On July 23, 2008, Senator Byron Dorgan (D-NE), chairman of the Senate Committee on Indian Affairs (SCIA), introduced a bill titled Tribal Law and Order Act of 2008 (S.3320). Dorgan said the purpose of the bill to address needed reforms in Indian country law enforcement. According to Dorgan, S.3320 intends to address a wide range of issues. Several issues addressed by the bill will impact the rights of Indians and non-Indians. If passed in its current form, the bill would increase the length of sentences that tribal courts can impose and would expand tribal police powers to arrest non-Indians through cross-deputization. The legislation seeks ways to protect Indian women from rape.
The focus on Indian rape crimes exploded into the public arena in 2004 when the Bureau of Justice Statistics (BJS) published a report titled “American Indians and Crime.” The report revealed that American Indians were victims of crime at a rate twice as high as the national average. The press release for the report stated, "About 7 in 10 violent victimizations of American Indians involved an offender who was described by the victim as someone of a different race--a substantially higher rate of interracial violence than experienced by white or black”. One statistic in the report was shocking. The BJS report revealed that 78% of the American Indian women who reported being raped identified their attacker’s race as white.
Following the American Indian and Crime Report from the BJS, another eye-opening report was published by Amnesty International (AI) in April of 2007. Like the BJS report, the AI report concluded American Indian women were victims of rape at a rate 2.5 times the rest of the nation. Unlike the BJS report, the AI report exposed a broad range of factors that increase the risk that American Indian women will be victimized by rape. Tribal leaders and their supporters not surprisingly focused on the BJS report and more specifically on the data that identified the perpetrators of rape on American Indian women as white 80% of the time.
Over the past two years, the tribal sovereignty lobby has missed few opportunities to complain about non-Indians raping American Indian women and the cause of it—the lack of authority to arrest and prosecute non-Indian predators—the United States Supreme Court case of Oliphant v Suquamish Tribe. In Oliphant, the Supreme Court, in 1978, ruled that tribal courts must not have jurisdiction over non-Indians because that power is inconsistent with their status as “ dependent” sovereigns.
Since the day the decision was rendered, tribes and their tribal sovereignty supporters have considered this case to be the one of most objectionable infringements on tribal sovereignty. Since Oliphant, the Supreme Court rendered five more court decisions (Montana, Brendale, Strate, Hicks and Atkinson) that further limited tribal regulatory or judicial powers over non-Indians.
Reeling from these perceived setbacks, tribal leaders and their lawyers joined with academia to discuss ways to stem the tide of losses at the Supreme Court. Two projects that emerged from this effort are the Tribal Supreme Court project run by the Native American Rights Fund and a largely unknown project known as the Tribal Sovereignty Protection Initiative or TSPI.
N. Bruce Duthu, noted Indian law expert and Professor of Law at the Vermont School of Law, in his book, American Indians and the Law, reveals TSPI was born on September 11, 2001 while terrorists where attacking the World Trade Center and the Pentagon. Tribal leaders, lawyers and unnamed members of Congress met with Senator Daniel Inouye (D-HI) to plan a frontal assault on any Supreme Court’s decision that, in their opinion, eroded tribal sovereignty.
In 2002, this collaboration produced a “Concept Paper” and a draft bill that called on Congress to proclaim tribes as full territorial sovereigns. If passed into law, the federal legislation would overturn a multitude of Supreme Courts cases and federal laws which limit tribal sovereignty to only those powers needed for tribal self-government. In other words, the draft bill intended to roll back federal Indian policy back to 1832, when the Supreme Court ruled, in case of Worcester v. Georgia that the Cherokee Tribe was immune from the state laws or Georgia.
A lot has changed since 1832. To expect the federal government to allow Indian tribes full territorial sovereignty in today’s complex world would seem irrational since most of the laws the TSPI seeks to overturn were created specifically to address the inability of tribal governments to effectively deal with their own crime problems. These laws include the Indian Country Crimes Act (1834), the Major Crimes Act (1885), Public Law 280 (1953) and the Indian Civil Rights Act (1968).
