11. Policing Native American Lands in the United States

Introduction

Police functions in the United States are carried out at the federal, state and local levels of government. Police functions are also carried out in Indian country. Policing in Indian country is a very complex subject matter area as well as being controversial. Indians and Indian country occupy a very special position in terms of history, legislation, and judicial decisions. This chapter will examine the development of federal Indian policy, Indian country criminal jurisdiction, policing in Indian country, as well as the future of policing in Indian country.

Federal Indian Policy

Policy issues involving Indian tribes are complicated by the unique position assumed by Indians under the federal system of government in the United States. Traditionally, Indian tribes have been considered sovereign entities, and federal regulation of Indian affairs was governed under treaties entered into between the federal government and Indian tribes (Kronowitz et al. 1987). An Indian tribe, as an individual sovereign, was considered to be capable of making and enforcing its own laws outside the federalist structure. This traditional policy position concerning Indians has been radically transformed over the course of the past 200 years. No unitary doctrine draws together the field of Indian law and policy (Turner 1988). Federal Indian policy has been cyclical. The federal government has vacillated between the two conflicting policies of self-determination and assimilation (Turner 1988).

Assimilation seeks to limit or extinguish the federal-tribal trust relationship and self-determination seeks to preserve the relationship as well as promote tribal autonomy (Wilkinson and Biggs 1977). Indians and their tribes have been forced to contend with these two opposing position of the federal government for a period of approximately 100 years. Federal Indian policy has cycled twice between assimilation and self-determination. Each instance of changed policy has resulted from a Congressional decision to repudiate the policy approach concerning Indians taken by a previous Congress. Congress has assumed almost unfettered authority to govern Indian affairs in accordance with the Indian Commerce Clause of the U.S. Constitution, the sole specific Constitutional grant of Congressional power concerning Indians (Laurence 1981).

The theories of Francisco de Victoria dominated the foreign policy of the European nations when they first colonized America and established the basic framework of the relationship between Indians and colonists in America (Kronowitz et al. 1987; Kalish 1996). Victoria’s theories provide that Indians were free and rational peoples who possessed inherent natural legal rights. Victoria’s theory further provided that the rights held by Indians under international law included the right to own property and the right to be free of European authority as long as the Indians did not provoke a war (Kalish 1996). Europeans powers divided America according to which country had the recognized right to acquire land from the Indians and not according to which country actually possessed what piece of land. European nations adhered to Victoria’s theory that Europeans could legally acquire Indian lands and exert political domination over Indians only upon the consent of Indian tribes. Victoria’s theories of international law provided the foundation for Europeans to establish and conduct relations with Indian tribes on the basis of negotiated treaties (O’Brien 1991).

British law explicitly recognized tribal sovereignty and provided that Indian tribes be treated as distinct political sovereigns (Smith 1993). Indian affairs were controlled by local, individual colonies without any real interference from the central government during most of the colonial period. Each colony had the freedom to formulate and pursue its own policy with Indian tribes in this area. Tribal-colony conflict developed over a period of time based upon conflicting interests. Colonists were interested in pursuing trade and acquiring land. Indian tribes were interested in minimizing the adverse impact of the arrival of the colonists on tribal autonomy (Worthen and Farnsworth 1996). The British government realized that local, colonial control of Indian affairs might not be in the best interests of the national government.

The French and Indian War ended in 1763 when Britain and France executed The Peace of Paris and Britain initiated an effort to centralize control of Indian affairs in the national government. The Proclamation of 1763 granted the national government, as opposed to local colonial governments, the power to control and slow the westward movement of white settlers (Worthen and Farnsworth 1996).

Actions taken by Britain such as the Stamp Act of 1765, the Sugar Act of 1764, and the Townshend Acts, produced conflict and political tensions between the national and local governments which overshadowed Indian policies in colonial America (Worthen and Farnsworth 1996). The Revolutionary War broke out and Indian tribes viewed the American Revolution with uncertainty. The newly independent United States assumed management of Indian affairs upon the departure of the British. The United States, based upon principles inherited from the British, considered Indian tribes to be sovereign, foreign nations. During the drafting of the Articles of Confederation, the only real debate concerning Indians addressed the apportionment of governmental power between the state and national governments in the handling of Indian affairs (Kronowitz et al. 1987). The governmental handling of Indian affairs was addressed in Article IX of the Articles of Confederation. This provision provided Congress with the exclusive authority to control Indian affairs; however, this provision also provided the states with full legislative authority to control their geographic areas. Under the Articles of Confederation, the Confederation Congress did not possess the governmental power to restrain states from dealing with Indian tribes and possessed no effective enforcement power in order to restrict Indian tribes to trading exclusively with the national government (Worthen and Farnsworth 1996).

