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A Supreme Court decision with dangerous consequences for public safety

1/9/2012 4:29:25 PM

 

By CAROLE GOLDBERG BismarckTribune.com | Posted: Monday, January 9, 2012 2:00 am

A respected legal scholar once described the federal judiciary as "the least dangerous branch" of government, because it lacks the power to mobilize militias, and must draw its authority from the persuasive power of its decisions. Yet in 2009, when the U.S. Supreme Court decided that the secretary of the Interior did not have the ability to take land into trust for all recognized tribes, the court did something very dangerous indeed. First, it undermined its own authority by adopting a flawed legal interpretation that reversed 75 years of Interior Department policy and practice allowing land to be taken into trust. Second, it blurred jurisdictional lines in tribal communities, creating confusion for law enforcement authorities and making it possible for guilty offenders to go free.

The Carcieri decision interpreted the Indian Reorganization Act of 1934, which authorizes the Interior secretary to take lands into trust for Indian tribes, as limited to tribes that were "under federal jurisdiction" when the IRA was enacted. No comprehensive list of federally recognized tribes was ever created prior to enactment of the IRA, and no standard criteria for determining whether to recognize a tribe existed at that time. So it is extremely unlikely that Congress would have intended the IRA to be interpreted to require formal federal recognition as of 1934.

Unfortunately, the Supreme Court failed to consider the negative consequences that would be put in motion including public safety concerns stemming from the complex arrangement of tribal, state, and federal jurisdiction over criminal conduct on reservations and other lands known as "Indian country." Outside Indian country, states have most control over criminal offenses, with the federal government enforcing a limited number of criminal laws; but inside Indian country, the situation is radically different. Responsibility for nearly all general offenses, such as rape and child abuse, is allocated between the federal government and the tribes. Most states are limited to jurisdiction over crimes involving only non-Indians.

The bottom line is that the power to arrest and prosecute depends on the status of the land where the crime occurs or the criminal is caught as "Indian country" or not. For example, in most parts of the country, if a non-Indian assaults an Indian, the federal government is the sole authority with the power to prosecute if the crime occurred in Indian country, but the state is the sole authority with the power to prosecute if the crime occurred outside Indian country. In some tribal communities, trust land and non-trust land are interspersed, with boundaries not clearly marked.

By casting a pall of doubt on the legality of the trust status of lands already placed in trust over the past 75 years, Carcieri has made it impossible for federal, tribal, and state law enforcement and criminal justice officials to know whether they can act. If the authorities guess wrong about the location of the crime or criminal being in "Indian country," the courts are obliged to release the guilty.

The public safety crisis in tribal communities is already so serious that Carcieri makes an unnecessary and unwelcome addition to a litany of problems. According to a study by the Department of Justice, one-in-three women in Native communities will be sexually assaulted in their lifetime. According to a 2010 GAO Study, U.S. Attorneys decline to prosecute 67 percent of sexual abuse and related matters that occur in Indian country. The confusion stemming from the Carcieri decision has resulted in a sense of lawlessness and leaves Native women with few places to turn.

Already, questions regarding the status of trust lands and jurisdiction have led to threats of legal challenges. It is only a matter of time before criminal defendants seeking to avoid federal or tribal jurisdiction attempt to invoke Carcieri, negatively affecting public safety on reservations and neighboring communities across the country. These jurisdictional issues could give rise to individual suits, frivolous or not, which present challenges to sentencing on the basis of the status of the lands in question. These lawsuits would create a drain on law enforcement's energy and financial resources and would further hinder or delay justice from being served.

Last month, President Obama reaffirmed his commitment to working with Congress to restore the Interior Secretary's authority to take land into trust for all Indian tribes. It is time for Congress to act now - to restore the right to trust lands for Native peoples and to ensure that Native women and women in surrounding communities are not left in vulnerable positions due to legal system loopholes.

(Carole Goldberg was appointed in to the Indian Law and Order Commission in 2011by President Barack Obama and she a Jonathan D. Varat Distinguished Professor of Law at UCLA. Her views are her own and are not an official position of the Indian Law and Order Commission.)