October 01, 2014

Making Native America Safer and More Just for All Americans

by Troy A. Eid

These are momentous times for America’s 567 federally recognized Indian tribes thanks to two recently enacted criminal justice reforms, the Tribal Law and Order Act of 2010 (TLOA) and the Violence Against Women Act Amendments of 2013 (VAWA Amendments). The effect of these two statutes is to make federal officials more accountable to Native American and Alaska Native communities, ease congressionally imposed restrictions on tribal governments’ ability to protect people on Indian lands, and enhance civil rights protections for Natives and non-Natives alike.

Now the American Bar Association, which strongly supported TLOA and the VAWA Amendments, is again leading the way. On February 10, 2015, at its Midyear Meeting in Houston, the ABA House of Delegates endorsed the comprehensive recommendations of an independent, bipartisan national advisory commission for additional legal and policy reforms to make Native America safer and more just for all Americans.

Shifting Federal Attitudes Toward Tribal Self-Governance

Under federal law, Indian tribes are considered “domestic, dependent nations”—self-governing sovereigns, predating the U.S. Constitution, that remain subject to federal power. Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831). Congressionally enacted criminal statutes and enforcement schemes were imposed on Indian lands starting in the early days of the republic. By the mid-19th century, policing on Indian reservations was carried out by the Bureau of Indian Affairs (BIA) in the U.S. Department of the Interior and, more recently, the Federal Bureau of Investigation (FBI), with U.S. Attorney’s Offices prosecuting what would otherwise typically be local crimes. The effect of these federal commandand- control policies was to undermine or supplant tribal leaders’ traditional roles in making and enforcing their own laws and customs, and from being held directly accountable for their own official decisions.

Declared U.S. national policy from the late 1800s until the 1930s was to degrade or displace traditional tribal governance, federalizing what had been the rule of tribal law since time immemorial. Federal and state officials worked vigorously to assimilate Native people into mainstream America, eliminate tribal governments, and transfer tribal public lands to non- Indian private ownership. The failure of these policies—in 1928, a federal advisory board, the Meriam Commission, found that “an overwhelming majority of the Indians are poor, even extremely poor”—prompted demands for legal and policy reform. Limited tribal self-governance became the centerpiece of President Franklin D. Roosevelt’s “Indian New Deal.” Under the Indian Reorganization Act of 1934, many tribes adopted federally drafted tribal constitutions providing a modicum of self-rule, albeit under the watchful eye of the Indian Bureau.

Yet even Congress’ modest support for tribal self-determination did not last. After World War II, President Harry S. Truman tapped former President Herbert Hoover to lead a national study of government efficiency. The Hoover Commission revisited the Indian New Deal and, squarely rejecting tribal self-governance, declared: “Assimilation must be the dominant goal of public policy.” By the early 1960s, what became known as the Termination Policy had resulted in thirteen congressional statutes withdrawing federal recognition entirely from more than 100 tribes, liquidating their reservation lands, and reducing or eliminating federal assistance programs. See Charles Wilkinson, Blood Struggle: The Rise of Modern Indian Nations 81 (Norton 2005).

It wasn’t until 1970 that President Richard Nixon reversed course yet again and embraced Native American tribal self-determination, popularly referred to today as tribal sovereignty, as the official U.S. policy. Every president since has done the same, as has Congress. Several Indian nations that were legally terminated in the 1950s and ’60s have even had their federal recognition restored—sometimes, but not always, accompanied by the restoration of a portion (usually much smaller) of their previous tribal homelands.

Criminal Justice: A “Glaring Exception” to U.S. Policy Supporting Tribal Sovereignty

Criminal justice, however, has remained perhaps the single most glaring exception to the tribal sovereignty movement. All three branches of the federal government are to blame. In 1978, the U.S. Supreme Court ruled that unless and until Congress decides otherwise, Indian tribes may not assert criminal jurisdiction over non-Indians on reservation lands—no matter how serious the alleged offense and even when a tribe’s own citizens are the victims. Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978). The ensuing jurisdictional chaos, in which federal, state, and tribal officials compete for jurisdiction based on the supposed ethnicity of the offender and the victim and whether the crime occurred on tribal lands, dramatically reduced access to justice for many tribal communities. Many of these same areas were already classified by the federal government as among the poorest and least economically developed in the United States.

