Opinion: State jurisdiction in Indian Country

"Criminal justice in Indian country comes in two distinct flavors - one blends federal and tribal authority, while the other blends state and tribal authority. Reservations across the country are subject to one or the other. But crime reports and most federal hearings on Indian country criminal justice focus only on the federal/tribal reservations. That's a mistake, because the state/tribal reservations encompass nearly one-quarter of the reservation-based tribal population and just over half the tribes in the lower 48 states, not to mention all Alaska Native villages. Any response to crime in Indian country needs to take account of the special problems posed by state jurisdiction.

A logical question to ask at this point is why some reservations are covered by state criminal jurisdiction and others are not. The federal termination policy of the 1950s holds the answer. Under principles of federal Indian law dating back to the 1830s, states have no authority over reservation-based crimes committed by or against Indians. That general rule is subject to one big exception, however. Congress can give states criminal jurisdiction that they would otherwise lack. In the post-World War II years, the federal government was pushing a policy of forced assimilation of Indian people, partly to save the federal government money that it was spending on its trust responsibilities, including criminal justice. Some tribes were slated for full termination - loss of federal recognition, federal services and federal trust status for their lands. Other tribes were targeted for state criminal and civil jurisdiction as a stepping stone to later termination.

To rationalize the empowerment of states, Department of Interior officials stirred up fears of ''lawlessness'' in Indian country. Even if those charges were true, state jurisdiction wasn't the only solution to the problem. Congress could have given greater support to tribal police and justice systems. But in the heyday of termination policy, that alternative had no legs."

Get the Story:
Carole Goldberg: State jurisdiction overlooked problem in criminal justice debate (Indian Country Today 7/13)

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