Court Case Management in Indian Country
Criminal justice workers in both Public Law 280 and non-Public Law 280 jurisdictions
were asked to respond to a series of questions about the logistics of their caseloads and issues
related to caseload management and dispositions.
Some questions were specifically crafted to
investigate case-processing decisions of prosecutors, while public defenders and probation
officers also responded to specific inquires about their case management and processes. We
hope that these data will provide additional insight into decision-making processes and case
dispositions for cases involving Indian defendants and victims. Differences between Public Law
280 and non-Public Law 280 jurisdiction in case management and disposition are investigated.
How Heavy Is the Caseload?
Criminal justice workers in Public Law 280 and non-Public Law 280 jurisdictions were
asked: Can you estimate the number of cases you deal with that involve Indian victims or
defendants?
Two groups of criminal justice workers commenting on state/county (N=39) and
non-Public Law 280 tribal (N=19) courts provide enough responses to discuss. The data,
however, are difficult to interpret: The respondents reporting on non-Public Law 280 courts
estimate cases per year, while probation officers, judges, and prosecutors, community advocates
and public defenders have different patterns of caseloads. Community advocates and public
defenders in non-Public Law 280 jurisdictions usually have relatively low caseloads, ranging
from 10 to 15 Indian cases per year. The Indian caseloads for non-Public Law 280 probation
officers range from 50 to 4,000, and the cases loads for non-Public Law 280 judges and
prosecutors range from 225 to 3,000 Indian cases per year. It’s difficult to determine a pattern
for the non-Public Law 280 caseload data, since many factors may contribute to caseload size.
Public Law 280 criminal justice workers (N=39) commenting on caseload numbers for
state/county courts provide some comparative data with non-Indian state/county court caseloads.
Some respondents gave average caseload estimates. In this subset of responses, probation
officers say their caseloads are average, or others say they range between 12 and 200 Indian
cases per year. These data are based on 3 respondents and most likely are not reliable indicators.
Several Public Law 280 state/county judges and prosecutors (n=6) say that their caseloads range
from 20 to 1000, but most caseloads are reported in the under-200 range. One community
advocate said they handle 10 cases each year on average; one public defender served 12 clients;
and a small public defender office says they manage about 144 cases involving Indian clients
annually. These data are based on too few respondents to be reliable, but they indicate a
somewhat smaller caseload than criminal justice workers report for non-Public Law 280 tribal
courts.
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This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
Most Public Law 280 criminal justice responses (n=25) are in estimated percentages of
total caseload, containing Indian and non-Indian cases, and with some comment on whether the
percentages of Indian cases were proportionate or disproportionate within their general caseload
population. Nineteen Public Law 280 criminal justice respondents (48.7%) say that they handle
a disproportionately high percentage of Indian cases compared to non-Indian cases.
The
percentages given range from 5% to 95%. Seven Public Law 280 criminal justice workers
(17.9%) say that they do not handle a disproportionate number of Indian cases compared to nonIndian cases in the state/county court or legal service system. Seven Public Law 280 respondents
(17.9%) could not answer the questions, suggesting some uncertainty over the magnitude of
Indian caseloads in state/county courts.
The Indian caseload data do not yield easy or direct comparisons between Public Law
280 and non-Public Law 280 jurisdictions. Perhaps the only reliable result from these data are
that 48.7%, nearly half, of Public Law 280 criminal justice court and legal personnel say their
Indian caseloads are disproportionately higher than non-Indian cases.
Do Cases Move Fast Enough?
Criminal justice respondents were asked: Do you feel that cases move fast enough
through the court system where you work? There were very few responses to the question, but
17 non-Public Law 280 criminal justice personnel commented on how fast cases moved though
the tribal courts. Three non-Public Law 280 criminal justice workers (23.5%) say that cases do
not move quickly enough through tribal courts. They say that alcohol-related cases, case
backlogs, and the unwillingness of witnesses to testify all contribute to the slow processing of
tribal cases.
Thirteen non-Public Law 280 criminal justice respondents (76.5%) say that cases
move through tribal courts in a speedy manner. Most non-Public Law 280 criminal justice
respondents say that cases move through tribal courts at acceptable speeds. There are not enough
data to make comparisons to Public Law 280 jurisdictions.
