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country today, were established well before Congress passed a
statute in 1924 declaring all Native Americans to be U.S. citizens regardless of whether they belonged to a particular tribe
or lived on- or off-reservation. 112 With the federal criminal law
and enforcement mechanism firmly in place by the turn of the
last century, all that remained was to stand back while assimilation proceeded apace and the mighty pulverizing engine allotted the remaining tribes out of existence. 113

E.

The Indian New Deal

By the time President Franklin D. Roosevelt took office,
the consensus among New Deal reformers was that the federal
government's policy of forced assimilation and the dismantling
of tribal culture and institutions had failed. 114 Native Americans and their family ties, cultures, and beliefs had proved far
more resilient than Henry Dawes or his contemporaries had
expected. Tribal governance persevered, despite pervasive federal intrusion, even if often in shadow form, or only within the
hearts and minds of the Native American people. By the time
of the New Deal, public attitudes shifted to the point where it
actually became thinkable for some federal officials to admit

112. Act of June 2, 1924, ch. 233, 43 Stat. 253. Prior to the passage of the Act,
some Native Americans had already been naturalized as U.s. citizens as provided
by certain treaty provisions or by tribal-specific legislation.
113. Even the Wounded Knee Massacre in 1890 apparently did not shake the
Interior Department's confidence in the ultimate success of its assimilationist policies. In response to the killings of perhaps 300 men, women, and children, some
in Congress suggested that the Sioux Indian Agencies, if not the entire Department of Indian Mfairs, be returned to the War Department. But the Commissioner of Indian Mfairs held firm:
The one great and all-important object which the nation has set before itself is to civilize and make ofthem intelligent, self-supporting, selfrespecting American citizens. This is essentially a civil process, to be
brought about by civil measures and agencies .... [The Army] never can
be a civilizing force. All that can be claimed for the Army in this connection is that it crushes, or holds in check, forces antagonistic to civilization, and renders it possible for the real up-lifting agencies---education,
industry, religion-to operate. To turn the Indians, or any considerable
number of them, over to absolute military control, would be to take a
great step backward in the humane work which the Government has undertaken.
REPORT OF THE SECRETARY OF THE INTERIOR, H.R. Ex. Doc. 52-1, pt. 5, at 144
(1892). See also BROWN, supra note 20, at 439-45.
114. See WILKINSON, supra note 6, at 60.

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publicly that the allotment policy had been a failure. ll5 Congress finally ended the program in the Indian Reorganization
Act of 1934 ("IRA"), reversing the break-up of the reservation
system and adopting a modest policy of tribal self-governance,
albeit still tightly controlled by the Bureau ofIndian Mfairs. 116
Notably, the original version of the IRA included a restructuring of the criminal justice system in Indian country, but these
proposed reforms were never enacted and the original bill was
slashed from forty-eight pages to five. 117
Modest though it may seem today, the IRA was in fact extraordinary when compared to the federal government's assimilationist policies that preceded it, epitomized by the General
Allotment Act and the MCA. In the decades that followed,
Congress veered sharply away from self-determination in the
Termination Era of the 195Gs-abolishing many tribal governments entirely and transferring others to state criminal jurisdiction without their consent 1l8---{)nly to return to it by enacting the Indian Civil Rights Act in 1968. 119
What is perhaps even more remarkable, given the federal
government's public embrace of tribal sovereignty four decades
ago in the IRA,120 is that Congress has never seriously reconsidered its 1885 appropriations rider creating the MCA and its
temporary federal enforcement regime. The allotment program

