribes in the United States are in Alaska. Alaska Natives make up a fifth of the state’s population. Alaska is more than 586,000 square miles in size — bigger than Peru — and most Native villages can be reached only by plane, boat, four-wheeler or snowmobile. That means that police response times can range from an hour to a week.

According to the ILOC report, the Alaska Department of Public Safety provides up to 1.4 officers per million acres, and there’s enough money to fund only about 100 auxiliary officers, known as village public-safety officers (VPSOs).

“These are trained and equipped public-safety officers that do more than just police work,” said Monegan. “They’re responsible for fire, they’re responsible for search-and-rescue efforts, and yet, as far as law enforcement, they are not armed. They are not given guns, nor are they trained on it.”

Funding instead of grants

This lack of protection can lead to tragic events. Earlier this year, 54-year-old Thomas Madole, a pastor turned VPSO, was killed in the village of Manakotak in the southern part of Alaska.

According to Monegan, Madole tried to escape a man with a rifle by running a zigzag pattern to avoid being hit. He was unsuccessful. Weather that day allowed state troopers to fly into the village and find his body a few hours after his death. Madole, like other VPSOs, had gone through the relatively lax training to take the job: 40 hours of instruction.

Indigenous, law, justice, violence, rape, Natiive Americans, Indian Country
Matthew Fletcher, director of the Indigenous Law & Policy Center.

About 75 communities in the state don’t have law enforcement at all.

“We’re conditioning folks not to rely on the services we have,” said Monegan. “That only adds a downward and deeper spiral to the people who live there, in regards to feeling disenfranchised, feeling uncared for, unvalued, and that causes more frustration, more alcohol, more substance abuse. It causes more violence.”

“Alaska is the epitome of a horribly failed criminal justice system,” said Fletcher. “Some of the other states are in a similar boat because they just don’t have the resources or the ability or political will to properly police Indian Country — and the same is true in some states with the federal government — but there are some very reasonable and even easy fixes to make that would go a long way.”

One of those fixes is money. At the moment, many tribes are able to fund their police forces only by applying for federal grants. If the federal government goes on sequester or shuts down, crime fighters in Indian Country have to figure out how to do the job with no cash.

The solution proposed by the ILOC: replace the grant system with a base-funding system.

“We don’t understand — philosophically or as a matter of public policy — why tribes have to apply for grants,” said Eid. “The bottom line is you need to have some base level of funding. It’s a lot like education, if you will.”

Juvenile justice

To the commission’s knowledge, there has never been a report that addresses the juvenile justice system in Indian Country.

“The post-traumatic stress disorder (PTSD) rates for Native American juveniles in the United States are either matching or exceeding the PTSD rates for returning combat vets from Afghanistan and Iraq,” said Eid. “It’s unbelievable the amount of violence these young people are exposed to. They deserve better from our country.”

Since the Great Depression, it’s been the federal government’s policy to put Native American juveniles who have committed crimes in Indian Country into the federal justice system. It’s called automatic transfer, and those juveniles go straight into the U.S. Bureau of Prisons system.

“They’ve been incarcerated for misdemeanors,” said Eid. “We’re not talking about homicides or something. These are juvenile offenders.”

And in places like the Tohono O’odham Nation in southern Arizona, it’s beginning to catch up.

A tribal solution

reservation, justice, Indian Country, court system, violence, Native American
The Standing Rock Reservation tribal court, which straddles North and South Dakota, in 2009.
Stephan Gladieu/Getty Images

“A lot of the kids that have come back in that I talk to in groups say they just do it to come back into jail because jail is safer than at home,” said Caroline Antone, a Tohono O’odham tribal member and counselor. “In that sense, they’ve learned that if you just do something, steal something, you’ll end up going back to jail and you’ll get three meals and a cot.”

Tohono O’odham, one of the largest reservations in the nation, straddles the border between Mexico and Arizona. Tribal members live on both sides, but the community is divided by vehicle barriers put in place to stop smuggling and illegal immigration.

The result of the nation’s precarious position on an international border known for extremely high crime rates and dangerous conditions is that tribal members are exposed to violence and criminal activities. Couple that with a lack of jobs and desolate areas, and it’s hard to intervene when families have children who have already made contact with the system. For instance, because of the size of the reservation, counselors like Antone say it takes nearly a full day to work with a family. Since many don’t have phones, counselors often can drive all day only to find that the family isn’t home, and asking them to go in for appointments also poses challenges.

“A lot of these families are on food stamps or (general assistance), and if you choose to go to the grocery shop 50 miles away or go see a counselor that’s also 50 miles away, which one are you going to choose?” she said.

Roughly two-thirds of all juveniles in the federal detention system are Native Americans convicted of offenses in Indian Country. Once in the system, they are unable to access diversion programs, drug courts or other services routinely available throughout the rest of the United States.

Native juveniles serve, on average, sentences that are twice as long as those for the same or similar offenses that occur off-reservation, and, according to Eid, the system has essentially been on autopilot since the 1930s.

However, in some places like South Dakota, tribes have been able to work successfully to create tribally based solutions as workarounds to those federal statutes: tribal centers with education as the centerpiece — like a classroom behind bars — in hopes of preventing recidivism.

Juxtapose that with the existing federal system. Neither Congress nor the president has appropriated funds for secondary education in the last five years, and there is no chance for in-person or online instruction for juveniles in jail.

A broken Congress

The ILOC report offers a spectrum of recommendations to fix problems in Indian Country, but the real question is what the legislative strategy will be to get it fixed.

Armed with hard facts and bipartisan recommendations, the report could solve Indian Country’s criminal jurisdiction problems, but only if Congress takes note.

“Which parts of this report do you pick to push to Congress first?” asked Fletcher. “Even in this dysfunctional Congress, they got the Violence Against Women Act (VAWA) passed” — a major surprise to him in 2013, when Congress could agree on so little. VAWA allowed tribes to prosecute non-Indian offenders in tribal territory for certain domestic-violence crimes — a partial fix to the 1978 Supreme Court Oliphant v. Suquamish decision.

“There’s a trend toward a change. I think this kick-starts it a little bit,” said Fletcher. “I never would have imagined, even six or seven years ago, anything like the Tribal Law and Order Act would happen. Or that Congress would recognize the authority of tribes to prosecute non-Indians under the VAWA provisions. It blows my mind. It’s hard for me to believe that that happened even now.”

According to Fletcher, a careful lobbying strategy will be key to changing how tribes in the United States police their territory. But until lawmakers take the time to examine Indian Country’s crime problems and take significant, even radical action to curb them, the situation is expected to remain status quo.

“The federal government needs to step aside if the tribes are ready to govern, and they need to make that decision. They need to be able to assert their authority,” said Eid. “The whole glory of the United States system is that we can improve, and at moments in time we do. This could be one of those moments.”

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