Wednesday, March 03, 2010

Idaho Debates Justice in “Lawless” Indian Country

Cross-posted from MyDD.

1 in 3 American Indian women will be raped at some point in their lifetime, twice the national average. In Idaho, if state lawmakers don't pass a bill before them now, the problem will get worse before it gets better.

In 1978, the U.S. Supreme Court ruled in Oliphant v. Suquamish Indian Tribe that sovereign Indian nations do not have criminal jurisdiction over non-Natives traveling or even living in Indian Country. For a variety of nonsensical and unprecedented legal reasons, Tribal police and courts only have authority over other Indians. This is akin to telling the Montana State Police that the law doesn’t apply to Minnesota residents passing through on I-90.

Except for a few “Public Law 280” states, state and local authorities also lack jurisdiction on Indian reservations, per the Constitution’s commerce clause and a number of Court precedents. That means jurisdiction falls to the feds, who don’t do their job. As Chickasaw Tribal Police Chief Jason O’Neal told NPR in 2007, “’Many of the criminals know Indian lands are almost a lawless community, where they can do whatever they want.’…  A 2003 report from the Justice Department found that U.S. attorneys take fewer cases from the BIA than from almost any other federal-law enforcement agency.”

The real world result? 1 in 3 American Indian women will be raped at some point in their life, compared to 1 in 6 women nationally. 41% of those women report being raped by a stranger rather than an acquaintance, compared to 16.7% nationally. As Chief O’Neal points out, these strangers are not from within the Indian communities, so we can’t point to reservation issues as the problem - 80% of attacks against Indians are from non-Natives. Overall, the violent crime rate in Indian country is twice the national average. (All numbers are from various Justice Department reports.)

Last month, it looked like things were going to get worse for American Indians in northern Idaho before they got better, but thankfully the state is taking the right steps. To make up for the lack of federal activity, tribes can make deals with local or state law enforcement agencies to cross-deputize tribal  officers and give them the necessary jurisdiction. Last month, however, Benewah County Sheriff Bob Kirts, whose county includes the southern half of the Coeur d’Alene Tribal Reservation, refused to re-instate a cross-deputization agreement with tribal police. If that wasn’t bad enough, he also said he would no longer respond to tribal calls for help, leaving the southern half of the Reservation completely lawless. Of the 10,000 people on the reservation, over 8,000 are non-Natives now free to break the law.

According to the Spokane Spokesman Review, a newspaper I used to report for:

Christie Wood, a Coeur d’Alene Police sergeant and first vice president of the Kootenai County Task Force on Human Relations, wrote in the open letter, “The failure of Sheriff Kirts to work with the tribal police has left citizens in bedlam. Perpetrators have been set free that have committed serious criminal offenses against citizens living in Benewah County. The Tribal Police have documented cases of domestic violence, driving under the influence incidents, criminal assaults, and other criminal offenses that have occurred with no arrests or prosecution.”

Kirts said, “My only comment is she’s ill-informed or she’s just plain lying or stupid.” ...

Wood’s letter backs legislation that the Coeur d’Alene Tribe is proposing — which hasn’t yet been introduced — to address situations where a local sheriff refuses to cooperate with local tribal police. As currently drafted, the bill would give tribes a six-month window to give a county notice that they want to enter into a cooperative law enforcement agreement. If an agreement isn’t reached within six months, tribal police could begin enforcing state law against non-tribal members on the reservation, as long as they’re certified by Idaho’s state police academy, the tribe carries insurance, and the tribe waives sovereign immunity to lawsuits over officer wrongdoing.

(Disclaimer: This is my part of Idaho. Though I’ve not personally met her offline, my family has had positive interactions with Sgt. Wood, and I do know many of the members of the Task Force. My ties to this issue run far deeper than a degree in Native American studies.)

The bill supported by Sgt. Woods and the Task Force, the wonderful local organization that defeated the Aryan Nations in 2000, was declared constitutional by the state Attorney General earlier this week. This bill is a good patch for the situation in Benewah County, and if Idaho wants to recover from the racially tarnished image given to it by the Aryan Nations, than the legislature must pass this bill. A number of county commissioners have come out in opposition to the bill, and I will be calling and writing both them and state legislators over the next few days to lobby them in support of this bill.

But even if it passes, it won’t be enough. The tribe would have the power they need, but not necessarily the resources. At the national level, we need two things. First, Congress must allocate more resources for tribal law enforcement, something the retiring Senator Byron Dorgan tried to do in 2008. Second and more importantly, Congress must declare that tribes do have criminal jurisdiction on their lands the same as any state or town. Because the Oliphant decision was an interpretation of current law and not the Constitution itself, Congress can take such action, and if we’re to save our country’s youth from gangs and its women from rape, then there is no other option.

For more on the history and larger legal picture of criminal jurisdiction in Indian Country, please read this New York Times op-ed by Bruce Duthu, a professor of mine who is a lawyer and now Chairman of the NAS department at Dartmouth College.

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