4.6: Native Americans

What is Indian Country, and what is meant when the term Indian reservations and Indian nations is used? Whom do police in Indian Country serve? What does the typical police department in Indian Country look like (especially, who polices Indian Country)? And finally, what are the basics of the criminal justice system in Indian Country? This section sets the scene for the discussions that follow.

Pin It! What Is “Indian Country”?

“Indian Country” comprises the 56 million acres of land owned by Indian communities in the United States.1 According to the BIA (1998a) there are more than 330 federally recognized Indian tribes in the lower 48 United States. Nearly all tribes have reservations, which are lands the United States “reserved for” tribes in treaties, statutes, or executive orders during the Euro-American western expansion of the 18th, 19th, and 20th centuries (BIA 1998b). Most of Indian Country is located west of the Mississippi River, but it also includes a number of reservations belonging to tribes in the East. Overall, Indians live on reservations in 34 continental States, and all reservations have some form of policing arrangement (BIA 1998b; Bureau of the Census 1993).

Increasingly, tribes are referred to as “nations” to acknowledge their distinct political status vis-à-vis the U.S. Federal and State governments: Indian governments are not part of the Federal hierarchy but, instead, have a government-to-government relationship with the United States (Reno 1995). Under this arrangement, American Indians hold dual citizenship as citizens of both the United States and their Native nation. Because limitations on tribal authority do exist (for example, tribes do not float their own currencies or provide for their own defense), it may be more accurate to describe Indian nations as semi-sovereign, or “domestic dependent nations,” as Chief Justice Marshall did in Cherokee Nation v. Georgia (30 U.S. (5 Pet.)1(1831)). Yet, while tribes control a narrower scope of policy than do such nations as Germany and Brazil, they have significantly more scope for policy making than cities or even U.S. States. Indian nations adopt constitutions for their societies, write civil laws to regulate conduct and commerce within their territorial boundaries, and enforce those laws with their own judicial systems. In brief, modern tribes exercise substantial, but not complete, rights of self-determination and self-government.

Whom Do Police in Indian Country Serve?

In 1995, the BIA estimated a non-Alaska service population (the number of Natives living on or very near reservations) of 1.1 million. Other estimates are higher. Using data from the 1990 census and a historical growth factor, the Indian Health Service (1997) estimated a 1996 non-Alaska service population of more than 1.3 million, which would rise by more than 100,000 by the year 2000. These differences reflect difficulties in enumerating the reservation-based Indian population, the high birth rates that are typical on many reservations, and in some cases, in-migration.

Improved economic opportunities are the primary cause of in-migration in the Indian communities where it is occurring, but such positive economic changes are the exception rather than the rule. In particular, the perception that Native Americans are generally enjoying increased prosperity as a result of the growth of the gaming industry is mistaken. According to the Government Accounting Office (1997), almost half of all gaming revenues earned in 1995 were generated by only 8 of the 184 gaming tribes. Thus, despite new tribal opportunities and ventures, American Indians remain the poorest minority in the United States. Those living in reservation communities, commonly characterized by severe unemployment (sometimes reaching 80 to 90 percent) and the attendant social and economic symptoms of poverty, are the worst off of all.

Important education and health outcomes also are poor. For example, as of 1990, the high school completion rate among reservation-resident Natives age 25 and over was 54 percent; the national rate for all races was 78 percent (Bureau of the Census 1993, 312, table 7; 1998, 158, table 243). Rates of alcoholism among American Indians are extraordinarily high, and even higher than for other minorities, who are themselves at increased risk of alcohol abuse (see, for example, Greenfeld 1998). Consequently, the rates among Natives of alcohol-related health problems—chronic liver disease, cirrhosis, fetal alcohol syndrome—are much higher than for other population groups. Indexes of social dysfunction, such as suicide and homicide, are also much higher than for either the general population or other minority populations; for instance, the suicide rate is almost triple that of the general population (Indian Health Service 1997).

Even so, many Indian nations are experiencing significant counter trends. For example, through aggressive economic development and effective governance, unemployment among the Mississippi Choctaw fell from 80 percent in the early 1980s to virtually zero in 1996; average family income increased approximately seven-fold, to $22,000, during the same period (Bordewich 1996). The Gila River Indian Community was able to provide funding to more than 200 college students in the late 1990s, as opposed to only a handful earlier in the decade. This support will dramatically increase the percentage of community members who are recorded as college graduates in the next census.3 In sum, Indian Country comprises a striking variety of economic and social conditions and characteristics.

An important additional type of variation is the substantial cultural diversity found among American Indian communities. Although “American Indian” is a single race category on the U.S. Census, this grouping hides the fact that members of one tribe can be as different from members of another tribe as citizens of Greece are from citizens of Vietnam. Certainly, tribes’ geographic dispersion is one source of diversity. Peoples sharing similar natural surroundings developed somewhat similar cultures and related languages; tribal subgroups then refined the common culture in distinct ways, which gave rise to a wide variety of cultures throughout Indian Country.

