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Federal prosecutor seeks to change 'national shame'
Monday, April 19, 2004

A top federal prosecutor on Friday called for a major overhaul of the criminal law enforcement system in Indian Country, labeling it a "national shame."

Thomas B. Heffelfinger, the U.S. Attorney for the state of Minnesota, said statistics show that American Indians and Alaska Natives are the victims of violent crime more than the any other group in the country. "You can take every crime -- child abuse, sexual assault, homicide, assault -- and that is true," he said.

But it was a question posed by a tribal leader at a recent National Congress of American Indians meeting on jurisdiction that drove the point home, he said. "How can tribes have sovereignty when they can't protect their women and their children?" Heffelfinger recalled

Speaking at the Federal Bar Association's annual Indian law conference in Albuquerque, New Mexico, Heffelfinger said the current system of law enforcement "is taking the leaders of our national tribes, making them victims of crime and sending them to prison."

"This is a tragedy," he told attendees, mostly lawyers and scholars in the Indian legal field.

Heffelfinger, who chairs the Native American Issues sub-committee for the Department of Justice, said a solution to "this national shame" can be found in an overhaul of the federal laws and practices affecting criminal jurisdiction in Indian Country. "If we are going to fulfill our duties ... to protect the people, we must clarify and simplify Indian Country criminal jurisdiction," he said. "Right now, nobody understands it."

Pointing to extremely high rates of domestic violence and other violent crimes, tribal leaders have launched their own initiative to clean up the system. Part of the solution, they believe, lies in the restoration of tribal jurisdiction over non-Indians. A bill pending in the Senate would recognize tribal authority for purposes of homeland security.

But the Bush administration opposes this part of the measure, sponsored by Sen. Daniel Inouye (D-Hawaii). Heffelfinger testified at a hearing last July that the tribal authority section poses a host of constitutional and other problems.

Heffelfinger referred only briefly to his testimony on the bill but presented the overhaul as a viable alternative to it. He said that all issues would be on the table, including whether prosecution of offenders should be based on race.

"Why is race an issue?" he asked. "I'm still trying to figure out what is the benefit to Native Americans by requiring race [as an element to prosecution]." According to government statistics, nearly 70 percent of Indian victims were victimized by a person of another race.

Heffelfinger said the initiative, based out of the Office of Tribal Justice within DOJ, was a "high priority" for the administration. He said it would not focus on civil jurisdiction or civil regulatory issues. He also said it would "respect" tribal sovereignty.

Inouye's homeland security bill has stalled amid questions that it broadens tribal jurisdiction over people who have no voice in tribal government. Heffelfinger said Inouye and staff on the Senate Indian Affairs Committee, as well as staff from the House side, have been involved in his talks.

The administration is only starting to seek Indian Country's involvement. Heffelfinger met with NCAI President Tex Hall and other tribal leaders at the March meeting, where he promised to consult as the effort moves along.

NCAI plans to meet with Heffelfinger after the Supreme Court rules on the U.S. v. Lara case. Depending on how the justices interpret a key federal law, tribes could lose the ability to prosecute members of other tribes for crimes that occur on the reservation.

Depending on the nature of the offense, the federal government may not be able to prosecute either, Heffelfinger said on Friday. One example is Indian-on-Indian child neglect, a crime that is not "enumerated" under federal law.

Federal prosecution of Indian Country crimes only came into being in the mid-to-late 1800s when Congress, reacting to Supreme Court decisions leaving such matters up to tribes themselves, began to carve out offenses punishable under federal law. In the 1950s, Congress began to delegate federal authority to some states.

In the last 30 years, the Supreme Court carved out its own rules, first by barring tribal criminal jurisdiction over non-Indians. The ban was then extended to Indians who are members of another tribe. Congress reacted by passing a law, known as the Duro fix, to ensure tribes could continue to prosecute all Indians, regardless of tribal affiliation. The Lara case centers on the viability of the fix.

Relevant Links:
Office of Tribal Justice - http://www.usdoj.gov/otj
U.S. Attorney's Office, Minnesota - http://www.usdoj.gov/usao/mn