Laura E. Pisarello, Lawless by Design: Jurisdiction, Gender and Justice in Indian Country

• Citation: Vol. 59 No. 6
• Publication year: 2010

LAWLESS BY DESIGN: JURISDICTION, GENDER AND JUSTICE IN INDIAN COUNTRY

INTRODUCTION

[O]ur method of dealing with [murder] was Crow Dog should go take care of Spotted Tail's family, and if he didn't do that we'd banish him from the tribe. But that was considered too barbaric . . . so they passed the Major Crimes Act that said we don't know how to handle murderers and they were going to show us.¹

[I]f you want to rape or kill somebody and get away with it, do it on an Indian reservation.²

American Indian men and women report more violent victimization than any other racial or ethnic group in the United States.³Homicide victimization rates, for example, are two times higher for American Indians than for persons of any other ethnic group.⁴Complex jurisdictional laws hamper attempts to reduce these crimes. In Oliphant v. Suquamish Indian Tribe, the Supreme Court held that tribal governments do not have inherent criminal jurisdiction over non-Indians, even when they commit crimes against tribe members on American Indian reservations.⁵Moreover, while tribes can prosecute Indian defendants, they are not authorized to impose a fine greater than five thousand dollars or a jail sentence that is longer than one year.⁶Such restrictions functionally limit tribal jurisdiction to misdemeanors.⁷

Federal and state governments have not filled the vacuum in law enforcement created by this limitation. The federal government has a trust responsibility to police Indian Country,⁸but its jurisdiction is limited to federal and major crimes.⁹Public Law 280 (PL 280) provides fifteen states with jurisdiction over crimes committed in Indian Country.¹⁰Thus, in PL 280 states, tribal governments have jurisdiction over misdemeanor crimes committed by Indians, state officials can prosecute any crime, and the federal government maintains jurisdiction over federal and major crimes. Yet, despite this array of authorities, few crimes against Indians that occur on reservations are prosecuted.

Due to confusion over jurisdiction, law enforcement response in Indian Country is complex, uncoordinated, and ineffective.¹¹Determining jurisdiction over any given crime committed in Indian Country "depends on the identity of the victim and the offender, the severity of the crime, and where the crime occurred."¹²In these circumstances, federal and state officials may be unsure about their powers. Thus, non-Indians who commit crimes on tribal lands may go unpunished,¹³making Indian Country residents choice targets for criminals¹⁴and projecting an image that criminals can attack Indian Country residents with impunity.¹⁵

This patchwork of legal authority has led to a breakdown of law and order in Indian Country.¹⁶While this climate endangers the entire American Indian population, women suffer the most. American Indian women are the most victimized group in America;¹⁷their rate of violent victimization is more than twice that of all women.¹⁸Indian and Alaska Native women are the most likely group to report rape and physical assault.¹⁹While violence against women is underreported in every demographic,²⁰jurisdictional barriers add one more obstacle between victims and law enforcement in Indian Country.

This is particularly devastating to American Indian women since at least 70% of sexual assault perpetrators are non-Indian men.²¹

To reduce crime, and sexual violence in particular, in Indian Country, Congress should "overturn" Oliphant and grant tribes direct criminal jurisdiction over all people-Indian or not-in Indian Country. Congress should also remove sentencing limits and explicitly grant tribal courts authority to adjudicate all crimes. Accordingly, Part I discusses the effects of present legal hurdles to prosecuting those who commit crimes in Indian Country. Part II shows how Congress could remove these legal barriers. Part III addresses possible constitutional concerns about this proposal. Part IV outlines the legal benefits of this proposal, including a more harmonized and modern legal framework that enhances tribal institutions and sovereignty. Part IV also articulates the law enforcement benefits of greater reliance on tribal authorities, and it explains why tribes are better equipped than states to respond to sexual violence and why an indigenous response to rape is crucial to strengthening tribal institutions.

I. CURRENT JURISDICTIONAL LAW GOVERNING CRIME IN INDIAN COUNTRY

The federal government first assumed responsibility for policing Indian Country more than one hundred years ago with the passage of the Major Crimes Act.²²Today, federal statutes limit the types of crimes that tribal courts may prosecute, and the Supreme Court has imposed limits on whom tribal courts may prosecute. A third actor-the states-may sometimes enforce only some of its laws in Indian Country. These jurisdictional divisions make policing Indian Country a unique challenge²³and, in particular, thwart the already difficult task of combating sexual violence.

