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Abstract This section describes the tribal justice systems operating in Indian communities and their ability to respond to Indian victimization issues. Also provided is a description of the unique relationship that Indian Nations have with the state and federal governments, which influences the operation of their tribal justice system and ability to respond to victim issues. The unique issues in providing adequate victim response and services encountered by tribal justice systems are also discussed. Learning Objectives Upon completion of this section, students will understand the following concepts:
Introduction In recent years, Indian Nations have been increasingly concerned with the rising number of violent crimes resulting in some type of victimization occurring in their communities. Violent crimes range from misdemeanor assault and battery; to serious criminal and delinquent offenses such as domestic violence, child abuse, aggravated assault and gang-related offenses; to violent felony crimes such as assault with a deadly weapon, drive-by shootings, sexual assaults, child sexual abuse, and homicides. While all the problems and issues victims face have not been clearly identified or examined, there are many indicators that validate the concerns of Indian Nation governments. A 1999 report on American Indians and Crime prepared by the Bureau of Justice Statistics (BJS) provides the following insights into victimization experienced by American Indians. The BJS data were derived from American Indian households throughout the U.S. in urban, rural, reservation, and off-reservation settings.
The above data provide an understanding of the magnitude of crime victimization problems faced by Indian people of all ages. Many Indian Nations have limited resources with which to adequately respond to the problems, identify the gaps in services to victims, and effectively hold offenders accountable for their actions and obligations to victims and the community. Victims of crime, and often their families and friends, undergo a traumatic experience and disruption in their lives as a result of the crime inflicted upon them. Sometimes the trauma is exacerbated by the way they are treated by tribal police and the tribal justice system, which may appear to victims to be uncaring and insensitive with little interest in addressing victims' needs for safety, protection, and justice. To effectively assist victims, it is crucial that they be in control of their healing and that tribal institutions, such as tribal courts, be visibly and affirmatively engaged in addressing victims' issues and needs. Historical and Jurisdictional Issues American Indian and Alaska Native justice exists in a jurisdictional maze as a result of fluctuating and confusing American Indian legislation and polices that have often strained the relationship between states and Indian Nations and with federal agencies. The establishment of the Court of Indian Offenses in 1883 and the unilateral imposition of law and order codes in 1884 significantly changed the structure of tribal justice systems from community controlled to government controlled systems. The Major Crimes Act, 18 U.S.C. § 1153 (1885, Supp. 1986), the Indian Country Crimes Act, 18 U.S.C. § 1152 (1817), the Assimilative Crimes Act, 30 STAT. 717 (1898), Public Law 83-280, Indians-Criminal Offenses and Civil Causes--State Jurisdiction, 18 U.S.C. § 1162, 25 U.S.C.§§ 1321-1326, 28 U.S.C.§ 1360 increased government control by ending exclusive tribal jurisdiction and allowing the federal government to have shared jurisdiction in certain crimes committed in Indian Country. Adding to the structural and jurisdictional changes, the Indian Civil Rights Act placed limitations on the power and authority of tribal courts by limiting their sentencing powers. Since the late 1800s these and other legislative acts and policies have contributed to the complexity of tribal jurisdiction and intergovernmental relationships. Federal court decisions have added to the complexity of legal policy by limiting the enforcement of tribal laws on Indian lands. For example in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, the Supreme Court ruled that Indian Nations lacked criminal jurisdiction over non-Indians committing crimes in Indian Country. A major problem created by the limitation on tribal criminal jurisdiction is that non-Indian misdemeanor crimes often go unpunished. Often U.S. Attorneys are reluctant to prosecute these cases because they want to concentrate resources on more serious crimes. Nonetheless, these are crimes that pose great potential harm, especially in those cases involving domestic violence or child physical abuse by a non-Indian perpetrator. The lack of federal prosecution may contribute to the high number of Indian people who are victimized by non-Indian perpetrators (BJS 1999). Partial solutions have included using the U.S. Magistrate Courts and appointing tribal prosecutors to serve as Special Assistant U.S. Attorneys to prosecute these cases as federal misdemeanor crimes. Indian Nations are reluctant, however, to use the U.S. Magistrate Court as a solution to the problem of non-Indian crime in Indian country. Tribal officials feel that their tribal laws need to be the ones applied instead of federal law because it is the Indian communities that have the greatest stake in correcting the problems. Instead of applying federal law, Indian leaders feel that tribal jurisdiction should be expanded to include, at a minimum, jurisdiction over non-Indian misdemeanor crimes and allow for tribal laws to be applied. The reluctance to expanding tribal jurisdiction over non-Indians is due to the perception that the protections provided by the U.S. Bill of Rights do not apply in tribal jurisdictions. While this is technically true, it is misleading because the Indian Civil Rights Act fundamentally includes all the protections covered under the U.S. Constitution. To understand the jurisdictional issues, the basic question that needs to be resolved in criminal and juvenile delinquency cases in Indian Country is "which mix or level of government assumes jurisdiction?" Depending on the identity of the victim(s), suspect(s), the seriousness of the offense, and the state in which the offense was committed, it can be a combination of the federal, states, or tribal governments. The answer involves the interrelationship of three factors:
The three major federal laws governing jurisdiction over crimes committed in Indian country are:
Summary Table of Criminal Jurisdiction in Indian Country
|
Tribal Jurisdiction | State Jurisdiction | |||
|---|---|---|---|---|---|
| Indian
Offender v. Indian Victim |
Major Crimes Act, the U.S. can prosecute 16 listed offenses. Among these, burglary, involuntary sodomy, and incest are defined and punished in accordance with the State law, all others are defined by federal statute. | Tribal courts may have concurrent jurisdiction over crimes under the Major Crimes Act. All other offenses, tribal courts have sole jurisdiction (except where federal statute specifically provides otherwise). | None, except under PL 280 as amended, or other federal statute or by tribal vote pursuant to 25 U.S.C.§1321. The tribe may retain concurrent jurisdiction. | ||
| Indian
Offender v. Non-Indian Victim |
Major Crimes Act
General Crimes Act Assimilative Crimes Act |
Tribal courts may have concurrent jurisdiction over crimes under the Major Crimes Act. They do have concurrent jurisdiction over offenses, which can be prosecuted by the U.S. under the General Crimes Act. Except for major crimes, tribes may preempt federal prosecution. For any other offenses, (as defined by tribal codes) tribal courts have exclusive jurisdiction. | Same as above. | ||
| Indian Offender
Victimless Crime |
The U.S. probably can prosecute under the General Crimes Act as explained above or Assimilative Crimes Act. | Same as above. | Same as above. | ||
| Non-Indian Offender v.
