A Federal Commitment to Tribal Justice Systems

Litigation practice and a series of projects of the U.S. department of Justice support the federal government's longstanding policy of self - determination for Indian tribes.

by Janet Reno

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Janet Reno is attorney general of the United States.

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The earliest pronouncements of the  U.S. Supreme Court recognized the sovereignty of American Indian tribal governments and characterized them as ''domestic dependent nations.'' Chief Justice John Marshall described the Indian tribe as ''a distinct political society separated from others, capable of managing its own affairs and government itself.''(1) A year later Marshall elaborated that ''Indian nations had always been considered as distinct, independent, political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial.''(2) Today, tribal governments retain inherent authority to govern their affairs, unless Congress has divested them of this authority.

Indian tribal sovereignty is subject to the plenary power of Congress to regulate Indian affairs. This exceptional power is guided by the federal government's trust responsibility to Indian tribes to protect them and their property.

Tribal authority for self - government includes the power to administer justice. Indeed, tribal justice systems are essential pieces of the mosaic of tribal self - governance. The U.S. Department of Justice is firmly committed to increasing self - determination for American Indian tribal governments by strengthening tribal justice systems.

In April 1994, President Bill Clinton reinforced the longstanding federal policy supporting a substantial degree of self - determination for Indian tribes.(3) Federal agencies were directed to deal with Indian tribes on a government - to - government basis when tribal governmental or treaty rights are at issue. Subsequently, in June 1995, the Department of Justice issued its policy on Indian sovereignty and government - to - government relations with Indian tribes. Under this policy:

The Department is committed to strengthening and assisting Indian tribal governments in their development and to promoting Indian self - governance. Consistent with federal law and Departmental responsibilities, the Department will consult with tribal governments concerning law enforcement priorities in Indian country, support duly recognized tribal governments, defend the lawful exercise of tribal governmental powers in coordination with the Department of the Interior and other federal agencies, investigate government corruption when necessary, and support and assist Indian tribes in the development of their law enforcement systems, tribal courts, and traditional justice systems.

Some of the most important contributions the Department of Justice can make to tribal self - governance are to support the development and strengthening of viable tribal justice systems, and to defend the exercise of tribal self - government powers through tribal justice systems

Tribal justice systems

Central to tribal sovereignty is the capacity for self - governance through tribal justice mechanisms. As Congress has found, tribal justice systems are ''important forums for ensuring public health and safety and the political integrity of tribal governments.'' They are ''the appropriate forums for the adjudication of disputes affecting personal and property rights,'' and they are ''essential to the maintenance of the culture and identity of Indian tribes."(4)

While the federal government has a significant responsibility for law enforcement in much of Indian country,(5) tribal justice systems are ultimately the most appropriate institutions for maintaining order in tribal communities. They are local institutions, closest to the people they serve. With adequate resources and training, they are most capable of crime prevention and peace keeping. Fulfilling the federal government's trust responsibility to Indian nations means not only adequate federal law enforcement in Indian country, but enhancement of tribal justice systems as well.

Tribal courts are essential mechanisms for resolving civil disputes that arise on the reservation or otherwise affect the interests of the tribe or its members. In the absence of a contrary treaty or statutory provision, tribal courts are presumed to have jurisdiction over such civil litigation, including actions involving non - Indians.(6) The integrity of and respect for tribal courts are critical for encouraging economic development and investment on the reservations by Indians and non - Indians alike.

Tribal courts are also important vehicles for helping to resolve family problems. They can bring families together and hold parents and children accountable to themselves, each other, and the community. The Supreme Court and Congress have determined that in many instances tribal courts must have exclusive jurisdiction to resolve disputes concerning the status of Indian families.(7)

Tribal courts articulate tribal values. They can act to preserve tribal culture and customs. Tribal values are affirmed not only in decisions about such issues as children, contract disputes, and sentencing, but also in the process by which the decisions are made, the way disputes are resolved, and the manner in which justice is done.

Tribal justice support

In May 1994, the Departments of Justice and Interior sponsored the National American Indian Listening Conference in Albuquerque, New Mexico. The event brought together American Indian leaders with federal cabinet and sub - cabinet officials to give the latter an opportunity to do something they rarely have done with tribal leaders - listen. The Justice Department heard many tribal leaders describe the difficulties of their tribal justice systems due to lack of funding, training, recognition and enforcement of tribal court orders, and lack of jurisdiction over important criminal issues arising in Indian country. Again and again the point was made that support for tribal justice systems is essential to the realization of true self - governance for Indian tribes.

In response the Justice Department established the Office of Tribal Justice to coordinate the department's policy toward Indian tribes, both within the department and with other government agencies. The department also initiated a Tribal Courts Project to help tribal governments develop and strengthen their systems of justice.