One rough categorization of these differences separates the Indians of the continental United States into five cultural-geographic groups:

• Farmers of the eastern forests.
• Nomadic hunters of the plains and prairies.
• Farmers and herders of the Southwest.
• Seed gatherers of California.
• Ocean and river fishermen of the Northwest (Driver 1969; Waldman 1985).

Another method for classifying Native Americans’ cultural diversity is based on language. Early studies found more than 70 distinct linguistic families and isolates among some 250 North American Indian languages. However, with the extinction of some languages and reclassification of others, linguists now group most extant North American Indian languages into six primary families:

• Eskimo and Aleut (Far North).
• Algonquian (various tribes in the eastern forests, the Plains, and the Far West).
• Athabascan and related languages (the Mackenzie-Yukon Basin, the Navajos in the Southwest, and some West Coast peoples).
• Uto-Aztecan and related languages (the Great Basin and Rocky Mountains area, the Plains, and the majority of the Pueblos).
• Chinookan and related languages (several scattered Far Western tribes).
• Siouan and related languages (people in such disparate regions as the Northeast, the Southeast, the Plains, New Mexico, and northern California).

Languages within the six families display linguistic similarities, but in practice they are mutually unintelligible, a fact that reinforces cultural differences. Despite decades of suppression and English assimilation, Native language use may now be on the upswing.5 Thus, the extraordinary cultural variation among historical Indian nations is, and should continue to be, an important distinguishing factor among modern Indian nations.

Finally, the history and politics of place also contribute to distinct cultural identities. As reservations were created, members of several indigenous groups were sometimes assigned to one locality; conversely, members of some large indigenous groups were located on several land bases. Over time, the people of each reservation experienced unique struggles. These historical, geographical, and cultural-linguistic differences together support the proposition that the resident community of each of these 330-plus, unique “nations” is the most appropriate group to undertake policy making and problem solving.

Who Polices Indian Country?

The array of administrative arrangements for policing in Indian Country is complex (*see exhibit 1). Members of the police departments that serve reservation communities may be tribal, Federal, State, county, or municipal employees.

Tribal or Public Law 93–638 Policing

The most common administrative arrangement is for police departments to be organized under the auspices of the Indian Self-Determination and Education Assistance Act of 1975. Also known as Public Law 93–638 (PL 93–638), this law gives tribes the opportunity to assume responsibility for many programs previously administered by the Federal Government by contracting with the BIA (Canby 1998, 30–31). Thus, these police departments are administered by tribes under contract with the BIA Division of Law Enforcement Services. Typically, a 638 contract establishes the department’s organizational framework and performance standards and provides basic funding for the police function. Officers and nonsworn staff of 638 contract departments are tribal employees.

Tribes have used the Self-Determination Act quite aggressively to acquire increased control of their police departments. In 1995, for example, 88 departments (nearly half of the non-Public Law 83–280 tribes) were administered under the auspices of PL 93–638. BIA Administration Departments administered by the BIA are the second most common type of police department in Indian Country. Staff in these departments are Federal employees and are part of a national, BIA employed hierarchy of law enforcement officers. For many years, patrol officers were under the line authority of the local BIA superintendent (each reservation has a BIA superintendent who oversees all or most BIA functions on that reservation), and criminal investigators were under the line authority of the BIA Division of Law Enforcement Services. Recent changes have placed line authority for patrol under the BIA Division of Law Enforcement Services as well. In 1995, 64 departments (slightly more than one third of the non-PL 83–280 tribes) were administered by the BIA.

Self-Governance Policing and Tribally Funded Departments

By far less common than the types described above, but significant nevertheless, are departments that receive funding under the auspices of the self-governance amendments to Public Law 93–638 and departments that receive complete funding from tribal coffers.

Like tribes with 638ed police departments, tribes with self-governance arrangements contract (except in this case, the terminology is to “compact”) with the BIA to assume responsibility for law enforcement services that might otherwise be performed by the BIA. The primary difference between contracting under PL 93–638 and compacting under its self-governance amendments is that financing is through a block grant, rather than as payment for budgeted line items. These contractual requirements and funding mechanisms grant tribes much more control over government functions than is permitted under 638 contracts. In 1995, 22 Indian police departments (approximately 12 percent of the non-PL 83–280 tribes) were administered through self-governance.

Although tribes achieve a high degree of organizational freedom through self-governance compacts, tribes that fully fund their own police departments gain near-complete tribal control of their law enforcement institutions. Given resource constraints in Indian Country, however, only four of the non-PL 83–280 tribes had tribe funded departments in 1995.

Public Law 83–280 Policing

A number of tribes rely on State and local authorities for police services under Public Law 83–280, 67 Stat. 588 (1953). This law, passed as part of a larger effort to “terminate” American Indian tribes, gave California, Minnesota, Nebraska, Oregon, Wisconsin, and (later) Alaska the power to enforce the same criminal laws within Indian Country as they did outside of Indian Country. The law also “provided that any other state could assume such jurisdiction by statute or state constitutional amendment,” and many did so (Canby 1998, 27; Barker 1998, 46–49). With the advent of the Federal policy of self-determination in the 1970s, some States retroceded policing responsibility back to tribes. Nonetheless, a significant number of Indian communities still rely on State and local police services, which usually are paid for by the surrounding, and generally larger, non-Indian community.