From its inception, the Articles of Confederation contained one major, structural defect, namely, the national government was too weak when compared to the strength of state governments. Problems associated with a weak national government resulted in a Constitutional Convention and the subsequent drafting, adoption and ratification of the U.S. Constitution (Worthen and Farnsworth 1996). The U.S. Constitution rectified the weaknesses of the Articles of Confederation by strengthening the powers of the national government (Carey and McClellan 1990).

During the drafting of the U.S. Constitution , the only real debate concerning Indians involved the apportionment of power between the state and federal government concerning the conduct of Indian affairs (Kronowitz et al. 1987). The framers of the U.S. Constitution perceived that a unified policy toward Indian affairs required a national policy and not a variety of differing state Indian policies (Worthen and Farnsworth 1996). In order to rectify the defects concerning Indian affairs under the articles of Confederation, James Madison recommended the provision of an Indian Commerce Clause, which was included in the U.S. Constitution.

The U.S. Constitution serves as a framework for the United States-Indian relations, and not as a source of United States power (Kronowitz et al. 1987). The U.S. Constitution embodied the prevailing view of the founders, which was in conformity with early European nations based upon Victoria’s theories of international law, that no federal or state authority over Indians existed without their consent (Newton 1984; Kronowitz et al. 1987; Kalish 1996; O’Brien 1991). At the time of the drafting, adoption and ratification of the U.S. Constitution, Indian tribes were considered sovereign entities, and were considered to be capable of making and enforcing their own law outside the federalist structure in the United States. Indian tribes were considered to be outside of the “plan of the convention” when the U.S. Constitution was drafted (Kronowitz et al. 1987).

The U.S. Supreme Court , with Federalist John Marshall as Chief Justice, affirmed the concept of Indian sovereignty in three seminal opinions concerning the relationship between the federal government and Indian tribes (Kronowitz et al. 1987; Kalish 1996). The Marshall trilogy of cases, which together recognized the independent political status of Indian nations, were Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); and Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (Kronowitz et al. 1987; Kalish 1996). Johnson involved a land title dispute. The Court held that while the Indians had an unquestioned right to occupation of their land, the Indians were not free to sell their land to whomever they desired. The Court held that only the United States could acquire the Indian’s title and transfer it to a private individual. The basis of this exclusive right was the international legal doctrine of discovery. The doctrine bestowed exclusive title on the sovereign to acquire Indian lands through purchase or conquest and held that settlers could not purchase Indian lands without the consent of the discovering sovereign. Indian tribes retained possession of their land and the right to use it according to their own discretion and the power of their laws and government over their territory was unquestioned.

Cherokee Nation involved an action brought by the Cherokee Nation to prevent the State of Georgia from enforcing state laws in Cherokee territory located within Georgia. The Cherokee Nation contended that it was a foreign nation and the Court had to assume jurisdiction and resolve disputes between states and foreign nations. The Court determined that the Cherokee Nation was not a foreign nation under the U.S. Constitution and as thus, the Cherokee Nation lacked standing to invoke the original jurisdiction of the Court. Although Indian tribes were not foreign nations, the Court determined that Indian tribes had a special status within the United States.

The Marshall trilogy of cases provided the fundamental tenants of Indian policy under the U.S. Constitution and defined the political relationship of Indian tribes under America’s federal system of government. The Marshall trilogy of cases defined the status of Indian tribes as “domestic dependent nations”, established the concept of a trust relationship between the federal government and Indian tribes and defined the relationship of the states and Indian tribes. The Marshall trilogy of cases also set the stage for reduced tribal sovereignty and the establishment of the plenary power doctrine over Indian affairs and policy (Kronowitz et al. 1987; Kalish 1996; Belliveau 1993; Worthen and Farnsworth 1996; O’Brien 1989).

