August 2007: Violence on Tribal Lands Prompts Congressional Concern

Washington Watch | August 2007
By Bruce Moyer

Skyrocketing violence on Indian reservations—including rapes, murders, gang shootings, methamphetamine use, domestic violence, and child abuse—is triggering interest by some members of Congress in streamlining a confusing labyrinth of federal, state, and tribal jurisdictional laws over crimes committed on Indian tribal lands, especially those committed by non-Indians.

At a June 21 hearing on law enforcement issues in Indian country, Sen. Byron Dorgan (D-N.D.), the chairman of the Senate Select Committee on Indian Affairs, characterized the increase in major crimes on Indian reservations as "unbelievable" and said that it was Congress’ responsibility to fix the growing epidemic of violence.

The problem of domestic and family violence on Indian reservations is especially staggering. Department of Justice statistics reflect a higher incidence of sexual assaults among Native Americans (seven per 1,000 residents) than among African-Americans (three per 1,000) or whites (two per 1,000). Earlier this spring, Amnesty International reported that Indian women are more than twice as likely to be raped as other American women are. According to the report, suspects often go free because of unclear police jurisdictions and the lack of adequate forensic capabilities on reservations.

One of the most acute dimensions of the problem is the extent to which non-Indians are the perpetrators of family violence and sexual assaults. Seventy percent of domestic assaults upon Native Americans are committed by non-Indians, according to Thomas Heffelfinger, a former U.S. attorney and an advocate for creating a national commission to deal with criminal jurisdiction in Indian country.

Native American tribes and special-interest organizations, as well as academic experts in Indian law, agree that the restoration to tribal authorities of criminal jurisdiction over domestic violence against Indians committed by non-Indians is paramount and necessary. These entities note that non-Indians often act with impunity because they are rarely prosecuted, largely because tribal groups lack legal authority to prosecute non-Indian offenders, even if they have committed a crime against a tribe member on the tribe’s land. This jurisdictional void was created by the Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe, which held that criminal jurisdiction to prosecute non-Indians for crimes committed against Indians was shared by the United States and the individual states.

Yet, despite federal jurisdiction over major crimes in Indian country, in the past two decades, only 30 percent of crimes that were committed on tribal lands and referred to U.S. attorneys were prosecuted, compared to 56 percent for all other crimes, according to Justice Department data compiled by Syracuse University. The Wall Street Journal recently noted, “For some non-native Americans, tribal lands are virtual havens.” The situation is compounded by the isolated nature of many reservations, which generates delay in the inability of federal and state authorities to respond and often mars the forensic and evidentiary foundations of prosecutions against perpetrators of domestic violence.

Should Congress revisit Oliphant and restore criminal jurisdiction over non-Indians to tribal authorities? The federal government has not formally announced its current position, although in his article in the March/April 2007 issue of The Federal Lawyer, U.S. Attorney Troy Eid (Colo.) expressed his personal view about this issue: "A greater emphasis on tribal sovereignty and self-determination in tribal criminal justice policy would echo the approach that has dramatically improved the delivery of so many other essential government services on Indian reservations in recent years."

In May, the Senate passed the Indian Child Protection and Family Violence Prevention Act (S. 398) to remove barriers to the reporting of child abuse in Indian country. But this may be only the start of a larger congressional effort to relieve the confusing jurisdictional  patchwork over crimes committed on Indian lands, especially crimes committed by non-Indians. As the Supreme Court acknowledged in its decision in Oliphant, Congress ultimately retains the prerogative in “deciding whether Indian tribes should finally be authorized to try non-Indians.”

The FBA Board of Directors, during its recent adoption  of the FBA Issues Agenda for 2007–2008, directed the start-up of association efforts to promote the restoration  of criminal jurisdiction to Indian tribal courts, in accordance with federal, state, and tribal law, over non-Indian offenders in cases of domestic and family violence.

Bruce Moyer is government relations counsel for the FBA.
© 2007 Bruce Moyer. All rights reserved.

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