The project seeks to increase general public awareness about tribal justice systems. It initiated the symposium of articles on tribal justice systems for this issue of Judicature as part of its effort to increase visibility of tribal courts essential participants in the nationwide administration of justice.(8) The project encourages the creation of innovative training and technical assistance for tribal justice personnel, and it works with federal and state judiciaries and bar associations to improve dialogue and jurisdictional problem solving with tribal courts. Due regard is given to traditional systems of justice as well as those based on Western models. The department's overall goal is to help tribal justice systems operate as partners with state and federal judiciaries in the administration of justice.

In September, the department designated 45 tribal governments nationwide as Tribal Court - DOJ Partnership Projects. The primary criterion for designation was a demonstrated commitment by the tribal government to support and strengthen the tribal justice syste The department's goal is to strengthen tribal justice systems, particularly their abilities to deal with family violence and juvenile issues. Designation as a Partnership Project does not involve a grant of money. The Tribal Courts Project will work with the designated Partnership Projects to assess their court systems and will create technical assistance and training opportunities, primarily through the local offices of U.S. attorneys. The Tribal Courts Project will also work with the state and federal judiciaries to gain their assistance for the Partnership Projects. The commitment of these 45 tribal governments to improving their justice systems will be taken into consideration when the department makes monetary grants in future years.

Federal law prosecutions

One of the Justice Department's top priorities is to improve law enforcement in Indian country. In cooperation with interested tribal governments, it has taken the initiative in facilitating the convening of federal court on or near reservations. The goal is to increase available resources for the prosecution of misdemeanor crime committed by non - Indians on the reservation, over which tribal courts do not have jurisdiction.(9)

In most states,(10) federal courts have jurisdiction over certain felonies committed by Indians in Indian country. They also have jurisdiction over other crimes committed in Indian country by non - Indians against Indians or by Indians against non - Indians.(11) Thus, while tribal courts retain jurisdiction over misdemeanors committed by Indians, they do not have jurisdiction over the same crimes committed by non - Indians. However, both federal and state law enforcement and prosecutors tend to focus their energies on more serious crimes and often lack the resources to arrest and prosecute misdemeanor offenses committed by non - Indians in Indian country. Since federal courts are often located far from Indian reservations, active prosecution of non - felony domestic violence, child abuse, weapons offenses, vehicle violations, substance abuse, and theft is limited.

As a result, misdemeanor crime by non - Indians against Indians is perceived as being committed with impunity.(12) This discourages victims from reporting crimes and police from making arrests, and it encourages the spread of crime because prosecution is unlikely.

One partial solution is the convening of federal court, using a magistrate judge, on or near reservations where federal courts already have jurisdiction but are not fully exercising it because of inconvenience due to distance, lack of resources, or other reasons. This involves no expansion of federal jurisdiction.(13) It is merely moving the federal forum closer to Indian country, thereby focusing attention on previously unredressed misdemeanors.

Under this initiative, a U.S. magistrate judge is now hearing federal misdemeanor cases several days each month on the Warm Springs Reservation in Oregon. The District of Oregon provides a part - time magistrate judge, the U.S. attorney provides a prosecutor, and the Warm Springs Tribal Council allows the federal court to use the tribal courtroom. The immediate availability of the federal court will allow tribal police to increase drug enforcement and to work with the Immigration and Naturalization Service to arrest illegal aliens on the reservation engaged in criminal activities.

This project is not only a means for improved law and order on the reservation, but it is also an innovative vehicle for channeling technical assistance and training to tribal courts. In return for the use of the tribal courtroom, the Oregon federal court clerk will provide training and technical assistance to the tribal court clerk in areas such as case management and automated record keeping. The U.S. attorney's office will provide training, technical assistance, and oversight to the tribal prosecutor when acting on behalf of the federal government. Convening federal court on the Warm Springs Reservation is intended to send a message to non - Indians that they can no longer commit petty crimes in Indian country with impunity. It is also designed to serve as a model for federal - tribal court cooperation. It will provide invaluable data about crime over which the tribal courts have no criminal jurisdiction.

Civil litigation support

The Justice Department's litigation practice supports the appropriate exercise of tribal court civil jurisdiction. The principles encompassed under the general legal doctrine of ''exhaustion of tribal remedies'' is of particular significance.

