Should Native American Tribes Have Their Own Criminal Justice Systems?

Posted to Politics April 25, 2017 by

One hallmark of American law is the presumption that separate is inherently unequal and that all residents of a given state are subject to the same laws. Indian reservations present a challenge to this principle. Legally they fall under federal jurisdiction, while retaining local control over some matters of criminal law, policing, and social spending. In addition, they receive state funding for public education. For some tribal figures, however, this autonomy does not go far enough. On Monday, Georgetown University hosted a discussion of justice in America for Native Americans, inviting speakers who pushed for an altogether separate criminal justice system for Native American reservations.

Violent crime and incarceration are both serious issues on reservations in the Dakotas. Although South Dakota has been hosting regular advisory committee meetings on the matter since the 1960s, the same concerns about overrepresentation in prisons, underrepresentation of native people on all levels of the criminal justice system, and disparities in sentencing remain.

Jeffrey Henderson, a public health physician and member of the Cheyenne River Sioux Tribe, described how at the local county jail outside of Rapid City, about half of the prisoners were Native Americans, even though they only comprise about 12 percent of the local population. Across South Dakota, Native Americans continue to be overrepresented in the criminal justice system.

The incarceration rate speaks to a crime problem, which all too often victimizes Native Americans.

“If you pay attention to crime and criminal justice in Indian Country,” said Henderson, “there is a major camp saying that most of the crimes committed on Indian reservations are by non-natives. That may be true in some areas, but in our area it is mostly native-on-native violence.”

On reservations, certain crimes are tried in tribal courts. More serious offenses, such as murder, rape, manslaughter, and arson, are tried in federal courts under the terms of an 1885 statute known as the Major Crimes Act. This means that Native Americans convicted under these laws are subject to federal mandatory minimums when sentenced. In some instances, these minimums are harsher than equivalent state punishments.

For David Plume, an Oglala Lakota educator and reservation entrepreneur, the result was a “jurisdictional nightmare” that eroded the “government to government relationship” that the tribes sought to have with the U.S.

His discussion exposed a tension between two different understandings of a tribe’s legal status. Many members of the American Indian Movement and other Native American rights groups push for legal acknowledgement of tribes as independent nations. However, under federal law, tribe members are considered to be American citizens and bound by federal statutes.

For Plume and others, federal law means that justice on reservations doesn’t necessarily fit with the culture of the specific tribe. Plume criticized the present system, saying that Native Americans were almost never represented by a jury of their peers, since federal trials do not take place on the reservation and Native Americans are underrepresented on juries.

At present, tribes have few options to force a renegotiation of their legal status. Unlike in some countries, native peoples in the United States are not able to take their complaints before the United Nations. This was part of an agreement that provided funding for the Bureau of Indian Affairs, Indian health resources, and other federal benefits on the grounds that the U.S. government maintained jurisdiction over tribal disputes.

Today, some of the speakers have rejected that compromise, instead urging a separation between tribal law, and state and federal law.

“With extractive economies and the patriarchy that is our political reality there are certain populations more at risk than others,” said Chase Iron Eyes, counsel for the Lakota People’s Law Project, and a member of the Standing Rock Sioux. Iron Eyes, who strongly supported the DAPL protests last summer, argued that “rerecognizing the authority of native nations to enforce law and order and to define it” would be a means of improving the situation.

As an example of one such native way of enforcing law and order, he spoke of allowing a woman’s male relatives to exact corporal punishment on a spousal abuser. Plume did not go as far as advocating violence, but did mention that shaming and banishment were used as punishments for sexual assault on the Cheyenne River reservation.

At the end of the discussion, the speakers had pointed out areas where tribal life needs significant improvement. Still, the reality is hardly the unjust unilateral shift of benefits from the reservation to the state and local governments.

In North and South Dakota, reservations receive generous support from the state and federal governments. As a school district, Eagle Butte has the second-highest per-pupil spending in the state of South Dakota. In 2015, the state spent an average of $18,000 per pupil in that district. Meanwhile, Sioux Falls spent around $7,500 each year per child. According to state data, 80.5 percent of students in the Sioux Falls district graduate in 4 years. For Eagle Butte’s two high schools, the rate hovers around 50 percent.

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