Given that Tribes have been limited by Congress in their jurisdiction and available punishments for crimes committed within Reservations, prosecution of major crimes like murder is typically reserved for federal law enforcement agencies. A chronic problem that continues to plague Tribal communities is the failure of federal agencies to actually investigate and prosecute cases occurring on Reservations. This week the New York Times is featuring an article detailing the extent of this continuing failure.
“One of the basic problems is that not only are they declining to prosecute cases, but we are not getting the reason or notification for the declination,” said Jerry Gardner of the Tribal Law and Policy Institute in West Hollywood, Calif., which works with Tribes to develop justice programs. “The federal system takes a long time to make a decision, and when it comes to something like a child sexual assault, the community gets the message that nothing is being done.”
Under federal law, Tribal Courts have the authority to prosecute “Indians” for crimes committed on reservations, but cannot sentence those convicted to more than three years in prison. If a crime is committed by a “non-Indian”, Tribes have no jurisdiction at all. As a result, Tribes must seek federal prosecution for serious crimes.
In 2011, federal prosecutors declined to file charges in 52 percent of cases involving the most serious crimes committed on Reservations, according to figures compiled by Syracuse University. The government did not pursue rape charges on Reservations 65 percent of the time, and rejected 61 percent of cases involving charges of sexual abuse of children. By contrast, the Justice Department declined only 20 percent of drug trafficking cases nationwide, according to the federal figures.
Once federal prosecutors do decline a case, they seldom hand over evidence to Tribal Courts, according to the Government Accountability Office. A GAO office report last year also found that federal prosecutors often fail to tell Tribes that they have declined cases until after the Tribe’s statute of limitations has expired, leaving no legal authority for the Tribe to pursue its own prosecution.