The period of the 1840s through the 1880s represents the era of the development of the federal plenary power doctrine. In Martin v. Lessee of Waddell, 41 U.S. (16 Pet.) 367 (1842), the Court, under the leadership of Chief Justice Robert Taney, reinterpreted the discovery doctrine. The Court held that the discovery doctrine granted full title and ownership of Indian lands to the United States and left the Indians with only a right of occupancy. In holding that Indians possessed only a right of occupancy to Indian lands, the Court ignored the history of Indian-government relations in the United States and ignored settled precedent concerning Indian sovereignty and relations (Newton 1984; Kronowitz et al. 1987). The reinterpreted doctrine of discovery was reaffirmed and perpetuated in United States v. Rogers, 45 U.S. (4 How.) 567 (1846). In Rogers, the Court upheld a federal statute that extended federal jurisdiction over crimes involving non-Indians occurring in Indian territory. The Court’s holding in Rogers represents the first major intrusion of federal governmental power into Indian territory and laid the foundation for the steady increase of federal intrusion upon Indian sovereignty and the establishment of the plenary power doctrine (Kronowitz et al. 1987).

Prior to 1871, the plenary power doctrine in the Indian context, held that the federal government, not the states, possessed the power under the U.S. Constitution to conduct relations with Indian tribes (Kronowitz et al. 1987). Prior to 1871, relations between the federal government and Indian tribes were conducted by treaty and Congress passed most enactments concerning Indians in order to implement the federal government’s treaty obligations. As with foreign treaties, Indian treaties were negotiated by the executive branch and ratified by the U.S. Senate, and not the U.S. House, of the legislative branch (Kronowitz et al. 1987). Congress enacted the Internal Revenue Act in 1868 that provided for the imposition of federal taxes on distilled spirits and tobacco. The United States applied the Internal Revenue Act to the Cherokee Tribe, in apparent conflict with the Cherokee Tribe’s 1866 treaty with the federal government. In Cherokee Tobacco, 78 U.S. 616 (1870), the Court held that a congressional enactment can supersede a prior treaty.

One year after the Court’s decision in Cherokee Tobacco, the U.S. House of Representatives refused to appropriate funds for the implementation of Indian treaty obligations because of its jealousy of U.S. Senate control over the treaty process (O’Brien 1989; Kronowitz et al. 1987). The U.S. House of Representatives, desiring a greater role in formulating Indian policy, reached a compromise with the U.S. Senate. Congress enacted the Appropriation Act of March 3, 1871, which prohibited the United States from recognizing any Indian tribe as capable of executing a treaty; however the enactment provided that then existing treaties would remain in full force and effect (O’Brien 1989; Kronowitz et al. 1987). The Appropriation Act of March 3, 1871 represented a distinct, significant and permanent shift in the Indian policy making power of the federal government. The 1871 enactment provided that Congress, not the executive branch, held primary authority over the conduct of Indian policy. The plenary power doctrine has been expanded to include the allocation of power over Indian policy to Congress, in addition to the federal supremacy over the states regarding Indian policy.

The plenary power doctrine concerning Indian policy was solidified by U.S. Supreme Court decisions following the 1871 federal legislative enactment. In United States v. Kagama, 118 U.S. 375 (1886), the Court was asked to review the constitutionality of the Major Crimes Act of 1885 which extended federal criminal jurisdiction over crimes committed by Indians against Indians in Indian territory (Kalish 1996; Kronowitz et al. 1987; O’Brien 1989). Kagama argued that the Act was beyond the enumerated powers of Congress. The Court rejected Kagama’s argument and held that Congress possessed inherent federal power over internal Indian affairs. The Court reinforced the federal plenary power doctrine in Cherokee Nation v. Hitchcock, 187 U.S. 294 (1902), and Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). In these two cases the Court held that Congress possessed the power to alter or revoke any of an Indian tribe’s political or property rights irrespective of applicable treaty provisions.

The articulation, development and establishment of the federal plenary power doctrine in the area of federal Indian policy are significant for three primary reasons. First, the constitutional framework for conducting relations with Indians and Indian tribes as sovereign, employed in colonial and early America in accordance with the Marshall trilogy of cases, has been politically and legally replaced (Kronowitz et al. 1987). Second, the power of Congress regarding Indian policy is characterized as one without limitation (Kronowitz et al. 1987; Kalish 1996). Third, the power of Congress regarding Indian policy is, for all practical purposes, beyond judicial review (Kronowitz et al. 1987). The U.S. Supreme Court has never invalidated a federal enactment directly regulating Indian tribes on the ground that Congress exceeded its authority to govern Indian affairs. In short, the federal plenary power doctrine has allowed for a wide-ranging and unchecked exercise of congressional power regarding Indian affairs and Indian policy.

