As the second part to my second series of blogs, I am going to continue on with my attempt at reporting an answer as to why Indian Country is so fragmented in its law enforcement agencies. In my last post I discussed an article that brought into light the many pieces of legislature and Supreme Court cases that have caused much head spinning, mainly within tribal communities. Today I would like to discuss further the issues with jurisdictional claim and tribal law enforcement agencies as well as state
and federal agencies.
Criminal Justice in Native America is a book edited by Marianne O. Nielson and Robert A. Silverman (2009), it’s another one of my many sources that I have been working with to complete my research paper on tribal law enforcement fragmentation and it has basically become one of my most informative pieces of information. In one chapter my a gentleman named John F. Cardani called “The Jurisdictional Jungle: Navigating the Path,” he discusses some personal experiences with Tribal officers as an officer with the Sheriff’s Department. In one instance, he talks about how he was unsure if the tribal officer he was called to assist was serious or not about only having citation length tickets in his possession when dealing with a felony. The fact that it was true is ridiculous; an officer who has sworn to protect and promised to enforce the law to the best of his ability couldn’t even fully function because he didn’t carry the right paperwork.
Cardoni discusses six periods in history that had shaped American Indian law and policy, all of which give historical background which leads us to understand why it is that Native American people today suffer so harshly because of the government. The first period is that of treaty-making, where Cardoni explains began with discovery and conquest by Europeans. Many of these treaties were signed ignorantly by tribal leaders due to language barriers as well as differences in cultures and ideologies. Cardoni says “[b]oth sides came from completely different systems of government. Today, it could be compared to having an army, complete with tanks and other heavy armament in tow, show up on your doorstep.” (117) If that doesn’t intimidate you, then you’ve got some balls (excuse my language!).
The second period is removal and relocation, which is something many can figure out on their own of what happened then.
“During this time period, the U.S. government and states determined that they needed more land as people moved west to settle. Removal of Native people from their aboriginal land was seen as a viable option, and many tribes were removed to the “Indian Territory” now known to us as Oklahoma.” (117)
This is where we get into the Five Civilized Tribes, the Trail of Tears, massacres, blood, gore, and smallpox. You know, the nitty-gritty stuff. The third period is the allotment and assimilation of tribal lands and peoples. This is where tribal land was significantly reduced from 138 million acres to just 48 million acres. That’s a 90% reduction in land. That’s ridiculous! Anyways, moving on.
Fourthly, the Indian Reorganization Act and self-government period, where Congress encouraged tribes to become more like everyone else; civilized, organized, and governed. The problem with that was due to the years of suffering previous to this time, many tribes were struggling just to survive let alone organize governmentally. There was however a positive to the IRA, and that was its creation of a framework for tribes to use as a way of exercising political power (119). The fifth period was the termination period, which was mainly tribes being pushed around in circles when trying to deal with actions or lack of actions made by the government that was detrimental to their welfare (119). In 1946 we see the creation of the Indians Claims Commission put in place by Congress, which was made to hear and decide on cases of action that had originated prior to its creation (119-120).
The sixth period we have self-determination and the civil rights movement; we can still see this happening today in Indian Country despite the fact that many would see us as equals. We are still not equals, we are something different. Yes we are people, and yes we are also sovereign nations. But we are also something like a hybrid of a nation and a citizen. We (Native American people) can still be prosecuted under the federal law, but we can also still be tried and prosecuted under tribal law.
Cardoni points out that there are many questions that we must ask before we can determine criminal jurisdiction over an offender, some of which include whether or not the criminal is a tribal member, was the crime committed in Indian Country, are both the offender and the victim Indian?? These questions become even more muddled when we look at the legislations that have been passed and the court cases that act as precedence for future decisions. Has your mind exploded yet? I can’t risk mine doing so just yet, I haven’t even applied to law school yet.
The issues with criminal jurisdiction within Indian Country are deep rooted in both historical periods beginning with contact, as well as the challenges brought forth in today’s society. What we must keep in mind, as both scholars and citizens, is that there are deeper and much more complicated problems than we see on the surface and it is our duty to dig up the roots of the problems so that we can solve them.