KUOW Radio in Seattle has posted an interview with Professor Ron Whitener, Director of the Native American Legal Center at the University of Washington, regarding the impact of the federal Tribal Law and Order Act on Tribal justice systems. Last July, Native American leaders gathered in Washington, DC, to celebrate the passage of the new law, which is designed to help reduce the level of crime in Native communities. President Obama stated: “It is unconscionable that crime rates in Indian Country are more than twice the national average, and up to 20 times the national average on some reservations.”
Tribes pressed for the law to get more accountability from federal authorities and to strengthen their own criminal justice systems. Professor Whitener notes: “In the area of law enforcement they’re crying out, saying give us the resources or do your job which you claim is your job, which is to provide law enforcement on the reservations.”
Many tribal courts and police departments are only a few decades old. While their courts only hear cases involving tribal members, tribal police often have the authority to arrest non–Indians. But tribal judges say lack of sentencing power and lack of help from federal authorities have stymied their attempts to combat reservation crime. The new law gives more authority to tribal courts to try felony cases. It also requires federal authorities to explain their decisions to tribes when they don’t file charges and to share evidence if the tribal courts want to take up the case.
Professor Whitener also administers the Public Defense Clinic in Tulalip Tribal Court, and believes the new powers for tribal courts raise the stakes for defendants and their lawyers. If tribal courts don’t give defense lawyers enough funds to hire experts and put on a strong defense, the verdicts could get challenged. Lawyers themselves could face ethics complaints from their clients. Prof. Whitener says lawyers will be reluctant to defend clients unless the funding is there. “So I think you’re going to see issues related to attorneys being nervous about taking cases when they don’t have any resources to investigate those cases.”
He also notes a significant disparity in how different Tribes handle appeals of criminal convictions. “You don’t have an automatic appeal under Indian Civil Rights Act to federal court. So if I’m prosecuted by the tribe and I lose, and I’m sentenced, I can then appeal usually to court of appeals within the tribal system. Most tribes have a court of appeals. But if I lose at the court of appeals, usually I’m done.”
Prof. Whitener believes that the Tribal Law and Order Act is a step in the right direction for Indian country and its courts. He says the Justice Department is now awarding grants for public defender programs, something that never would have happened before.