115. Scott A. Taylor, State Property Taxation of Tribal Fee Lands Located
Within Reservation Boundaries: Reconsidering County of Yakima v. Confederated
Tribes & Bands of the Yakima Indian Nation and Leech Lake Band of Chippewa
Indians v. Cass County, 23 AM. INDIAN L. REV. 55, 87-88 (1998). See generally
INST. FOR GOV'T RESEARCH, THE PROBLEM OF INDIAN ADMINISTRATION (1928),

available at http://www.eric.ed.gov/PDFS/ED087573.pdf (commonly known as the
Meriam Report). Around the same time Washington's official attitude toward Indian policy began grudgingly to accept a modicum of tribal self-determination,
popular culture was beginning to see Native Americans not as "savages" to be
eliminated or tamed, but as freedom-fighters. For instance, it was 1927 when Edgar Rice Burroughs, creator of Tarzan, published the first of his two novels romanticizing what had previously been the penultimate Native American antihero, Geronimo. See C. L. Sonnichsen, From Savage to Saint: A New Image for
Geronimo, in GERONIMO AND THE END OF THE APACHE WARS 5, 16-17 (C. L. Sonnichsen ed., 1986).
116. See DALIA TSUK MITCHELL, ARCHITECT OF JUSTICE: FELIX S. COHEN AND
THE FOUNDING OF AMERICAN LEGAL PLURALISM 80-84, 99 (2007).
117. Id. at 84--87, 99.
118. WILKINSON, supra note 6, at 57. Meanwhile, the number of federally supported Indian police working for the BIA on reservations continued to fall. LunaFirebaugh, supra note 99, at 138. By 1948, the federal budget authorized just forty-five Indian police officers nationwide. Id.
119. See 25 U.S.C. §§ 1301-1303 (2006).
120. WILKINSON, supra note 6, at 62--63.

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was discredited and ended. Yet the legislative branch has
largely abdicated to the federal bureaucracy it originally
created to mete out justice in Indian country-occasionally adding to the list of MCA offenses,121 or clarifying bureaucratic
roles and responsibilities for federal agencies,122 but never seriously questioning the continued existence of the machinery
itself. 123
For his part, Justice Clarence Thomas has questioned the
continued constitutional viability of Kagama, but the Supreme
Court has not overturned it. 124 Faced with continued Congressional inaction, the Court has increasingly inserted itself in Indian affairs. The trend began in Oliphant v. Suquamish Indian Tribe when the Court held that tribes lack any criminal
jurisdiction over non-Indians, not because of the text of the
Constitution, or Congress's exercise of its federal trust responsibility, but due to unspoken Congressional assumptions about
the "dependent status" of tribes. 125
The federal government's continuing operation of the federal criminal justice system in Indian country for well over a
century, asserting plenary power over an entire category of
U.S. citizens through complex enforcement machinery that is
opaque to many Native Americans and the outside world, can
seem Kafkaesque. 126 Congress's refusal to recognize the extent
121. See 18 U.S.C. § 1153 (2006), Amendments (for example, adding felonious
sexual molestation of a minor in 1986; adding assault resulting in serious bodily
injury in 1968).
122. See, e.g., Kevin K. Washburn, American Indians Crime and the Law: Five
Years of Scholarship on Criminal Justice in Indian Country, 40 ARIZ. ST. L.J.
1003, 1028 (2008).
123. Even the recently passed Tribal Law and Order Act of 2010, discussed in
Part III, did not make any major structural revisions in the federal criminal justice system apart from an important but modest relaxation of federally imposed
restrictions on tribal courts' criminal sentencing authority. See Tribal Law and
Order Act of 2010, Pub. L. No. 111-211 (signed by President Obama on July 29,
2010).
124. For instance, Justice Thomas has questioned the very notion of Congressional plenary power over Indian affairs. In his concurrence in United States v.
Lara, Justice Thomas argues that the treaty-making power is an executive rather
than legislative function located in Article II, Section 2, Clause 2, which enumerates the president's powers and could not be unconstitutionally delegated to
Congress by statute in 1871. 541 U.S. 193, 225-26 (2004) (Thomas, J., concurring). See generally POMMERSHEIM, supra note 29, at 253.
125. 435 U.S. 191, 204 (1978). For a discussion of the judicial co-option of the
plenary power doctrine, see POMMERSHEIM, supra note 29, at 297-301.
126. In In the Penal Colony, novelist Franz Kafka-who never visited an Indian reservation-describes an automated criminal justice device. The character
operating this machine, called "the Officer," believes in its infallibility-and in the
bureaucracy that created it-to deliver just punishments. The machine, whose

