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Justice in Indian country

Policing is a federal trust responsibility

Part four

Editor's note: This week Indian Country Today continues an ongoing series that examines justice in Indian country. To share your comments, e-mail us at, using ''Justice'' in the subject line. This article is drawn from two sources, an interview of Walter Lamar and writings of his on Indian law enforcement.

WASHINGTON - The late Newton Lamar opposed tribal self-determination and the law that first enshrined it as federal policy, known throughout Indian country as Public Law 93-638. Under so-called ''638 contracts,'' tribes can manage federal programs for themselves, with federal funding that went straight to federal agencies in times past.

Walter Lamar, retired from the FBI as one of the most decorated agents in its history, has seen enough to hold his father's fears in high regard. ''He said there will be a day in time that performance-based budgeting comes into play. And when performance-based budgeting comes into play, he said, our trust responsibility will not be looked at, it'll be our performance. And we will not have gotten enough money to perform properly. And that'll give them an excuse to reduce our funding, and eventually terminate us. Terminate trust responsibility, thereby terminating the tribes.

''Tribes will not be 'terminated'; I mean, we're not going to fall off the face of the earth. But what will happen is we're going to have to struggle and struggle to be able to work these programs without the necessary funding. So it [funding] should be needs-based as opposed to performance-based, and it must be needs-based because of the trust responsibility the government holds. And I'm real passionate about that.''

A conservative faction in Congress is today trying to chip away at the federal trust responsibility, beginning in the realm of Indian health care, and performance-based budgeting has become a staple of presidential budget requests.

In law enforcement, a slew of reports have documented the public safety crisis in Indian country - all of them, Lamar noted, without creating an outcry in the halls of Congress. From 1997, ''Report of the Executive Committee for Indian Country Law Enforcement Final Report to the Attorney General and the Secretary of Interior.'' From 2003, the U.S. Commission on Civil Rights, ''A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country.'' From 2004, the Interior Department's ''Neither Safe Nor Secure: An Assessment of Indian Detention Facilities.'' From 2006, the BIA's law enforcement gap analysis. And from 2007, Amnesty International's ''Maze of Injustice: The failure to protect Indigenous women from sexual violence in the USA.''

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More funding of Indian law enforcement has been pledged in fiscal year 2008. But with the increased need for law enforcement from growing Indian populations, a national shortage of local law officers and the modern pervasion of methamphetamine in rural environs, he wonders if it will be a beginning or a false hope.

From the 1975 BIA publication ''Indian Law Enforcement History,'' he offers a few paragraphs from the termination era proper. In 1948, Congress halved the BIA law enforcement budget. ''Tribal governments, while complaining bitterly, moved to take up the slack.'' Tribal funds paid for seven special officers, two special deputy officers, 15 policemen and three judges in that year.

But two years later, the results were in. Surveying all of Indian country, Indian Commissioner John R. Nichols told a congressional member, ''This is the lowest point in the history of law and order.''

More than 50 years later, Lamar is wondering how economic development can expand its foothold in Indian country if limited law enforcement funding means lives and property cannot be protected. He wonders how sovereignty will flourish if limited funding means tribal governments have a hard time protecting women and families. He wonders why BIA law enforcement officers Jack Spenser and his son, Creighton, had to die on the same highway within three years of each other, after working double and triple shifts, respectively.

He wonders how the BIA Tribal Budget Advisory Council could have prioritized law enforcement over the years, without the priority's being reflected in BIA and Interior budget requests.

As he surveys the recent dismissal of five U.S. attorneys who had taken a lead role in enforcing federal law in Indian country, he wonders how anyone could have worked too hard for law enforcement in Indian country.

And as he contemplates the modern history of law enforcement in Indian country, a history filled with phrases like ''evil continues unabated,'' ''the accursed condition of things ... is a disgrace to our land,'' ''the [Indian] Police were given old Remington revolvers [in 1893] whose cylinders did not revolve,'' ''Many characteristics of the Indian criminal justice system [in the 1930s] remained as they were at the turn of the century,'' ''We would have to pay a much larger salary for white police,'' and much more from the modern successors to these grim pages, he wonders how the long passion and sacrifices of law enforcement in Indian country could be reduced to performance measures.

He doesn't have to wonder what his father would think.