Instead of modifying or overturning Oliphant, Congress allowed Oliphant to stand in its entirety for the next 35 years, thereby making an underserved public safety environment even worse. Even many Indian reservations that had raised living standards under the new U.S. tribal self-determination policy have degenerated into high-crime areas. Not infrequently, criminal activity has moved onto tribal homelands from surrounding areas, aided by non-Indians benefiting from inadequate federal law enforcement, jurisdictional conflicts in which criminal investigations slip through the cracks, and the Oliphant rule making non-Indians often untouchable to tribal police. As former U.S. Senator Ben Nighthorse Campbell (R-Colorado) put it: “The word has gotten out that people can get off the hook, so to speak, if they are not Indian.”

As a result, Native Americans and Alaska Natives on tribal lands today suffer disproportionately high rates of violent crime—2.5 times the national average or higher. This inequity stems in part from Oliphant and various other federal restrictions on tribal self-governance—government that is closer to the people it is supposed to serve and that has the transparency and accountability needed to be held accountable. The implications for this and future generations are ominous. Average life expectancies for Native people are among the lowest in the Western Hemisphere—less than 50 years old on some reservations. Native women confront domestic violence rates that exceed those for all other racial and ethnic groups: One out of three Native American women and two out of three Alaska Native women will be raped in their lifetimes.

Native juveniles are likewise at extreme risk due to failed federal laws and policies. The Indian Law and Order Commission, an independent, bipartisan advisory board to the president and Congress established by TLOA, found that one in four Native American and Alaska Native young people suffer from post-traumatic stress disorder (PTSD) because they are so routinely exposed to violence. This is the same PTSD rate as returning U.S. combat veterans from Afghanistan and Iraq. See A Roadmap for Making Native America Safer: A Report to the President & Congress of the United States, Indian L. & Order Comm’n (Nov. 2013), www.aisc.ucla. edu/iloc.

TLOA & the VAWA Amendments: Healing to a “Broken Landscape”

TLOA and the VAWA Amendments seek to bring a modicum of healing to what Professor Frank Pommersheim memorably called a “broken landscape.” See Frank Pomm ersheim, Broken Landscape: Indians, Indian Tribes and the Constitution (Oxford Univ. Press 2009). TLOA was intended to make certain federal officials serving Indian country, including U.S. Attorneys and FBI agents, more directly accountable to Native communities. TLOA requires U.S. Attorneys to inform tribal authorities when declining cases for federal prosecution. Besides exposing federal prosecutors’ decisions to closer scrutiny, this reform helps tribal prosecutors decide whether and when to file cases of their own. If a U.S. Attorney’s Office plans to decline a case, for instance, TLOA’s declination-reporting requirement can alert tribal prosecutors of the need to consider timely charges under tribal law. TLOA also strengthens tribal court systems by giving tribal judges and juries more flexibility in sentencing criminal offenders. Prior to TLOA’s enactment in 2010, federal law had restricted tribes’ ability to sentence Indians to not more than a year in jail even for the most serious crimes. TLOA frees tribes to impose sentences of up to three years per offense, not to exceed a maximum of nine years, provided tribal courts also provide defendants with legal counsel and other due process protections to safeguard their federal constitutional rights.

The second legislative milestone was the passage in 2013 of the VAWA Amendments, which recognize tribal courts’ criminal jurisdiction over non- Indian defendants in certain domestic violence cases—a narrow but important repeal of Oliphant. This year, for the first time since 1978, the VAWA Amendments will permit tribes to enact domestic violence laws covering non-Indians and to enforce civil restraining orders intended to keep perpetrators from victims. As part of a statutorily authorized pilot project, three tribes—the Confederated Tribes of the Umatilla Indian Reservation in Oregon, the Pascua Yaqui Tribe in Arizona, and the Tulalip Tribes in Washington—have already moved forward to implement the special domestic violence jurisdiction recognized by the VAWA Amendments, with other Native nations expected to follow in the months and years ahead. As with the enhanced sentencing provisions in TLOA, only those tribes that provide federal civil rights protections to criminal defendants—at a level “at least equivalent” to state courts, as the statute requires—will be permitted to assert jurisdiction over non-Indians in such cases. Such prosecutorial tools, while limited, nonetheless confront the reality that non-Native men commit a disproportionate number of domestic violence acts against Native women. See, e.g., Sarah Deer, Criminal Justice in Indian Country, 37 Am. Indian L. Rev. 374, 377 (2013) (Conference Transcript, Berkeley Law Thelton E. Henderson for Social Justice Symposium: Heeding Frickey’s Call: Doing Justice in Indian Country (Berkeley, CA, Sept. 27–28, 2012)) (cataloging recent statistical studies of this disparity).

