What should tribes say?

Attorney General Eric Holder has scheduled a listening conference with Indian nations in Minneapolis Oct. 28 and 29 to discuss public safety and criminal justice in Indian country.

This meeting is a good sign. Though the Department of Justice has been largely AWOL in Indian country since 9/11, the new administration seems sincerely interested, at the highest levels, in addressing the serious crime problems that have plagued our reservation communities for decades.

Listening to Indian country’s concerns is a good first step. But if the attorney general is listening, what should we tell him? I suggest we tell him tribal self-determination policies work, and this approach can work in the areas of public safety and criminal justice too.

Federal efforts to build tribal capacity and responsibility have dramatically improved provision of other governmental services on Indian reservations such as health care and education. My own tribe, the Chickasaw Nation, took over our old IHS hospital and it runs much better now. No more spending all day at the hospital waiting for an appointment. Health care quality and customer service has improved. Schools have benefited from tribal control too. Tribally-run schools are usually much better than BIA schools.

We know why tribal self-governance works – tribal leaders are accountable to their citizens directly. If tribal leaders cannot provide good service, we can vote them out in the next election. In contrast, federal employees tend to be unaccountable to the tribal people they serve.

Despite these widely-accepted truths about the success of the self-determination model of Indian policy, the federal government continues to be the primary provider of felony criminal justice in Indian country. The approach is indefensible from a self-determination perspective. Criminal justice is more central to self-determination and a community’s self-definition than almost any other area of public service, perhaps with the exception of education. The criminal laws are where other communities articulate and protect their most important values. It is where communities identify which values and rules are so important that someone may go to jail for violating them.

Yet, in Indian country, tribes are not primarily responsible for identifying and protecting their own values. The federal government or state governments make those decisions. No tribe has self-determination if another sovereign is defining its most important values. This approach may seem archaic in the modern era of tribal self-determination and self-governance.

For the attorney general, it poses a dilemma. If the federal government is going to increase spending by $1 or $100 million in Indian country, the question is whether to spend this money on hiring more FBI agents and assistant U.S. attorneys to investigate and prosecute Indian country offenses. Or should this money be spent building tribal capacity to address these problems.

It is not an easy question. Because the existing criminal justice structure presumes federal officials are going to handle the most serious offenses, then we must provide that system resources if we want those offenses addressed.

But I believe the existing federal structure is inconsistent with our recent experience with self-determination. I believe every policy and appropriations decision should be judged by how much closer it gets us to primary tribal control of public safety and criminal justice. In my lifetime, I hope to see a world in which tribes have the primary responsibility for serious criminal justice in Indian country. If tribes do not take responsibility for this problem, it will never be effectively addressed.

– Kevin K. Washburn


Kevin K. Washburn is the dean of the University of New Mexico School of Law and a leading expert on criminal justice in Indian country.