Paul Nitze: Much worse than Aruba
June 30, 2010
Right on cue, days two and three of Elena Kagan’s confirmation hearings saw her parrying questions on foreign law. To believe Jeff Sessions and Lindsey Graham, we’re about to hand over interpretation of the U.S. Constitution to French magistrates and Brits in wigs. Americans are obsessively suspicious of foreign legal systems.
An undercurrent of suspicion can be read into coverage of cases like the Natalee Holloway murder in Aruba, or the Amanda Knox trial in Italy. We don’t trust foreign police to do their jobs, we don’t trust foreign laws, and we certainly don’t trust foreign judges. We dread the prospect of getting thrown into a local jail in another country.
And yet there are millions of acres of American land that are foreign legal territory – Indian Country. If I were seeking justice for a victim of a serious crime, and I could choose a reservation or Aruba as the jurisdiction, my vote would go to Aruba. For now.
Sometime in July the president is likely to sign the Tribal Law and Order Act into law. That is cause for celebration whether you’ve set foot on a reservation or not. It’s a big step in redressing the horrible failure to police crime committed in Indian Country.
If you’re like me your experience of Indian Country is limited to a stretch of asphalt with a yellow line down the middle. We tend to drive through, but most of us don’t stay. My wake-up call came as a clerk for the 10th Circuit Court of Appeals, when I’d read briefs involving crimes committed in Indian Country.
Over and over again I’d read about defendants who committed reams of violent crimes before ever being charged with a felony. A man named Johnny Begay came through the 10th Circuit on appeal recently. He sexually assaulted a young girl on a reservation starting at age 7, committing 20 separate assaults over five years. When you read facts like those, you wonder why he wasn’t caught earlier.
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It’s not just alcoholism, obesity and poor health care that keep life expectancies in Indian Country in the 50s. People kill people at astonishing rates. The murder rate on Colorado reservations is 20 times the state average. If you lived on the Ute Mountain Reservation south of Cortez in 2005 you had a one in 400 chance of being murdered that year. Imagine if Aspen had 15 or 20 murders a year.
To his great credit, Troy Eid, Colorado’s former U.S. attorney, fixated on this problem. He published op-ed’s, he wrote two articles in Federal Lawyer, he dedicated more resources from his own office to reservations, and he set up a pilot program to train tribal officers to be deputized as federal officers. Residents of Colorado’s reservations, especially the Southern Ute Indian Reservation, are a lot safer than they used to be.
But the status quo is still shameful. Reservations have half the law enforcement resources of typical communities (while policing huge swathes of land). Tribal courts are often seasonal and tribal jails sometimes have to shut down entirely. If you aren’t Native American, and you commit a crime on a reservation, tribal authorities have no jurisdiction to prosecute you. Tribal police officers can’t even arrest you to investigate the crime, no matter how much evidence they have.
Even if the defendant is Native American, tribal courts can only prosecute misdemeanors carrying a maximum jail sentence of one year. The U.S. Attorney’s office has to handle all felonies, which means ferrying witnesses, evidence, police and the parties 400 miles to a courthouse in Denver. It’s not a surprise that Native American women are seven times more likely to be victims of domestic violence than the national average.
It’s safe to say that there’s not much love lost between many Native Americans and federal law enforcement, especially among older tribe members who remember the violent clashes of the ’60s and ’70s. If you go online and read various tribal blogs, suspicion of the effects of the Tribal Law and Order Act is very much in evidence.
But whatever lingering resistance remains, it doesn’t excuse the federal government’s neglect. The bill that will, fingers crossed, be signed into law later this month finally allows federal magistrates to travel to reservations to conduct trials. It allows tribal courts to handle more serious cases and to enroll tribal officers in federal training programs. It requires federal prosecutors to publish “declination reports” on cases the U.S. Attorney declines to prosecute. And eventually, when it is funded, it will increase the police presence on reservations.
But more important than any policy changes in the bill, it signals a commitment by the feds to live up to their mandate of policing reservations. We took the power of tribes to administer their own criminal justice systems away in 1885. We did it with no consideration for the consequences, which have been horrible. If we are going to exercise that jurisdiction, we have a moral responsibility to fight crimes in those communities to the same degree we fight crimes in Pitkin County, Garfield County, or anywhere else.
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