What Are the Greatest Problems Working with Indian Clients?
Criminal justice court and legal personnel were asked: What are the greatest problems
you face when working with Indian clients? Too few respondents answered the question for
reliable analysis and comparisons. Twelve Public Law 280 and 6 non-Public Law 280 criminal
justice workers provided comments. Since the question is open ended, many respondents
provided complicated answers with multiple themes and viewpoints. We investigate the
responses for possible patterns.
Among the 12 Public Law 280 criminal justice respondents, 6 (50%) mention cultural
issues, 4 (33.3%) comment on program issues, and 1 each commented on lack of funding,
systemic reservation community issues, and stereotypes. Three (25%) of Public Law 280
criminal justice workers say that there are no problems working with Indian clients, relations
with Indian clients are the same as elsewhere in the United States.
Among the 6 non-Public Law
280 criminal justice, 1 each (16.7%) mentioned deception of criminal justice workers,
community environment, and no problems working with Indian clients. One non-Public Law
280 respondent mentioned legal and program issues, and a second commented on issues related
to poverty and Indian spirituality. While these data are limited, they suggest that Public Law 280
criminal justice workers are more concerned about cultural and programmatic issues than nonPublic Law 280 criminal justice court and personnel, although the non-Public Law 280 responses
are too few to establish a reliable pattern.
Non-Prosecution Owing to Lack of Jurisdiction?
In the literature, there are references to issues of lack of jurisdiction of tribal courts over
non-Indians, and often ambiguous understanding of concurrent jurisdiction between state/county
and tribal courts in Public Law 280 jurisdictions. Reservation residents and criminal justice
respondents were asked: Are there some cases you feel are very important that are not
prosecuted because of lack of jurisdiction? We seek to investigate whether there are different
rates of case prosecution owing to lack of jurisdiction between Public Law 280 and non-Public
Law 280 jurisdictions.
One hundred thirty-five Public Law 280 reservation residents commented on the
question, and 10 (7.4%) said they could not answer the question. Sixty-eight Public Law 280
reservation residents (50.4%) say that they are not aware of significant cases that are not
260
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.
prosecuted owing to lack of jurisdiction. A slight majority of Public Law 280 reservation
residents say they are not aware of any significant cases that are not prosecuted because of lack
of jurisdiction by state or county courts. Fifty-seven Public Law 280 reservation residents
(42.2%) say significant cases are not prosecuted owing to lack of jurisdiction. Many kinds of
cases are mentioned by the respondents including child-welfare and -protection cases, alcoholand drug-related cases, major crimes, animal control, trespass, elderly protection, property theft,
nonmembers, sexual abuse, traffic, child abuse, and others.
Sixteen Public Law 280 criminal justice workers commented and 9 (56.3%) said they are
not aware of significant cases that are not prosecuted because of lack of jurisdiction. Seven
Public Law 280 criminal justice workers (43.8%) affirm that some significant cases are not
prosecuted by county or state courts
. The Public Law 280 criminal justice respondents note
several kinds of cases including: curfew, environment cases, and traffic. The proportion of
Public Law 280 reservation residents and criminal justice workers who say that significant cases
are not prosecuted is very similar, 43.8% and 42.2%, respectively. A significant minority of
Public Law 280 criminal justice and reservation-resident respondents say that there are
significant cases that are not prosecuted within the county and state court systems because of
lack of jurisdiction.
Forty non-Public Law 280 reservation residents commented on whether they were aware
of significant cases that were not prosecuted in federal courts because of lack of jurisdiction.
Seven respondents (17.5%) were not able to answer the question. Nineteen non-Public Law 280
reservation residents (47.5%) say they are not aware of significant cases that should be
prosecuted but are not prosecuted in federal courts. Fourteen non-Public Law 280 reservation
residents (35%) report there are some significant cases that are not prosecuted in the federal
court system. The latter respondents say some cases that are not prosecuted include non-tribal
members and non-Indian cases, child abuse, and hunting- and fishing-rights cases. At least 6 of
the respondents (15%) mentioned non-Indian and non-tribal member issues as situations that
arise where the non-Indian or non-tribal member is not prosecuted owing to lack of jurisdiction.
Turning now to cases in non-Public Law 280 tribal courts, 46 reservation residents made
comments about whether there are significant cases that are not prosecuted in non-Public Law
280 tribal courts because of lack of jurisdiction. Nine non-Public Law 280 reservation residents
(19.6%) say they do not have enough information to provide an answer to the question. Eighteen
non-Public Law 280 reservation residents (39.1%) say they are not aware of significant cases
that are not prosecuted by the non-Public Law 280 tribal courts. Nineteen respondents (41.3%)
say there are important cases that should be prosecuted in non-Public Law 280 courts, but are
not. Among the cases mentioned are drug-related cases, domestic violence, land jurisdiction —
disputes over government administration, child welfare,
hunting- and fishing-issues, and nonIndian and non-tribal member jurisdictional situations. At least 11 non-Public Law 280
reservation residents (23.9%) say that the inability of tribal courts to prosecute non-Indians and
261
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.
non-tribal members is a significant problem, and that these cases should be prosecuted in nonPublic Law 280 tribal courts.
Seven non-Public Law 280 criminal justice workers commented, and 2 (28.6%) say there
are no significant cases that are not prosecuted in non-Public Law 280 tribal courts. Five nonPublic Law 280 criminal justice workers (71.4%) say there are significant cases that are not
prosecuted in non-Public Law 280 courts because of lack of jurisdiction. Since there are only 7
non-Public Law 280 criminal justice workers commenting on this question, the results given
should be held as preliminary until more data are available. Non-Public Law 280 criminal
justice workers mention juvenile cases and non-Indian and non-tribal members as cases that do
not receive prosecution in non-Public Law 280 tribal courts.