Indian Victim |
General Crimes Act, plus a substantive offense defined by federal statute or a substantive offense defined by state law incorporated by the Assimilative Crimes Act. | Tribal courts have no jurisdiction to prosecute non-Indians, unless Congress delegates such power to them. | Probably no state jurisdiction except under PL 280, as amended or with tribal consent pursuant to 25 U.S.C.§1321. | ||
| Non-Indian Offender v.
Non-Indian Victim |
No federal jurisdiction except for distinctly federal offenses. | Same as above. | State courts have jurisdiction over all offenses defined by state law and involving only non-Indians. | ||
| Non-Indian Offender
Victimless Crime |
General Crimes Act, plus a substantive offense defined by federal statute or a substantive offense defined by state law incorporated by the Assimilative Crimes Act. The law is still questionable whether federal jurisdiction is exclusive or concurrent with the state. | Same as above. | State courts probably have concurrent jurisdiction with the U.S., although the law is unclear. |
Table 1
(Adapted from the National Indian Justice Center Legal Series, Petaluma, CA.)
Structure of Tribal Justice Systems
The overall history, structure, and jurisdiction of American Indian justice systems have been greatly affected by the experience of Indian Nations with the federal government. As a result, tribal courts and victim response systems vary tremendously. Some Indian Nations have justice systems that mirror the structure of American courts, while others have retained their indigenous justice forums. Some tribal courts have developed separate court components such as traffic, civil, small claims, family, and juvenile court divisions. Most indigenous justice systems include victim-sensitive components in their structure. Recently, more of the American style tribal justice systems have developed support services such as victim-witness services, probation departments, correctional alternatives, and other programs to address the needs of victims and communities. Many Indian justice systems are enhancing victim services with policy and protocol revision and development.
While the demographic and socioeconomic profile of American Indians and Alaskan Natives may be similar to other ethnic groups within the United States, they differ from all these other groups in the unique relationship Indian Nations have with the federal government. In general, the administration of justice, law, and order is a governmental function in which the Indian Nations have always retained both their preconstitutional and extraconstitutional sovereignty.
Indian Nations continue to possess four key characteristics of their sovereign status:
Indian Nations retain the authority to determine the legal structure and forums to use in administering justice and to determine the relationship of the legal structure with other governing bodies. They also exercise personal jurisdiction over both member and nonmember Indians, territorial jurisdiction over their lands, and subject matter jurisdiction over such areas as criminal, juvenile, and civil matters. While limited by the Indian Civil Rights Act in sentencing, Indian Nations have concurrent jurisdiction over the felony crimes enumerated under the Major Crimes Act.
TRIBAL JUSTICE FORUMS
The impact of federal Indian policies, Supreme Court decisions, the historical trauma of conquest, colonization, and modernization explains the variations in tribal justice forums. Current tribal forums have in some way been affected by a combination of all these influences. As a result, Indian Nations have developed tribal courts that are hybrids borrowing and implementing different approaches to administering justice (Vicenti 1995). Since European contact, Indian Nations have struggled to retain their sovereign powers, especially in maintaining the type of forums they use to address the internal affairs of their people and communities. In part, Indian leaders continue the struggle to ensure thatIndian Nations provide justice that is meaningful to their people. In many tribal communities, dual justice systems exist, one based on an American paradigm of justice and the other based on an indigenous paradigm. Varying combinations of the following forums outlined in Table 2 may be used by Indian Nations: family and community forums, traditional courts, Court of Indian Offenses (also called CFR Courts) and tribal courts (Melton 1995).
Family forums. Elders or community leaders usually facilitate family forums such as family gatherings and talking circles. Problems typically involve interpersonal transactions such as family problems, marital conflicts, juvenile misconduct, violent or abusive behavior, parental misconduct, or property disputes. Customary laws, sanctions, and practices are used to resolve the problem(s). When the family forum cannot resolve a problem or conflict, the matter may be pursued through one of the more formal processes described below. Offender compliance is obligatory and monitored by the families involved. It is discretionary for decisions and agreements to be recorded in any formal manner by the family. Although family forums are the least official, they are the most inclusive and actively engage participants in discussing problems and fashioning solutions.
Community forums. Community forums require more formal protocols than family forums, but draw upon the families' willingness to discuss the issues, events, or accusations with tribal community members or tribal officials who may or may not be a part of their family. Some Indian Nations have citizen boards that provide peacemakers or facilitators (Red Lake Tribe 1994; "The Tribal Community Boards Peacemaking Project" 1985; "Akwesasne Community Peacemaking Process" 1993). These boards use customary laws, sanctions, and practices to guide the process. These types of forums are the most community-based in that they reach outside the immediate family, to relatives, friends, and other concerned citizens, in discussing problems, reaching solutions, and ensuring offender compliance as well as victim assistance, protection, and safety.
Traditional courts. Although traditional courts incorporate some modern judicial practices regarding criminal and juvenile matters, the process for handling cases is similar to the community forum. These courts exist in tribal communities that have retained an indigenous government structure such as the Southwest Pueblos. Cases are initiated through written criminal or civil complaints or petitions, but the justice process is indigenous. Family and relatives often accompany defendants to court appearances and hearings. Generally, anyone with a legitimate interest in the case is allowed to participate in the process from arraignment through sentencing. These proceedings are presided over by the heads of tribal government, such as the governor, lieutenant governors, or other appointed tribal officials, and are guided by customary laws and sanctions. Some Indian Nations have written criminal codes with prescribed sanctions. Offender compliance is mandated and monitored by the tribal officials with assistance from the families and relatives. Non-compliance by offenders may result in more punitive sanctions such as arrest and confinement. While there is more native-based formality in traditional courts, they continue to rely on immediate family, other relatives, and friends in exploring problems and developing appropriate solutions.