Congress, 1 year after the Kagama decision and acting in accordance with the federal plenary power doctrine, enacted the General Allotment Act of 1887. This enactment is also referred to as the Dawes Act and the Land in Severalty Act. The General Allotment Act signaled the beginning of the cyclical federal Indian policy. The General Allotment Act was a federal policy of facilitating the assimilation of Indians and Indian tribes into the dominant mainstream American society and of opening Indian lands for settlement. The policy goals of the General Allotment Act were (1) to assimilate Indians into white society by teaching them farming skills, (2) to instill values of individualism, and (3) to instill values of private property ownership (O’Brien 1989). The effect of the General Allotment Act was the undermining of Indian cultural values and Indian sovereignty, although very little progress was made towards the assimilation of Indians into the dominant American culture.

In 1924 Congress enacted the Indian Citizenship Act which granted citizenship to Indians. Indians then possessed the rights and privileges of being citizens of the United States, the State of which they were residents and of their Indian tribe. Shortly after enactment of the Indian Citizenship Act, the federal government commissioned the Institute for Government Research to study Indian economic and social conditions. The Meriam Report of 1928 concluded that federal Indian policy should develop and build on Indian values rather than attempting to destroy them (O’Brien 1989). Congress, in accordance with the federal plenary power doctrine, enacted the Indian Reorganization Act of 1934. The Indian Reorganization Act represents the conclusion of the first cycle of federal Indian policy. The Indian Reorganization Act reversed the assimilationist policy of the General Allotment Act of 1887 and was a policy of self-determination for Indians and Indian tribes. The Indian Reorganization Act was an attempt to encourage economic development, political self-sufficiency, self-determination, and tribal life (Worthen and Farnsworth 1996; O’Brien 1989).

Congressional dissatisfaction with allowing Indian tribes to engage in tribal self-government, coupled with Indian resistance to self-government based upon constitutions and bylaws imposed by the Indian Reorganization Act, led to the end of the Indian reorganization era (Kronowitz et al. 1987). In 1953, Congress approved House Concurrent Resolution 108 and enacted Public Law 280, which reversed the policy of self-determination implemented by virtue of the Indian Reorganization Act of 1934 (Walsh 1983). House Concurrent Resolution 108 and Public law 280 provided the framework for the implementation of a federal Indian policy of termination. House Concurrent Resolution 108 and Public Law 280 represent an assimilationist policy and the beginning of the second cycle of federal Indian policy. House Concurrent Resolution 108 established the policy goals of the termination era, namely (1) to make Indians in the United States subject to the same laws and entitled to the same privileges and responsibilities which were applicable to other citizens, (2) to end the Indians’ status as wards of the United States, and (3) to grant Indians all the rights of American citizenship (O’Brien 1989; Belliveau 1993). Public Law 280 delegated jurisdictional authority over Indian tribes directly to certain states (Belliveau 1993; O’Brien 1989). Public Law 280 also allowed other states, without regard for the preferences of Indian tribes and without their consent, to assume full criminal jurisdiction and full or partial civil jurisdiction over reservation Indians upon state popular referendum, state statutory enactment or state constitutional amendment (Belliveau 1993). Public Law 280 eliminated the jurisdictional apportionment of authority between the federal government, state government and Indian tribes in those states where Public Law 280 was applicable. Several Indian tribes were outright terminated during the termination era. Tribal government-to-government relationships with the federal government were severed, tribes were subjected to state and local laws and Indian lands were conveyed into private ownership (Wilkinson and Biggs 1977; Kronowitz et al. 1987).

In 1968, Congress enacted the Indian Civil Rights Act of 1968, which embodied the concept of continued tribal existence as opposed to a concept of termination. The Indian Civil Rights Act of 1968 extended protection under the Bill of Rights to tribal members and provided funds for the development of tribal judicial systems. This Act also amended Public Law 280 so that a state’s ability to assume criminal and/or civil jurisdiction under Public Law 280 was essentially terminated. The Act required Indian tribes to hold special elections in order to determine the consent of an Indian tribe to state assumption of criminal and/or civil jurisdiction under Public Law 280. The Act also allowed states, which had previously assumed jurisdiction under Public Law 280, to return jurisdiction to the federal government (O’Brien 1989; Belliveau 1993).

