Thursday, December 14, 2017

B. Untangle the Jurisdictional Maze

The jurisdictional maze that has developed over the last two centuries has taken crime enforcement authority out of the hands of those best positioned to enforce it and engendered such confusion in those empowered to prosecute that they do not even try. This maze is one of the principal reasons that American Indians, both on- and off-reservation, are targets for sex trafficking; crimes against American Indians are synonymous with impunity. In order to undo the deleterious effects of this maze, the federal government and PL-280 states must zealously pursue their law enforcement and prosecutorial responsibilities on tribal land, and tribes must be given more authority over criminal justice.

Treaties, court decisions, and congressional and executive branch directives since the eighteenth century have declared that the federal government has a trust responsibility to Indian nations for the protection of Indian lands and tribal sovereignty, and the provision of basic social services for tribal members. Taking jurisdiction away from tribal authorities and failing to fill the void with federal or state law enforcement or prosecutorial resources is in direct breach of this responsibility. More fundamentally, a 50% prosecution decline-rate for Indian Country crimes--in the face of some of the highest crime rates in the nation--suggests that the federal government is treating American Indian victims as second-class citizens. When it comes to a law of nationwide applicability, like the TVPA, there is no excuse for a disproportionate failure to prosecute on tribal land. The Obama Administration must send a strong and visible signal that crimes on tribal lands will be prosecuted. At the end of 2010 and the beginning of 2011, the DOJ established the Office of Tribal Justice, the Tribal Nations Leadership Council, and the Violence Against Women Tribal Prosecution Task Force in Indian Country to send just that signal. But the focus of these entities has been on domestic violence, sexual assault, and stalking--crimes related to, but nonetheless very different from, sex trafficking. The DOJ must make prosecuting sex trafficking on reservations a specific priority.

At the same time, Congress must empower tribal authorities to combat sex trafficking through their own justice system in cases where federal authorities do not intervene. Congress should act to give tribes concurrent law enforcement and prosecutorial jurisdiction over all offenders on tribal land, regardless of their racial identity. In addition, the Indian Civil Rights Act (ICRA) should be amended to allow the imposition of sentences commensurate with the crime.

Congress undoubtedly had numerous motivations when deciding to restrict tribal criminal jurisdiction, but the official explanation from the Supreme Court in Oliphant was that non-Indians risked being deprived of due process if prosecuted in the tribal justice system. But ICRA already imposes nearly all of the constitutional requirements of the Bill of Rights on tribal courts and allows for federal habeas corpus review of detention ordered by an Indian tribe. With additional federal funds, tribal courts could meet the remaining requirement that criminal defendants have access to legal counsel provided by the court.

Some Indian law scholars propose an “opt-in” criminal jurisdiction program for tribes wanting to assume such broad jurisdiction. As part of an opt-in program, a federal government entity, selected by the DOJ in consultation with the tribes, could determine whether a “tribe appears able to exercise jurisdiction over criminal matters in a manner consistent with due process.” Such a vetting process would likely meet any outstanding constitutional concerns, while ending forced and fruitless tribal reliance on federal authorities. For Native sex trafficking victims, broadened jurisdiction would fill the gap that allows the most frequent perpetrators of trafficking-- non-Native pimps--to go unpunished. It would also allow for more cohesive treatment of criminal matters by keeping everything “in house” as opposed to the current disorienting transfer of cases from tribal to federal government. Perhaps most importantly, broadened jurisdiction would increase “the internal legitimacy of tribal legal systems.”

Such grants of authority, however, are completely hollow if not followed by funding and other resources to enable tribes to develop their courts to operate effectively. Indeed, a U.S. Civil Rights Commission study found that most of the problems in tribal courts are a result of insufficient funds. More funding also needs to be made available to tribal police forces since they, more than the FBI or any state agent, are likely to first encounter trafficking victims and, unlike tribal community members, have a legal obligation to overcome the “Don't Talk Rule.”

Of course, these changes require congressional action, which could take significant time, and time is of the essence. Immediate actions can be taken, however, to increase arrests and convictions of sex traffickers. First, the DOJ Office of Tribal Justice, in consultation with the Tribal Nations Leadership Council, should promote cross-deputization agreements between tribal, state, and federal law enforcement that would allow law enforcement officials to respond to crimes outside their jurisdiction. Cross-deputization would diminish jurisdictional confusion at the moment when urgent police action is most needed and increase the likelihood that the police would respond to a crime report, as well as increase the number of available responding officers. Second, coordination and collaboration agreements should be enacted between state and tribal courts.

In all of these cases, it is essential that tribes act to codify sex trafficking as a crime. Otherwise, victims will be forced to rely on “piecemeal prosecutions” and deprived of effective justice. Codifying sex trafficking will also make tribal law enforcement more effective at identifying sex trafficking victims and ensuring they obtain the correct services and legal response. Importantly, developing their own definition of sex trafficking will allow tribes to tailor their response to the crime within an independent legal framework that takes account of historical sexual exploitation and its impact on the vulnerability of Native women and girls. Such a tailored, culturally-specific definition, when enforced by tribal police and courts, may be particularly crucial to fighting the family and community-based trafficking on American Indian reservations.

More broadly, the structures of the U.S. anti-trafficking regime, notably the Interagency Task Force and its member agencies, must actively and directly engage with tribes and tribal leaders. Tribal and federal coordination, particularly on prosecutions, is not only essential to improving enforcement of the TVPA against traffickers of Native women, it is required by the federal trust responsibility. As President Obama reminded all federal agencies in a November 2009 memorandum, pursuant to Executive Order 13175, the federal trust responsibility requires executive departments to meaningfully consult with tribal officials in the development of federal policies with tribal implications. All federal agencies, including the State Department and the DOJ, are in the process of refining action plans to comply with this directive. Given the substantial effect of sex trafficking on American Indian women and girls, tribes have a significant interest in the future structure and reach of federal anti-trafficking efforts. This consultation process is an opportunity for the DOJ and the State Department, in particular, to bring tribes into the conversation about sex trafficking. An even more effective way to ensure continuous tribal consultation on anti-trafficking efforts would be to place a tribal nations representative on the Interagency Task Force.

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