Courts of Indian Offenses. Also referred to as CFR (Code of Federal Regulations) Courts, Courts of Indian Offenses are federal courts. These courts have limited jurisdiction pursuant to Title 25, theCode of Federal Regulations. Only about a dozen of these courts are left, and they exist mostly in Indian communities with few resources.
Tribal courts. Tribal courts are judicial forums based on the Anglo-American legal model using written codes, rules, procedures, and guidelines. These courts handle criminal, civil, traffic, domestic relations, and juvenile matters. They are presided over primarily by lay judges who are from the community or another Indian community rather than by law-trained judges who may or may not be Native American. Some Indian Nations limit the types of cases that are handled by these courts. For instance, in several Pueblo communities land disputes are generally handled through the family and community forums. The tribal courts are courts of record and appellate systems are in place. Noncompliance by offenders may result in more punitive sanctions such as arrest and confinement. Several tribal courts use peacemaking principles to process cases, particularly in cases that involve youth.
Of all the tribal justice forums in Indian Nations, the most prevalent are tribal courts, which handle primarily misdemeanor cases (National American Indian Court Judges Association 1995). The bulk of these cases involve assaults, public intoxication, disorderly conduct, juvenile offenses, and traffic infractions. The remaining are civil actions involving domestic relations, property disputes, personal injury, contracts, and juvenile and family matters such as juvenile delinquency, child welfare, and child custody.
Tribal courts are generally in session five days a week with regular days set for arraignments, bench trials, juvenile and family hearings, and other civil hearings. Most defendants or plaintiffs represent themselves. Some courts have prosecutors and public defenders available to represent cases. Since the Indian Civil Rights Act does not require the Indian Nations to provide legal counsel, parties may hire their own legal counsel or advocates to represent them. Decisions by tribal judges are briefly written and in some cases oral. Some tribal courts keep trial records, but few keep complete transcripts.
Some tribal courts incorporate indigenous justice methods as an alternative resolution process for juvenile delinquency, child custody, victim-offender cases, and other types of civil matters. The trend of tribal courts has been to use the family and community forums for matters that are highly interpersonal, either as a diversion alternative, as part of sentencing, or for victim-offender mediation.
Tribal Justice Forums
Family and Community Forums |
Traditional Courts |
Courts of Indian Offenses |
Tribal Courts |
|---|---|---|---|
Established by unwritten customary law and traditions. |
Established by the tribal council and tribal religious leaders according to unwritten laws. |
Established by the Secretary of Interior under Title 25, Code of Federal Regulations. |
Established by the tribal council, usually under the authority of the tribe's Constitution. |
Subject only to authority of traditional clan systems and/or family elders, based on consensus of participants. |
Subject only to authority of Tribal council and religious leaders. |
Subject to authority of Tribal council and Interior Dept. Council may adopt ordinances or resolutions affecting CFR Court but Interior Dept must approve them. |
Subject to authority of Tribal council or Law and Order Committees. Tribal Constitutions may require Interior Dept approval of Council ordinances or resolutions affecting the Tribal Court. |
Procedures & offenses defined according to unwritten, customary laws, traditions & practices. |
Procedures & offenses defined according to unwritten, customary laws, traditions & practices. |
Procedures & offenses defined in Title 25, Code of Federal Regulations. Judges may develop Rules of Court for conduct of hearings and trials. |
Procedures & offenses defined by Tribal council in codes, ordinances, or resolutions. Tribal judges may develop Rules of Court for conduct of hearings and trials. |
Presided by family elders, chosen elders, or adults from the community, or traditional tribal officials |
Judges are Governors or chief executive officers of the Pueblo who serve without pay. They are appointed by the Pueblo council, which is composed of ex-Governors and tribal religious leaders. |
Judges are appointed by the Commissioner of Indian Affairs, subject to approval by the Tribal council, and are paid w/federal funds. |
Judges may be elected by the tribal membership or appointed by the Tribal council if paid by the tribe. |
Usually cannot be appealed, but matters may be pursued through formal tribal courts. |
Appeals of decisions by the Pueblo Governor are heard usually by the Pueblo Council. |
Appeals of CFR Court decisions may be heard by an appellate court composed of judges appointed under the Code of Federal Regulations. |
Appeals of Tribal court decisions may be heard by a tribal appellate court, composed of judges or by the tribal council. |
Table 2
Enhancing the Response to Crime Victims
There is a resurgence among Indian people to strengthen, re-image, and re-traditionalize their tribal justice systems. This stems from the discontent with the ability of American-styled tribal courts to address the crime, delinquency, victimization, and social and economic problems in tribal communities (Fairbanks 1991). Members of mainstream American society have joined this effort due to their own disillusionment with justice in this country and their own doubts in the retributive justice model. They are now moving towards a more balanced and restorative justice framework (Umbreit 1989; Van Ness 1990; and Zehr 1990). This restorative perspective is based on the values and assumptions that--
. . . All parties should be included in the response to crime-offenders, victims, and the community. Government and local communities should play complementary roles in that response. Accountability is based on offenders understanding the harm caused by their offense, accepting responsibility for that harm, and repairing it . . . restorative justice guides professionals in the appropriate and equitable use of sanctions to ensure that offenders make amends to victims and the community (Bazemore and Umbreit 1994).
Many supporters of restorative justice recognize that this approach to justice is an ancient philosophy that only gained its impetus in mainstream society in the 1970s and 1980s. It is now being promoted as a promising paradigm for criminal and juvenile justice, especially to deal with young offenders (Bazemore and Umbreit 1994).
In many Indian communities, tribal leaders, criminal and juvenile justice practitioners, and policy makers in collaboration with victim advocates are assessing the impact of violent crime and the tribal response to victim and witness needs. This self-assessment has caused many Indian people to revisit and rediscover their historical and traditional ways of dealing with crime and violence in their communities. It is important then to understand what promise lies in the indigenous justice paradigm that is different from the traditional criminal justice paradigm in mainstream society.
