Safety and justice in many American Indian reservation communities is in need of conscientious renewal. Jails in Indian country are overcrowded and in several reservation communities, the courts have declared tribal jails inhumane and will not allow additional prisoners. Native people are victimized by crime at higher rates than other ethnic minority groups. Recent reports by Amnesty International show that rates of domestic violence against Indian women and children are extremely high, and there is little protection for victims.
The most serious law and order problems in Indian country stem from the use or sale of drugs and alcohol, which often result in high rates of related crimes, including domestic abuse, child abuse and child neglect. Many American Indians do not feel that the current non-tribal court system treats them fairly. Indians receive poor peoples' justice. When involved as a defendant in a non-tribal court case, many Indians living on reservations can't afford a trial lawyer and are assigned a public defender. Public defenders often do not spend enough time on cases, or have too many cases, and tend to work out plea bargains rather than present cases in court. Too many Indian defendants plea bargain their cases, and in some cases, Indian defendants plead guilty, taking responsibility for their actions, but are not well-defended in the culturally foreign, adversarial non-tribal courts. Tribal courts are constrained by the Major Crimes Act, Public Law 280, and the American Indian Civil Rights Acts, which place limitations on either the types of crimes, jurisdiction or allowable penalties.
At one time, tribal communities had their own understandings of justice and ways to enforce tribal law. The Iroquois Confederacy was created in part to eliminate revenge killing and other grievous infractions that previously led to a sustained cycle of retaliation between warring nations. Tradition says that tribal justice worked and was generally accepted. There are many different ways in which tribal communities constructed and managed justice, but all of them relied on strong community consensus, support and commitments.
The present-day situation, however, is far removed from the pre-Western contact days. There are now many new and often disadvantageous conditions confronting tribal communities. The loss of tribal economy for many communities results in poverty and dependence on federal or state aid. Crime is highly correlated with poverty. Generally, poorer people get in trouble with the law, or are caught, more often. They tend to receive tougher sentences than richer folks. Tribal governments exercise limited sovereignty and are constrained by federal law, and in PL 280 states must conform to state criminal laws and courts. Tribal members have many more choices than in traditional times, like alcohol and recreational drugs, that can lead them into trouble and cause family and community disruption.
Many tribal communities are working to renew justice and safety in their communities, and are trying a variety of community-based solutions. Some communities ban alcohol and drug use, reasoning that most reservation crime issues stem from substance abuse. Successful banning of alcohol and drugs requires support from the community to identify and convict bootleggers and drug dealers, even if they are family members. Most communities do not believe that returning to traditional forms of justice will suffice, since the world has changed too much and new solutions are required.
A two-tiered approach to justice is required - one with a strong emphasis on traditional justice and methods, and a second non-tribal-style adversarial court to handle violent crimes, or cases where tribal members reject traditional justice methods or philosophies. Restorative justice programs with various aspects such as sentencing circles, talking circles, Peacemaker courts, elder advisement councils or community service, as well as the coordination of rehabilitation through IHS mental health and social service programs, can help tribal members who make commitments to heal and recover a place in the community. Many tribal communities want to handle as much justice they can at low cost, through community organization and tradition, and many community members prefer tribal management of justice. State or federal courts, and sometimes tribal courts, provide a second tier of adversarial court to manage federal or state legal requirements such as major crimes, and for cases where the traditional methods have not found a solution. As in traditional times, effective justice and safety will only be sustained by supportive and engaged tribal communities.