Lawless Lands: Justice Denied to Native Communities
November 15, 2008 5:11 PM   Subscribe

"Lawless Lands": Michael Riley, writing in the Denver Post, investigates the dysfunctional state of law enforcement on Native American reservations, and the shocking consequences for crime victims. Bill Moyer's Journal has followed up with an excellent documentary expose entitled "Broken Justice."

Amnesty International reports on a particularly heinous aspect of the problem -- one in three Native women will be raped in her lifetime, and the perpetrators are rarely punished. N. Bruce Duthu's Op-Ed on the subject from the NY Times, 8/10.08.
posted by fourcheesemac (22 comments total) 13 users marked this as a favorite
Thanks for posting this.
posted by acro at 7:34 PM on November 15, 2008

NPR has also been covering this for a while.
posted by Science! at 7:36 PM on November 15, 2008 [1 favorite]

Hey now, the U.S. Attorneys have more important things to worry about, like imaginary voter fraud!
posted by delmoi at 7:41 PM on November 15, 2008

Is there an echo in here?
posted by Jimbob at 7:55 PM on November 15, 2008 [1 favorite]

Yes, Jimbob, the only possible explanation for this could be an elaborate scheme to seize control of the reservations. Any women and children complaining of rape are obviously complicit in this, and the best thing to do is ignore it, because obviously it's a racist fiction.
posted by rodgerd at 8:50 PM on November 15, 2008

This has been an ongoing problem in many reservations, and not just in the US. In the Mohawk community of Kanesatake in Canada, police have refused to set foot in the area despite reports of beatings and firebombings between rival factions vying to control the community. Part of police stand-offishness is because of clashes with police in the past, sometimes to national attention, which has made them reluctant to do anything, opting instead to just stay out of it. But by doing nothing, they're also allowing the community to collapse upon itself. I'd like to believe that the police are just being overly cautious, but I think this is crossing the line into neglect, when people asking for police help aren't getting it.
posted by Marisa Stole the Precious Thing at 11:58 PM on November 15, 2008 [1 favorite]

I'm not sure that's what Jimbob was trying to say, rodgerd. It seemed to me that he was just pointing out a striking correlation between the difficulties* facing two indigenous peoples on opposite sides of the globe, both with histories of aggressive colonial repression.

*I wish I could think of a stronger word for it than "difficulties."
posted by Vic Morrow's Personal Vietnam at 2:35 AM on November 16, 2008

I'll bite . . .

There are obvious gross similarities btwn the Australian and North American situations. But the analogy is not all that productive.

Much of the crime discussed in the links in my post above is committed by people from *outside* the reservation community. And the law enforcement structures that are *SUPPOSED* to be in place (unlike the NT) just aren't being carried out by the responsible parties.

So yeah, there's a rough analogy to be drawn. Indigenous people are screwed by the state all over the world. Similar things are happening in the Amazon and in Nunavut too.

I'm happy to see this post become a discussion of the global problem. But there are specifics to the US case worth keeping in mind. I wouldn't exactly call the problem "an echo." Other than an echo of colonialism and genocide in general.
posted by fourcheesemac at 4:02 AM on November 16, 2008

thanks for this post

for further reading - Conquest: Sexual Violence and American Indian Genocide by Andrea Smith is an excellent book on this subject, specifically as it relates to Native women
posted by jammy at 7:21 AM on November 16, 2008

wow, thanks for this.

it reminds me of this conference, which I found to be a real eye-opener.

nothing is more irksome than the stereotype of Native Americans laying back getting fat off of gambling residuals.

also, thank you, public broadcasting
posted by Busithoth at 12:01 PM on November 16, 2008

I think the answer might be to give state jurisdiction over prosecuting the crimes. The feds have jurisdiction over most serious felonies on reservations, but in a few states (California is one) the power has gone to the states under Public Law 280. State law enforcement is probably going to be better than federal law enforcement, since the feds as a whole don't actually have much expertise in prosecuting domestic violence and work-a-day assaults, which are normally relegated to local law and law enforcement and seem to be the biggest problems on the reservations. The feds' expertise is drugs and money.

Either that or we need to start detailing folks from the DC AUSA's office to the reservations. DC is the other place in the country where the feds do local law enforcement, and they do an OK job of it.
posted by footnote at 12:28 PM on November 16, 2008

(I should add that I know that PL 280 -- state criminal jurisdiction -- has not been very popular among tribes. But I think that it makes sense to keep law enforcement local in general, and there's no evidence that the federal government's supposed greater respect for tribal sovereignty has really done much good on the level of law enforcement.)
posted by footnote at 12:39 PM on November 16, 2008