Indigenous Peacekeeping Systems
Indigenous peacekeeping systems involve a holistic approach that connects all the affected persons on a continuum of shared and balanced power and responsibility. They are based on customary laws, practices, and traditions that require the involvement of the individuals in conflict, their families, and when necessary, tribal officials. The processes used are non-adversarial and facilitate discussion between people in conflict in a safe environment that promotes resolution of underlying problems and keeping relationships intact. The methods used are based on restorative, distributive, and reparative justice concepts and principles of peace, healing, and living in harmony with all beings and with nature. This group approach contradicts the adversarial system, which is focused on the individual offender, and limits participation to strangers who have little to no investment in the individual offender, the victim, the community, or the relationships involved. The paradigm differences are outlined in Table 3.
RESTORATIVE JUSTICE
Restorative principles refer to the mending process for renewal of damaged personal, family, and communal relationships. The restorative aspects focus first on the victims' needs with a goal towards healing, renewing, and strengthening the victim's physical, emotional, mental, and spiritual well-being. This aspect prepares the victim to regain responsibility for their healing. This is done by strengthening their will to overcome the fear, anger, hurt, loss, and sorrow they may have undergone due to the violence they experienced. While the primary focus is on the victim's needs, it also involves deliberate acts by the wrongdoer/offender to regain his or her dignity and trust, and to return to a healthy physical, emotional, mental, and spiritual state of being. It is especially important for some victims who have strong personal relationships with the offender to believe that there will be some real change in him or her before they can trust the offender again.
REPARATIVE JUSTICE
Reparative principles refer to the process of making things right for oneself and those affected by the offender's wrongful behavior. To repair relationships, it is essential for the offender to make amends through apologizing, asking forgiveness, making restitution, and engaging in acts that demonstrate his or her sincerity to make things right. The communal aspect allows for crime to be viewed as a natural human error that requires corrective intervention by families and elders or tribal leaders. Thus, offenders remain an integral part of the community because of their important role in defining the boundaries of appropriate and inappropriate behavior and the consequences associated with misconduct and especially violent crime. It also reinforces the community to be responsible for taking the corrective actions necessary to redirect the offender and to provide assistance, protection, and safety for the victims and their families.
DISTRIBUTIVE JUSTICE
Distributive justice principles permeate the indigenous system because it includes everyone affected by a problem or conflict to participate in the process. The distributive aspect generalizes individual misconduct or violent criminal behavior to the family and relatives of the offender; hence, there is a wider sharing of blame and guilt. The offender and his or her relatives are held accountable and responsible for correcting behavior and repairing relationships (Melton 1989). The lack of correctional facilities for offenders or shelter for victims makes this an essential aspect because it engages family members and the community in providing support for compliance by offenders and protection for victims.
THE ROLE OF LAW FOR INDIAN COMMUNITIES
It is important for non-Indian policy makers and practitioners to understand the difference between Indian and non-Indian societies regarding their understanding of the role of "law" in Indian communities. For many Indian people law is a way of life, which makes law a living concept that one comes to know and understand through experience. Law as life is linked to the elaborate relationships that make up the communal lifestyle in many Indian communities. It is exemplified, in some Indian Nations, by the moiety and clan that are legal systems prescribing the individual and kin relationships of members and the duties and responsibilities that individual and group members have to one another and to the community. Inherent differences in world view, the role of family, and social interaction within and outside of one's community environment mandate awareness of culture as a factor in administering justice for Indian crime victims.
Differences in the Paradigms of Justice
American Justice Paradigm |
Indigenous Justice Paradigm |
|---|---|
Vertical. |
Holistic. |
Communication is rehearsed. |
Communication is fluid. |
English language is used. |
Native/tribal language is used. |
Written statutory law learned from rules and procedure, written record. |
Oral customary law learned as a way of life by example. |
Separation of powers. |
Law and justice are part of a whole. |
Separation of church and state. |
The spiritual realm is invoked in ceremonies and prayer. |
Adversarial and conflict oriented. |
Builds trusting relationships to promote resolution and healing. |
Argumentative. |
Talk and discussion is essential. |
Isolate behavior, freeze-frame acts. |
Reviews problem in its entirety, contributing factors are examined. |
Fragmented approach to process and solutions |
Comprehensive problem-solving. |
Time oriented process. |
No time limits on the process; long silences, patience are valued. |
Exclusive and limits participants in the process and solutions. |
Inclusive of all affected individuals in the process and solving problems. |
Representation by strangers. |
Representation by extended family members. |
Focus on individual rights. |
Focus on victim and communal rights. |
Punitive and removes offender. |
Corrective, offenders are accountable and responsible for change. |
Prescribed penalties by and for the state. |
Customary sanctions used to restore victim-offender relationship . |
Right of accused especially against self-incrimination. |
Obligation of accused to verbalize accountability. |
Vindication to society. |
Reparative obligation to victims and community, apology, and forgiveness. |
Table 3
© This chart represents differences noted by Ada Pecos Melton and Christine Zuni.
Although there have been many efforts to change the way tribal justices systems are structured and limit their jurisdiction, Indian Nations retain the authority to determine the legal structure and forums to use in administering justice and to determine the relationship of the legal structure with other governing bodies. Tribal justice systems are viable peacekeeping institutions that perform a vital function of government. These structures need to be respected and financially supported by the state and federal governments.
The Impact of Socioeconomic Factors upon Victimization
Social issues affect all American Indians and Alaskan Natives. The median income among Indian Nations is below the poverty level and unemployment exists at very high rates in Indian communities resulting in severe stress for families. Substance abuse is a major factor in many victim-related cases (BJS 1999). It not only disrupts the ability of tribal justice systems to provide victim services with proper care, it can also disrupt the intervention process by making communication with and cooperation by the family very difficult.
Indian societies have become increasingly modernized, straining the traditional ways of life that offered support systems and coping mechanisms. As Indian people become more and more removed from their traditions, they have become increasingly prone to abusive behaviors and victimization. Rates of victimization such as child abuse have increased (BJS 1999). Modernization has also meant that generations of children have lived and are living in institutional settings, isolated from their families and community support networks.
