Oregon State Bar Bulletin — JANUARY 2012

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Key Legislation and Litigation Affecting Criminal Jurisdiction in Indian Country


The smell of sage is so strong that it permeates the car. The sky is filled with thousands of stars that city dwellers never see, and painted Indian ponies huddle together for warmth as the season’s first skiff of snow blows across their pasture.

Welcome to Indian Country.

Now welcome to the other Indian Country, where sexual violence against women is so prevalent that it attracted the attention of Amnesty International; where drug traffickers maintain huge marijuana grow operations and the words you most frequently hear used to describe how criminals operate are “with impunity,” as in “exempt from punishment.”

“My impression is, Indians would like more law and order,” says Robert James Miller, professor of Indian law at Lewis & Clark Law School. “But tribes don’t have jurisdiction over anyone but Indians, so there is the big problem. The declination rate (of cases by United States’ attorneys’ offices, which do have jurisdiction) is enormous, and the allegation is that some federal attorneys are not very concerned about what happens in Indian Country.”

“What you have,” Miller sums up, “is a crazy quilt of jurisdiction that allows the government to ignore things.”

How did things get this way in a country that’s not only on but within our borders, and what is being done to fix them?

The answer is two words that come up as often as “with impunity.”

Those words are, “It’s complicated.”

Understanding the Basics
Even determining who is an “Indian,” and what is “Indian Country,” may be complicated.

The federal government recognizes nine tribes in Oregon, many of them “confederations” of historically separate tribes. (See sidebar on page 33.)

In 2009, 1.6 percent of Oregonians identified themselves as American Indian and/or Alaskan Native, according to the U.S. Census Bureau, although they may not be enrolled citizens of any tribal nation.

“Who is an Indian depends on what (federal) circuit you’re in,” says Billy J. “Bill” Williams, chief of the criminal division of the United States Attorney’s Office for the District of Oregon, who was primarily responsible for federal prosecution of violent crimes in Indian Country here between 2000 and 2010. “In the Ninth Circuit, there’s a two-prong test: whether the person has Indian blood, and whether he’s received tribal or governmental recognition as an Indian. It’s one of the more-critical first questions you have in determining criminal jurisdiction in Indian Country.”

“Indian Country” is defined by federal law (18.U.S.C. § 1151) to include not only tribal land within a “reservation” but also certain other land and even some property and towns owned or incorporated by non-Indians within a reservation’s boundaries. About 875,000 acres, or 1.4 percent of land within Oregon, are held in trust by the federal government or are designated reservation lands, according to the Oregon Blue Book.

Using the Matrix
Perhaps no other area of law, with the possible exception of water law in the West, requires as much appreciation for history as Indian law.

“To have some understanding of the legal status of Oregon tribes and issues of concern to them today, it is essential to have some understanding of their history and the history of federal Indian policies that have affected them,” says Senior Assistant Attorney General Stephanie Striffler, the Oregon Department of Justice’s Native American affairs coordinator.

“In my experience, Anglo-American culture tends to focus on the present and the immediate issue at hand,” says Striffler, a non-Native American who assumed her coordinator position in 1997. “Tribal cultures tend to have a longer view of the relevant historical context.”

Tribes and their members also are significantly different from other minorities or “interest groups,” Striffler says, because tribes are sovereign governments, vested with “the inherent right or power to govern.”

But what that means, in the context of jurisdiction to investigate and prosecute crimes committed in Indian Country, has been the subject of legislation and litigation for hundreds of years. (See history sidebar on page 31.)

“Criminal jurisdiction in Indian country involves a complex relationship between three sovereigns: federal, state and tribal governments,” Striffler explains. “This complex relationship evolves from tribal inherent sovereignty over tribal lands, the special relationship of the federal government to tribes and the plenary power of Congress over Indian affairs.”

“Which sovereign or sovereigns have jurisdiction with respect to a particular crime,” Striffler continues, “depends on many factors — the crime, where the crime took place, who is the perpetrator, who is the victim, whether it is a victimless crime and whether the tribe is subject to Public Law 280.”

The public law to which Striffler refers, passed by Congress in 1953, transferred law-enforcement authority over certain tribal nations from the federal government to the states in what Assistant U.S. Attorney Williams calls “an Eisenhower-era attempt to assimilate Native Americans into the wider culture.”

Williams says that when he first started trying to figure out criminal jurisdiction in Indian County, “I found the matrix to be most helpful, especially when you get a call from the FBI or tribal police in the middle of night.”