Which Cases Take the Most Time and Resources?
Criminal justice court and legal personnel in Public Law 280 and non-Public Law 280
jurisdictions were asked: What types of cases require more time and resources? Thirty-eight
criminal justice workers in Public Law 280 jurisdictions and 17 criminal justice workers in nonPublic Law 280 jurisdictions commented about the types of cases that took the most of their time
and resources. In both groups of respondents, some commented about several types of cases that
incurred excessive time and resources. For example, 1 Public Law 280 respondent said, “DUI,
domestic violence, and alcohol-related felonies (and) assaults.” To get a profile of the types of
cases that required more time and resources, we counted every time any type of case was
mentioned. In the above quote, three types of cases emerge: alcohol-related cases, major crime
cases involving felonies or assaults, and domestic violence cases. Usually the case issues are
overlapping; for example, many crimes are reported linked to alcohol or drug abuse. The
255
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department.
Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
respondents’ comments were counted three times: once for major crimes cases, once for alcoholrelated cases, and once for domestic crimes. In this way of counting, Public Law 280 criminal
justice workers (38) mentioned time- and resource-consuming cases 70 times. Similarly, nonPublic Law 280 criminal justice workers (17) mentioned 30 times cases that were highly timeand resource-consuming. On average, respondents mentioned about two types of cases that were
significantly time and resource consuming. To better understand the frequency and distribution
of time- and resource-consuming cases, we will analyze how many times different types of cases
are deemed time- and resource-consuming, and see whether any patterns or comparisons suggest
overall trends or differences in Public Law 280 and non-Public Law 280 jurisdictions.
Public Law 280 criminal justice workers describing the most time-consuming cases
mention cases involving major crimes, violent crimes, felonies, assaults, and sexual assaults 25
times, or 35.7%, of the total number cases mentioned (70). For Public Law 280 criminal justice
workers in state and county courts, cases involving major or violent crimes were mentioned most
often as the most consuming of time and resources. Some comments on major crimes from
Public Law 280 criminal justice workers include:
Burglaries. Domestic violence, usually alcohol-related or drug-related cases.
Battery cases. The serious felonies generally take more time.
Well, for us, we do all criminal offenses from a legal left turn to murder. We
haven’t done as many murder cases in the last couple of years because we are a
small program, and our last murder case took three months, both one of the
attorney’s time and the one legal assistant’s time out of a staff of eight, and that is,
I guess, broken down to three attorneys and two legal assistants. And for us to
just shut down for one case for a three-month period and (inaudible) staff on a full
time basis is just kind of a large drain on resources itself. But felony cases take
most of our time. ...
Well, I guess, generally speaking, you know that more serious cases would take
more time than misdemeanors and more serious felonies more time than less
serious felonies. But, you know, I think, domestic violence crimes are always
kind of difficult, as well as more serious property crimes and things of that nature.
You know, I don’t know that I can answer that kind of question. Murders always
take more time and resources than others. Children in need of protection or
service ... the family-welfare cases where the child is a runaway or the child is
into some other issue which is not safe for them or poses a danger to the
community, not in a criminal way, requires a lot of time.
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This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
The second most frequently mentioned type of time-consuming cases are alcohol- and
drug-related cases, which were mentioned 19 times (27.1%). Some comments include:
Well, I think the drug cases ... because the way we handle the drug cases. ...
Because that seems to be (a) prevalent offense, and they have them come in at
least two a month into the office; we test, we do all those things. And, of course,
then you have the chronic users who (are) always in the revolving door. And so,
there is a lot of different activity that goes on with them…
I think the ones where there is some type of substance abuse or alcohol abuse
because a lot of time the condition of probation will be that a client (is) going to a
program and that requires status reviews, and some of them do better in-program
than others. So, if there are problems along the way, they call and explain what is
going on with those, too.
Drug and alcohol. Domestic violence. Sex offending.
Drugs and major assaults, and assault-type behaviors ... Probably because the risk
of going to prison is so much greater and more likely to be headed to trial than
any other case, (like a) misdemeanor (is) not likely going to be going to trial. We
could settle them a lot easier without spending a lot of time.
Drug cases ... pretty intense follow-up …
I would say the ones that are involved with use of alcohol.