Indian families are large families because they are comprised of more than the mother, father, and children; the immediate family also includes grandparents, aunts, uncles, and cousins. The large Indian family can be an asset or a problem. The extended family has traditionally played an important role in Indian societies. Families can provide support and foster care, share responsibility for children, and pass on traditional values and ways of life. However, entire families may be rendered dysfunctional due to the generational effects of child maltreatment, substance abuse, and poverty. This can place victims at high risk for abuse and may also interfere with successful intervention and treatment. Often family members may protect a perpetrator and impede an investigation.
Every tribe is unique in its customs and traditions. What is socially correct in one tribal setting may be inappropriate in another. Each tribe has its own ceremonies, medicine, methods of conflict resolution, and ways of healing. These can be valuable tools for the intervention process and a source of great strength for victims and their families. Service providers must make a commitment to be aware of tribal history, traditional sanctions, myths, language, and medicine. This can help facilitate trust and communication between service providers and families.
Addressing Victimization Issues
Some of the unique issues Indian Nations face in providing safety to victims of crime include the lack of "safe houses" on the reservation where victims can receive shelter until (or if) the danger they face is subdued. On most reservations, everyone knows everyone else and where everyone lives; this lack of anonymity creates problems for victim safety and protection. Intrafamilial violence threatens the makeup of the large Indian family because it can set up conflicting relationships by pitting family and clan members against one another. Violent altercations within the family can create strain and friction that often requires intervention from resources outside the family. This type of intra-family and tribal violence places a burden on Indian Nations to develop innovative responses.
Some age groups are more susceptible to certain types of crimes. For example, elders and young children have been reported as easy targets of gang violence because they are not as able to protect themselves or are more likely to respond to the intimidation exhibited by gangs. Elderly citizens are more subject to gang violence, theft, and property crimes than young children, but youth are more likely to be intimidated by gangs and pressured to join them and to commit crimes once they join (Melton 1998).
Indian crime victims of domestic violence, child physical abuse, and child sexual abuse have had difficulty having their needs met (Indian Child Protection and Family Violence Act of 1990). The inadequate response to victims' needs includes lengthy law enforcement response to incidents, lengthy investigations, no prosecution or poor prosecution of cases, the lack of immediate medical attention and/or shelter care, and insensitivity to the cultural needs of victims and witnesses by federal, state, and tribal service providers.
Unique Victimization Issues in Indian Communities
Victimization issues in Native American communities need to be understood from historical, political, economical, environmental, and social perspectives. The impact of violence and victimization is not limited to individual victims but extends to families and communities. Violence and victimization issues are not limited to current problems. The impact of historical trauma and cultural oppression by the dominant society has greatly contributed to the social problems existing in Indian communities today, including the new crime phenomena presented by Indian gangs, sex offenders and the escalation of violence against women. Acknowledgment of the historical experiences of Indian Nations is an important factor in understanding how social problems occur and how they can be addressed in tribal communities.
The following issues have been consolidated from various focus groups conducted with Indian and non-Indian criminal and juvenile justice practitioners, policymakers, and citizens by American Indian Development Associates from January 1997 to December 1998. It provides a perspective of the range of issues that Indian justice systems must address to effectively meet the needs of Indian crime victims.
ISSUES AFFECTING INDIAN VICTIMS
Limited resources for victims. Most Indian communities are rural and geographically isolated, which limit the resources that come into the community or that can be provided by the tribal government. Generally victims live in the same community as the offender or perpetrator and are limited in their willingness and/or ability to relocate within or outside their tribal community. Many victims lack financial and family resources to leave their tribal community. Elderly victims are especially reluctant to leave. Fear of being asked to leave their home prevents some elderly from seeking or asking for victim assistance; hence they are silent victims. Victims' rights are compromised when victims are the ones who are removed from their community or are coerced to leave for safety and protection rather than the perpetrator. This contributes to the lack of confidence in the tribal response systems to providepublic safety and protection to its citizens who are victimized. As a result, tribal citizens alienate themselves due to the fear that their needs cannot be met on the reservation.
Poor law enforcement services diminish victim confidence in the system. There is greater victim trauma and injury due to the lengthy police response time. Inadequate financial support for law enforcement services in Indian communities inhibits timely police response to crime and provision of adequate assistance, protection, and safety to victims. Many Indian Nations do not have 911 emergency response numbers available. These conditions weaken the effectiveness of responses. As a result, witnesses and victims are often reluctant to talk because there is time and opportunity for intimidation to occur from the perpetrator. All of these conditions inhibit a response to the victim's need for mental and emotional health, safety, protection, and medical attention.
Limited training for service providers. Often tribal police, social services, probation, and other court-related service providers are not adequately trained in victim response, and therefore are limited in their ability to identify the specific needs and to provide adequate assistance to victims. Strained budgets limit the ability to provide ongoing specialized training in such areas as sexual assault, child abuse, gang violence, intimidation, etc.
Lack of system reliability. Victims often do not have confidence in the tribal system response system due to the lack of infrastructure, such as protection codes, adequate staff, facilities to hold offenders, or capacity to provide safe havens or shelters for victims. This lack of confidence continually prevents victims from seeking help. As a result, many suffer in silence and remain victims. System reliability is further hindered by the lack of coordinated approaches and responses among the various tribal, state, and federal governments that can become involved in victim-related cases. There is minimal communication between victims and the various tribal, state, and federal representatives who can become involved in a case. This decreases victims' confidence that their cases will be handled properly or that there is a safe way for them to confront the offender(s) and assert their rights.
Often victims fall between the cracks because they are unsure of which level of government they need to contact to receive assistance. Victims are generally uninformed about the judicial process and do not know where to go for assistance or protection either within the tribal community or from outside agencies. Families are often uninformed about how cases are proceeding regarding the victims and/or the offender. Families of victims often do not know how to assert their needs or how to make inquiries to support them in helping a family member who is a victim.
ISSUES AFFECTING INDIAN FAMILIES
Influence from the dominant society. Influence from non-Indian cultures, lifestyles, and negative peer influence has diminished the authority of parents to discipline their children, provide guidance, and instill the cultural values, lifestyle, and traditions of their tribal communities. There has been a breakdown of the extended family due to the increased mobility of tribal members. Historical government polices designed to assimilate Indian Nations through the reservation system, termination policies, boarding schools, and relocation programs have been more harmful and damaging to the extended family and communal lifestyle of Indian people. All these governmental policies have contributed to the lack of heritage identification that affects Indian people today.
