A.

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LAW ENFORCEMENT ON INDIAN RESERVATIONS

Overview

The federal government has jurisdiction over approximately 90 Indian reservations in which approximately 500,000 Indians reside. Large numbers of non-Indians also reside within these reservations. Law enforcement responsibilities are divided between the Department of the Interior and the Department of Justice. Within Interior, the Bureau of Indian Affairs, through its division of Law Enforcement Services, provides police and other law enforcement personnel for most of the Indian reservations which are within federal jurisdiction. A number of tribes provide their own tribal police. Within Justice, the FBI investigates major crimes and other federal crimes which occur on Indian reservations, and the U.S. attorneys prosecute those crimes. In addition to the federal government and the tribes, states have limited jurisdiction, on reservations subject to P.L. 83-280, which varies from reservation to reservation and state to state.

The Department's criminal responsibilities on Indian reservations are broad and varied. 18 U.S.c. Section 1152 extends federal enclave law to Indian reservations and includes the Assimilative Crimes Act, 18 U.S.C. Section 13 which assimilates state law and applies it to federal enclaves in cases where there is no similar federally defined offense. The Major Crimes Act, 18 U.S.C. Section 1153, grants jurisdiction to the federal government for the enforcement of 13 major felonies. The United States must also enforce laws protecting Indian hunting and fishing rights as well as laws prohibiting fraud and embezzlement by tribal officials. In addition, certain alcohol prohibition statutes are to be enforced by the United States.

A brief discussion of the Department's responsibilities in law enforcement was held at the annual U.S. Attorneys Conference in October, 1974. As a result of the broad range of questions, comments, and problems which surfaced at that meeting, the task force organized a conference for those U.S. attorneys who have significant Indian populations in their districts to discuss issues of

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reservation law enforcement. The three day
conference was held in Phoenix in January, 1975,
and was attended by approximately 25% of the U.S.
attorneys (23) and select assistant U.S. attorneys.
In addition, representatives of relevant units of
the Department of Justice, the Department of the
Interior, Indian tribal leadership, and reservation
police attended. The law enforcement section of
this report is based on that conference (see agenda
and questionnaires attached at Tab C) as well as on
extensive follow-up with the BIA, FBI, U.S. attorneys,
Solicitor and Secretary of the Interior, tribal
leaders, OMB, LEAA, Civil Rights and Criminal
divisions, and national. Indian organizations.

Law enforcement on most Indian reservations

is in serious trouble. Reservation crime statistics
are an indication of the severity of the problem.
The major crimes rate is 50% higher on Indian reserva-
tions than it is in rural America as a whole. The
violent crime rate on Indian reservations is, eight
times the rural rate although the property crime
rate is about half of the rural rate. The murder
rate among Indians is three times that in rural
areas while the assault rate is nine times as high.
The number of cases brought under the Major Crimes
Act, has risen nearly 30% in the past year.23/ The
percentage of unreported crime is higher on reserva-
tions than elsewhere suggesting that the actual
situation is worse than the statistics portray.

Citizen lack of confidence in the reservation law enforcement system is widespread. Residents of several reservations believe there has been a complete breakdown of law and order. They are cynical about the willingness and ability of the government to protect persons and property. In many cases, no effort is made to report crime because of the feeling that nothing would be done. Self-help is common among both Indians and non-Indians. Indian self-help receives

23/ During FY 73, the number of defendants against whom federal court actions were initiated under 18 U.S.c. 61153 totaled 404. During FY 74, the number of defendants against whom court actions were initiated under U.S.C. §1153 was 520, an increase of 28.7%.

support from Indian traditions. Relatives of crime victims often take retributive action which merely precipitates further violence.

The reservation law enforcement issue has suffered inattention and neglect. The problem is one of major proportion crossing many bureaucratic and jurisdictional boundaries. It is particularly embarrassing that the present problem exists in an area of primarily federal responsibility. This is not a situation where the federal government serves as a model for other law enforcement efforts.

Two factors are fundamental to understanding the difficulties involved in meeting the problem of crime on reservations. First is the isolation of the reservation areas in which Indians live, and the great distances involved. Second is the prevalence of alcoholism on reservations and the central role it plays in the incidence of violent crime.