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to which times have changed-and how little the federal government's role in Indian country has not-is perhaps symbolized by the lingering absurdity of the so-called "Friendly Indian Statute." 127 Recodified by Congress as recently as 1994,
this law provides:
Whenever a non-Indian, in the commission of an offense
within the Indian country takes, injures or destroys the
property of any friendly Indian the judgment of conviction
shall include a sentence that the defendant pay to the Indian owner a sum equal to twice the just value of the property so taken, injured, or destroyed. 128

Meanwhile, the same Supreme Court, which would never
mention Plessy today without expressing shame or reassurance
given its demise, cites Kagama and other decisions based on
blatantly racist assumptions from the same era instead of returning to constitutional first principles as it did in Brown v.
Board. 129 As if the system's racist roots were not enough, the
even greater evil is that the system continues to operate in a
manner that is not just separate, but decidedly unequal. Over
time, as the next Part explains, the disparities facing Native
Americans in the federal criminal justice system have metastasized as Congress has expanded the same broken system in fits
and starts to serve a growing reservation population.
II.

THE DYSFUNCTIONAL ARCHITECTURE OF CRIMINAL JUSTICE
TODAY

A generation ago, in United States v. Antelope, the Supreme Court rejected the notion that the federal government's
system for protecting Native American criminal defendants'
rights in a case arising under the MCA on an Indian reserva-

blueprints only the Officer is permitted to see, keeps running day in and out until
it ultimately kills the Officer when it breaks down. See FRANZ KAFKA, In the Penal Colony, in THE GREAT SHORT WORKS OF FRANZ KAFKA: THE METAMORPHOSIS,
IN THE PENAL COLONY, AND OTHER STORIES 189, 189-230 (Joachim Neugroschel,
trans., Scribner Paperback Fiction 2000) (1914).
127. 18 U.S.C. § 1160 (2006).
128. Id. Co-author Troy Eid is indebted to Jim Allison, chief of the Criminal
Division of the U. S. Attorney's Office for the District of Colorado, for pointing out
this statute to an incredulous class of law students.
129. See, e.g., Hagen v. Utah, 510 U.S. 399, 404 (1994) (citing Lone Wolfv. Hitchcock, 187 U.S. 553 (1903»; Nevada v. Hicks, 533 U.S. 353, 363-64 (2001) (citing
United States v. Kagama, 118 U.S. 375 (1886».

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tion violates the Equal Protection Clause of the Fourteenth
Amendment. 130 However, the Court in Antelope did not address any legal arguments as to the structural disparities that
persist within Indian country as a result of the MCA and the
federal institutions that enforce it. l3l This is a crucial distinction. The fact remains that Native Americans living and working on Indian reservations must endure a separate but unequal
justice system that discriminates perniciously against them
solely based on race and ethnicity.
Accordingly, our focus here is to explore Equal Protection
issues that were never presented to the Supreme Court in Antelope by briefly illustrating how the federal criminal law and
institutions serving Indian country have become systemically
dysfunctional, and often lead to comparatively harsher punishments, especially for juvenile offenders. It is imperative to
return to constitutional first principles in order to address such
questions, and indeed such a case has never been directly before the Supreme Court. But unless and until that happens, it
is time to consider as a matter of public policy how much longer
the United States should continue to tolerate the federal government's segregationist legacy in Indian country. Brown repudiated for all time the myth of "separate but equal." Yet that
myth stubbornly endures in much of Indian country today, and
in so doing undermines the constitutional rights of all Americans. The real question is whether this generation is willing to
accept that our Constitution actually permits Congress and the
federal courts to wield plenary power over the criminal justice
needs of an entire class of U.S. citizens---even when that power
comes at Native Americans' expense.
The MCA, and the institutions built and maintained to
carry it out, envisioned that crime in Indian country would
temporarily be policed, prosecuted, adjudicated, and punished
by the federal government. Yet despite these nineteenthcentury assurances that this stopgap measure would end once
tribal lands were finally allotted away and criminal jurisdiction
thereby transferred to the states, the federal presence endures
as a permanent force throughout much of Indian country. And
there can be no serious doubt that this system discriminates
invidiously in how it is currently funded and in the way it dispenses justice-if not for perpetrators, as in Antelope, then for

