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Washburn: ‘Criminal justice is area for greatest improvement in Indian country’

ALBUQUERQUE, N.M. – Last week, the University of New Mexico announced the appointment of Kevin Washburn, Chickasaw, to serve as dean of its law school.

Washburn comes to the job with almost two decades of professional legal experience and scholarship as a trial attorney with the Department of Justice, an assistant U.S. attorney, general counsel to the National Indian Gaming Commission, recipient of major research grants and professional awards, editor and author of books and countless articles, and eight years of teaching law at the University of Minnesota, Harvard Law School and the University of Arizona.

With this appointment, Washburn comes full circle to where his legal education began in the summer of 1990.

In an interview with Indian Country Today, Washburn talked about his career with a focus on his area of expertise – criminal justice in Indian country.

Kevin Washburn: Criminal justice is the area of greatest opportunity for improvement in Indian country. I’ve written a lot of articles in this area where I feel I’ve made an impact.

Between that work and a lot of work by American Indian women who pushed the Violence Against Women Act and Amnesty International and similar groups, it’s really started to jell, this movement to address some of the problems in Indian country.

My scholarship hasn’t been purely theoretical. It’s been very engaged with the world and contemporary problems facing Indian tribes.

The reason why I feel it’s really important is I feel like I got that from UNM. I started my legal education in Sam Deloria’s American Indian Law Center Summer Program, and Sam just models that engagement with the world. He is well known as someone who takes a really careful, sobering look at policy issues and he speaks his mind about them and I feel that’s one of the things I took from the summer I spent at UNM in 1990. I credit Sam for a lot of it, but the other professors I had were all people who were very engaged with what was going on in the world, and that was very profound to me.

ICT: Can you outline the problems with criminal justice in Indian country and your recommendations to address the problems, and also what’s going on with the bill in Congress?

KW: I would say the problems are structural and pervasive and wide-ranging so it’s not easy to explain in a nutshell what they are or to identify the solutions either, but the bill Sen. Byron Dorgan, D-N.D, has introduced with others is an incremental step in starting to address some of these problems.

The big picture is that criminal justice is inherently a local kind of thing. That’s why we have juries and public trials. It’s primarily something that has to be handled locally and it’s just not handled locally for many Indian tribes; it’s handled by distant officials who aren’t engaged with the tribe and that’s just the wrong model for criminal justice, especially the kind of crimes happening on Indian reservations – local crime affecting local people.

So a big part of the problem is that we’ve disenfranchised tribal governments and we’ve given the power they would presumably exercise to distant authorities.

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ICT: And what would a good criminal justice system on reservations look like? What would be the relationship between the nations and the U.S. and the states since a lot of the conflict is between the tribes and the states?

KW: Well, a bunch of simple things would help. I say simple because they seem simple.

Juries are supposed to represent communities – it’s a principle of criminal law and a person is supposed to be judged by his peers. It should not be by a bunch of foreigners, in essence. It should be people from the community where the crime occurred, where the defendant lives, so even if it’s a state or federal system, the jury ought to be drawn from the relevant community.

Even if we don’t change the system at all, if we just change where we get our jurors from we could dramatically increase the engagement of Indian people in criminal justice.

ICT: What are some of the structural changes you recommend?

KW: As Congress is thinking of doing, increasing the power that tribes have and gradually transitioning criminal power that is exerted by the states and the federal government back to the tribes. I would not favor doing that in one fell swoop. I think it needs to be done incrementally.

ICT: Why?

KW: Because a lot of tribes just don’t have the capacity. They don’t have the resources and they don’t have enough people trained to do the kinds of tasks that need to be done. And what I’d like to see is tribes develop their own models for criminal justice that don’t necessarily look like the American mode.

ICT: And probably look a lot different among the tribal nations.

KW: That’s exactly right. I think it would be 560 different laboratories for experimentation if each tribe were developing its own system. There are some tribes that can fit in a minivan. Do those tribes need full criminal justice systems? Probably not. But there are also tribes that have full resources and a fair number of members that have ample capacity for doing this sort of thing and they ought to be given more room to reassert their authority.

The U.S. attorney who sits in Phoenix prosecuting crimes that happen way out on the Navajo Nation as far as 350 miles away – that’s not our conception of criminal justice in the U.S. Our concept is they’re given a broad discretion because they understand the community and know which crimes are to be prosecuted and we give them the room to do that, but that kind of argument for discretion doesn’t work at all for federal prosecutors who work in Indian country who live hundreds of miles away from the community.

ICT: And the people and the community must resent that?

KW: Yeah, that happens. There’s a dynamic I call the ‘Cavalry Effect’ in my scholarship that explains some of that resentment. I was a federal prosecutor prosecuting crimes in Indian country and one of the areas I prosecuted was child sex offenses, and whenever a child reports an offense they’re usually reporting against another tribal member and often against another family member. But because of federal jurisdiction it brings in federal law enforcement, and often what happens is the other tribal members line up with the defendant and call the victim a liar. The modern federal prosecutor in his grey suit is the lineal descendant of the blue coat federal cavalry and tribes have long memories and they’re not happy when the FBI shows up at their door.

I’ve argued that the dynamic of calling the victim a liar – an 8-year-old girl – may be far worse than even the physical act that happened to her in some cases. So she’s victimized twice. And it makes victims less likely to report abuse. And those dynamics wouldn’t be there if it were the tribe prosecuting these sorts of things. Nobody would get mad if tribal police showed up.

ICT: Is criminal justice going to be a focus of your work at UNM?

KW: My job is going to be to serve the law school and, frankly, there’s no time for scholarship when you serve an institution in this kind of way. The most difficult decision in taking this job for me was that I’m willing to give up being a scholar for the term of my deanship.

What got me there is I believe so deeply in the mission of UNM Law School and I’m so grateful for what the school gave me and the path it set me on and if we can set other people on those kinds of paths that I think it’s well worth it.