New crime phenomena. The infiltration of gangs into the Indian community has threatened the fabric that constitutes family strengths, extended family relations, and cultural values that keep them together. Parents do not understand the gang's control of their children, how to regain their leadership and authority status over their children, how to prevent them from joining gangs, or how to protect them from gang violence. A dominant society highly values the pursuit of individual happiness and success while Indian communities highly value and depend on communal harmony over individual rights. The lack of clear cultural values from the home contributes to low self-esteem and increases negative Indian identities to be developed by youth, which make them more vulnerable to join gangs and become engaged in acts of violence. These have all increased the incidence of family disruption and intrafamilial violence by youth and weakened the extended family.
ISSUES AFFECTING INDIAN TRIBAL COMMUNITIES
Lack of education and awareness. Indian Nations have been taken by surprise by the occurrence of different types of violent crime in their communities and are therefore unprepared to respond effectively. This surprise factor has caused some Indian Nations to minimize the violence, making it appear that they have a tolerance for crime and violence. The lack of information about violent crime and victim assistance issues contributes to community apathy.
Lack of community involvement. Community input and participation are essential components to successfully implement strategies for preventing and intervening in violent behavior and providing the needed services to victims. Without a concerted effort to mobilize the tribal community into action as a partner in combating violence, any tribal system response will have difficulty in achieving its goals to impose sanctions, rehabilitate offenders, assist victims and their families, and provide public safety.
Lack of leadership. Victims and tribal citizens need to demand accountability by tribal leaders to address problems of crime and violence in their community. It is essential for tribal leaders to demonstrate a committed concern for victims' rights and needs and to provide leadership in institutionalizing victim assistance programs. Tribal leaders need to model zero tolerance for violence in their own lives and in their community.
Prejudice. Prejudices from within the tribal community can impede services to victims. Often the close-knit nature of tribal communities can create even more negative experiences for individuals or families because of their status in the community. Some victims may come from families with highly visible social problems, i.e., alcoholism or other substance abuse, domestic violence, unemployment, divorce, etc., or they may come from another tribal or nontribal community. Biases may arise because of power imbalances between the victim and the offender or when the offender receives more support than the victim does.
Prejudice is also an issue when Indian people must rely on non-Indian resources. Often Indian victims are refused services because non-Indian agencies have the perception that all "Indian problems" are the responsibility of the Bureau of Indian Affairs or Indian Health Service. These kinds of attitudes by non-Indian agencies and service providers limit the resources Indian victims can access.
Geographic isolation. The rural nature and geographic isolation of many Indian Nations strain resources and limit the influx of new resources. Depressed tribal economies limit opportunities for employment and thus restrict the tax base needed to acquire the financial resources to provide needed services to its members.
ISSUES AFFECTING TRIBAL RESPONSE SYSTEMS
Limited options for violent offenders. Tribal justice and law and order systems are hindered by the lack of sentencing alternatives to handle violent offenders. Sentencing alternatives involving incarceration and other programmatic alternatives are not possible because most Indian Nations do not operate or have access to detention or correctional facilities, and many do not have operational probation and aftercare programs. This makes it difficult to impose immediate sanctions upon violent offenders and provide safety and protection to victims. The lack of resources and alternatives makes it difficult to hold offenders accountable to their victims, for victims to feel safe, for the community to feel empowered, and for tribal leaders to feel confident in their ability to address violent crime and take care of their citizens.
Furthermore, judicial powers are compromised by the sentencing limitations of the Indian Civil Rights Act, which limits tribal courts sentencing authority to a one-year jail term and/or up to $5,000 fine. The sentencing limitations make it difficult for the tribal court to impose penalties that are commensurate to the severity of violent crimes committed. Serious violent offenders are not deterred from future criminal behavior by the sentence.
Lack of communication, coordination, and collaboration. A general lack of communication between internal and external agencies during all phases of case processing hinders the ability to track and monitor offenders and to provide victims with notification of case proceedings, status, and outcomes. Communication among victims, their families, the community, the tribal government, and other governmental and nongovernmental agencies needs to be established. For example, acts of violence committed by gangs in public schools are often handled by the school system independent of any input or participation from tribal justice systems. This is a lost opportunity for Indian Nations tobecome involved in cases at the earliest point of intervention when problems can be contained, violence can be averted, and students can remain in school. This same situation occurs when a felony is committed, and prosecution occurs in the federal courts. The tribe and victim are often left out of the process, which makes it difficult for the tribe to stay involved and be a resource to the victim. Coordination and collaboration of efforts to address violence-related problems are essential for all levels of tribal, state, and federal agencies.
Little support for local solutions to local problems. Support for Indian Nations is weakened by the image or belief by insiders and outsiders that Indian people cannot handle their own problems. This promotes the idea that solutions and model programs need to be imported to deal with tribal problems that are similar to problems in mainstream society. While problems may be similar, the approaches to solving them need to be designed within the realities of the tribal context. Indian Nations need to view problems from their perspective and receive support for the solutions they design to address problems. The lack of infrastructure makes Indian Nations more prone to accept programs and services or model codes that are designed by criminal justice experts outside Indian country. Often these imported programs are experimental, causing Indian people to feel as though their community is being used as a laboratory by social scientists or technical assistance providers who have nothing invested in the community but rather are pursuing their own interests. Only programs that are germane to the needs of Indian communities should be supported by governmental and nongovernmental agencies.
Limited infrastructure development. The limited infrastructure of tribal response systems in courts, law enforcement, social services, health, and education impedes the ability to adequately address victims' concerns and needs. The basic need to build infrastructure such as codes, facilities, basic training, and funding, hinders the development and implementation of promising or innovative victim assistance programs. Laws, policies, procedures, and protocols that protect the community from violence need to be developed and implemented. Clear definitions or criteria about what defines a violent crime are not uniform across tribal communities and jurisdictions. The lack of statutes, clear policies, guidelines, and definitions makes it difficult to distinguish victim-related crime from other types of crime and to understand the unique needs of victims. This impedes the ability to plan and develop appropriate programs and services to address the specific needs of crime victims. Unclear definitions make it harder to collect accurate statistics and to determine the prevalence of crime, delinquency, magnitude of violent crimes, and type of crimes being committed against victims.