The Indian Civil Rights Act of 1968 once again represented a change in federal Indian policy. The Act reversed the policy of assimilation and represented a return to a policy of self-determination. This Act represents the conclusion of the second cycle of federal Indian policy as well as current federal Indian policy. In 1969, President Nixon delivered a speech to Congress where he denounced termination, acknowledged the failure of termination and urged Congress to repudiate termination as a federal Indian policy. President Nixon emphasized the importance of the trust relationship between the federal government and Indian tribes and advocated a policy of tribal self-management and autonomy. President Nixon declared that the then current federal Indian policy was that of self-determination (Belliveau 1993). Congress responded to President Nixon’s speech through the enactment of various pieces of legislation aimed at promoting a federal Indian policy of self-determination (Belliveau 1993).

In 1983, President Reagan made a statement concerning federal Indian policy that reaffirmed President Nixon’s announcement that the federal government was committed to a policy of self-determination. President Reagan emphasized the need for Indian tribes to become self-sufficient and to reduce their dependence on federal funds by providing a greater percentage of the cost of their self-government. In order to reduce their dependence on federal funds, President Reagan emphasized that Indian tribes increase their role in the development of reservation economies. President Reagan acknowledged the distinct political status of Indian tribes and promoted the federal government’s government-to-government relationship with recognized Indian tribes by transacting with Indian tribes as governments (Belliveau 1993; Worthen and Farnsworth 1996). The federal Indian policy of self-determination at present entails a necessary link between reservation economic development and self-determination. Conventional wisdom is that Indian reservations need strong economies and good business environments in order to fully achieve self-determination and political autonomy; however, another view is that Indian tribes first need true sovereignty in order to develop strong economies. Whichever comes first, self-determination or economic self-sufficiency, the linkage between self-determination and economic development on Indian reservations characterizes the present federal Indian policy of self-determination. In an environment conducive to the development of reservation economies, many Indian tribes ventured into gaming operations as a source of revenue. The modern era of federal Indian policy presents the first part of the third cycle of federal Indian policy in the United States.

Indian Country Criminal Jurisdiction

It is critical to understand the shifts in federal policy regarding Indians in order to understand Indian country criminal jurisdiction and policing Indian country in the United States. Criminal jurisdiction and policing is based upon the concept of jurisdiction. Geography constitutes an integral component of criminal jurisdiction. Indian country criminal jurisdiction is a complex maze that at a foundational level is premised upon geography, the precise location of where a criminal offense is committed and the status of the involved individuals, Indian or non-Indian. The jurisdiction maze of Indian country criminal jurisdiction is the direct result of shifts in the federal Indian policies of self-determination and assimilation. The complex maze of Indian country criminal jurisdiction creates a complex and unique environment for policing Indian country (Riley 2016).

Congress addressed crimes committed within the Indian territory when the first Indian Trade and Intercourse Act was passed in 1790. This Act included provisions punishing crimes committed within the Indian territory. From the beginning in 1790, the federal government firmly established the power of the federal government to exercise jurisdiction over Indians under the U.S. Constitution. In 1817 Congress passed the General Crimes Act. This Act provided for the federal prosecution and punishment of crimes committed in Indian country involving Indians and non-Indians. The General Crimes Act excluded crimes committed by one Indian against another Indian (Dossett 2018). In 1832 the U.S. Supreme Court decided Worcester v. Georgia, 31 U.S. 515 (1832). In Worcester, the Court held that the state of Georgia could not enforce state criminal laws upon Cherokee Nation lands because states lacked criminal jurisdiction over Indians in Indian country. In United States v. McBratney, 104 U.S. 621 (1881), the U.S. Supreme Court held that the state had exclusive jurisdiction over a crime committed by a non-Indian against a non-Indian in Indian county. In 1883 the U.S. Supreme Court decided Ex Parte Crow Dog 109 U.S. 556 (1883). In this case one Indian murdered another Indian in Indian country. The tribe internally handled the disposition of the murder. The Court held in Ex Parte Crow Dog that federal territorial courts did not have jurisdiction over criminal offenses committed by one Indian against another Indian in Indian country, thus allowing the tribe to determine the appropriate punishment (Wild 2019; Christensen 2019; Morrow 2019).