No, the answer is not to further diminish tribal sovereignty by allowing state criminal jurisdiction inside Indian country in non-PL-280 states. The Rehnquist Court did enough damage to federal Indian law and policy - we don't need to continue moving backward with his bullshit "implicit divestiture" doctrine. Regardless of whether or not state criminal jurisdiction within PL-280 states is lowering the crime rate inside Indian country, PL-280 is a disgraceful product of Termination Era policy. If tribes want to seek the assistance of states in prosecuting crimes in Indian county, they can use voluntary cross-deputization agreements or compact with states, but unilateral cession of jurisdiction to states is completely repugnant.
I think the solution is to deal with the underlying legal problem by allowing tribes more than just misdemeanor crim jurisdiction to prosecute crimes in Indian country, and grant at least concurrent jurisdiction with the feds to prosecute non-Indians. This requires either a legislative fix (such as the Duro Fix which overruled Duro v. Reina by allowing tribes to prosecute non-member Indians) or for the Supreme Court to overrule Oliphant. Unfortunately, it's complicated because not all tribes have enough the financial resources or have developed criminal codes with sufficient due process protections.
Because of the complexity of the problem. I think the fix has to be legislative, and it's going to have to be made on a tribe-by-tribe basis if its going to work for two reasons: (1) because of the political hurdles I think tribes will have more success getting it on an individual basis and (2) as I noted before, even many Indian law scholars will admit that not all tribes possess the resources, or can ensure enough due process protections to prosecute nonmembers. Some tribes have extremely advanced, well-established tribal court systems that rival any federal or state courts in the US; others have just CFR courts and others have systems that are so severely underfunded, there's no way they could handle the caseloads. Some tribes just don't have enough revenue to be able to fund court systems; there is some federal legislation providing funding for tribal court systems, but not enough.

Also, we need to get out of the habit of lumping all tribes together, and start thinking of them as separate sovereigns, with separate and unique governments, situations, etc.
posted by Dr. Zira at 5:14 PM on November 16, 2008

we need to get out of the habit of lumping all tribes together

Not sure who the "we" refers to; I agree completely that the problems, issues, and solutions need to be particular to specific situations -- cultural, economic, legislative, juridicial.

I also think that there are issues here that cross-cut many if not most Native communities and nations, and that effective solutions will also depend on a high level of inter-tribal effort and exchange.

Of course, the crime and punishment issues are part and parcel of larger issues of social inequity, poverty, and community health.

But a lot could be improved if the proper authorities on various levels, including many tribal police departments, state police departments, and federal agencies, would get better at doing the jobs they are supposed to do under existing law.
posted by fourcheesemac at 5:43 PM on November 16, 2008

Not sure who the "we" refers to...

I'm an attorney, and Indian law is one of my areas of practice, but I was referring to legislators, policymakers, tribal leaders, attorneys, scholars, etc - all of us who work in this field, I think we need to be more rigorous about thinking of tribes as 560+ sovereign located within the political boundaries of the US. It's that kind of thinking that leads to compact negotiations such as we saw here in Oklahoma, for instance, in which compact negotiations means the state negotiates a form compact with one or two tribes then tries to force the same compact on every other tribe within the state.
But while social inequity, poverty, and community health is part of the issue, it's not the root of the problem. The root of the problem is the morass of law that has created this jurisdictional mess - the Major Crimes Act, the Indian Country Crimes Act, the Assimilative Crimes Act, PL-280, the Rehnquist court decisions I mentioned earlier, and even earlier SCOTUS decisions like Ex Parte Crow Dog and Talton v. Mayes, United States v. Kagama, the Cherokee cases, basically a roller coaster of fed Indian law policy going back over two centuries. What started out as a fairly straightforward rule in Worcester v. Georgia - that state laws have no force within Indian country - slowly got eroded over the next two centuries piece by piece, both by Congress, which has plenary power over legislation of Indian affairs, and by SCOTUS, which has no plenary power, but didn't let that stop them.

You also have to remember that there are geographical issues as well, because there are different types of Indian country throughout the US (you can see 18 USC 1151 for the statutory legal definition of Indian country). Unlike some of the Southwestern states where there is a lot of 18 USC 1151(a) reservation Indian country, here in Oklahoma, we've got a lot of individual allotments and trust property under 18 USC 1151(b), which means huge problems of checkerboard jurisdiction. Someone calls in a domestic violence dispute to the local police - if it occurs on trust property, not only could individual who makes the call not understand who's got jurisdiction, the cops themselves - both the local police and the tribal police may not be certain who's got jurisdiction. That's why you need cross-deputization agreements, but even if you have those, maybe the cops don't have dispatch systems, so they can't communicate with one another. That's just the issue at the response stage - let's say later on you work out whether or not the crime has occurred on trust property - you've still got to figure out whether the perp is an Indian or non-Indian before you get to the stage of negotiating who's got jurisdiction to prosecute this. We're not a PL-280 state, so the state should be out of the mix for the most part, but then you've got to sort out how the crime's going to be charged. If the tribe wants to assert jurisdiction to prosecute the thing - there's another negotiation there between the feds and the tribes. That's just the tip of the iceberg. Neither the feds nor the tribes have sufficient resources to prosecute. And even if you granted states with criminal jurisdiction, how are you going to fund their increased workloads? Assuming we're talking about giving states jurisdiction over trust lands, for example, trust land shouldn't be on the state's tax base - it should be funding the tribal government. Where's the state going to get the money to prosecute?

