Is Obama’s “Historic” Tribal Justice Reform Enough?

A watershed law to improve criminal justice systems in Indian Country could help deal with violence against women, but deeper changes are needed.

By Michelle Chen Sep 08, 2010

The recent enactment of the Tribal Law and Order Act could be a watershed for Native American communities beset with crime and dysfunctional legal systems. By giving tribal governments more power over prosecution and sentencing, the law could help develop a more independent, coherent criminal-justice response on native lands. Activists hope it will boost protections for native women against gender-based and sexual violence.

But when it comes to jurisdiction over "tribal" crime, the legal landscape is still riven with the politics of race and indigenous sovereignty. The Associated Press reports that one of the major obstacles to prosecuting crime in Indian country is defining who falls under whose jurisdiction.

"The whole flaw in the system is that it’s premised upon being an Indian defendant or Indian victim, and yet we have no clear-cut definition of who an Indian is," said BJ Jones, director of the Tribal Judicial Institute at The University of North Dakota law school.

In most states, federal and tribal authorities can arrest and prosecute Indians on Indian lands. But criminal offenses by non-Indians are handled by federal or state authorities, depending on whether the victim is Indian.

That means when a crime is committed on Indian lands, authorities must determine the suspect and victim’s race before they can answer fundamental questions like which agency can make the arrest and try the case, and sometimes which law applies.

Tribal officials and legal experts say this process creates confusion that can lead to delayed cases and even overturned convictions on reservations, which already endure high crime rates and shortages of law officers.

And you thought racial profiling was a thorny issue in American cities. But sadly, beefing up tribal law enforcement via federal legislation is for now the only way to offset a two-tiered justice system that leaves native people, whether they’re victims or the accused, at the mercy of outside authorities’ seemingly willful neglect.

An Indian Country Today editorial describes the challenges of new autonomy, and new responsibilities, under the TLOA:

Many tribal communities would like to administer their own courts, police and jails, but often don’t have enough resources, or feel they have government administration and organization for them to effectively carry out justice responsibilities. Tribal communities will need the funding and technical assistance offered by the TLOA. However, tribal communities need to believe that tribal, state and federal officers, courts and facilities will provide safe, fair and culturally aware treatment and serve the needs of tribal community members. The TLOA provides a good way toward technical assistance and funding, but the pathways to culturally acceptable and fair policing, courts and jails are not clearly outlined.

The issue of sexual violence presents dual challenges of dealing with root causes and long-term impacts, especially in tribal communities that are both vested in traditional bonds and profoundly destabilized by drugs and poverty. At a recent public meeting in New Mexico with Sen. Jeff Bingaman, tribal members expressed concern that more resources were needed for fully implementing the law and enhancing related social services. Jicarilla Apache Police Chief Leeson Valenzuela argued, "To address those issues — domestic violence, violence against women and violence against children — we must address the drug and alcohol issues."

How do communities pursue the goal of "law and order" in a way that fosters social healing instead breeding more alienation? The treatment of violence against native women will be a key test for the potential of restorative justice.