The “matrix” to which Williams refers sums up jurisdiction over violent crimes committed in Indian Country this way:

1. If the offender is not an Indian, tribal courts never have criminal jurisdiction.

2. If the offender is an Indian, and the crime occurred in Indian Country of the Burns Paiute, the Confederated Tribes of the Umatilla Indian Reservation (“Umatilla”) or the Confederated Tribes of the Warm Springs Reservation (“Warm Springs”), the federal government and the tribe share concurrent jurisdiction over some crimes; the tribe has sole jurisdiction over misdemeanors as defined by tribal code and the state has no jurisdiction. The federal government also has general jurisdiction over certain other crimes, such as being a felon in possession of firearms/ammunition, drug trafficking and gaming violations.

3. If the offender is an Indian and the crime occurred in Indian Country of one of the other six federally recognized tribes, the state and the tribe share concurrent jurisdiction over all crimes and the federal government has no jurisdiction except for its general jurisdiction over those certain general crimes. These tribes are called Public Law 280 (PL 280) tribes.

The jurisdiction that PL 280 conferred on the states was not particularly welcomed by tribes, according to Lewis & Clark’s Miller, who is an enrolled citizen of a non-Oregon tribe.

“Most tribes don’t want the states in their business,” says Miller. “They may not care about the feds, the FBI, but historically they have antipathy towards the states.”

“There’s a big gap in law enforcement, and most tribes would say they want more law enforcement,” continues Miller, who also is chief justice of the Grand Ronde’s tribal court and a Northwest Intertribal Court judge. “But they want their own government, then the feds — tribes are used to dealing with the feds — and, as a last resort, the states.”

One interesting aspect of concurrent jurisdiction is that, because tribal nations are separate sovereigns, there is no double jeopardy issue if both the federal or state government and a tribe want to prosecute the same Indian for the same offense.

“Having both the federal government and the tribe prosecute is particularly true for major crimes,” says Williams. “Tribal punishment historically is limited to one year in jail, even for a homicide. Our federal interest wouldn’t be satisfied if someone got less than one year for killing someone. But the tribe also has an important interest in prosecuting offenses under tribal law.”

“Concurrent prosecutions work pretty well because we don’t tell tribes who they should prosecute and vice versa, but we do tell each other what we’re doing,” Williams continues. “For example, at Warm Springs we have a multidisciplinary team that reviews every report of child abuse.”

But in Umatilla chief judge and tribal citizen William Johnson’s view, concurrent jurisdiction does not work quite this smoothly.

“The feds don’t like concurrent, simultaneous prosecutions because of witness availability,” says Johnson. “They like to have things wrapped up nice and tight; to have us not interfere with their witnesses.”

Johnson says that waiting to hear whether the U.S. Attorney’s Office will accept or decline prosecution in a particular case can take six months to a year.

“Meanwhile we’ve got the guy (offender) living with us,” he says. “We’ve got a pretty good relationship with the feds, but we’d just as soon do it ourselves. We have our own laws and ways of doing things. Some people would call it custom and culture, but you could say it’s common law.”

Living in “Lawless Lands”
In June 2009, then-U.S. Attorney General Eric Holder launched an initiative within the U.S. Department of Justice to enhance public safety in Indian county.

Holder’s announcement followed several alarming reports from both government and non-government sources.

In 2007, Amnesty International published “Maze of Injustice,” in which it said that Native American and Alaska Native women suffer rape and sexual violence at a rate 2.5 times higher than non-native women in the United States.

“The problem with these statistics, which were obtained from the federal Bureau of Justice Statistics, is that the victims weren’t asked where the crimes occurred,” Sarah Deer, assistant professor of law at William Mitchell College of Law in St. Paul who consulted on the report, told the Bulletin. “That’s critical to understanding what is happening in Indian Country.”

But if the Amnesty International report was unable to tie this rate of sexual violence to Indian Country, a 2007 Denver Post series, “Lawless Lands,” clearly made both that point and the point that much of the sexual violence that occurs in Indian Country goes unprosecuted.

The series began with a shocking story about the rape of a seven-year-old girl on the Colville Indian reservation in Eastern Washington.

According to the tribal prosecutor, an expert found the victim’s recounting of the rape “clear and credible.”

“But,” the story says, “…[the rapist] was never charged with a felony crime. That’s because here, as on the majority of the country’s nearly 300 Indian reservations, the sole authority to prosecute felony crime lies with the federal government. One hundred fifty miles away in Spokane, an assistant U.S. attorney — faced with a distant case and a seven-year-old witness — simply declined to prosecute, something that crime data show they (federal prosecutors) do in 65 percent of all reservation cases.”