The ABA Endorses the Indian Law and Order Commission’s “Roadmap”

Looking forward, much more remains to be done to combat the lingering public safety crisis that afflicts far too many Native American and Alaska Native communities. In November 2013, the Indian Law and Order Commission (Commission) issued its report to President Barack Obama and Congress, entitled A Roadmap for Making Native America Safer (Roadmap)—the most comprehensive assessment of violent crime in Native America in at least 85 years. The bipartisan Commission, whose nine members were all appointed by President Obama and the Majority and Minority leadership of Congress, conducted extensive field hearings across the United States, including all twelve regions served by the BIA. The Roadmap and its forty major recommendations (www.aisc.ucla.edu/iloc) were all unanimously approved by the commissioners—everything from jurisdictional reform and expanded intergovernmental agreements to enhanced protection for Native women and juveniles.

The heart of the Commission’s Roadmap has been nicknamed the “Grand Bargain.” The Commission recommends that all Indian nations be permitted to opt out of the federal criminal justice system except for laws of general application—that is, federal laws that apply to all U.S. citizens no matter where they live or work, such as immigration crimes, racketeering, anti-terrorism, and drug laws, and so forth. If a given tribe wants to develop and run its own justice system, it should be able to do that so long as defendants’ federal civil rights are respected. Local justice matters should fall within the tribes’ direct control if that is what tribal governments choose. Inclusive within this approach, Native nations should also be free to negotiate voluntary agreements with federal and state governments as needed to protect their communities and surrounding areas. In this manner, tribes may assert jurisdiction over all persons within their lands, fostering local accountability and interagency cooperation while denying safe havens for criminal activity.

The other half of the Grand Bargain is the Roadmap’s insistence that all Indian nations respect the federal civil rights of criminal defendants, Native and non-Native alike. Every defendant must be entitled to his or her own day in court. Specifically, the Roadmap proposes that all defendants be subject to the tribe’s criminal laws and be charged and prosecuted there with the same right to legal counsel and other constitutional protections applicable to state courts. Because justice delayed is justice denied, the procedural timelines mandated by the Federal Speedy Trial Act should be required in all tribal court criminal proceedings. See 18 U.S.C. § 3161 et seq. If a federal civil rights issue arises, the defendant would pursue a direct appeal into federal court on any constitutional claims after exhausting tribal court remedies but according to these strict federal timelines to prevent delay.

The guiding premise behind the Grand Bargain is this: protect everyone’s federal civil rights while strengthening public safety through enhanced local control, transparency, and accountability. In its field hearings from the East Coast to Alaska, the Commission found that where tribal governments have more freedom to make their own laws and be governed by them, they overwhelmingly rise to the challenge, just as other local governments do. Abuses of power can and do occur, but that tends to be the exception to the rule, just as it is in many states. Our civil rights are only as strong as the weakest court. Yet the vast weight of practical experience, on Indian reservations as elsewhere in the United States, indicates that the most effective crime-prevention and crime-fighting strategies are locally based.

At its Midyear Meeting in Houston on February 10, the ABA House of Delegates approved Resolution 111A, which adopts all of the recommendations contained in the Commission’s report. This includes major improvements in federal, state, and tribal laws designed to enhance public safety and access to justice for all Americans.

The passage of TLOA and the VAWA Amendments, and the ABA’s support of the reforms proposed by the Indian Law and Order Commission in its bipartisan Roadmap, suggest that the era when federal officials could dictate criminal justice priorities to Native communities is over. Instead of governing from afar, through federal officials and institutions with little or no direct accountability to tribal leaders and their constituents, Washington, D.C., may finally be seeing the wisdom of encouraging tribal capacity—building on public safety and criminal justice issues so that Native citizens can better protect life, liberty, and property for all citizens—Native and non-Native—just as we rightly expect state and local governments to do.

Troy A. Eid

A principal shareholder with Greenberg Traurig LLP in Denver, Troy A. Eid was the chair of the Indian Law and Order Commission. He is a former U.S. Attorney for Colorado and is an adjunct professor of American Indian Law at the University of Colorado School of Law and the University of Denver’s Sturm College of Law.