The number of tribes subject to policing through PL 83–280 is fairly static and relatively large (for example, it includes many of the more than 100 tribes in California). They have excluded them from this study, which focuses on tribes that either police themselves or have a present opportunity to do so. Often, PL 83–280 tribes have rather small populations or limited land bases, characteristics that make self-policing much more difficult. We agree with other researchers, however, that, despite these constraints, PL 83–280 tribes should have an opportunity to determine the policing arrangement that best serves their members (Goldberg and Singleton 1998). The complexity of these issues’ merits separate, comprehensive treatment.

Other Administrative Arrangements

To this already complicated picture, we must add several more possibilities. First, tribes can contract with the BIA for individual police functions. Therefore, some departments will have a tribal patrol function and a BIA criminal investigation function. Second, an increasing number of departments include both tribally employed and BIA employed patrol officers. The Community Oriented Policing Service (COPS) program6 is one driving force behind this mix. Its grants provide funding for new local-level officers, who cannot be Federal employees. Thus, tribes that receive COPS grants but have BIA-administered departments have had to hire officers under tribal auspices.

The Typical Department in Indian Country

Despite the complexity of administrative arrangements, it is possible to construct a rough portrait of the typical police department serving Indian Country. This sketch is a step toward developing a general understanding of the context of policing in Indian Country. The data for this portrait comes from the approximately 40 respondents to our survey of the 67 largest tribes (66 largest departments) located in the continental United States.

The typical department is administered either by the tribe through a 638 contract or by the BIA. It has 32 employees (of whom approximately 9 are civilians, 6 are detention officers, 16 are police officers, and 1 to 3 are command staff). Given the around-the-clock nature of policing, the numbers imply that the typical department has only a few officers on duty at any one time. The sworn officers are high school graduates and graduates of certified law enforcement training academies. A slight majority are Native American.

The typical department polices a reservation land area of 500,000 acres and serves approximately 10,000 tribal members. Therefore, the typical setting is a large land area with a relatively small population patrolled by a small number of police officers, and the superficial description is of a rural environment with rural-style policing. In fact, substantial numbers of reservation residents live in fairly dense communities that share attributes of suburban and urban areas. Nonetheless, the figures are roughly equivalent to an area the size of Delaware, but with a population of only 10,000 that is patrolled by no more than three police officers (and as few as one officer) at any one time— a level of police coverage that is much lower than in other urban and rural areas of the country.

The typical department has an operating budget of approximately $1 million per year, which also is less than its rural counterparts and much less than the typical urban police department. In keeping with this limited resource base, the facilities and equipment that support such a department are generally old: The department typically is housed in a building that is 20 or more years old and relies on a vehicle fleet that is at least 3 years old.

The Criminal Justice System in Indian Country

The components of the criminal justice system in Indian Country are similar to those of non-Indian communities throughout the country. The primary components are the judiciary, the prosecutorial and defense bars, the correctional system (including probation), and the police. However, the complex jurisdictional arrangements in Indian Country mean that for nearly every serious crime, the U.S. Attorney and the Federal Bureau of Investigation (FBI) have potential jurisdiction. This is markedly different from the situation in non-Indian communities: On reservations, Federal agencies play a potentially broad role in the operation of what is essentially a local criminal justice system.

Although the arrangements may vary from reservation to reservation, three factors always come into play in determining criminal jurisdiction in Indian Country. These factors tend to narrow tribal jurisdiction and expand either State or Federal jurisdiction over a wide range of crimes:

• Where the crime was committed. Only crimes committed in Indian Country, on trust land, fall under the jurisdiction of tribes. All crimes committed outside of Indian Country, even if they involve American Indians, fall under State or Federal jurisdiction.
• Who committed the crime (Indian or nonIndian). For tribal jurisdiction, the alleged offender must be an American Indian. Sometimes, however, even Indians who are not members of the tribe on whose reservation the crime occurred may be exempt from that tribe’s jurisdiction. Regardless of the nature of the crime or the location in which it occurred, non-Indians are not under the criminal jurisdiction of tribes.
• What crime was committed. As a result of the Major Crimes Act of 1885 (18 U.S.C.A. §1153) and the Indian Civil Rights Act of 1968 (25 U.S.C.A. §1302(7)), tribes have jurisdiction only over less serious crimes. Most serious crimes— including murder, manslaughter, arson, burglary, and robbery—fall under the jurisdiction of Federal authorities. However, some tribes have found ways to exercise increased authority over the investigation and adjudication of more serious crimes.8

Other attributes of the criminal justice system in Indian Country that often are highlighted by experts in the field and are relevant to this discussion include the following:

• Like police departments in Indian Country, other Indian Country criminal justice agencies suffer from major resource constraints (see Odum 1991).
• Indian Country has a greater representation of nonprofessionals in the judiciary and the prosecution and defense bars than non-Indian communities do (see Melton 1998).
• Indian Country has a severe shortage of jail space and correctional treatment programs, particularly with regard to substance abuse (Office of the Inspector General 1996).