III. TRIBAL COURTS PROJECT

As a result of the Tribal Courts Project, several programs were initiated to assist Native American tribes in voluntary initiation, development, or enhancement of tribal courts.

The National American Indian Listening Conference in May 1994, co-sponsored by DOJ and the Department of Interior, revealed that many tribal governments consider the development and maintenance of effective tribal courts to be one of the most important Native American criminal justice issues. As a direct response, the DOJ Tribal Courts Project was initiated.

In conjunction with OTJ, OPD was given the responsibility for developing a plan to assist Native American tribes in the initiation, development, and enhancement of tribal courts. The focus of the Tribal Courts Project is mainly to advise, coordinate, and facilitate in the development of tribal courts. OPD does not receive funding for the Tribal Courts Project, nor does it provide funding to tribal governments for the development and maintenance of tribal courts.

Through the DOJ Tribal Courts Project, OPD initiated two major programs to address the individual needs of interested tribes. These programs are the U.S. Magistrate Court Project and the Tribal Court - DOJ Partnership Project. Both programs focus on working with tribal governments to develop or enhance their court systems.

U.S. Magistrate Court Project

Misdemeanor crimes committed by non-Indian offenders against Indian victims in Indian country are generally under the sole jurisdiction of the federal court system. (See Appendix II, page 34, for exceptions). Representatives from USAOs at the four audit sites stated that they must often decline prosecution of misdemeanors in order to concentrate resources on more serious offenses. As a result, misdemeanor crimes committed by non-Indian offenders often go unpunished.

The DOJ Tribal Courts Project has focused on the development of options to solve this problem. One of the options, the U.S. Magistrate Court Project, has already been implemented. This involves a U.S. Magistrate being appointed to hold court on a reservation and then adjudicating misdemeanor federal crimes over which tribal courts do not have jurisdiction. Additionally, the U.S. Magistrate can also be used to hear felony first appearances and detention hearings. The goals of the U.S. Magistrate Project are to prosecute misdemeanor crimes; and provide training and technical assistance from USAO's, federal courts, and federal clerks offices that would otherwise not be available to tribal courts.

The U.S. Magistrate Court Project has been implemented on the Warm Springs Reservation in Oregon. A local non-Indian attorney was appointed as the U.S. Magistrate, and an Assistant U.S. Attorney was appointed to appear in the Magistrate court on behalf of the United States. The U.S. Magistrate convened court on the Warm Springs Reservation, for the first time, on June 9, 1995.

It will probably be difficult to duplicate elsewhere the implementation of the Warm Springs U.S. Magistrate Court Project, because each entity involved must be in favor of the program. The creation of a U.S. Magistrate Court Project requires the full cooperation of the tribe, USAO, federal court, and clerk's office. If even one of these entities resists the development of a U.S. Magistrate Court Project, then the program cannot be successfully implemented. In fact, many tribes would not allow the federal courts to hold U.S. Magistrate court on tribal lands because they feel that it would jeopardize their sovereignty. Federal judges in other districts also oppose this program, citing a lack of funds to pay a U.S. Magistrate.

The majority of tribal officials and some of the corresponding USAO representatives who we interviewed stated that the use of U.S. Magistrate courts is not a desirable solution. These individuals feel that because tribes are sovereign entities, tribal courts should have sole jurisdiction over crimes committed in Indian country. These individuals stated that, at a minimum, tribal courts should have jurisdiction over misdemeanor crimes committed by non-Indians. These individuals also stated that the DOJ Tribal Courts Project is uniquely qualified to assist and support a petition of Congress to expand the jurisdiction of tribal courts to include, at a minimum, non-Indian misdemeanors. On the other hand, many individuals at the four audit sites, including some tribal officials, oppose the expansion of tribal jurisdiction over non-Indians because the protection provided by the Bill of Rights does not always apply in tribal court.

The U.S. Attorneys at the remaining three audit sites in Arizona, Oklahoma, and South Dakota have developed options to address the problem of prosecuting misdemeanor crimes committed by non-Indians in Indian country. In Arizona, tribal prosecutors who are attorneys may be designated as Special Assistant U.S. Attorneys to appear in Magistrate court on behalf of the United States in the district where the crime was committed. Approximately half of the tribes in the District of Arizona agreed to participate in this program. The USAOs in Oklahoma and South Dakota, have stated that prosecuting non-Indian misdemeanor cases is a priority. These districts decided to use Assistant U.S. Attorneys to take non-Indian misdemeanor cases before the U.S. Magistrate.

In conclusion, the USAOs and OPD provided potential solutions for the prosecution of misdemeanor crimes committed by non-Indians in Indian country. Nevertheless, most tribal officials at the four audit sites stated that the current DOJ efforts are not a desirable solution. They feel that since tribes are sovereign entities, tribal courts should be granted jurisdiction over all Indian country crimes, including those committed by non-Indians.

Tribal Court - DOJ Partnership Project

In another effort, OPD initiated the Tribal Court - DOJ Partnership Project. The project is designed to strengthen tribal court systems by focusing DOJ efforts on a selected group of tribes. Tribal governments seeking DOJ assistance in the voluntary development or enhancement of their tribal courts were required to apply for designation as Partnership Projects. After consulting representatives from various DOJ agencies, including USAOs and OTJ, the Attorney General made the final decision on which tribes were chosen for Partnership Projects.

Sixty-eight tribes sent applications to OPD for Partnership Projects and 45 tribes were been selected for the first year of the program. According to OPD, the tribal governments selected for Partnership Projects represented a variety of tribal justice systems in various stages of development.

The purpose of the Partnership Projects is to provide assistance in the areas of:

assisting the tribes in assessing their tribal court needs, and in obtaining additional public and private resources to meet those needs;

creating training and technical assistance partnerships among the designated tribes, USAOs, federal courts, state bar associations, state courts, and local universities;

documenting the achievements of the Partnership Projects for dissemination to tribal, state, and federal justice systems, to promote awareness of existing effective tribal courts and provide other tribal courts with proven strategies; and

encouraging state courts to enhance their efforts to recognize and enforce tribal court orders.

Conclusion

The results of our audit indicate that DOJ has recognized the importance of effective tribal courts. The Department has responded to the tribal concerns raised at the Listening Conference through the development of the Tribal Courts Project administered by OPD. The OPD has developed programs that utilize Departmental contacts, resources, and influence to assist Native American tribes in the voluntary initiation, development, or enhancement of tribal courts. Although OPD cannot fully address all of the issues related to tribal courts, two specific programs designed to assist tribal governments, the U.S. Magistrate Court Project and the Tribal Court -DOJ Partnership Project, have been initiated.

#####