Indian reservations encompass enormous geographic areas where the population is sparse and scattered rather than conveniently gathered in cities or towns. The Navajo reservation, for instance, spreads into four states containing roughly 16 million acres in total area and 136,000 people. More common, however, are reservations of 1-2 million acres supporting a population of 500 - 2,000 people. It is not uncommon for several hours to elapse between the time a crime is committed and the time a law enforcement officer arrives at the scene by car. Providing effective law enforcement services under these circumstances is very difficult.

Criminal conduct on Indian reservations is almost always alcohol related. 24/ Prosecutors and investigators alike find it difficult to remember a case wherein the

24/

Alcohol was not permitted on reservations prior to
1953. In that year the statute was changed to
provide a local option system. See 18 U.S.C. §1161.
While public drunkenness is punishable by most tribal
law and order codes, possession of alcohol carries
greater penalties, a vestige of the pre-1953 era.
Thus there is an incentive to consume the supply
at hand quickly. While alcoholism is recognized
by most Indians to be a serious problem which they
would like to erase, drinking and drunkenness is
also a mark of bravado and manliness among peer
groups and is therefore socially reinforced.

facts do not include heavy drinking as a contributing
circumstance.25/ Eliminating the problem of alcoholism
on the reservation would, according to those most
familiar with reservation life, eliminate the extra-
ordinary crime rate. However, the abuse of alcohol
is a symptom of other problems such as social maladjust-
ment, low self-esteem, and economic deprivation
resulting from inadequate education and employment.
It is a classic example of the vicious cycle which
afflicts the impoverished community.26/

It is not within the mission or the potential of the criminal justice system on Indian reservations to solve these serious social problems. What the system should provide, however, is the atmosphere of safety, stability, and fairness which is a necessary prerequisite for dealing with the more fundamental problems which confront American Indians. It is to that end we have attempted to examine the areas of Justice Department responsibility concerning the Indian criminal justice system and to assess our performance of those responsibilities.

Four law enforcement agencies provide services to Indian reservations: FBI, BIA police, tribal police, and state police. 27/ The law enforcement component of the reservation criminal justice system mirrors the generally confused and complex status of jurisdiction over Indian reservations.

25/

26

It has been estimated that about 90% of Indian
reservation crimes are alcohol related as compared
with a national average of 60% for non-reservation
crimes.

The 1970 census showed the average per capita income of American Indians to be $1,573 with rural Indians at $1,140. 1973 unemployment figures set reservation unemployment at 37% with an additional 18% in seasonal or temporary jobs. The school drop-out rate for Indian students is high. The most recent studies, completed in the 1960's, showed a high school drop-out rate of 42 27/ U.S. National Park Service provides police service on one Indian reservation, i.e., Miccosukee tribe of Flori

Most Indian reservations receive totally inadequate police services given their size and extraordinarily high rate of crime.28/ Criticism of reservation law enforcement is particularly acute with respect to the role of the federal government. Responsibility for providing law enforcement services to Indian reservations exists by virtue of the federal "trust" responsibility29/, and the general duty to enforce federal law.

a. Role of State Police

State police play a nominal role in law enforcement on most reservations. Except in states which have acquired jurisdiction pursuant to Public Law 280 30/, state jurisdiction is limited to reservation crimes where both the offender and the victim are non-Indian 31/. Tribes have traditionally been hostile to state jurisdiction, which they regard as an encroachment on tribal sovereignty. Consequently, most tribes have opposed any effort to provide a state law enforcement presence on the reservation.

A number of tribes have arrangements with state police to patrol state highways crossing the reservation. The normal practice is to cite Indians into tribal courts and non-Indians into state courts.

28/

29/

30/

31/

Unlike the crime profile elsewhere, the great majority
of crimes committed on Indian reservations are violent
in nature, are alcohol related, and are "solved"
through arrest or identification of the offender.
The FBI reports that nationally 20 percent of
reported crimes are cleared by arrest or identifica-
tion of the offender. On Indian reservations, the
figure is in excess of 80 percent.

See generally, Chambers, "Judicial Enforcement of
the Federal Trust Responsibility to Indians," 27
Stanford L. Rev. 1213 (1975).

Act of August 15, 1953, Ch. 505, 67 Stat. 588 codified in part at 18 U.S.C. Section 1162 (1970) and 28 U.S.c. Section 1360 (1970).

Sce U.S. ▾ McBratney, 104 U.S. 621 (1882); New York ex rel Ray v. Martin, 326 U.S. 496 (1946).