A 1938 law sweeps Native American and Alaska Native youths into the federal criminal justice system when they commit anything beyond misdemeanor crimes.
Although Native Americans make up little more than 1 percent of the nation’s population, a 10-year study found that at any given time, 43 percent to 60 percent of juveniles held in federal custody were Native Americans, a wildly disproportionate number.
Once there, they serve sentences far longer than other juveniles sentenced locally for similar offenses.
These are among the findings of the final report from the national Indian Law and Order Commission, chaired by former U.S. Attorney Troy Eid of Denver. The “Roadmap for Making Native America Safer” turns particularly urgent in its call to reform juvenile justice in Indian country.
Constantly exposed to poverty, addictions and all manners of violence from domestic assault to suicide to murder, Native youths experience post-traumatic distress disorder at a rate of 22 percent, equivalent to that among American troops returning from war, the report shows. Juveniles caught up in the federal system effectively “go missing” from their tribes.
“Juvenile justice for Native kids has not changed since the 1930s,” Eid said in an interview with I-News at Rocky Mountain PBS. “They’re automatically transferred into federal jurisdiction. It’s just extraordinary no one has reassessed that. There isn’t juvenile justice within the Bureau of Prisons. It doesn’t exist there. There’s no diversion, no drug courts, no education. There are no books, no programs to reintegrate into society, nothing. It’s really very sad.
“And it doesn’t square with our Constitution,” Eid said.
The new report is blunt in its assessment of criminal justice in Indian Country, and of the risks posed for public safety.
The system “extracts a terrible price: limited law enforcement; delayed prosecutions, too few prosecutions, and other prosecution inefficiencies; trials in distant courthouses; justice systems and players unfamiliar with or hostile to Indians and tribes; and the exploitation of system failures by criminals, more criminal activity, and further endangerment of everyone living in and near tribal communities.”
The commission, created by the Tribal Law and Order Act of 2010, offers about 40 recommendations for change that would impact and require reorganization in all three branches of the federal government, reallocate millions of dollars, require new spending and build new criminal justice infrastructure from the ground up on many tribal lands across the U.S.
The report challenges the status quo of entrenched bureaucracies – federal and state – at every turn, describing their work as “an indefensible maze of complex, conflicting and illogical commands, layered in over decades via congressional policies and court decisions, and without the consent of tribal nations.”
Unlike the U.S. at large, where serious local crimes are investigated and prosecuted by local authorities, all serious crimes on reservations or other tribal lands are federal crimes, subject to federal prosecution, a provision of law that dates back to 1885. (Under a separate law, a handful of states have the authority.) Tribal courts are limited to misdemeanor sentences with a maximum of three years.
Jury of one’s peers
At the heart of the commission’s far-reaching document is the premise of restoring local crimes to local jurisdictions, where they would be investigated by tribal police and tried in tribal courts, with all U.S. constitutional protections for defendants. Native youth offenders would be adjudicated locally, as are juveniles everywhere else.
The commission’s nine members, Republican and Democrats, were appointed by President Obama and the majority and minority leaders of both houses of Congress. They worked as volunteers, had no offices and spent most of their significant time in the field. Their recommendations are unanimous.
“We realized that if we’re going to make an impact, we’d have to be honest in addressing the problems as we found them,” said Eid, a Republican who was named Colorado U.S. attorney by President George W. Bush. He is now a partner with the Greenberg Traurig law firm in Denver.
“We had the opportunity, and we wanted to make the most of it,” he said.
The current system is rife with fundamental inequities, the commission found, including, perhaps foremost, simple access to justice.
Federal officers charged with investigating serious Indian Country crime, FBI agents or Bureau of Indian Affairs police can be located hundreds of miles away from distant crime scenes. The federal courthouses and prosecutors are almost always hundreds of miles away.
This places enormous logistical burdens on successful prosecution, including every facet from crime-scene preservation and evidence gathering on the front end to getting witnesses to the courthouse for trial.
Federal prosecutors declined to prosecute half the Indian Country cases that came before them, according to a General Accounting Office study of 9,000 cases reported by federal law officers from 2005 to 2009. And while the declination rate is said to have improved since the advent of the Tribal Law and Order Act, no one disputes that many people suspected of violent crimes are walking free in Indian Country.
“Too many crimes have fallen through the cracks of this ‘jurisdictional maze,’” said Jill Engel, former chief prosecutor for the Hopi Tribe in Northern Arizona and now with the El Paso County District Attorney’s Office in Colorado Springs, in an interview with I-News. “This leaves dangerous criminals within the community with the opportunity to find new victims.”
Much of the report speaks to the need of upgrading criminal justice in Indian Country, where police are often understaffed, underequipped, undertrained and often have no access to information sharing or routine crime data that most any other local jurisdiction would take for granted.