130.

131.

430 U.S. 641, 646-47 (1977).
See id.

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Native American victims of violent crime. 132 These victims suffer from disproportionately high rates of violent crime throughout much of Indian country-sometimes by several orders of
magnitude-despite even extensive empirical evidence that
many such crimes against Native Americans go unreported. 133
This Part identifies three distinct ways in which the architecture of federal criminal justice in Indian country produces
disparate results for Native Americans which, when considered
collectively, raise serious Equal Protection concerns:
• The imposition of comparatively harsher punishments
under the federal system, particularly for juveniles, than
occurs for offenses arising under state law offreservation.
• Native Americans' systematic lack of access to the federal court system, including but not limited to service on
trial and grand juries, to address crimes that would be
handled locally almost anywhere else in the United
States.
• A pervasive resource gap that has characterized the federal government's criminal justice role in Indian country
since its inception.
These are by no means the only disparities that Native
Americans living and working in Indian country experience.
Jurisdictional confusion-the direct result of classifying criminal suspects and victims as "Indian" or "non-Indian" as re132. Our focus here is on the ways in which the federal criminal justice system
in Indian country adversely discriminates against Native Americans. This contrasts with various programs in which the federal government, exercising its trust
responsibility, has sought to strengthen tribal governments themselves. See, e.g.,
Morton v. Mancari, 417 U.S. 535, 553 (1974) (employment preference for Indians
in the Bureau of Indian Mfairs does not constitute racial discrimination and is
analyzed under a rational basis test). Our concern is rather that the constitutional rights of Native American crime victims should receive protection from the federal government equal to those of all U.S. citizens.
133. The U.S. Department of Justice reports that, from 1992 to 2001, the average rate of violent crime among Native Americans (age twelve and over) was twoand-one-half times the national rate. STEVEN W. PERRY, U.S. DEP'T OF JUSTICE,
NCJ 203097, AMERICAN INDIANS AND VIOLENT CRIME 4 (2004). Amnesty International popularized these findings in an influential report. AMNESTY INT'L, MAZE
OF INJUSTICE: THE FAILURE TO PROTECT INDIGENOUS WOMEN FROM SEXUAL
VIOLENCE IN THE USA (2007), available at http://www.amnesty.org/en/library/info/
AMR51/035/2007 (follow "PDF" hyperlink).

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quired by the MCA-is another. 134 Yet the collective impact of
just these three factors demands that the President, Congress
and the federal courts interpret the Equal Protection Clause in
a manner that recognizes how the federal criminal justice system fails to provide Native American crime victims and defendants on a level commensurate outside Indian country.

A. Federal Roles and Responsibilities
Before analyzing how the federal criminal justice system
fails to satisfy even minimum standards for Native Americans'
Equal Protection rights, this section summarizes the criminal
law that applies and the roles that the different jurisdictions
play in Indian country cases.
1.

When Federal Criminal Law Applies

Substantive criminal offenses and punishments in Indian
country cases are determined according to two federal statutes:
the MCA and the Indian Country Crimes Act, both of which
apply only to Indian country and solely in cases where Indians
are involved. 135 In practice, this means that a Native American who is accused of committing serious crime on a reservation is subjected to a separate set of criminal laws and enforcement mechanisms based on his or her ethnicity. So too,
then, are Native American crime victims.

