For over the last two years, a congressionally-authorized national advisory commission, The Indian Law and Order Commission (Commission), traveled the United States conducting field hearings, meetings, and conversations with tribal, state, and federal stakeholders about the criminal justice systems serving American Indian and Alaska Native communities. The result of its work is a 326-page report released in November, 2013 entitled “A Roadmap for Making Native America Safer.” The Report recommends a ten-year plan to make American Indian and Alaska Native communities safer and more just for all U.S. citizens, and to reduce the unacceptably high rates of violent crime in Indian Country. The report may be found at: https://www.indianlawandordercommission.com/report/
The Commission was created by the Tribal Law and Order Act of 2010. The nine Commissioners, who were appointed by the President and the Democratic and Republican leadership in Congress, were tasked with developing a comprehensive study of Indian Country criminal justice, and creating recommendations on essential reforms and developments to the tribal, state, and federal justice systems.
The unanimous bipartisan conclusions, findings, and recommendations contained in the Report represent the Commission’s views on how to make Indian Country safer. The Commission notes that “when Congress and the Administration ask why the crime rate is so high in Indian country, they need look no further than the archaic system in place, in which Federal and State authority displaces Tribal authority and often makes Tribal law enforcement meaningless.” This imposition has resulted in “limited law enforcement; delayed prosecutions, too few prosecutions, and other prosecution inefficiencies; trials in distant courthouses; justice system 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 Report contains six chapters, addressing: (1) Jurisdiction; (2) Reforming Justice for Alaska Natives; (3) Strengthening Tribal Justice; (4) Intergovernmental Cooperation; (5) Detention and Alternatives; and (6) Juvenile Justice. While some of the Commission’s recommendations require legislative action, others can be addressed by the Executive Branch, and still others will require action by the federal judiciary. The Commission found “that for public safety to be achieved effectively in Indian country, Tribal justice systems must be allowed to flourish, Tribal authority should be restored to Tribal governments when they request it, and the Federal government, in particular, needs to take a back seat in Indian country, enforcing only those crimes that it would otherwise enforce on or off reservation.”
The Commission found that disproportionately high rates of crime in Indian County “have called into question the effectiveness of current Federal and State predominance in criminal justice jurisdiction in Indian country.” The Commission’s recommendations include the suggestion that any tribe should be able to choose, fully or partially, to immediately opt out of federal and/or congressionally authorized State- Indian Country criminal and/or juvenile jurisdiction, which would include the recognition of the inherent criminal jurisdiction of tribal government over all persons within the exterior boundaries of a tribe’s lands. The Commission also recommends that tribes should be able to opt-out of the sentencing restrictions of the Indian Civil Rights Act. The tribe would be required to provide civil rights protections equal to those guaranteed in the U.S. Constitution, and tribal court decisions would be subject to federal judicial appellate review. To properly implement this recommendation, the Commission also recommends that a new federal circuit court, the United States Court of Indian Appeals, be established to hear appeals from tribal courts.
The Commission devoted a full chapter to the unique situation in Alaska, which has only one Indian reservation and largely lacks the “Indian Country” that primarily defines the geographic scope of tribal criminal jurisdiction. The Commission offered several recommendations designed to put Alaska on the same footing as tribes in the lower 48, including legislation that would provide avenues for expanding Indian Country and trust land acquisition in Alaska. The Commission also recommends that Congress repeal the exclusion of Alaska tribes (outside of the one reservation) from the tribal jurisdictional provisions of the Violence Against Women Act and affirm the inherent criminal jurisdiction of Alaska Native tribal governments over their members within the external boundaries of their villages.
To strengthen tribal justice, the Commission recommends directing sufficient funds to Indian Country law enforcement to bring their coverage numbers into parity with similarly situated off-reservation non-Indian communities. Furthermore, the Commission calls on the Executive Branch to take actions that would strengthen tribal justice systems and on the U.S. District Courts to provide more judicial services in and near Indian Country.
The Commission stresses the importance of fully funding each provision of the Tribal Law and Order Act of 2010, both for FY 2014 and future years, and finally funding the Indian Tribal Justice Act of 1993. To improve the management of federal criminal justice programs in Indian Country, it recommends eliminating the Office of Justice Services in the Department of the Interior and consolidating all Department of Justice (DOJ) Indian Country programs and services into a single “Indian Country component” at DOJ. Along with this consolidation would be legislation to require Indian preference in the new office’s hiring decisions and an affirmation of its trust responsibility for Indian Country. Significantly, the Commission recommends amending the Indian Self-Determination and Education Assistance Act (ISDEAA) to give tribal governments the opportunity to contract or compact with the new DOJ office under ISDEAA.
In order to ensure stronger coordination among federal, state, and tribal law enforcement, the Commission stresses the need for federal incentives to states and tribes to increase participation in cross-deputation and other agreements. Additionally, the Commission recommends requiring intergovernmental sharing of data on arrests, court proceedings, and reentry.
To address deficiencies in detention, such as systemic disproportionality in sentencing, distance from their homes, and the failure to provide culturally relevant support to offenders, the Commission recommends providing tribes greater access to federal prison programs, establishing incentives for the development of high-quality regional Indian Country detention facilities, and converting the DOJ Bureau of Prisons (BOP) pilot program, which allows a limited number of tribal prisoners to be detained in BOP facilities, into a permanent program.
The Commission found that Native youth are among the most vulnerable children in the United States, and that “the same complexities and inadequacies of the Indian country adult criminal justice impair juvenile justice.” The Commission recommends jurisdictional reforms for Native youth, such as (i) providing tribes with the opt-out option discussed above, and the right to consent to any U.S. Attorney’s decision before federal criminal charges against any juvenile can be filed; (ii) establishing greater and more stable access to federal juvenile justice funding; (iii) requiring federal and state juvenile justice systems to maintain proper records indicating tribal membership and the location of the underlying conduct within Indian Country that brought the juvenile into the judicial system; and (iv) amending the Indian Child Welfare Act (ICWA) to provide that all of the notice, intervention, and transfer provisions of ICWA apply when a state court initiates any delinquency proceeding involving an Indian child for acts that took place on the reservation.
The Commission found that the public safety crisis in Native America is “emphatically not an intractable problem,” and dramatic improvements to public safety in Indian Country are possible, but only after tribes are given a greater freedom to build and maintain their own criminal justice systems.
Please let us know if we may provide additional information or analysis regarding the Indian Law and Order Commission’s Report.