The Tribal Sovereignty Protection Initiative is now the seminal statement of the pro-tribal sovereignty (super-sovereignty) movement to declare that Indian tribal governments are now ready to accept the full responsibility to manage their own law enforcement in a culturally appropriate fashion. Unfortunately, the non-Indians that the super- sovereignty movement wants the authority to arrest and prosecute may find some tribal courts decidedly unfamiliar to them. The Mescalero Apache Tribe recently advertised for a “Chief Judge”. Among the list of qualifications, the Tribe requires the successful candidate to, “[n]ever have been convicted of a felony, nor a misdemeanor within the past year.”
It is precisely this inability on the part of some tribes to implement effective justice systems that force the federal government and states to intervene in reservation law enforcement.
Another failure of tribal law enforcement is the reluctance to face the facts about the source of reservation crime. Most reservation crime is Indian on Indian according to a recent South Dakota study (http://www.state.sd.us/attorney/office/publications/pdf/AIJRP.pdf) , by their Attorney General Larry Long. In cases of intentional murder of American Indians, American Indians were the perpetrators 92% of the time. In cases of rape of American Indian women, the perpetrator was also American Indian 83% of the time. This evidence is in direct conflict with numbers promoted by pro-tribal sovereignty movement. Other factors that influence reservation crimes are alcoholism and poverty.
Do federal restrictions on tribal courts to arrest and prosecute non-Indians create a major obstacle or loophole that prevents tribes from providing justice to tribal members?
In March, 2007, Diane Humetewa, a U.S. Attorney and member of the Hopi Tribe, testified before a hearing of the Senate Committee on Indian Affairs. She said, “It is important to understand that for every crime in Indian Country, there is a court of justice, be it tribal, state, or federal.” U.S Attorney and tribal member Humetewa contradicts the claims of the super-sovereignty supporters. There is no jurisdictional loop-hole for the arrest and prosecution of non-Indians who commit crimes on Indian reservations.
Following this dramatic and concise statement which should have clarified the issue, super-sovereignty attorney Riyaz A. Kanji testified to the same Senate Committee on Indian Affairs in September, 2007 complaining about the inability of tribal governments to arrest and prosecute non-Indians and he recommended that Congress pass legislation to restore tribal jurisdiction over non-Indians.
In support of his conclusion that tribes should have full territorial power over non-Indians, he states, “A 1999 United States Department of Justice study found that over 70% of Indian victims of violent crime were victimized by non-Indians.” He goes on to say that Indian women are raped at a rate two-and-a-half times the national average. The footnote in his testimony citing this statistic identifies the source as a study titled “American Indians and Crime” published by the Bureau of Justice Statistics (BJS) and written by Steven W. Perry.
A cursory review of published articles written by the super-sovereignty lobby shows that the two most quoted sources of data used to support the expansion of tribal sovereign powers are the Amnesty International report titled “Maze of Injustice” and two editions of the BJS report “American Indian and Crime” published in 1999 and another published in 2002 . These three reports have been the primary evidence offered by the super-sovereignty advocates to persuade lawmakers that justice on Indian reservations will never be achieved unless tribes can arrest and try non-Indians in tribal courts. As we will see, pro-sovereignty lobby misrepresents the data.