Ex Parte Crow Dog was decided at a time when federal Indian policy was in a state of transition from a policy of self-determination to a policy of assimilation. In response to the Ex Parte Crow Dog decision, Congress passed the Major Crimes Act of 1885. This Act provided for federal criminal jurisdiction over seven enumerated major crimes when committed by Indians in Indian country and over time additional major crimes have been added, bringing the total to 16 major crimes. The Major Crimes Act is applicable when the enumerated major crimes are committed by an Indian, whether the victim is Indian or non-Indian. The U.S. Supreme Court upheld the constitutionality of the Major Crimes Act in 1886 in United States v. Kagama, 118 U.S. 375 (1886) (Riley 2016; Wild 2019; Morrow 2019; Christensen 2019).

In accord with the federal Indian policy of assimilation, Congress passed Public Law 83–280, commonly referred to as Public Law 280. The passage of Public Law 280 provided for the first time for significant state criminal jurisdiction into Indian country. Public Law 280 transferred federal criminal jurisdiction over Indian reservations to the states of California, Minnesota, Nebraska, Oregon, Wisconsin, and Alaska, with some exceptions for specific Indian reservations. Public Law 280 provided other states with the option of assuming jurisdiction. An amendment in 1968 required a tribe’s consent before states can assume jurisdiction. Thirteen of the thirty-six states with Indian reservations possess criminal jurisdiction over Indian reservations (Goldberg and Champagne 2006; Morrow 2019; Douglas 2018). In accord with the federal Indian policy of self-determination, Congress passed the Indian Civil Rights Act of 1968 (ICRA). The ICRA required that tribes base their judicial system on American notions of due process and imposed upon tribal justice systems many of the fundamental rights of the U.S. Constitution. The ICRA has had the net effect of developing tribal courts. The ICRA also limited the penalties that tribal courts could impose when Indians committed crimes on tribal lands. The ICRA limited punishments to 6 months in prison or $500 per count. Congress amended the ICRA in 1986 to expand the sentencing authority in tribal courts. The 1986 amendment expanded tribes’ sentencing authority to 1 year per count and a $5000 fine; however, the ICRA did not authorize felony sentencing (Morrow 2019; Riley 2016; Wild 2019, Eid and Doyle 2010).

In 1978, the U.S. Supreme Court decided Oliphant v. Suquamish Indian Tribe 435 U.S. 191 (1978). In Oliphant the Court held that tribes did not have inherent sovereignty to prosecute non-Indians, resulting in Indian tribes not possessing criminal jurisdiction over non-Indians (Riley 2016; Christensen 2019; Douglas 2018). In 2010 Congress passed the Tribal Law and Order Act (TLOA). This Act contained many provisions addressing criminal justice in Indian country. The TLOA expanded the sentencing authority of tribal courts over defendants in cases in which the tribe would already have criminal jurisdiction. The TLOA also required the reporting of federal declination rates as well as the creation of the Indian Law and Order Commission (Morrow 2019; Riley 2016). Indian country criminal jurisdiction in the modern post-Oliphant era is a complex maze that at a foundational level is premised upon geography, the precise location of where a criminal offense is committed, and the status of the involved individuals, Indian or non-Indian. Criminal jurisdiction in Indian country may be divided or shared among tribal, state or federal governmental entities. The exercise of criminal jurisdiction in Indian country is dependent upon (1) the nature of the offense, (2) whether jurisdiction has been conferred on the state, and (3) whether the victim and/or the person that committed the crime is an Indian (Douglas 2018; Riley 2016; Morrow 2019).

Policing in Indian Country

Complexity characterizes the environment of policing in Indian country. The complexity of criminal jurisdiction directly impacts who polices Indian country. Federal, tribal and state governmental entities are involved in the policing functions in Indian country. The Federal Bureau of Investigation has jurisdiction to conduct investigations based upon the Major Crimes Act. Tribal law enforcement will have jurisdiction in many instances for policing in Indian country. State and local law enforcement will have jurisdiction for policing in Indian country in Public Law 280 states. Public Law 280 structures law enforcement for 23% of the reservation-based tribal population and 52% of the Indian tribes located in the lower forty-eight states (Goldberg and Champagne 2006; French 2005; Wells and Falcone 2008).