The bottom line, the paper reported after conducting a six-month investigation into the federal declination rate between 1997 and 2006, is that Indian reservations, “[a]lready some of the most violent and impoverished places in America, facing a steep rise in meth-fueled crime, …are also plagued by a systematic breakdown in the delivery of justice…”

The declination rate nationwide improved following the Post’s series: between 2005 and 2009, U.S. Attorneys’ offices “resolved” 52 percent of the cases they received involving violent crimes committed in Indian Country by declining to prosecute them, according to a Government Accountability Office (GAO) report. The declination rate for non-violent crimes was even lower, 40 percent.

However, the declination rate for the district of Oregon, for both violent and non-violent crimes, was an eye-popping 67 percent, exceeded only by the rate for the Eastern District of Washington that the Post highlighted in its series.

“We believe the declination rate alone paints a wildly inaccurate picture of criminal enforcement in Indian County,” Dwight Holton, then-acting U.S. attorney for the District of Oregon, wrote in a subsequent “operational plan. “…[T]hrough consultations [with tribal nations], we believe that many tribal leaders share our view.”

Assistant U.S. Attorney Williams, who was primarily responsible for that office’s prosecution of violent crimes in Indian Country during the years covered by the GAO report, says its declination rate may have more to do with its accurate record-keeping, compared to other districts, than with indifference.

“In terms of failing to act, failing to investigate, our statistics show that we look at everything,” he says.

“If it’s a Major Crimes Act violation and we have evidence we can use in federal court, we’re going to proceed in federal court,” says Williams, citing several recent cases involving drug-trafficking organizations growing marijuana on Indian Country at Warm Springs, the first tribe in the country to receive federal funds reserved for “critical” high-drug-trafficking areas.

According to Williams, “Typical reasons for declination in Oregon would be lack of cooperation, lack of evidence and/or evidence that we deemed had been seized not in accordance with the requirements of federal district courts.”

“Lack of cooperation particularly occurs in gang cases because people are afraid,” he continues, “and in child abuse within the family for the same reasons as in any other jurisdiction: it’s a secret and people don’t want a family member prosecuted.”

Federal Government Could be Doing More
Since 2009, the last year covered by the GAO report, a number of things have happened to try to bring the problems exacerbated by Indian Country’s “crazy quilt” of criminal jurisdiction under control.

The first was Congressional passage of the Tribal Law and Order Act (TLOA) in mid-2010.

Assistant U.S. Attorney Craig Gabriel, one of his office’s liaisons with Oregon tribes and currently its chief prosecutor of violent crime in Indian Country, says that “The TLOA, frankly, recognized that the federal government could be doing more to fulfill its trust responsibility [towards tribal nations].”

Among other things, Gabriel says, the TLOA allows tribal courts, which previously could not impose sentences of more than one year, even for felonies, to sentence felony offenders to up to three years, or even as much as nine years under certain circumstances. Tribes can negotiate with the federal government to use its prisons, at the federal government’s expense, to house these inmates since most tribes lack has appropriate facilities.

In exchange for this increased authority, which tribal nations do not have to accept, their courts must meet standards comparable to those that exist in federal district courts, including providing indigent offenders with counsel and requiring tribal-court judges and the attorneys who practice before them to be “licensed.”

Currently, the Umatilla, which Gabriel calls “a national leader in criminal-justice issues” and which is the only tribe in Oregon whose bench and bar all are licensed by the Oregon State Bar, is the only tribe in position to take advantage of this provision of the law.

“I guess you would say [the TLOA] is positive,” says that tribe’s chief judge, Johnson, who spent part of his childhood on its reservation, graduated from the University of Oregon School of Law and was working for Congress when the tribe invited him back to participate in its new tribal court.

“What bugs me,” he says, is the law’s mandate that cases be prosecuted and defended by licensed attorneys.

“Which license are you talking about?” he says “Government or tribal?”

“We already had due process, civil rights,” says Johnson, referring to the Indian Civil Rights Act of 1968, which imposed protections comparable to some of those found in the U.S. Constitution on tribal courts. “All of our attorneys and judges are licensed [by the OSB], and our police officers are trained in state and federal academies.”

“I would prefer to see expanded resources for tribal courts and let us do it,” Johnson says. “I don’t want any state or federal involvement in it. It’s not like we’re a kangaroo court or anything. Give us the resources to do it. When someone says we can’t, that’s kind of insulting.”