Limited financial resources and direct funding streams. Depressed tribal economies make it difficult for tribal governments to fund their own programs and crime initiatives without substantial state and federal assistance. Many Indian Nations lack a sufficient tax base or profit-making tribal enterprises that they can tax for financial capital to support government programs. Indian Nations do not receive direct federal formula grant monies as are given to states. Instead they are required to go through the state to access federal funds targeted for different initiatives to combat crime and violence or to provide victim assistance. This situation compromises the government-to-government relationship the Indian Nations have with the federal government and treats them as a local unit of state government,conflicting with their status as Indian Nations. This political issue takes attention away from victims' issues and hinders the response to their needs.
Lack of long-term and comprehensive solutions. Violent crime often creates long-term trauma and injury to victims and their families. Without any long-term service and advocacy programs for victims within their tribal community, victims' ability to heal physically, emotionally, mentally, and spiritually are lessened and in some cases the trauma is increased and prolonged. Long-term services are lacking in most tribal communities due to economics and the tribe's geographic location. The lack of resources and facilities on tribal lands challenges tribal systems to develop and provide a range of services which adequately address offender accountability and rehabilitation as well as to develop and provide a spectrum of services and resources to address the needs of victims and their families.
Jurisdictional conflicts. Due to overlapping jurisdictions, Native Americans are subject to tribal, state, and federal criminal jurisdiction. Often there is no communication to the tribe and to victims when a violent offense occurs off tribal lands. There should be accountability at all levels. Indian offenders and victims are often subject to the "assembly line justice" practiced in mainstream law and order systems that are insensitive to their needs, particularly those relating to their culture. Assembly line justice is often based on prescribed penalties that limit opportunities for special attention to be given to the cultural or individual needs of offenders, victims, or the tribal community by non-Indian law and order systems. There is usually no time for special care or a personal touch to be provided to victims. As a result, victim trauma is increased.
Dependence on external processes and authorities. Services to victims are delayed when tribal prosecution of cases is delayed to await the outcome of federal prosecution. Services to victims should not depend on the outcome of cases in either tribal or federal court. Threshold requirements of when assistance can be provided by different federal agencies should be lowered in order to acquire assistance from the U.S. Attorney, FBI, and BIA for investigation and prosecution of cases and accessing victim assistance. Tribal investigation and prosecution of cases are hampered by the reluctance of federal agents to share information about their investigative findings when federal prosecution is declined.
Indian Nations either have no control over the federal process or lack sufficient political power to influence it. Indian Nations are often left out in the cold when federal-level offices established to specifically assist Indian Nations are disbanded because they are not institutionalized enough to withstand the political changes in government.
Limited access to needed data and information. The lack of criminal justice data management and collection systems makes it difficult to establish a universe of reported violent crimes in Indian country. Hence, much of what is known is collected in a fragmented fashion and pieced together to form an understanding of the crime, violence, and victimization issues in Indian communities. Basic information about the types of crime and the victimization that results from crimes being committed is needed. Victim data and tracking systems also need to be developed to determine victim/offenderdemographics, monitor offender compliance and mobility, determine whether victims are being served or victims' rights are being enforced, track the types of services victims are using, and identify gaps in services.
In conclusion, although there are tremendous obstacles and barriers to providing effective victim services in many Indian communities, there is great potential for the needs of victims to be addressed. Those interested in increasing victim services should understand how the interrelationship of response systems existing in Indian communities can help to provide effective assistance. In the end, it will take joint efforts by Indian and non-Indian criminal and juvenile justice practitioners, policymakers, victim advocates, victims, their families, communities, and governments to adequately and effectively address the needs of Indian crime victims.
Federal Support for Indian Country Programs
Collaborative initiatives between state and federal agencies and tribal courts are taking a serious look at crime, delinquency, and abuse in Indian Country to develop judicial procedures and interventions addressing criminal activity that merge the Native American and the criminal justice approaches to dispute resolution and sentencing. An integral part of the programs is the investigation into the cultural and economic conditions that give rise to higher than average levels of alcoholism and other substance abuse, child abuse, and other violent crimes in Indian Country.
The Office of Justice Programs (OJP) within the U.S. Department of Justice administers several substantial grant programs that provide funding to Indian tribes and tribal organizations to tackle issues of law enforcement, domestic violence, child abuse, juvenile justice, and victim services.
OJP encourages innovative program development and improved service delivery in Indian Country. The Executive Office for Weed and Seed set aside $600,000 of its fiscal year 1996 discretionary funds for pilot projects in Indian Country, aimed at weeding out crime and seeding economic development and healthy communities. The Drug Courts Program Office supports the development of drug courts in Indian Country as a promising alternative method in dealing with nonviolent drug offenders. To improve case tracking and enhance the adjudication of criminal cases in Indian Country, the Bureau of Justice Statistics is working with the Bureau of Indian Affairs of the U.S. Department of Interior and the Bureau of Justice Assistance to develop a case-based, criminal justice tracking system. Such a system would also allow tribal law enforcement to monitor the effectiveness of various processes and conduct more accurate needs assessments for future planning.
Other OJP programs provide direct assistance to members of Indian communities. In conjunction with the National Crime Prevention Council, the Bureau of Justice Assistance publishes educational materials targeting areas of concern for Native American youth through the highly successful "McGruff the Crime Dog" campaign. The Office for Victims of Crime provides discretionary grants to tribes to improve the investigation, prosecution, and handling of child sexual abuse cases through the Children's Justice Act grant program for Native Americans. Other programs support community services, such as Boys & Girls Clubs in Indian communities and Court Appointed Special Advocates (CASAs) for Indian children in abuse cases.
To maximize the effectiveness of these programs, a variety of culturally appropriate training and technical assistance opportunities are available to Indian tribes and tribal organizations. In addition, BJA funds such programs as Tribal Strategies Against Violence, a tribal-federal partnership that empowers tribal communities through the development and implementation of a comprehensive reservation-wide strategy to reduce crime, violence, and substance abuse. Also, through the National Institute of Justice, studies on the effectiveness of OJP's programs in Indian Country and research into the causes of crime and violence, measures the effectiveness of current efforts and leads to the development of innovative and responsive new programs.