There exist five types of law enforcement arrangements for policing Indian country. The first type is Tribal or Public Law 93–638 policing. Congress passed the Indian self-Determination and Education Assistance Act of 1975. This Act, also referred to as Public Law 93–638, allowed tribes to contract with the Bureau of Indian Affairs (BIA) to assume responsibility for many programs previously administered by the federal government. Public Law 93–638 allows for police departments to be administered by tribes under a contract executed with the BIA Division of Law Enforcement. The 638 contract departments employ officers and non-sworn staff that are tribal employees. The 638 contracts delineate the administrative and organizational framework, performance standards, and provides funding for the policing operations. Tribes have used 638 contracts to assume control over the policing functions. In 1995, almost half of the Indian non Public Law 280 police departments, 88 departments, were operating under 638 contracts (Wakeling et al. 2001; French 2005).

The second type is BIA policing. BIA policing consists of BIA police departments. These departments are administered by personnel employed by the federal government and are not employed by tribal government. In 1995, approximately one-third of the non-Public Law 280 departments, 64 departments, were BIA police departments. The third type is self-governance policing. Self-governance policing receives funding from the federal government under the provisions of self-governance amendments to Public Law 93–638. Tribes with self-governance arrangements enter into a compact, similar to a contract, with the BIA to assume law enforcement responsibilities that would be provided by the BIA. The significant difference between the self-governance type and the 638 type is that financing is provided by a block grant from the federal government. The self-governance type provides the tribes with more control over government functions than operating as a 638 type. In 1995, approximately 12% of the non-Public Law 280 Indian police departments, 22 Indian police departments, were operating through self-governance (Wakeling et al. 2001; French 2005). The fourth type is tribally funded policing. Tribally funded policing is funded by the tribe. Tribally funded police departments are organized and administered by the tribe. The employees are employed by the tribe and tribes have significant control over their law enforcement agencies. In 1995, only four tribal police departments were of the tribally funded department type. The fifth type is Public Law 280 policing. Public Law 280 policing is provided by state and local law enforcement agencies. The employees of these law enforcement agencies are employed by the state and local law enforcement agencies. State and local law enforcement agency funding is derived from the revenues of the state and local governments, resulting in the larger non-Indian jurisdiction financing law enforcement services for Indian country (Wakeling et al. 2001; French 2005).

Law enforcement agencies, excluding Public Law 280 agencies, range in size from small departments to large departments. There are many more small departments than medium or large departments. There are approximately 150 small departments and these departments have 9 and fewer officers. These departments serve between 25 and 30% of the citizens served by BIA and tribally administered police departments. Medium sized police departments serve approximately 60% of the citizens living in Indian country that are served by BIA or tribally administered police departments. Medium sized departments have between 10 and 50 officers. There are approximately 75 medium sized departments. Large departments have more than 50 officers. The two largest departments are the Navajo Nation and the Oglala Sioux Tribe. These two departments have 100 or more uniformed officers and operate under 638 contracts. These two departments combined serve approximately 15% of the nearly 1.4 million residents of Indian country (Wakeling et al. 2001).

The Future of Policing in Indian Country

A recent development provides insight as to the future of policing in Indian country. The current era is one of adherence to the federal policy of self-determination. In accordance with the policy of self-determination, Congress in 2013 passed the Violence Against Women Act Reauthorization Act of 2013 (VAWA 2013). This Act was passed to address the issue of sexual assault. Research provided insight regarding this issue. Indian women face the highest rates of sexual assault of any group in the United States. The Bureau of Justice’s statistics reported that in over 80% of reported incidents of rape or sexual assault of Indian victims, the perpetrator was identified as white or black (Douglas 2018). Based upon the Oliphant decision, tribal governments could not criminally prosecute a non-Indian for committing a crime against an Indian victim in Indian country. Congress responded to this serious issue through passage of the VAWA 2013. Congress carved out an exception to the Oliphant decision rule. The VAWA 2013 expanded tribal concurrent jurisdiction over non-Indian defendants. Under the VAWA 2013 tribes may elect to prosecute non-Indian perpetrators for domestic violence, dating violence or criminal violations of protective orders. The tribal prosecution must show that the non-Indian defendant has ties to the tribe through employment, residence, and/or intimate relationship with an Indian and to the Indian victim. The VAWA 2013 represents a victory for the policy of self-determination, for tribal sovereignty and the expansion of criminal jurisdiction for tribes in Indian country (Douglas 2018; McCool 2018; Riley 2016).