134. For instance, in a recent case handled by the U.S. Attorney's Office in
Colorado, it was impossible to tell at the crime scene whether the victim of an apparent vehicular homicide by a non-Indian on the Southern Ute Reservation was
an Indian or non-Indian for purposes of federal law. Jamie L. Wood, a non-Indian
man from Aztec, New Mexico, was indicted by the U.S. Attorney's Office for the
District of Colorado in January 2007 for causing the automobile crash on a state
right-of-way within the external boundaries of the Southern Ute Indian Reservation. That crash claimed the lives of tribal member Lorraine Duran, who was sixty-nine, and her eight-year-old granddaughter, Jacklyn. Lorraine Duran's nonIndian husband, Jack Duran, survived the tragedy. Wood, who admitted to police
that he had smoked marijuana on the morning of the accident, later pled guilty to
a federal charge of involuntary manslaughter for causing Lorraine Duran's death,
which was prosecuted while co-author Troy Eid served as Colorado's U.S. Attorney. However, the case involving Jacklyn Duran was ultimately referred to the
district attorney's office in Durango after many months of delay when the Tribal
Council of the Southern Ute Indian Tribe determined she should not be considered an Indian for jurisdictional purposes. Lisa Meerts, Grand Jury Indicts Aztec Man for Role in Car Wreck, FARMINGTON DAILY TIMES, Jan. 24, 2007, at AI.
135. 18 U.S.C. § 1152 (2006). See generally Kevin K. Washburn, American Indians, Crime, and the Law, 104 MICH. L. REV. 709, 715-17 (2006).

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Importantly, the term "Indian" appears throughout the
U.S. Criminal Code, but Congress has never defined it. This
can result in court challenges causing confusion and delay
when a victim or perpetrator initially appears to be a Native
American for federal jurisdictional purposes, but is later determined to be a non-Indian or vice-versa. 136 In federal court, a
defendant's Indian status is considered both as it pertains to
federal jurisdiction and as an element of the crime. 137 The variation in jury instructions on Indian status demonstrates the
potential confusion of asking predominately non-tribal jurors to
weigh any number of factors to determine whether the defendant is Indian. 138
2.

Law Enforcement and Investigative Agencies

When it comes to investigating Indian country cases, federal law enforcement-usually the FBI and, depending on the
reservation, the BIA-have lead responsibility for investigating
and prosecuting violent crimes on reservations subject to federal jurisdiction. 139 Federal jurisdiction may be exclusive or
concurrent with tribal governments depending on whether the
alleged perpetrator is an Indian or not. 140 Other federal agencies, such as the Drug Enforcement Administration, the U.S.
Postal Inspection Service, and the Bureau of Alcohol, Tobacco,
Firearms and Explosives, may get involved in MCA cases and
sometimes also enforce federal laws of general application in
Indian country. 141
Yet, even this nominal division of labor is misleading because the federal government severely restricts the ability of
Indian tribes and nations to enforce their own criminal laws.

136. Troy A. Eid, The Tribal Law and Order Act: An "Aggressive Fight" Worth
Winning, FED. LAW., Mar.-Apr. 2010, at 34, 35-36 (providing examples).
137. See, e.g., United States v. Stymiest, 581 F.3d 759, 763 (8th Cir. 2009).
138. Id. at 763-64.
139. See Fed. Bureau of Investigation, Indian Country Crime, http://
www.fbi.gov/hq/cid/indian/about.htm (last visited July 28, 2010); Bureau of Indian
Affairs, What We Do, http://www.bia.gov/WhatWeDo/index.htm (last visited July
28,2010).
140. See 18 U.S.C. §§ 1152, 1153 (2006). This Article does not address those
Indian tribes and nations that are currently subject to state jurisdiction under 18
U.S.C. § 1162 (2006), a Termination Era statute enacted in 1953 that extended
state criminal jurisdiction to selected Indian tribes without their consent. See Act
of Aug. 15, 1953, Pub. L. No. 280, 67 Stat. 588.
141. See U. S. Dep't of Justice, Department of Justice Agencies, http://
www.justice.gov/agencies/index-org.html (last visited July 28, 2010).