A. Federal Limits: What Tribes May Prosecute

In 1885, Congress passed the Major Crimes Act (MCA), giving the federal government jurisdiction over certain crimes committed in Indian Country, including rape.²⁴Congress drafted the MCA in response to an 1883 Supreme

Court decision limiting federal jurisdiction over members of Indian tribes.²⁵

Tribal authorities had convicted Crow Dog, an American Indian, of murdering another American Indian in Indian Country, and they demanded restitution instead of incarcerating him.²⁶Unsatisfied with this result, the federal government attempted to prosecute Crow Dog in its own courts.²⁷The Supreme Court held that the federal courts had no jurisdiction to try Crow Dog.²⁸In response, Congress enacted the MCA to empower U.S. courts to impose their own penalties for offenses committed in Indian Country.²⁹

There is disagreement over whether tribal governments retain any authority to prosecute crimes listed in the MCA. Commentators argue that the MCA created concurrent jurisdiction between federal courts and tribal governments but did not divest tribes of authority to prosecute these crimes.³⁰Yet at least one federal appellate court has read the MCA to exclude tribal jurisdiction over any American Indian defendant charged with any of the MCA-enumerated crimes.³¹The Supreme Court has recognized there is ambiguity in the statute but has so far refused to address it.³²

A 1968 statute, the Indian Civil Rights Act (ICRA), rendered this question functionally moot³³by limiting the punishments tribes can impose.³⁴For any crime, a tribal court may not sentence a defendant to more than one year in prison and/or impose a fine of more than five thousand dollars.³⁵Historically, tribal governments have not been bound by constitutional restraints.³⁶In the wake of increasing concern over civil rights in the 1950s and 1960s, Congress passed the ICRA so that Indians could protect themselves³⁷"from arbitrary and unjust actions of tribal governments."³⁸

The MCA's ambiguous extension of federal jurisdiction may have created a de jure barrier to tribal jurisdiction, while the ICRA's sentencing limits have created a de facto incentive for tribes to focus on minor crimes. While tribal courts may still impose other sanctions for criminal conduct-for example, restitution, probation, or banishment-the ICRA limits the ability of tribes to impose fines and incarceration.³⁹Hence, tribal governments focus their limited resources on other crimes while hoping that the federal government will prosecute rape and other offenses enumerated in the MCA.⁴⁰

B. Federal Limits: Whom Tribes May Prosecute

Not only has Congress restricted which crimes tribal courts can prosecute, but the Supreme Court has also restricted the persons whom tribal courts can prosecute. Because tribes were once wholly independent political entities, they have inherent government power that does not come from the federal government.⁴¹Once incorporated into the United States, tribes kept this source of power but also became dependent sovereigns.⁴²Supreme Court cases of the past fifty years have established that a tribe's status as a dependent sovereign limits its sovereignty and prevents it from prosecuting or incarcerating non- Indians.⁴³

In 1978, the Supreme Court held that as dependent sovereigns, tribes cannot try and convict non-tribe members.⁴⁴In Oliphant v. Suquamish Indian Tribe, tribal authorities charged Mark David Oliphant, a non-Indian resident of the Port Madison Reservation, with "assaulting a tribal officer and resisting arrest."⁴⁵Oliphant applied for a writ of habeas corpus, arguing that because he was a non-Indian, the Suquamish Indian Provisional Court did not have criminal jurisdiction over him.⁴⁶The Supreme Court agreed.⁴⁷

The Court found that tribes never expressly relinquished the power to impose criminal penalties on non-Indians.⁴⁸However, "unspoken assumption[s]"⁴⁹and "impli[cations]"⁵⁰in U.S.-Indian treaties show that Indians lost this power.⁵¹The Court interpreted early treaties to find that tribes lack criminal jurisdiction over non-Indians unless Congress or a treaty provides for it.⁵²The Court reasoned that the federal government has long regarded the intrusion of a tribe's authority into the lives and liberties of non-

Indians as unwarranted and undesirable.⁵³The Court explained that Indian sovereignty to determine "external" relations is "necessarily inconsistent" with the status of tribes as dependent sovereigns.⁵⁴As "external" relations are those that involve nonmembers of the tribe,⁵⁵tribal law enforcement has no jurisdiction over non-Indians, even if they live in Indian Country.⁵⁶

In Duro v. Reina, the Court extended the analysis from Oliphant to find that tribal governments lack criminal jurisdiction over all nonmembers, whether Indian or not.⁵⁷The Court recognized that nonmember Indians and non-Indians both lack representation in tribal governments and thus are, at least theoretically, equally vulnerable to discrimination.⁵⁸The...