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Federal Laws Discriminate; Tribal Justice May Improve

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Federal justice on reservations is discriminatory and harsh, especially for youth, but recently enhanced tribal justice systems – a potential remedy – may not be easy to implement, says a noted advocate for Native rights.

The 2010 Tribal Law and Order Act (TLOA) initiated a nine-member Indian Law and Order Commission that includes Denver-based Troy Eid, a former U.S. Attorney, who has worked with a number of tribes. He and other Commission members have held informal discussions pending full Commission funding.

The Major Crimes Act of 1855, which covers Indian perpetrators and victims on tribal lands, is discriminatory in that it provides harsher penalties for Indian offenders than for non-Natives for essentially the same crimes, he said. It strikes hard at teenaged Indian offenders, about one-third of whom are sentenced as adults as compared to only one to two percent of non-Native youth.

The federal system the Native youth enter requires them to serve about 85 percent of their sentences and there is no parole, while in the state of Colorado, for example, the average proportion of sentences served is 32 percent. There are no juvenile diversion programs, alternative sentencing, restorative justice or other federal rehabilitative programs comparable to those at state level, he said.

Enter TLOA: It reauthorizes substance abuse programs and grants for summer youth programs, constructs youth shelters and detention and treatment centers, develops long-term plans for Indian juvenile detention and substance abuse treatment centers, and supports tribal juvenile delinquency prevention services and care of juvenile offenders.

The Tribal Youth Program would authorize $25 million annually through 2015 for juvenile delinquency prevention services and the care of juvenile offenders.

South Dakota Rep. Kevin Killer (D -Pine Ridge) hailed the potential of the youth programs for his district, where more than half of residents are under age 18, and his state, where nearly 40 percent of those in the juvenile justice system are Native youth. Restorative programs are probably among those the Oglala Lakota would be interested in pursuing, he said.

Other major TLOA provisions allow participating tribal courts to impose penalties of up to three years’ imprisonment compared to the existing one-year limit and require tribal courts to provide court-funded licensed defense attorneys for indigent defendants, with more stringent qualifications for both attorneys and judges.

TLOA offers some financial support for enhanced tribal justice systems – a cost, which Eid himself says is “substantial” and which the Congressional Budget Office estimated at about $1 billion over the first five years.

Adopting TLOA is one option for tribes while concurrent jurisdiction or individual tribal codes constitute others, and tribes that do not choose the TLOA’s enhanced sentencing authority do not incur added cost, federal officials said.

As chairman of training for the Navajo Nation bar, Eid noted that of three Supreme Court justices and 17 District Court judges in the Nation, only the chief justice has a law degree and is admitted to both state and tribal bars, while one of the District Court judges has a law degree and is admitted to the state bar. None of the other judges has a law degree, he said, and the new law may be difficult to implement effectively.

Under the enhanced system, if judges or defense counsel without law degrees aren’t felt to have the right credentials or experience while, at the same time, three-year sentences are being handed down, verdicts may be thrown out en masse on appeal, essentially ending the new law, he said.

Professional licensing standards should apply, he said, cautioning that “Tribes should remember that their implementation of the Tribal Law and Order Act could affect others—it should be done thoughtfully and carefully.”

Tribes weighing costs and benefits include one Michigan tribe that commissioned a study of TLOA and reportedly may decide it’s not for them. The Northern Ute Tribe in Utah rejected cross-deputizing or other involvement by state officials on tribal lands.

On the other hand, a judge in the Northern Arapaho tribal court has said he feels it is “good to see that the feds have confidence in our legal system here.” Although he was not immediately available for follow-up, he also said he looked forward to increased authority under the enhanced system.