APPENDIX I

SCOPE AND METHODOLOGY

Our audit covered DOJ criminal justice activities for Native Americans. The audit was designed to address whether DOJ has followed the edicts of both President Clinton and Attorney General Janet Reno regarding the fulfillment of trust obligations to Native Americans. Our audit focused on those activities concerning Native American criminal justice systems during the period of October 1, 1993 through July 31, 1995, and updated as necessary.

We performed audit work at OTJ, OPD, OJP, FBI headquarters, and the EOUSA. Additionally, we performed audit work at the Department of Interior headquarters for BIA, Law Enforcement Services.

We reviewed a judgmental sample of 58 closed Indian country criminal cases in the Districts of Arizona, Oregon, South Dakota, and the Eastern District of Oklahoma; and conducted detailed audit work including interviews of DOJ, BIA, and tribal officials at the following audit sites:

USAOs in Muskogee, Oklahoma; Phoenix, Arizona; Portland, Oregon; Rapid City, South Dakota; and Sioux Falls, South Dakota;

FBI offices in Gallup, New Mexico; Minneapolis, Minnesota; Muskogee, Oklahoma; Phoenix, Arizona; Portland, Oregon; and Rapid City, South Dakota;

Cherokee Nation, Talequah, Oklahoma;

Navajo Reservation, Window Rock, Arizona;

Pine Ridge Reservation, Pine Ridge, South Dakota;

Warm Springs Reservation, Warm Springs, Oregon;

We also conducted limited survey work at the following sites:

USAOs in Albuquerque, New Mexico; and Denver, Colorado;

Southern Ute Reservation, Ignacio, Colorado;

Ute Mountain Ute Reservation, Towaoc, Colorado;

New Mexico Department of Public Safety, Santa Fe, New Mexico; and

New Mexico Crime Victims Reparation Commission, Albuquerque, New Mexico.

Unless stated otherwise, the findings in this report were based on the four main audit sites in Arizona, Oklahoma, Oregon, and South Dakota. The total American Indian population at the four main sites, per the 1990 census, was 563,130 - comprised of the Cherokee Nation (399,388), the Navajo Reservation (148,451), the Pine Ridge Reservation (12,215), and the Warm Springs Reservation (3,076). According to the 1990 census, the total American Indian and Alaskan Native population was approximately 1.959 million. Thus the sites selected included approximately 29 percent of the American Indian and Alaskan Native population and the two largest tribes, the Cherokee and the Navajo.

APPENDIX II

BACKGROUND

Federal Government's Trust Obligation

On April 29, 1994, President Clinton addressed over 300 American Indian and Alaskan Native leaders at the White House. During his address the President made a commitment to improve the federal government's relationship with the Native American and Alaskan Native tribes. To demonstrate his commitment, the President signed a governmental directive requiring each Executive Department and agency within the departments to remove all barriers that prevent effective communication and coordination with tribal governments. President Clinton then announced the first Listening Conference, where DOJ and the Department of Interior would join together to meet with tribal representatives to discuss Native American issues in Indian country.

Representatives from all federally recognized Native American and Alaskan Native tribes were invited to attend the Listening Conference in Albuquerque, New Mexico, on May 5 and 6, 1994. Among the topics of discussion at the Listening Conference, two were directly related to criminal justice systems in Indian country:

the status of tribal governments and tribal courts, and

criminal justice and law enforcement.

Attorney General Janet Reno established OTJ in an effort to enhance the Department's communication and coordination with tribal governments. The OTJ coordinates DOJ policies and positions on Native American issues; maintains a liaison with the federally recognized tribes; and works on Native American issues with appropriate federal, state, and local officials, professional associations, and public interest groups.

On June 1, 1995, the Attorney General signed the Department of Justice Policy on Indian Sovereignty and Government-to-Government Relations With Indian Tribes. The Departmental policy reaffirms DOJ's recognition of the sovereign status of federally recognized tribes as domestic dependent nations, and provides guidance to the Department in its work on Indian affairs. The policy resolves that the following principles will guide DOJ's interaction with the Indian tribes:

The Department shall be guided by principles of respect for Indian tribes and their sovereign authority and the United States' trust responsibility in the many ways in which the Department takes action on matters affecting Indian tribes.

The Department is committed to operating on the basis of government-to-government relations with Indian tribes, and will consult with tribal leaders in its decisions that relate to or affect the sovereignty, rights, resources or lands of Indian tribes.

The Department is committed to strengthening and assisting Indian tribal governments in their development and to promoting Indian self-governance.

The Department acknowledges the federal trust responsibility arising from Indian treaties, statutes, executive orders, and the historical relations between the United States and Indian tribes.

The Department is fully committed to safeguarding the constitutional and statutory civil rights of American Indians.

The Department seeks to ensure that American Indians are protected in the observance of their religions, and also recognizes the significant federal interest in aiding tribes in the preservation of their tribal customs and traditions.

Additionally, on September 20, 1995, the Attorney General announced the implementation of the Indian Country Justice Initiative. This project will examine justice systems in Indian country, while including Native Americans in the process of identifying problems and suggesting solutions.

Department of Justice Agencies

Department of Justice agencies provide the following criminal justice services to Native American tribes:

grant funding to tribal governments for the enhancement of criminal justice systems;

programs to assist tribal governments in the development or maintenance of effective tribal courts; and

investigation and prosecution of crimes under federal jurisdiction.

