If tribal governments do not, or cannot, substantially manage justice within reservation communities, is self-government possible? One of the primary features of government is control and administration of courts and police. Administering justice may be one of the most important tasks for any government. Nevertheless, contemporary tribal governments experience limited control over criminal justice in their communities because the U.S. government has imposed legal constraints or provided inadequate financial resources.
In many cases, tribes are reluctant to support court institutions that are compatible with the American adversarial legal institutions but not also compatible with community cultural values. Thus, many contemporary reservation communities do not enjoy legal justice that tribal members consider fair, culturally informed or effective. Restoring institutions of justice that are agreeable and supported by the reservation communities they serve is a necessary part of reclaiming and maintaining tribal self-government, as well as recovering cultural and community well-being.
There is a long history of congressional legislation and court cases that constrain the powers of tribal governments to effectively control and manage criminal justice. The Major Crimes Act of the 1880s established federal court jurisdiction over major crimes such as murder, kidnapping and rape. Over time, the list of crimes has expanded to about a dozen. Tribal governments are deprived of managing major crimes in ways they had used from time immemorial.
The American Indian Civil Rights Act of 1968 restricts the sentencing powers of tribal governments to one year in jail and fines up to $5,000. In the early 1950s, Congress passed Public Law 280, mandatory for some states and optional for others, that transferred jurisdiction for criminal offenses to state governments as part of the termination policy. Recent court cases on P.L. 280 support concurrent jurisdiction for tribal governments, but in many states tribal governments do not have resources to compete with state and county justice systems.
Supreme Court cases have severely restricted tribal judicial powers over non-Indians committing crimes on reservations. Policies for constraining tribal government’s legal powers in favor of state, county and federal courts have created a justice system that is not always accountable to reservation communities and tribal governments. Most tribal governments do not exercise direct control over the most serious criminal justice cases and are restricted to civil and small crimes, with limited powers to enforce punishments.
State and federal courts and police are not well-informed about reservation histories, cultures or traditional understandings of justice and restorative preferences. The adversarial forms of court procedure and American common law are culturally and procedurally alien to traditional and contemporary tribal understandings of justice. Federal courts are seen as distant, impersonal and lacking cultural understanding. In P.L. 280 jurisdictions, county and state courts give little attention to tribal culture and history, and tribal members feel they have few protections. Indian community members are often reluctant to report crimes and often will not bear witness. Many wish to avoid federal, state and county courts and police altogether.
Many tribal members do not want to participate in non-tribal courts and police systems. They either fear them or do not trust them, and would prefer to work out criminal and civil issues by reservation community methods. Furthermore, tribal members fear they do not receive fair judgment in state and federal courts. Community members often say Indian defendants receive harsher-than-average sentences, while perpetrators of crimes committed against Indians tend to receive gentler sentencing. But tribal courts are not viewed as significantly more effective than external county, state or federal courts. While tribal courts are more culturally informed, they often lack checks and balances that give protection against family, community and government politics.
The administration of justice in Indian country includes tribal courts as well as county, state and federal courts. American courts generally apply their own procedures and cultures to cases involving Indians. Justice in Indian country has become more multi-institutional and multicultural, but the great emphasis remains with American court procedures and cultural understandings. The result: Indian governments, tribal courts and reservation communities feel powerless and are unsatisfied with justice systems in general.
One task is to reconsider the present state of justice in Indian country with an eye toward improving compatibility and communication among current multi-institutional and multicultural court and policing arrangements. Just realizing that tribal courts are not extensions of American law and procedures and court systems would be a major step in the right direction.
Tribal governments, however, are greatly impaired politically and socially if they cannot deliver more effective and culturally agreeable forms of justice to community members. There is much policy discussion about nation-building, economic development and constitution reform, but reclaiming and restoring justice in Indian country must also be considered a significant building block toward achieving effective self-governance.