A closer look at the AI report reveals an important disclaimer conveniently overlooked by the super-sovereignty movement. The AI report warns, “In addition to underestimating the scale of sexual violence against Indigenous women, the limited data available does not give a comprehensive picture. For example, no statistics exist specifically on sexual violence in Indian Country and available data is more likely to represent urban than rural areas.” (Emphasis added)
The BJS report “American Indians and Crime” also reveals some serious misrepresentations of this report. A disclosure on the BJS website reads, “In the 2002 census an estimated 72% of tribes reported that they did not regularly submit criminal history records to State or Federal databases. Fewer than 25% said they submitted basic criminal records to State or Federal repositories. Three-quarters of the tribes did not submit sex offender information to the National Sex Offender Registry (NSOR), and fewer than 20% indicated that their justice agencies were electronically networked within their jurisdiction or with Federal, State, or local law enforcement agencies." (Emphasis added)
With this lack of tribal cooperation in crime reporting, how can the BJS be so confident to claim that non-Indians perpetrate 78% of the rapes of American Indian women?
Larry Long, the Attorney General of the State of South Dakota, read this study and not only questioned this contradiction; he conducted his own independent study to test the credibility of the BJS report. The South Dakota study states, “Our concern for the reliability of the BJS reports was rooted in the experience of prosecutors in and around Indian country in South Dakota. Plainly stated, this experience from South Dakota was inconsistent with the BJS findings. Additionally, the BJS reports deviate in important ways from academic literature describing violent crime victimization within and outside Indian country. Combined, these concerns created an overall sense among the authors that something was amiss in the findings of the BJS studies that necessitated further investigation.
While most everyone accepted the BJS report at face value, Attorney General Long and some curious federal Indian policy buffs were able to determine that the data for the BJS report titled “American Indians and Crime” is not even valid for Indian Country or Indian reservations!
The BJS relied upon data from a survey called the National Crime Victimization Survey (NCVS). The NCSV is based on data collected by the U.S. Census Bureau. The Census Bureau conducts surveys among American Indians living in urban areas and off-reservation places. What makes the statistics troubling is the subjects of the survey self-identify themselves as American Indians and the crimes and rapes they report are not cross verified against police records. BJS statistician, Perry, reveals that no effort was made to verify the claim that the respondents were in fact real American Indians nor did anyone cross verify the crimes they reported with local law enforcement agencies. Despite that, Perry is steadfast in his belief that the report data is valid for off-reservation crimes. Mr. Perry explained the section of the report showing high rates of non-Indians perpetrator rapes are “not a reflection of crime among Native Americans living in "Indian country"--on or near reservations, trust land, or tribal communities. However, they are a reflection of the nearly 76% of American Indians that do not live in Indian country.”
Did you catch the two nuanced terms used to identify Indians in his statement? At the BJS, they use the term “American Indian” to represent a racial category and the term used to identify a member of an Indian tribe is Native American. It is therefore American Indian women, living off reservation in urban areas who report their rapist as non-Indian over 70% of the time but we don’t know who’s raping the Native American women. Nowhere in the report is this important difference revealed.
So what does this mean? This means that the super-sovereignty movement has grossly misrepresented federal reports to further the self-serving goal to expand tribal jurisdiction over non-Indians. Tribal leaders, lawyers, academics and multiculturalists who have written articles, testified before government committees and lobbied law makers using these reports are either unethical or dangerously careless or both. Additionally the misrepresentation of these reports has been brought to the attention of the Bureau of Justice Statistics who has done nothing to clarify these misrepresentations. One must wonder why this subterfuge remains unchallenged.
One answer might be found by a close look at the Tribal Sovereignty Protection Initiative (TSPI). In his book, “American Indian and the Law” Duthu, reveals the intended result if Congress would pass their bill. He states, “The tribe’s civil, criminal and regulatory jurisdiction would extend throughout the tribe’s territory, trust and fee lands alike, and would reach all persons – members and non-members alike. The breathtaking sweep of these provisions is brought home when one considerers that the legislation would effectively overrule the decisions in Oliphant, Montana, Brendale, Strate, Hicks, and Atkinson.”
After reading such a proposal, one could conclude that the super-sovereignty advocate’s ultimate dream outcome would be to legislatively secede from the United States - until you realize that these sovereign tribes will remain dependent on federal funding!
