Unlike the United States at large, where serious local crimes are investigated and prosecuted by local authorities, all serious crimes on American Indian reservations are federal crimes, subject to federal prosecution.
This is a provision of law that dates back to 1885, at a time when the Indian wars on the Great Plains and elsewhere in the country were winding down, and Congress intended to exercise control. (Under a separate law, a handful of states have the authority).
Tribal courts are limited to misdemeanor sentences with a maximum of three years and generally do not prosecute serious crime.
The antiquated system is rife with fundamental inequities, according to the final report last fall by the national Indian Law & Order Commission, including, perhaps foremost, simple access to justice.
Federal officers charged with investigating serious Indian country crime, FBI agents or Bureau of Indian Affairs police, can be located many miles away from distant crime scenes. The federal courthouses and prosecutors are almost always hundreds of miles away.
This places enormous logistical burdens on successful prosecution, including every facet from crime scene preservation and evidence gathering on the front end to getting witnesses to the courthouse for trial, the commission concluded. As a result, no one disputes that many people suspected of violent crime are walking free in Indian country.
The commission, appointed by President Obama and the majority and minority leaders of Congress, was chaired by former U.S. Attorney Troy Eid of Denver. The final report, entitled "A Roadmap for Making Native America Safer," offers some 40 recommendations for change that would impact and require reorganization in all three branches of the federal government, reallocate millions of dollars, require new spending, and build new criminal justice infrastructure from the ground up on many tribal lands across the U.S.
As reported by I-News at Rocky Mountain PBS earlier this year, at the heart of the commission’s far-reaching document is the premise of restoring local crimes to local jurisdictions, where they would be investigated by tribal police and tried in tribal courts, with all U.S. constitutional protections for defendants. Only by restoring local justice will Native lands become safer, the report concluded.