But the very first recommendation asks Congress to clarify that any tribe that so chooses can “opt out immediately” of federal jurisdiction over local crimes committed on their lands. The provision would also create the United States Court of Indian Appeals, which would function as any other federal appellate court. Sentencing restrictions on tribal courts would be lifted.
Some tribes, including 30 that have been working in a Department of Justice pilot program, are better equipped than others to take on expanded jurisdiction.
“This requires resources to support having law-trained judges and public defenders,” said Engel. “Isolation of geographic areas and limited financial resources could affect the ability of a tribe to succeed in exercising full jurisdiction.”
Problems worst in Alaska
The commission devotes its second chapter to Alaska, which, alone among the states, was exempted from the provisions of the Tribal Law and Order Act as well as the Violence Against Women Reauthorization Act of 2013. Although Alaska has 229 of the nation’s federally recognized 566 tribes, the state established a system of Native corporations to own villages and other lands, as opposed to federally recognized Indian reservations or nations.
Serious crimes are investigated by Alaska state police, who are often located at great distances from the far-flung native villages that in many cases aren’t connected by road, particularly in winter.
“Problems with safety in tribal communities are severe across the United States,” the report states, “but they are systematically the worst in Alaska.”
When the commission paid a site visit to the community of Galena, one resident told members, “Every woman you’ve met today has been raped. All of us. I know they won’t believe that in the Lower 48, and the state will deny it, but it’s true.”
Is there hope?
The report is multifaceted in tackling deeply complex issues. Is there any chance that its major recommendations will be embraced by Congress, by the White House, by the federal court system?
Eid thinks so.
“The White House asked for more specific details about how the recommendations could be implemented,” he said. “They’re trying to understand and have been very gracious. I know people say Congress is broken or this or that. But I don’t believe we can’t get this done.”
Said prosecutor Engel: “Indian reservations should not be a safe haven for criminals. This dedication to telling the story in a truthful, unapologetic way will lead to positive changes.”
Eid praised the shared vision of his fellow commissioners.
“We are going to tell it like it is, and we’ll push for the rest of our careers to have the road map enacted,” he said.
I-News is the public service journalism arm of Rocky Mountain PBS. To read more, go to inewsnetwork.org. Contact Jim Trotter at firstname.lastname@example.org.
Troy Eid was the U.S. attorney for the District of Colorado from 2006 to 2009, and from that pulpit quickly gained the reputation of being a thoughtful and concerned advocate for public safety and criminal justice in Indian Country.
As the state’s chief federal prosecutor, he was instrumental in moving against a string of unresolved murders on the Ute Mountain Ute Reservation in Southwest Colorado.
But Eid’s advocacy for Native justice landed him in hot water with his bosses at the Justice Department. Writing in the journal The Federal Lawyer in 2007, Eid outlined the problems occurring on the Ute Mountain Ute Reservation, as well as shortcomings with federal criminal justice on Native lands elsewhere. Although he had precleared the article with the Justice Department, his ideas drew the attention of then-U.S. Sen. Byron Dorgan, D-N.D., chairman of the Senate Committee on Indian Affairs.
The Justice Department ordered Eid to disavow his article, saying he lacked any authority to write it. One top Justice official threatened Eid with being taken to the “woodshed.” A formal reprimand loomed. When Dorgan asked Eid, a Republican, to testify before his committee, the Justice Department refused to allow it, claiming executive privilege.
“I did not back down,” Eid said of the troubled period. Attorney General Alberto Gonzales resigned later that year, and eventually the matter blew over.
Not only that, many of the strands of the then-controversial article can be found in the Tribal Law and Order Act of 2010, as well as in the final report of the national Indian Law and Order Commission, appointed by President Obama and the majority and minority leaders of Congress, and of which Eid served as chairman.
Eid traces his empathy for the disadvantaged and the plight of Native people to his family background.
“Part of it is my dad’s journey. He came to the U.S. from Egypt with 100 bucks in the ’50s. He went to British school, the boarding school model with the forced assimilation they thought they had perfected. My dad could speak six languages, but if they were caught speaking Arabic, they’d be beaten on the legs with a long bamboo cane and have their mouths washed out with soap. Those are the same kind of stories you hear across Indian country.”
But as he became more deeply involved – he regularly conducts legal seminars and training on the vast Navajo Nation, for example – he learned much more on his own.
“If we lose Native America, we lose a big part of our national identity,” Eid said. “I’ve been fortunate to be a guest at many ceremonies, and there is just an extraordinary depth and richness to our Native peoples. There’s an extraordinary amount of strength among those who’ve been marginalized in so many instances.
“But you can’t work in Indian country without understanding there’s tragedy there. There’s tragedy all the time.”
Jim Trotter, I-News at Rocky Mountain PBS