Eid: Criminal justice in Native America


The recent dedication of the country's 391st National Park Service unit in southeastern Colorado, commemorating the 1864 slaughter of at least 160 Cheyenne and Arapaho people camped beneath an American flag reportedly given to them by Abraham Lincoln himself, is a time to reflect on today's relationship between Native Americans and the federal government.

This is especially true when it comes to our criminal justice system - where the federal government legally owes a trust responsibility to serve and protect Native American people living on Indian reservations.

Former U.S. Sen. Ben Night-horse Campbell talked about honoring the federal trust responsibility in his keynote remarks at Sand Creek. My son, Alex, who learned about the senator and the Sand Creek Massacre in his fourth-grade Colorado history class this year, pointedly asked me what those words mean to a U.S. Attorney.

There's nothing like a question from a 10-year-old to make you think. So I tried to explain that unlike other U.S. citizens, Native Americans living on Indian reservations are legally required, by a combination of federal statutes and court decisions, to rely almost entirely on federal law enforcement officers, prosecutors and judges for their public safety needs, including the enforcement of all ''major crimes'' such as murder and felony assault. Around the time of the Sand Creek Massacre, the tribes were stripped of their traditional powers to handle these crimes. They now must rely largely on the federal government to keep the peace and punish such criminals.

A 1978 U.S. Supreme Court decision actually prevents sovereign Indian tribal governments from exercising any criminal jurisdiction over non-Indians who commit crimes on Indian reservations, including the Southern Ute and Ute Mountain Ute nations in southwestern Colorado.

Still another Supreme Court decision ruled that tribes have no legal ability to enforce Congress' ''trust'' responsibility. So even funding for basic law enforcement needs is left entirely to annual congressional appropriations.

Today as at the time of the Sand Creek Massacre, the chief law enforcement officer on Colorado's two Indian reservations is the U.S. Attorney, who performs the same role that elected district attorneys do elsewhere in Colorado.

As Colorado's 41st U.S. Attorney since President Lincoln appointed the first for the Colorado Territory in 1861, it is seductive to stress that the relationship my office currently enjoys with the two federally recognized tribes remaining in Colorado - on a sliver of their ancestral lands - is vastly more positive than during the Sand Creek era. And, of course, it is.

Back then, Colorado's U.S. Attorney appointed by President Lincoln, Sam Browne, held what was euphemistically called a ''dual commission.'' This meant Browne simultaneously served as Colorado's top federal prosecutor, charged with protecting Indian people - usually against criminal acts committed by white settlers - while commanding military cavalry forces as an Indian-fighter.

If there was a legal or ethical inconsistency in carrying out those duties, it was not recognized in 1864 or for many decades to come. Indeed, Native Americans who had not ''adopted the manner of civilized life'' by setting aside their traditional ways were not even legally recognized as U.S. citizens by Congress until 1924.

But what about today? What is the current state of criminal justice in ''Indian country,'' the legal term Congress uses to refer to Indian tribal and other trust lands where just shy of half of all Americans Indians live?

The U.S. Department of Justice reports that the average violent crime rate among Natives (12 and older) is at least two and a half times the national average. This rate is exponentially higher on many Indian reservations.

The Justice Department also reported last December that more than one-third of all Native American women will be raped at least once during their lifetimes. And nearly two-thirds will be victims of violent assaults.

Decades of direct experience on and off Indian reservations show that intensifying law enforcement in troubled communities can decrease crime. Yet again, according to Justice Department data, Indian country is served by only half as many police officers as similarly situated rural communities.

Just last year, the federal agency charged by Congress with providing policing to Indian country - the BIA of the U.S. Department of the Interior - hired an internal consultant to determine how to close this gap.

The BIA's consultant found that to achieve parity with comparable rural jurisdictions, about 2,000 more police officers would need to be provided to America's Indian reservations. Yet the entire BIA Office of Justice Services staff - including police, correctional officers, prosecutors and staff - currently has only about 450 employees on its payroll.

In Colorado, leaders of the Southern Ute Indian Tribe have taken matters into their own hands to the extent that federal law allows - creating a highly professional police department, court system and jail. Creating a unique pilot project with the U.S. Attorney's Office and the BIA, the Southern Ute Tribe has successfully ''cross-deputized'' tribal police and wildlife rangers as federal agents so they can enforce both tribal and federal law.

Our innovative pilot project is especially important because it helps protect American Indian women who suffer so disproportionately in domestic violence cases.

Nationally, 70 percent of all such cases involved Native women who are brutalized by non-American Indian men. When tribal police are cross-deputized as federal agents, they can assert full federal criminal jurisdiction over non-Native perpetrators. Local nontribal officers, such as Colorado State Patrol troopers and sheriff's deputies, can also be federally deputized when they provide emergency and backup services on tribal lands.

In all, our pilot project has successfully trained 40 law enforcement officers since February, both on the Southern Ute Reservation and with the Durango Police Department and Archuleta and La Plata County sheriffs' offices.

We are now working with the Southern Ute Tribe and the BIA to extend this cross-deputization pilot program to other Indian reservations throughout the United States. Our next stop: the Ute Mountain Ute Reservation south of Cortez.

On the Ute Mountain Ute Reservation, the murder rate for 2005 - '06 was three per 1,000. By comparison, Denver would have had nearly 1,900 homicides during that same period instead of the 144 that actually occurred.

Just five federal law enforcement officers - all employed by the BIA - patrol the entire Ute Mountain Reservation, a geographic area the size of Rhode Island. Given temporary vacancies, sometimes as few as three officers are available for patrol on 12-hour shifts. Police emergency response times can be up to an hour and a half, compared to a national average of six minutes.

With such a paucity of police available to the Ute Mountain people, violent crime inevitably results.

Recently, a historic Presbyterian church in the tribal capital of Towaoc was burned and defaced with Satanic symbols. An arson investigation is under way.

The loss of this church, one of the treasures of the Four Corners, with roots to the Ute and Navajo communities going back to 1914, is only the latest reminder of how much still needs to be done to honor the federal commitment to criminal justice in Indian country.

Recently, I became the first sitting U.S. Attorney to propose, in a national article published by the Federal Bar Association, that it is time to revisit the U.S. Supreme Court's earlier decisions on criminal justice.

My idea is that those Indian tribes that so choose, and agree to fully protect criminal defendants' federal constitutional rights, should be permitted to enforce their criminal laws against all persons regardless of race or ethnicity.

The essence of sovereignty for any government is to provide for citizens' basic public safety needs - regardless of whether the affected community is located on or off an Indian reservation. Indian reservations are too often safe havens for violent crime because of federal neglect, inconsistency and broken promises.

I stress that these are my own personal ideas, not Justice Department policy. What I've proposed to my colleagues in federal law enforcement is controversial to say the least.

But whatever becomes of that policy discussion - and it is by no means the only conversation we should have - the need to improve criminal justice in Indian country has never been greater or more urgent. American Indians are the fastest-growing ethnic group in the United States, and an amazing 25 percent of all violent crimes prosecuted by U.S. Attorneys nationally occur on Indian reservations.

As we remember the legacy of Sand Creek and the injustices it represents, it would be a serious mistake - and an affront to every American - to act as if the federal government can be trusted to keep our promises.

Yes, times are infinitely better than they were. But as I explained to Alex, trust is earned. And as federal officials, our actions must match our words.

The Honorable Troy A. Eid is the U.S. Attorney for the District of Colorado.