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EXPOSÉ on THE JOURNAL: Broken Justice
Canyon de Chelly, by Edward Curtis
November 14, 2008

The legal history of Indian nations' relations to the federal and local government is long and tangled. A number of questions about tribal sovereignty are legislated each and every year — at levels all the way to the Supreme Court. Because of a centuries-old law, the Justice Department is responsible for investigating and prosecuting major crimes on most Native American reservations. "Lawless Lands," an award-winning series of reports from THE DENVER POST and the basis for an episode of EXPOSÉ on THE JOURNAL, documents how this jurisdictional patchwork impedes law enforcement. Find out more about how the situation on Indian lands evolved from the timeline below:

Early 19th Century: Indian Removals
Under pressure from would-be settlers of eastern Indian lands, in the 1830s Congress creates a huge new Indian Territory which was to stretch from Texas to the middle Missouri River. In theory, this Indian Country was to remain Indian land forever, and serve as a barrier to white Western expansion. Eastern tribes were moved west from the southeastern U.S. The most notorious of these removals was of the Cherokee, known as The Trail of Tears.

1854: General Crimes Act
Congress passes the General Crimes Act, also known as the Indian Country Crimes Act, giving federal courts jurisdiction over various offenses committed on Indian lands. However, the act fails to regulate crimes between Indians and in any situation where the crime could be punishable by a tribal court. (Read the act.)

1883: Ex Parte Crow Dog
Crow Dog, a Brule Sioux Indian, was sentenced to death by a Dakota Territory court after he shot and killed fellow Brule Sioux Spotted Tail (pictured left) in 1881 on their reservation. But Crow Dog, believing that he had already made amends by Sioux traditions — agreeing to provide support for Spotted Tail's dependents and overseen by a tribal council — appeals the Territory's decision to the Supreme Court. The Court reverses his conviction and notes that in order to legislate Indian affairs, Congress needed to be more specific than they previously had. This decision keeps with a trend during the late 19th century towards tribal autonomy and self regulation. (Read the decision and analysis.)

1885: Major Crimes Act
In response to the Crow Dog decision, Congress passes the Major Crimes Act, enumerating seven crimes over which federal courts would have exclusive jurisdiction on Indian land. Tribal lawmakers would maintain jurisdiction over lesser crimes. This legislation is viewed by some as a push by the Federal Government to interject itself into certain tribal matters. The Act has evolved to include 14 offenses. (Read the Department of Justice's guide to the Major Crimes Act.)

1887: The Dawes Act
As the press westward grows, The Dawes Act, or General Allotment Act,1887, is passed by the U.S. Congress to provide for the granting of landholdings (allotments, usually 160 acres/65 hectares) to individual Native Americans, replacing communal tribal holdings. The "excess" lands could then be freed up for settlement by non-Indians. By the turn of the century a large majority of formerly tribal lands were under white ownership. (Read the act.)

1934: Indian Reorganization Act
The Indian Reorganization Act of 1934 became known as the Indian New Deal. Through it, Congress formally recognizes the tribal court system and shifts back towards promoting tribal autonomy. (Read more about the act.)

1968: The Indian Civil Rights Act
To some critics, passage of the Indian Civil Rights Act of 1968 signaled a new era on federal influence over justice on tribal lands. The IRCA imposes most of the substantive restraints of the Bill of Rights upon the tribes with exception of the right to appointed counsel and the Grand Jury clause of the Fifth Amendment. (Read the act and analysis.)

1978: Oliphant v. Suquamish Indian Tribe
Mark Oliphant was attending the Suquamish's annual Chief Seattle Days celebration on Indian lands when he was accused of assaulting a police office. Held on charges in a Tribal jail, Oliphant appeals his detention through to the Supreme Court. The Court holds that Indian lawmakers have no jurisdiction over non-Indians accused of crimes when on Indian lands and the Tribal case against Oliphant was ordered reversed. (Read the decision.)

2004: Congress asks for increased reporting on Indian Country Crime
The 2005 Omnibus Appropriations Bill for the first time requests additional accountability from the Department of Justice in the face of growing crime rates on reservations. "The Department shall also provide quarterly reports to Congress detailing efforts to reduce the violent victimization of Native Americans, including efforts to reduce murder rates, serious assaults, violence against women, and child abuse. These reports shall include: the number of agents assigned to Indian Country; man-hours worked in Indian Country; the amount and type of training provided; the number of matters initiated; the number of cases; the number of subjects/defendants; the number of convictions; and the amount of restitution ordered."

2008: Tribal Law and Order Act
Senate Indian Affairs Committee Chairman Byron Dorgan introduces the Tribal Law and Order Act, aimed at strengthening tribal justice systems and improving communication between federal and local authorities. It is inspired by reports showing assault rates of Native American women could be as high as one in three. (Read the act and the Senate testimony.)

by Alyse Shorland

Image of the Senate in 1885, Provided courtesy HarpWeek, LLC.

Published on November 14, 2008.

References and Reading:
"Courts Try New And Tribal Ways In Indian Territory"
Article from THE THIRD BRANCH, a newsletter of the Department of Justice on 2001 efforts to address crime jurisdiction on tribal lands.

"Indian Tribal Sovereignty"
Bulzomi, Michael J., FBI Law Enforcement Bulletin. June 2001. (PDF)

FBI: Indian Country
Read the FBI's history and overview of its programs in Indian Country.

National Congress of American Indians
"The NCAI was founded in 1944 in response to termination and assimilation policies that the United States forced upon the tribal governments in contradiction of their treaty rights and status as sovereigns." Read their current position on legal juridiction over tribal lands.

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