A 1938 law sweeps Native American and Alaskan 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, one 10-year study found that at any given time, 43 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 US. Attorney Troy Eid of Denver. The “Roadmap for Making Native America Safer” urgently calls for reforms in juvenile justice.
Constantly exposed to poverty, addictions and all manners of violence, Native youths experience post-traumatic distress disorder at a rate of 22 percent, equivalent to that among U.S. troops returning from war, the report shows. Juveniles 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.
A threat to public safety
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 some 40 changes that would impact all three branches of the federal government, reallocate millions of dollars, require spending, and build criminal justice infrastructure on tribal lands.
The report challenges entrenched bureaucracies, 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 crimes are investigated and prosecuted by local authorities, serious crimes on 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.
Restoring local control
At the heart of the commission’s 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 youths would be adjudicated locally, as are juveniles everywhere else.
The commission’s nine Republican and Democrat members were appointed by President Barack Obama and leaders of both houses of Congress. They worked as volunteers and spent most of their 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.”
The current system is rife with inequities, the commission found, including simple access to justice.
Federal officers charged with investigating serious Native crime, FBI agents or Bureau of Indian Affairs police, can be hundreds of miles away from crime scenes. The federal courthouses and prosecutors are almost always hundreds of miles away.
This places enormous logistical burdens on prosecution, from crime scene preservation and evidence gathering to getting witnesses to the trial.
Federal prosecutors declined to prosecute half the Native cases that came before them, according to a General Accounting Office study of 9,000 cases reported by federal law officers from 2005-2009. And while that rate is said to have improved since the Tribal Law and Order Act, no one disputes that many Natives suspected of violent crimes are walking free.
“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.
Upgrading infrastructure
Much of the report speaks to the need of upgrading criminal justice in Native country, where police are often undermanned, underequipped, undertrained and often have no access to information sharing or crime data that most local jurisdictions would take for granted.
But the 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 U.S. 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 in a Department of Justice pilot program, are better-equipped than others for 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.”
The road ahead
The report is multi-faceted 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 roadmap enacted.
I-News is the public service journalism arm of Rocky Mountain PBS. To read more please go to inewsnetwork.org. Contact Jim Trotter at [email protected].