Four respondents mentioned
jurisdictional cases involving non-Indians and non-member Indians (57.1%), suggesting from
these limited data that non-Public Law 280 criminal justice workers are aware of the problems of
prosecuting non-Indians in non-Public Law 280 tribal courts.
As shown in Figure 9.2, we compare the proportions of all five groups of respondents,
according to whether they met with situations where significant cases were not prosecuted.
While non-Public Law 280 criminal justice workers commenting on tribal courts
Non-PL 280
RR, Federal
Courts
Non-PL 280
RR, Tribal
Courts
PL 280 RR,
State/
county
Courts
PL 280 CJ,
State/
county
Courts
Non-PL 280
CJ, Tribal
Courts
No
Prosecution
Because of
Lack of
Jurisdiction
35.0% 41.3% 42.2% 43.8% 71.4%
Percentage Affirming No Prosecution
Figure 9.2
has a relatively large percentage, there are too few cases (n=7), and therefore that figure does not
affect the overall statistical significance of the data. Reservation residents and criminal justice
workers in both Public Law 280 and non-Public Law 280 jurisdictions report at about the same
rate that there are significant cases that are not prosecuted (chi square = 3.33, df = 4, p = .50).
Except for the few non-Public Law 280 criminal justice workers reporting on tribal courts, the
respondent groups report concern over non-prosecuted cases in the 35-44% range. A substantial
minority of respondents are aware of cases that they believe should be prosecuted in federal,
tribal, or state/county courts but are not because of lack of jurisdiction.
There appear to be no
significant differences between Public Law 280 and non-Public Law 280 jurisdictions over
awareness of cases not prosecuted for lack of jurisdiction.
262
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.
Legal Problems When Prosecuting or Defending an Indian Case?
Where appropriate, criminal justice workers in Public Law 280 and non-Public Law 280
jurisdictions were asked: Do you encounter legal problems when trying to prosecute?
Alternatively, criminal justice respondents were asked: Do you encounter any legal problems
when trying to defend an (Indian) client?
The Public Law 280 criminal justice workers (N=28)
commented about state and county courts, and the non-Public Law 280 respondents (N=10)
commented on tribal courts. Public Law 280 criminal justice workers (60.7%) say they do not
come across legal problems when trying to prosecute or defend Indian-related cases in county or
state courts. Seven Public Law 280 criminal justice respondents (39.3%) say they do meet with
legal programs, mainly jurisdictional problems, when trying to prosecute or defend Indianrelated cases in county or state courts. Some comments are:
First of all, the jurisdiction involved, obviously if they want to see something
prosecuted and they are very vigilant about that, I do think that that makes a
difference with any DA. And I am not talking about just a tribal group. Any
group that feels strongly about the issue, if they get behind it as a victim’s
advocate group or whatever, it does tend to help it through the system. The tribe
obviously has some strong feelings in relation to natural-resource issues, whether
it be fish or wildlife situations or other natural resource things where there are
violations of the law ... the Native American community, I think, feels much more
strongly about certain issues related to fish and wildlife because of culture. And
another example would be Native American artifacts.
Well, yeah, it’s. Because nobody really knows the full extent of it ... whether
(they) really have jurisdiction or not. ... Or you don’t kind of wonder about, but it
could be more work than it’s usual ... because there is a jurisdictional issue ... the
tribal cops. I guess, their exact status right now is kind of an issue.
(T)hat defense attorney said, when we brought the complaint that ... you do not
have jurisdiction in this case because it happened on the reservation, was a tribal
member, and the types of charges that you brought are civil regulatory under
Public Law 280, and they are not criminal prohibitory.
So, yeah, we have legal
hurdles that we have to overcome all the time.
Ten non-Public Law 280 criminal justice workers commented on non-Public Law 280
tribal courts and legal difficulties trying to prosecute or defend an Indian cases, and 7 (70%) say
they meet with significant difficulties. Thirty percent of non-Public Law 280 criminal justice
workers say they do not come across significant legal difficulties when trying to prosecute or
defend Indian cases. Some cases that created legal difficulties include regulatory-jurisdiction
263
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.
issues, establishing probable cause,
and different cultures and court systems. Some comments
are:
I would say (procedural issues) becomes an issue 3% of the time, roughly 3 to 5%
of the time. ... I think for the tribal people it’s probably a little better ... I mean,
you know, you compare our criminal code, the (tribal) code, to the (state) criminal
code, and there are far more statutes and offenses and exceptions to the rule. It’s a
pretty simple criminal code in (the reservation), and generally it can be followed.
There are a few things that are a little arcane. For example, adultery is a crime on
the reservation, and it’s not off reservation. But it doesn’t get prosecuted much.
And they (non-Indian lawyers) come in like steamrollers, no knowledge, no
understanding of tribal court whatsoever and they start challenging everything and
anything. Their expectation being that it’s a failure if tribal court doesn’t perform
or tribal police don’t perform the same as, say state cops or superior court. So
they come in and at trial, what they then do is mock the tribal police. And hold a
standard in front of jurors the standard that they deal with everyday that has no
cultural relevance whatsoever. It’s not the way we work out here ... and those
sorts of things that implies there is some deficiency here, when in fact it’s just
different. And that poses a real legal problem for me.
(Regulatory ) gets to be a gray area. I think criminal is fairly clear as to what our
criminal jurisdiction is. I think there are some misperceptions (and need for
education for) these prosecutors and make them realize that state law does not
apply on this reservation here.
Although the data are few, and therefore most likely unreliable, the trend suggests nonPublic Law 280 criminal justice workers are noticing in non-Public Law 280 courts higher rates
of prosecutorial legal difficulties than Public Law 280 criminal justice workers report in Public
Law 280 county and state courts.