Doing More with Less
One step towards reducing domestic violence in Indian Country occurred last January, when the Crime Victims’ Services Division (CVSD) of the Oregon Department of Justice and its Violence Against Women Act (VAWA) Advisory Board set funding priorities for VAWA funds to improve access to services for victims of domestic violence, sexual assault, stalking and teen dating violence, including victims in Indian Country.

“In some cases, a tribe may have sexual assault and/or domestic violence services on the reservation,” says grant monitor Diana Fleming. “Some do not. We have a responsibility to ensure that services are reaching tribal nations.”

But discharging that responsibility will not be easy.

“In 18 western Oregon counties, services have been significantly reduced due to budget cuts as a result of the long-term decline in timber revenue and recent sharp decreases in federal subsidies,” CVSD wrote in its December 2010 “implementation plan” for these funds. “The future economic outlook for these counties is bleak given that the federal subsidies are scheduled to sunset in FY 2011. County and municipal governments are scrambling to replace the anticipated loss of timber subsidies which has historically supported public services.”

“…some of these counties have significantly reduced the number of law enforcement officers on patrol in the rural outlying areas,” the report continued. “This reduction is compounded by the sheer number of miles an officer may have to travel to a crime scene.”

Several of the PL 280 tribes do not have their own police departments, and therefore no law enforcement if state police and county sheriffs do not patrol or respond to calls from their far-flung reservations.

Not only that, but even the tribes that do have their own police departments do not have the authority to arrest tribal members outside of Indian Country.

As a result, tribes turned to Oregon sheriffs to fill the gap by asking them to deputize tribal police as county officers. “Some [sheriffs] agreed and some didn’t,” The Oregonian reported in August. “The continuity of law enforcement depended on the discretion of each new sheriff.”

That led to the third step that has been taken since 2009 to address crime in Indian Country: on June 30, the Oregon Legislature passed Senate Bill 412, which gave comparably trained tribal-police officers the same “peace-officer” status as Oregon’s other state, county and city law-enforcement officers. Although tribal officers have been graduating from the statewide police academy for decades, that training previously did not give them peace-officer status.

“Most of us (tribes) are very aware of this recent legislation, and provided testimony,” says Deneen Aubertin Keller, staff attorney for the Grand Ronde, which hired its first police officer last year. “It’s definitely going to have an important effect, especially by allowing tribal officers to go on and off tribal land, which eliminates the ‘checkerboard’ effect.”

But it was that aspect of the law that resulted in a significant number of ‘nay’ votes, and the addition of a five-year “sunset” provision, after SB 412 was opposed by the Oregon State Sheriffs’ Association and some of its members.

For example, The Oregonian quoted Polk County Sheriff Bob Wolfe, whose jurisdiction includes the Grand Ronde’s Spirit Mountain Casino and some tribal housing, as arguing that the law would make tribal police the most powerful law-enforcement agency in the state because, among other things, they will be able to take action outside of Indian Country while state and county police cannot take action in Indian Country.

“They’re a sovereign nation and they are saying they can play by a different set of rules. I personally don’t understand that,” Wolfe was quoted as saying.

“You can’t prosecute non-Indians”
Although the Grand Ronde tribe praised SB 412 in its newspaper, calling a tribal police force “the latest step in the Tribe’s continuing effort to reclaim its sovereignty,” Miller says that tribal criminal jurisdiction will continue to face a major obstacle.

That obstacle is the U.S. Supreme Court’s 1978 holding, in a case involving a Washington State tribe, that tribes do not have the authority to prosecute non-Indians, even if they commit crimes in Indian Country. (Oliphant v. Suquamish Indian Tribe.)

“The Court said that tribes never had, and we conceive of them never having, jurisdiction to prosecute non-Indians,” says Miller. “You’ve got to have law and order in Indian Country, but the U.S. Supreme Court said ‘No, you can’t prosecute non-Indians.’ ”

“The Supreme Court has repeatedly said to Congress that if it wants to extend tribal criminal jurisdiction, it will have to address ‘the consent of the governed problem,’ ” says Miller.

But Sarah Deer, the law professor and Amnesty International consultant, told the Bulletin that she does not see that problem as insurmountable.

“If I go to Mexico and commit a crime there, I could be prosecuted without my consent,” she said. “I think Congress has made it [consent of the governed] a big issue.”

“The TLOA is just a miniature step in the right direction,” Deer concluded. “We have to keep moving to restore full criminal jurisdiction to tribal courts.”

Janine Robben has been a member of the Oregon State Bar since 1980 and is a frequent contributor to the Bulletin.

© 2012 Janine Robben

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