The firm federal policy supporting tribal self - government and tribal courts is the basis for the Supreme Court's holdings requiring the federal courts to give tribal courts the first opportunity to determine the scope of their civil jurisdiction. If a challenge to tribal court jurisdiction is eventually heard by federal court, the latter forum will greatly benefit from the expertise of the tribal court and its development of a complete factual and legal record. That approach also encourages the tribal courts to explain the precise basis for accepting jurisdiction.(14)

The Justice Department firmly supports appropriate use of tribal administrative and judicial forums in accordance with federal statutes and Supreme Court rules. Thus, the department has urged in a series of amicus briefs application of exhaustion and ripeness principles to a variety of situations. For instance, the department has successfully argued that non - Indians should be required to exhaust tribal court remedies in contract disputes with Indians concerning gaming on Indians lands.(15) Similar principles require non - Indians to pursue tribal administrative and judicial remedies concerning tribal regulation of reservation waters on the Flathead Reservation in Montana.(16) It has also been the department's position that the Navajo Nation Tax Commission and tribal courts should make the initial determination whether the tribe may tax coal mining activities conducted by non - Indians outside reservation boundaries but in Indian country as defined by statute.(17) The department has argued that exhaustion and ripeness principles should be applied to matters regulated by the tribal government through administrative proceedings unless there are express federal statutory limits on the tribe's authority to address the dispute or there is no functioning tribal court.(18)

The Justice Department encourages other federal agencies to respect tribal court jurisdiction and use tribal courts for litigation. For example, the Cheyenne River Sioux Tribe developed a lease whereby the tribe leases property to individual tribal members to enable them to obtain Rural Housing Program loans from the Farmers Home Administration. In the event of default, the lease provides that the foreclosure action be brought in the Cheyenne River Sioux Tribal Courts under the Tribal Law and Order Code. The Justice Department supported this provision and secured the agreement of the U.S. attorney in South Dakota to represent the Farmers Home Administration in tribal court if the need ever arises.

Justice program grants

Although the Justice Department does not have funding to support the operation of tribal courts, increased efforts are now being made to channel more justice - related funds to Indian country through discretionary grant programs. An American Indian and Alaska Native Desk has been established in the Office of Justice Programs to enhance access by American Indian and Alaska Native tribes to information regarding criminal justice funding opportunities and technical assistance.

The Violence Against Women Act of 1994 provides that 4 percent of funds available to combat violent crimes against women be set aside for grants to tribal governments.(19) Grants to support law enforcement, prosecution, and victim services to combat sexual assault and domestic violence were awarded to 14 tribal governments and consortia in 1995. If the program is fully funded in 1996, grants will be made to as many as 45 additional tribal governments.

The Bureau of Justice Assistance is working with two tribal governments under the Tribal Strategies Against Violence Program, the purpose of which is to develop local partnerships among law enforcement, prosecution, social and educational service providers, community leaders, businesses, residents, and youths to develop strategies for community policing, prosecution, family abuse, juvenile delinquency, and prevention education. An additional program is being established to provide technical assistance to tribal courts to improve tribal - state - federal court relations and to address such issues as court organization, personnel management, facilities, automation, caseflow evaluation, and criminal justice records.

During the last six years, the Office of Victims of Crime has funded tribal governments directly and through grants to states to operate victim assistance programs addressing child abuse and neglect, sexual assault, domestic violence, and other violence - related crimes. It has also provided significant funding for training and technical assistance to help develop and implement these and other programs serving crime victims in Indian country. In the coming year increased funding will be available for additional programs. Several tribal courts will be funded to develop Court Appointed Special Advocate programs. Funds also have been set aside to develop a training and technical assistance project for tribal judges.

The Office of Juvenile Justice and Delinquency Prevention has funded four tribal governments since 1992 to develop community - based programs for delinquent Indian youth or those at risk of having contact with the juvenile justice system. Work has been done to support the establishment of Boys and Girls Clubs in Indian communities and to reduce disproportionate minority confinement in secure juvenile facilities. Tribal governments will soon be awarded grants in a variety of additional programs: the Safe Futures Program to support coordinated services for at - risk youth and families in the juvenile justice system, training and technical assistance to provide intensive community - based day treatment for juveniles at risk of delinquency and for those who have already been referred to juvenile court, children's advocacy centers, and training for tribal law enforcement to address juvenile crime and delinquency.

Under the Crime Control Act of 1994, four tribal governments have been awarded drug court planning grants, 164 tribal governments have received community - oriented policing services grants, and two tribal governments have received grants to plan boot camps.

The National Institute of Justice has recently begun to collect and disseminate information on criminal justice issues of significance to Indians. An overview of victim services programs in Indian country will be prepared and disseminated, criminal justice system issues unique to Indian communities will be identified, and recommendations for future research and evaluation will be developed.

Indian Country Justice Initiative

An Indian Country Justice Initiative has recently been started to improve the responsiveness of the Justice Department to criminal justice needs in Indian country. The Criminal Division and the Administrative Office of the U.S. Courts are working with the Laguna Pueblo in New Mexico and the Northern Cheyenne tribe in Montana on implementation. The goals are to coordinate federal and tribal justice systems; develop innovative approaches to addressing crime; improve existing criminal justice systems, communications, and procedures; and strengthen capabilities for offender supervision, treatment, prevention, and training on these reservations. The U.S. Probation and Pretrial Services Division has approved a Native American probation officer liaison position for each project. Additional money for treatment of substance abusers and sex offenders will be available, as well as on - reservation assistance for victims and witnesses.