It has been my
experience that ... whether the offense is an assault or a burglary, that a large
percentage of them, the defendant has been using alcohol. If there is any common
denominator for all types of offenses and difficulties, it’s the use of alcohol.
Well, the alcohol-related offenses ... easily, 95% of my cases are alcohol related in
that alcohol is the primary drug of use even by my drug-abusing clients. And
those, of course, are the ones that we are spending most resources on trying to
find ways of dealing with alcohol and other drug-abuse issues.
Domestic violence as a type of case incurring significant time and resources is mentioned
11 times (15.7%) by Public Law 280 criminal justice workers.
I would say definitely domestics ... and, obviously, domestic assaults or violations
of orders for protection. Those kinds of prosecutions ... when you have a
prosecution that has a victim, that in itself immediately adds additional resources
and time because we have an obligation to, at least a good faith effort, to contact
and reach the victim and gather input. In a domestic case, I think that gets
257
This document is a research report submitted to the U.S. Department of Justice.
This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
multiplied maybe two or three times ... and I think that the dynamic on the
reservation can make it even more complicated still, because it’s a small, tightknit community, and a lot of people are related to each other. In any domestic
assault there is often concerned about recanting. In my experience with
prosecuting domestic assaults on the reservation, there is an even greater
possibility of it, and a greater confusion because parties are so close-knit that
there is a even greater difficulty and, maybe not unwillingness, but a hesitancy for
people to want the matter resolved outside the family circle, for instance.
Cases involving domestic violence ... just what I indicated. The lack of resources.
The lack of resources and the lack of — and I don’t necessarily believe that it’s
intentional or willfulness on the part of some of the tribes not to really work hard
in helping certain people, especially, again, that they are on the outs with the tribal
members or council. Domestic violence cases and the other, because you have to
deal with the cultural issue. And a lot of times, you are dealing with younger
people … But when it comes to in-patient, and DV, when you talk about domestic
violence, you are going to have to comply with the statute that says 52 weeks of
anger management ... so one of our clients unfortunately lacked the finances or
don’t have transportation ... or sometimes they end up getting violated because
they don’t have the finances or the ability to comply. So again, it’s just lack of
resources overall. I think it’s just lack of resources per se, just for our clients, let
alone more difficulty when you talk about persons of different cultures.
Domestic violence requires a lot of time. Sexual-assault cases require a lot of
time ... child in need of aid. Where the state takes the child out of the home
because the parents have some sort of deficiency that they need to work on.
Public Law 280 criminal justice respondents mention less often other types of cases that
involve expense and are time consuming including child welfare cases (4.3%), child neglect and
abuse (4.3%), and child-protection orders (4.3%). Child welfare, neglect, and protection cases
make up 12.9% of time- and resource-consuming cases.
The remainder of cases mentioned as
time- and resource-consuming are cases related to property crimes (2.9%), juvenile cases (1.4%),
family law cases (1.3%), and Public Law 280 jurisdiction cases (1.3%).
In non-Public Law 280 jurisdictions, criminal justice workers (N=17) commented on the
cases that were most time- and resource-consuming for tribal courts. For the non-Public Law
280 jurisdictions, the 17 respondents made mention 30 times of the types of cases that cost in
significant time and resources. The pattern is somewhat different from the county and state
courts in Public Law 280 jurisdictions. The most frequently mentioned type of costly and timeconsuming cases reported by non-Public Law 280 criminal justice workers are alcohol and drug
cases (33.3%). Major crimes — assaults, felonies, and sexual assaults — are mentioned 23.3%
of time, while domestic violence cases are mentioned 20% of the time as incurring the most time
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This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
and resources to manage. Child-welfare, custody, abuse, and paternity issues are cited 13.3% of
the time as difficult and time-consuming cases. Juvenile court issues are mentioned 10% of the
time as difficult-to-manage cases. In non-Public Law 280 tribal courts, children- or juvenilerelated cases make up 23.3% of the most difficult cases to manage, the same rate as major
crimes. An important factor that may explain the results for non-Public Law 280 tribal courts is
the limitation on sentencing found in the Indian Civil Rights Act.1 Under that Act, tribes may not
impose criminal punishments exceeding one year in jail and a $5,000 per offense. Taking those
conditions into account, tribal courts often defer to federal courts for the trial of serious felonies
committed by Indians.2