Yeah, I agree, law enforcement needs to do a better job, but unfortunately, it's not that simple. It's just not as simple as telling the US attorneys and their AUSAs that they need to focus more on this stuff - they know it's a problem. And even if you do fix the jurisdiction issues, then there are still going to be resource issues because not every tribe has a massive influx of gaming money to fund its government, much less fund its law enforcement. There's still a lot of reliance of CFR courts, which is a whole different can of worms. It'll be interesting to watch the incoming DOJ's policy on the issue, but still, it's a complex problem, that doesn't lend itself to a complex solution. Increasing fed prosecutions may help some, but it's just going to be a drop in the bucket until there are more resources.

I'll get off my soapbox now.
posted by Dr. Zira at 6:56 PM on November 16, 2008

Well, look at me, making a controversial drive-by comment, then dissapearing from the thread for days.

My thoughts on the similarities are:

1. Abuse is rife in historically abused and neglected indigenous communities - abuse committed by both insiders and outsiders, driven by poverty, isolation, substance abuse, and a confused and half-hearted application of justice.
2. A report is released calling attention to this abuse.
3. Everyone acts shocked, as if they weren't aware this was going on.

And from there, in Australia...

4. Massive emergency intervension is launched that turns these communities upside down.
5. In the process, this intervention completely fails to actually follow through on any of the recommendations in the original report. It also fails to actually bring any of the people conducting the abuse to justice.

I'm just saying - watch out for steps 4 and 5.
posted by Jimbob at 1:29 AM on November 17, 2008

Fair enough DrZira. I'd say the "root of the problem" is genocide, but I'm just an anthropologist.

I don't really think the critique of lumping tribes together inappropriately applies (any more) to scholarship so much. There are certainly many issues and problems that can be viewed in inter-tribal and comparative terms -- and that are by Natives. There is a a "Native America" -- culturally, politically, and economically. There are also, of course, many sovereign Native nations with different cultures, histories of repression, resistance and political formation, different legal traditions, etc. I myself work with several different tribal communities, and the differences in how each conceives of (and legally structures) cultural property rights is the focus of my work in some respects.

Glad to know there are other people with a serious interest in this on MeFi, however. I think these are hard issues to discuss in a dispassionate way if you have seen and dealt first hand with the level of legal dysfunctionality in a real world Native community, if you know the victims of awful crimes who have not gotten justice, if you see the effects of ineffective law enforcement first hand. Given your line of work, I suspect you see it all the time.

Jimbob has a point -- the moral imperative to do *something* is often the enemy of doing something that might actually work. But there are plenty of agencies and individuals who are supposed to "do something" already, as part of their job descriptions, who don't do anything, or not much. In Alaska, where I know the situation well (and where it is indeed structurally different situation than in the lower 48), I see it all the time. And I have to say that too many times -- in my *direct* experience -- the "root" cause of inadequate protection for crime victims, inadequate responses to heinous problems, etc. -- is simply anti-Native racism among non-Native authorities. Compounded by a million other problems, to be sure.
posted by fourcheesemac at 4:19 AM on November 17, 2008

Dr. Zira - How great to have an Indian law expert on MeFi! Do you know of any studies (as opposed to anecdotes) that compare crime rates under PL-280 jurisdictions to federal jurisdiction?

I am admittedly a dabbler (1 semester in law school) but when I think about this issue (especially as it relates to domestic violence against women and children) I can't help but wonder whether as a pragmatic matter it wouldn't be better to give law enforcement jurisdiction to just one authority, whoever that may be. I don't think this is incompatible with maintaining the degree of sovereignty that the tribes are realistically going to preserve going forward. I understand the roots of PL-280, but in the end, if it's either federal or state jurisdiction over major felonies, then I do think it makes sense to examine which does the better job.
posted by footnote at 7:45 AM on November 17, 2008

footnote: I don't have links right now; when I get a chance, I'll try to come back and post some, but in case I don't, try looking at some of Carole Goldberg's work at UCLA. She's the foremost Indian law expert on PL-280 and I think she's done some of empirical studies on the issue. One of the problems w/fed Indian law research is that there's relatively little overall empirical research for reasons I won't go into right now.

fourcheesemac: Yeah, it would probably be more accurate to go back to genocide and colonialism as the root of the problem. I tend to view things from a very narrow legal perspective, through the lens of litigation, and it's really important to keep these interdisciplinary discussions going. I'm anxious to pick your brain regarding cultural property rights.
posted by Dr. Zira at 9:24 AM on November 17, 2008

Dr.Zira, and I yours -- I'm tied up for the rest of the day but will follow up with you in MeMail soon.

I love MetaFilter.
posted by fourcheesemac at 11:03 AM on November 17, 2008

footnote: Start with Public Law 280: Some Data At Last by Carole Goldberg, 38 Conn. L. Rev 697 (2005-06).
posted by Dr. Zira at 5:43 PM on November 21, 2008

posted by footnote at 12:22 PM on November 22, 2008

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