Lastly, in response to concern about the increasing number of violent crimes committed by juveniles and youth gangs in many Native American communities, Congress has established the Tribal Youth Program (TYP), setting aside $10 million in fiscal year 1999. TYP will be administered by the Office of Juvenile Justice and Delinquency Prevention (OJJDP) and is the first OJJDP program dedicated to prevention, control and juvenile justice system improvement in Native American communities. Grants will be awarded on a competitive basis, with the grant program designed to meet the unique needs of each Native American community applicant to prevent and control delinquency and improve its juvenile justice system. All federally recognized tribes and Alaskan native villages are eligible to apply for a three-year grant, ranging from $75,000 to $500,000. OJJDP will consider the size of the tribe, geographical location, and whether the tribe is located in an urban or rural area in making funding decisions (Andrews 1999).
PROTOCOLS FOR THE DISPOSITION OF CHILD SEXUAL ABUSE CASES IN INDIAN COUNTRY
The investigation and prosecution of child sexual abuse in Indian Country are complicated by multi-jurisdictional issues that create confusion among victim service providers and conflicts among tribal and state and federal law enforcement and prosecutors. Victim service providers are frustrated by overlapping investigations and repeat interviews of child victims. The lack of clear jurisdictional protocols that cause an overlapping of responsibilities among criminal justice professionals and tribal leaders also negatively affects the well-being of the victim and the victim's nonoffending family.
Factors that lead to confusion over criminal jurisdiction in Indian Country are:
Furthermore, the U.S. Supreme Court has ruled that charging a defendant in both federal court and tribal court does not amount to double jeopardy, a ruling which provides greater flexibility to tribal and federal courts in the handling of child sexual abuse cases (United States v. Wheeler, 435 U.S. 313 (1978)). Because the tribal court is in a better position to proceed quickly with an investigation and intervention into the abuse, they frequently make the first move to punish the offender. Nevertheless, investigations may eventually be carried out by federal, tribal, and even state agents, leading to multipleinterviews and a longer, more frustrating process for the victim. Clear written protocols clarifying agency roles for the coordinated investigation of child abuse cases in Indian Country, agreed upon by the participating agencies, are essential to minimize further trauma to the child victim and the victim's nonoffending family.
The Office for Victims of Crime (OVC) has moved to address unnecessary trauma to child victims of sexual abuse during investigation and prosecution through the Children's Justice Act (CJA) Partnerships for Indian Communities Program. The goal is to facilitate the better coordination of the investigation and prosecution procedures. The creation of multidisciplinary teams comprised of law enforcement, social services, medical, child welfare, victim assistance, and judicial agencies with tribal representation on state- and federal-based teams, and federal and state criminal justice representation on tribal-based teams, is an approach that can minimize onerous investigative and prosecutorial procedures.
In addition, the U.S. Department of Justice has implemented several programs to improve coordination between federal and tribal courts:
(Portions of the preceding section are summarized from Improving Tribal/Federal Prosecution of Child Sexual Abuse Cases Through Agency Cooperation, U.S. Department of Justice, Office for Victims of Crime, Washington DC, June 1999).
THE TRIBAL DRUG COURT INITIATIVE: HEALING TO WELLNESS COURTS
A high rate of violent crime and victimization committed by Native Americans under the influence of alcohol prompted the U.S. Department of Justice, Drug Courts Program Office (DCPO) to launch the Tribal Drug Court Initiative in 1997. Research has shown that in tribal communities, alcohol is the most abused substance by both adults and juveniles (the use of the term "drug" for purposes of the initiative includes alcohol). Planning and implementation and, later, continuation and enhancement grants have been awarded to tribal governments through applications to the DCPO. Specialized training and technical assistance programs assist tribal communities with the development drug court programs that work effectively within tribal justice systems and tribal culture (Tribal Law & Policy Institute and DCPO July 1999).
There are currently twelve operational Native American and Alaska Native tribal drug courts, and thirty-three are in pilot or planning stages. There is a special name for the program within each tribalcourt, but they are referred to generally throughout Indian Country as the Healing to Wellness Courts. Their challenge has been to merge the traditional, sociocultural, restorative aspects of the American Indian justice system with the criminal justice model for drug courts that helps offenders achieve abstinence and alter criminal behavior through a combination of judicial supervision, treatment and drug testing, incentives, sanctions, and case management. Each tribe attaches its unique interpretation to the program. For example, one Indian chieftain described the drug court as a "council of responsible professional elders and their warriors of both genders coming together in harmony to do battle against both a visible and an invisible enemy--the disease of alcohol and drug abuse. The tactic that the team/council/war party takes is to act as a legal and culturally sanctioned authority that meets the patient/client/tribal member where he or she is at in relation to his or her abusive relationship with the mood and behavior altering chemical" (Ibid.).
Promising Practices
Tribal Law and Policy Institute, P.O. Box 460370, San Francisco, CA 94146 (415-647-1755) http://www.tribal-institute.org.
Tribal prosecutors, officials, and elders work with law enforcement, probation, and victim service providers to make a concerted effort to understand the needs of the victim, the victim's family, and the community. Victim impact statements are obtained in person through a team member's visit to the victim's home on the reservation. In juvenile cases, they seek the court's permission for victims and their families to participate in the hearings and sentencing. Efforts are made to see that restitution is ordered appropriately and routinely, including payments for traditional healing ceremonies, death anniversary ceremonies, and third-party reimbursement for tribal costs incurred for counseling or other services to crime victims. U.S. Attorney's Office, District of Arizona, 110 S. Church Street, Suite 8310, Tucson, AZ 87501.
Tribal Justice Self-Examination
1. What are the four key characteristics of sovereign status for Indian Nations?
2. Describe one of the three indigenous peacekeeping systems highlighted in this chapter.
3. What are three of the challenges that affect Indian victims and the provision of victim services?
4. Describe one U.S. Department of Justice initiative that provides funding for victim assistance to Indian tribes and tribal organizations.
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| Chapter 3 Specific Justice Systems and Victims' Rights | June 2001 |
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