Commissioners speak on the future of justice on American Indian land
For Tom Gede, a member of the Indian Law & Order Commission, the most emotional part of the entity’s work took place in Alaska.
That was where the commission, a body appointed by Congress in 2010 to study how justice can be improved on Native American lands, heard from a woman who said every single female in her small Native community—every woman who’d spoken to the commission that day—had been raped.
Visiting Alaska’s Native villages “was just an eye-opening experience,” Gede said. “These site visits brought more gut-wrenching, actually tears to the eyes of commissioners, than anything we saw or did.”
Gede told that story during a panel at the 2015 ABA Annual Meeting in Chicago. Sponsored by the Criminal Justice Section’s Committee on Tribal Lands, the panel featured Gede, a principal at Morgan Lewis Consulting in San Francisco, and Carole Goldberg, a professor at the UCLA School of Law. Both were among the nine commissioners on the bipartisan panel. They explained the details and reasoning behind the commission’s report, released in late 2013, and some of its prospects for being adopted.
One theme of the report, A Roadmap for Making Native America Safer, is local control. For a variety of historical reasons, Goldberg explained, tribes have limited jurisdiction over their own land. They can try smaller crimes, but sentences are limited. More serious crimes are referred to either the federal or state government, depending on the tribe’s location and history. But because outside authorities tend to be far away—and federal prosecutors often have more serious crimes on their agendas—crimes tend to slip through the cracks.
The commission recommended solving this by giving tribes the option to take local control. Its report recommends that the federal government authorize tribes to make their own laws, set their own sentences, and try defendants in their own courts. That authority would apply regardless of a defendant’s race; currently, non-Indians can’t be tried in tribal courts except in certain domestic violence cases. Courts would be located on Indian land, removing the strain of having to travel long distances.
However, it would come with a caveat: Tribes would be required to provide all the same civil rights that defendants in other types of courts enjoy. And direct appeals from tribal courts would go to a special, newly created Federal Court of Indian Appeals, which Gede said was envisioned as an Article III court with Indian law expertise, much as the U.S. Court of Appeals for the Federal Circuit has intellectual property expertise.
Another important recommendation in the report has to do with funding. Now, Goldberg said, tribal justice systems have to apply for federal grant funding. This is time-consuming and spotty, she said. Furthermore, because both the departments of Justice and the Interior fund tribal justice, it can lead to unintended waste—for example, a DOJ-funded jail that wasn’t used because Interior didn’t have the funds to staff it. The commission would prefer to move everything into the Justice Department and convert funding to noncompetitive block grants.
The commissioners made special mention of their report’s chapter on juvenile justice in Indian country. The federal government has jurisdiction over many juvenile crimes on reservations, Goldberg said—but it doesn’t have any type of juvenile court. Thus, she said, juvenile offenders often end up without schooling or any sort of age-appropriate rehabilitation program.
There’s momentum to solve that problem right now, Goldberg said, because of a November report (PDF) issued by the Attorney General’s Advisory Committee on American Indian and Alaska Native Children Exposed to Violence.
And Goldberg believes that there could be bipartisan support for the Indian Law & Order Commission’s recommendations in Congress. That’s because the commission itself, which had members appointed by elected officials from both parties, was unanimous in its recommendations.
“We think there is the potential for bipartisan support because we saw it happen,” she said.