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Concurrent Criminal Jurisdiction in Indian Country

The federal government needs to communicate better with tribal governments when it comes to jurisdictional issues.

In recent decades tribal governments and communities have reported through congressional testimonies and research on the administration of justice that reservation Indian communities do not communicate very well with federal court personnel. U.S. attorneys do not know tribal communities or leadership very well. Most federal judges do not have deep understanding of tribal history, culture, or sovereignty.

Hearings and proceedings for federal courts are often held many miles away from Indian reservations. Defendants, crime victims, and tribal witnesses have to travel considerable distances at their own expense to participate in court proceedings that require multiple visits. The federal courts, U.S. attorneys, and Federal Bureau of Investigation (FBI) agents have responsibility for a list of about 20 major crimes. Nevertheless, most FBI agents and U.S. attorneys are not trained for, and often not interested in, taking up major crimes cases that emerge from reservation communities.

Cases are often neglected or rejected by U.S. attorneys, who decline to prosecute for lack of sufficient evidence. Consequently, many crimes of murder and domestic violence are not prosecuted, and only sometimes returned to tribal courts. Throughout Indian country, tribal communities express considerable dissatisfaction with federal court and attorney services. Tribal members believe federal courts are discriminatory toward tribal defendants and Indian victims of crime. Furthermore, tribal community members believe that federal courts do not accommodate tribal culture and values. Some federal criminal justice personal agree that federal courts are not fair places for tribal members to appear.

Federal courts, U.S. attorneys, and FBI agents generally believe and act as though major crimes are under the exclusive jurisdiction of the federal government. The Major Crimes Act of 1885 and supporting Congressional record confirm that tribal governments did not surrender powers to manage justice, including major crimes, within their reservation communities.

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Tribal governments hold concurrent powers over major crimes. Most tribal communities do not have the financial wherewithal or federal cooperation to exercise concurrent jurisdiction over major crimes. U.S. attorneys do not take tribal concurrent jurisdiction seriously, and in practice do not acknowledge tribal government powers to exercise administration of court and policing of major crimes. In order to eventually assume greater powers of self-government, tribal communities should look to address crime, courts, police, and incarceration from within their own jurisdictions and from the viewpoint of their own cultures and community needs.

The recent Tribal Law and Order Act (TLOA) and policies of the Obama administration have sought to address the problems of communication and cooperation between tribal communities and federal administration of criminal justice in Indian country. However, while the TLOA and Obama administration have targeted greater communication and interaction between courts, U.S. attorneys, and tribal governments and communities, such efforts have been, to a large extent, well intended window dressing. A U.S. attorney at a recent conference described the new communication and cooperation for assistant U.S. attorneys working in Indian country. He said that U.S. assistant attorneys made visits to reservation communities, and met with tribal community members, courts, and law enforcement agencies.

These efforts will help U.S. assistant attorneys to better understand tribal communities, but does very little to ensure that Indian viewpoints, values, culture, and understandings of fairness are taken up and implemented in the cases that come before the federal courts. The attorneys and federal government need to do much more than hold meetings and social gatherings with tribal members.

U.S. attorneys, federal courts, and FBI agents need to better recognize that tribal government and tribal justice agencies share concurrent jurisdiction with the federal government over major crimes. The federal government does not work in partnership with tribal governments and agencies over the disposition of major crimes. The delivery of federal justice services to Indian country will continue to dissatisfy tribal communities, until the federal government decides to work in equal partnership and in government-to-government relations that realize shared and equal governance over criminal jurisdiction.