A variety of DOJ grants, including grants to Native American tribes, are administered by OJP. The OJP database, which we did not audit, lists a total of $7,310,091 in criminal justice grants awarded to Native American tribal governments from FY 1992 to FY 1994, and a total of $6,757,715 for FY 1995. The total amount of grants awarded to tribal governments includes both direct funding, as well as funds passed-through to tribes by state governments.

In conjunction with OTJ, OPD is leading the Department of Justice's Tribal Courts Project. The goal of the Tribal Courts Project is to assist tribes in developing and maintaining their systems of justice. Depending on the needs of a particular tribe, OPD is currently focusing on the following activities:

assisting tribal officials in negotiating full faith and credit agreements between tribal and state courts,

expanding jurisdiction of tribal courts, and

facilitating tribal officials' maximum utilization of existing resources for tribal court development and technical assistance.

The FBI is, in part, responsible for investigating federal crimes in Indian country, which include most felony offenses and some misdemeanor crimes. The USAOs are responsible for the prosecution of federal criminal cases in Indian country. However, the effective investigation and prosecution of criminal cases in Indian country is complicated by a myriad of jurisdictional issues.

Criminal Jurisdiction in Indian Country

Crimes committed in Indian country are under the jurisdiction of the federal, state, or tribal governments, depending on the identity of the victim(s) and suspect(s) (i.e., Indian or non-Indian); the seriousness of the offense; and the state in which the offense was committed. There are three major federal laws governing jurisdiction over crimes committed in Indian country. The first major federal code provision concerning Indian country jurisdiction is 18 USC 1162 (more commonly referred to as Public Law 280). Public Law 280 granted certain states jurisdiction over crimes committed in all or part of Indian country within the state, except those specifically designated as matters of federal jurisdiction. Table 2 illustrates states with Public Law 280 jurisdiction.

 

STATES WITH PUBLIC LAW 280 JURISDICTION OVER
CRIMES COMMITTED IN INDIAN COUNTRY

STATE

INDIAN COUNTRY AFFECTED

Alaska All Indian country within the state, except the Annette Islands.
California All Indian country within the state.
Minnesota All Indian country within the state, except the Red Lake Reservation.
Nebraska All Indian country within the state.
Oregon All Indian country within the state, except the Warm Springs Reservation.
Wisconsin All Indian country within the state.
Source: Title 18, Chapter 53, USC 1162.

Table 2

The second major federal code provision regarding jurisdiction over crimes committed in Indian country is 18 USC 1153 (more commonly referred to as the "Major Crimes Act"). The Major Crimes Act applies to crimes committed in Indian country, with the exception of crimes committed in the Public Law 280 states listed above. The Major Crimes Act specifies major crimes in Indian country that are subject to federal jurisdiction when the offense is committed by, or against, an American Indian. The crimes subject to federal jurisdiction by the Major Crimes act include: murder, manslaughter, kidnapping, maiming, aggravated sexual abuse, sexual abuse, incest, sexual abuse of a minor or ward, attempted rape, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, assault against an individual under the age of 16 years, arson, burglary, robbery, and larceny.

Pursuant to the Major Crimes Act, all non-major crimes (those not listed in the Act) committed by Indians against other Indians, within Indian country, are subject to the jurisdiction of tribal courts. Additionally, all crimes committed by non-Indians against other non-Indians, in Indian country, are subject to prosecution under state law.

The third major federal code provision relating to crimes committed in Indian country is 18 USC 1152. Pursuant to 18 USC 1152, all crimes committed by non-Indians against Indians, in Indian country, are subject to exclusive federal jurisdiction regardless of the seriousness of the offense. Table 3 illustrates jurisdiction over criminal offenses committed in states not covered by Public Law 280.

 

CRIMINAL JURISDICTION OVER CRIMES
COMMITTED IN INDIAN COUNTRY

Identity of
Suspect

Identity of
Victim

Type of
Offense

Criminal Jurisdiction

Indian Indian or Non-Indian Major Crimes Federal
Indian Indian or Non-Indian Non-major Crimes Tribal
Non-Indian Indian Any Offense Federal
Non-Indian Non-Indian Any Offense1 State
Source: Title 18, Chapter 53, USC 1152 and 1153.

1 Except those crimes normally included under federal jurisdiction.

Table 3

Jurisdiction in Indian country is further complicated by the definition of what constitutes Indian country. Indian country as defined by 18 USC 1151, includes:

1. All land within the limits of any Indian reservation under the jurisdiction of the U.S. Government, including rights-of-way running through the reservation.

2. All dependent Indian communities within the borders of the U.S. whether within or without the limits of a state.

3. All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

The complication regarding the definition of Indian country is determining what constitutes a dependent Indian community. For example, in the Eastern District of Oklahoma, where Indian country is comprised mostly of dependent Indian communities, a three page checklist is followed to determine if a particular area is a dependent Indian community.

Other factors complicating jurisdiction in Indian country include:

many reservations are located in more than one state, and

many Indian allotments were sold to non-Indians; therefore, Indian lands and non-Indian lands are frequently adjacent to one another in ways that make the boundaries difficult to determine and complicate issues of jurisdiction.

In summary, to determine jurisdiction over a potential Indian country criminal case one must determine:

the state in which the crime was committed,

the identity of the offender,

the identity of the victim,

the seriousness of the offense committed, and

whether or not the crime was committed in Indian country as defined by federal statute.

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