The Justice Department's commitment to strengthening tribal justice systems is one aspect of the federal government's recognition of Indian tribes as domestic dependent nations and is a necessary corollary to the department's wide - ranging responsibility for law enforcement in Indian country. In keeping with its policy on Indian sovereignty and government - to - government relations with Indian tribes, the department has launched significant efforts to increase public awareness and appreciation of tribal courts, to work with state and federal judiciaries and bar associations to improve dialogue and jurisdictional problem solving, and to create innovative training and technical assistance opportunities for tribal justice personnel. Sometimes this takes the form of hands - on technical assistance, sometimes the form of grants, and sometimes the form of cooperation with federal and state judges. In any case, the goal remains the same: to help ensure that tribal justice systems can take their rightful place as partners with states and the federal government in the nationwide administration of justice.

Footnotes

1. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1831).

2. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832).

3. See memorandum for the heads of executive departments and agencies on the subject of government - to - government relations with Native American tribal governments. Public Papers of the Presidents of the United States, William J. Clinton. 1994, Book 1 at 800 - 803. For previous policy statements see ''The Forgotten American,'' Message from President Lyndon B. Johnson, March 6, 1968, H.R. Doc. 90 - 272; ''The American Indians'', Message from President Richard M. Nixon, July 8, 1970, H.R. Doc. 91 - 363; ''Statement on Indian Policy,'' January 24, 1983, Public Papers of the Presidents of the United States, Ronald Reagan. 1984 Book 1 at 90 - 100; ''Government - to - Government Relationship of the United States with Indian Tribal Governments'', Statement by President George Bush, June 21, 1991, 137 Cong. Rec. S. 8388 - 01.

4. Indian Tribal Justice Act, 25 USC 3601.

5. The Indian Major Crimes Act, 18 U.S.C. 1153, created federal jurisdiction over serious felonies committed by Indians. The General Crimes Act, 18 U.S.C. 1152, created federal jurisdiction over crimes between Indians and non - Indians.

6. National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985); Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987).

7. Fisher v. District Court, 424 U.S. 382 (1976); Mississippi Choctaw v. Holyfield, 490 U.S. 30 (1989); Indian Child Welfare Act, 25 U.S.C. 1901 et seq.

8. The Department of Justice solicited articles from each of the authors because of his or her expertise. Each article expresses the opinion of the author and does not necessarily reflect the views or policies of the Department of Justice.

9. Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978).

10. State courts exercise criminal jurisdiction in those states governed by Public Law 280, see Goldberg, Public Law 280: The Limits of State Jurisdiction over Reservation Lands, 22 UCLA L. Rev. 535 (1975); or by special acts of Congress conferring jurisdiction on the state, see, e.g. Negonsott v. Samuels, 113 S.Ct. 1119 (1993) (discussing 18 U.S.C. 3243, which confers jurisdiction on the state of Kansas), 25 U.S.C. 232 (conferring jurisdiction on New York).

11. State courts have jurisdiction over crimes committed by non - Indians against non - Indians in Indian country. United States v. McBratney, 104 U.S. 621 (1882).

12. This is based on extensive conversations with tribal leaders at the National American Indian Listening Conference in Albuquerque and at the Northwest Indian Nations Conference in Salt Lake City in June 1995, and with many U.S. attorneys whose districts encompass Indian country.

13. The magistrate judge's jurisdiction is limited by the requirement of the defendant's consent. See 18 U.S.C. 3401(a) and (b).

14. National Farmers Union, supra n. 6, at 855 - 857.

15. Tamiami Partners Ltd. v. Miccosukee Tribe of Indians of Florida, 999 F.2d 503 (11th Cir. 1993).

16. Middlemist v. Babbitt, 824 F.Supp. 940 (D.Mont.1993), aff'd. 19 F.3d 1318 (9th Cir. 1994), cert. den. 115 U.S. 420 (1995).

17. 18 U.S.C.A. 1151. Pittsburgh & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531 (10th Cir. 1995).

18. Reservation Telephone Cooperative v. The Three Affiliated Tribes of the Fort Berthold Reservation (No. 95 - 1526 NDBI) (Appeal pending in 8th Circuit). The issue is whether the tribal tax commission and tribal court should make the initial determination whether the Three Affiliated Tribes of the Fort Berthold Reservation can impose a tax on non - Indian owned telephone line rights - of - way over reservation lands held in trust by the United States.

19. 42 U.S.C. 3796gg.