The Tribal Law and Order Act (TLOA), signed into law by President Obama last July with bipartisan support, makes federal agencies more accountable for serving Indian lands. TLOA also provides greater freedom for tribes to design and run their own criminal justice systems.
TLOA’s reforms—including enhanced sentencing options for tribal courts, expanded Indian Country law enforcement training, and greater transparency for federal prosecutors who decline to file cases—are welcome and long overdue. Yet many of the greatest challenges to securing equal justice for Native Americans living and working on Indian lands are structural. They’re rooted in a system of federal institutions, laws and practices that pre-date the modern era of tribal sovereignty and self-determination, and which TLOA does little or nothing to change.
That’s why TLOA created the Indian Law and Order Commission. This independent, all-volunteer advisory group, whose nine members were appointed by the President and Congress, is charged with looking beyond the horizon.
TLOA directs the Commission to report back to the White House and Capital Hill next year with specific proposals to make Indian Country safer and more just, so that Native Americans may finally receive the full protections guaranteed to all U.S. citizens by the Constitution.
The breadth and depth of experience of the Commission’s members is its greatest asset:
• Former U.S. Representatives Stephanie Herseth-Sandlin (SD) and Earl Pomeroy (ND), who were instrumental in writing and enacting TLOA.
• Affie Ellis (Navajo), assistant attorney general for Wyoming.
• Tom Gede, public policy expert and former head of the Conference of Western Attorneys General.
• UCLA Law Professor Carole Goldberg, Indian law scholar and a Justice of the Hualapai Appellate Court.
• Jefferson Keel, Lieutenant Governor of the Chickasaw Nation, President of the National Congress of American Indians, and a Vietnam veteran.
• Judge Theresa Pouley (Colville) of the Tulalip Tribal Court.
• Ted Quasula (Hualapai), former police chief and law enforcement expert.
The U.S. Departments of Justice and the Interior are already supporting the Commission’s work through financial and in-kind assistance. One of the country’s top academic institutions, the University of California at Los Angeles, has recently stepped forward with a generous gift of research support. The National Congress of American Indians and other organizations are likewise lending their expertise and volunteer assistance.
While our work has just begun, a consensus at the Commission’s kick-off meeting at the Pueblo of Pojoaque last month [April 6, 2011] is that strengthening the juvenile justice system for Native Americans must be a top priority.
In the federal criminal justice system, for instance, roughly two-thirds of all juveniles held in federal criminal detention in the entire United States are Native American. This is largely because of two outdated federal laws: The Major Crimes Act of 1885, covering felonies involving Indians on reservations, and the Juvenile Delinquency Act of 1938, which automatically transfers jurisdiction over most felonies involving tribal youth from Indian nations to the federal government.
In contrast to the vast majority of state and local governments in the United States, which have separate justice systems and programs for youth offenders, there is no separate juvenile justice system at the federal level. Tragically, Native American youth automatically enter the federal criminal justice system by operation of these outmoded federal statutes – based solely on their ethnicity and where they live – and often do not have access to diversion, drug court, and other rehabilitative programs. They’re routinely transferred from tribal justice systems to federal criminal custody based on purely local offenses – even when tribal courts assert jurisdiction and have rehabilitative programs available for them.
Once confined to the federal criminal justice system, Native American juveniles face harsher punishments for the same or very similar offenses. There is no parole in the federal system and no “good time” credit, which means comparatively longer sentences. On average, federal sentences for juveniles are about twice as long as those imposed by state courts. And because there is no separate juvenile justice system at the federal level, Native American youth are disproportionately sentenced as adult offenders. Less than 2 percent of all juveniles processed in state courts are sentenced as adults, compared to an amazing one-third of all juveniles in the federal courts.
To gain insight into these and many other systemic challenges, the Indian Law and Order Commission has begun visiting Indian tribes and nations to develop recommendations for lasting public policy reform. We ask your continued help. By listening to and learning from Indian Country, we hope to make lasting structural reforms to a justice system that, even with the much-needed reforms made by the Tribal Law and Order Act, is still failing too many Native Americans and undermining the Constitution that guarantees equal justice to all.
Troy A. Eid, a partner in the Denver office of Greenberg Traurig LLP and former United States Attorney for the District of Colorado, is Chair of the Indian Law and Order Commission.