Author Duthu returns to reality when he reminds us that the proposed federal legislation is subject to the scrutiny of the Supreme Court for constitutional conflicts. Duthu cautions, “… there is still the possibility that the newly constituted Court could revisit Justice Kennedy’s off-repeated concerns about the constitutional limits on Congress’s power to subject American citizens to criminal trials in tribunals that do not provide the full array of constitutional rights.”
So what is going on here? The reality is that the two reports (American Indians and Crime by the BJS and the Maze of Injustice by Amnesty International) have been misrepresented to the press and federal elected leaders by the super-sovereign lobby. But why?
The proposed TSPI legislation was written in 2002 and has been under discussion and review for several years by the National Congress of American Indians (NCAI). Some tribes have supported the proposal and some have expressed concerns. In “American Indian and the Law” author Duthu states,“Tribal leaders have not reached consensus on all aspects of the bill or an alternative strategy to sever portions of the bill and introduce them on a piecemeal basis.” Because the entire TSPI effort is radical and controversial and even some tribal leaders find aspects of it worrisome. It appears the full territorial super-sovereignty lobby has planned to attach their radical agenda onto the coattails of legitimate legislation using the “piecemeal basis”.
Thankfully Dorgan’s Tribal Law and Order Act of 2008 contains legitimate reforms. Under current law (Indian Civil Rights Act or ICRA) tribal courts cannot levy fines greater than $5000 nor order jail sentences longer than one year. These limits act as a disincentive for tribal courts to prosecute their own members in that the punishment is too weak for some violations of tribal law. Tribes rely on the federal government to prosecute crimes that fall under the Major Crimes Act, however federal law enforcement agencies (FBI, BIA) have a mixed record of timely response and often decline to prosecute a substantial number of cases filed by reservation law enforcement agencies.
In the efforts to impose their self-serving political agenda that would turn federal Indian law back 176 years, the super-sovereignty advocates are trying to eliminate perhaps the best solution for reducing crime in Indian Country. That solution already exists and it’s Public Law 280. Public Law 280 (PL 280) authorizes a state to extend some civil and all criminal laws over Indian Country. If done nationwide, PL 280 would eliminate much of the jurisdictional maze that now exists. States would apply their laws of general understanding and uniform punishments to both Indian and non-Indians alike. PL 280 would eliminate the need to revise tribal court limits and would remove unreliable federal policing and prosecutions from Indian country.
Unfortunately the super sovereignty advocates will claim that forcing Indian tribes to submit to state authority would be an assault on the inherent sovereign powers of Indian tribes – but what if there were reliable data to prove that Indian people living on reservations under PL 280 enjoy lower rates of crime than Indian people living on reservations where only tribal and federal law enforcement exists? We could then easily compare the effectiveness of justice between state law enforcement and tribal/federal authorities.
Perry of the BJS said they have not done that study. He surmised it would be difficult to obtain the data needed for such a study. He was right. As revealed on the BJS website, 72% of tribes don’t (won’t?) submit criminal history records to state or federal databases. Apparently sharing information is also viewed as a threat to tribal sovereignty by some people. It is clear that crime statistics for Indian reservations are unreliable or non-existent.
Tribes under federal law enforcement say the Department of Justice too often declines to prosecute case referrals from tribal police. Tribes need help to develop and maintain effective policing. Native women suffer from high rates of rape but the cause of that problem has been obscured by the super sovereignty advocates in their effort to mix their tribal sovereignty agenda with legitimate law enforcement reform.
The Dorgan bill thankfully addresses these real concerns and has not yet been swayed by the super-sovereignty advocates’ bogus claims that non-Indians are running rampant on reservations committing crimes with legal immunity.
Scott Seaborne is a retired businessman from Shawano County, Wisconsin. Mr. Seaborne and his extended family have owned property between two Indian reservations for 50 years. He is an active member of several grassroots organizations that work to protect the individual Constitutional rights of Indian reservation residents.