SEPARATE BUT UNEQUAL

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Congress in 1968 sharply limited the penalties that tribal
courts may impose when Native Americans commit crimes on
tribal lands; fines are now statutorily capped at $5,000 and
terms of incarceration are restricted to not more than one
year. 142 A decade later, the Supreme Court in Oliphant 143
added yet another layer of confusion by holding that tribes lack
criminal jurisdiction over non-Indians even when they commit
crimes against tribal members on Indian lands. 144
3.

United States Attorneys and Their Offices

Federal prosecutors handle cases under the MCA and other federal statutes arising in Indian country.145 Specifically,
United States Attorneys-federal officials appointed by the
President with the advice and consent of the U.S. Senate-and
their assistant attorneys, all of whom belong to the federal civil
service, perform as non-elected local prosecutors or district attorneys in Indian country. 146 Each U.S. Attorney's Office serving Indian country has a designated attorney, known as a Tribal Liaison, to help support reservation cases involving Indians
and coordinate federal and, when applicable, state law enforcement services. 147
As with other federal officials serving Indian country, the
vast majority of U.S. Attorneys and their staff are very wellqualified and perform their duties admirably within the existing criminal justice system. 148 However, one symptom of the
inequalities between Indian country criminal justice and much
of the rest of nation are the reportedly high case-declination
rates of these federal prosecutors in reservation cases involving
Native Americans. The term "declination" in this context
means a decision by a U.S. Attorney's Office not to seek criminal charges after having been presented with the confidential

142. Indian Civil Rights Act of 1968, Pub. L. No. 90-284, 82 Stat. 77 (codified
as amended at 25 US.C. § 1302(7) (2006».
143. Oliphant v. Suquamish Indian Tribe, 435 US. 191 (1978).
144. Id. at 211-12.
145. 28 US.C. § 547 (2006).
146. U S. Dep't of Justice, United States Attorneys Mission Statement, http://
www.justice.gov/usao (last visited July 28, 2010).
147. See, e.g., U S. Attorney's Office W. Dist. of Mich., Native American Tribes
and Tribal Liaison, http://www.justice.gov/usao/miw/programs/native.html (last
visited Sept. 21, 2010).
148. Co-author Troy Eid draws on his experience as a former United States Attorney for Colorado, see infra note 214.

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law enforcement investigation findings of a suspected federal
case arising in Indian country. 149
Michael Riley, a reporter for The Denver Post who is currently chief of the newspaper's Washington Bureau, wrote an
award-winning series in November 2007 that dealt in part with
this issue. 150 Riley attempted to quantify the disparity between U.S. Attorneys' handling of federal cases arising in Indian country, on the one hand, and comparable off-reservation
cases declined by local district attorneys on the other. l5l The
focus on U.S. Attorneys' declination-reporting by Riley and others prompted U.S. Senator Byron Dorgan (D-North Dakota),
chair of the Committee on Indian Mfairs, to introduce legislation that, among other things, would mandate declinationreporting for all U.S. Attorney's Offices serving Indian country. 152
While declination-reporting certainly does not tell the
whole story-there can be many reasons why a criminal investigation never results in viable prosecution-it can still be a
very useful measure for making the federal criminal justice
system more accountable. For that reason, many local district
attorneys' offices routinely make such information available,
either through public reports or on request, while protecting
individuals' confidentiality and the privacy of sensitive law enforcement information.
More generally, an on-the-ground
perspective helps illustrate just how little federal law enforce149. Eid, supra note 136, at 37-38.
150. Michael Riley, Lawless Lands: Promises, Justice Broken, THE DENVER
POST, Nov. 11, 2007, at AI, available at http://www.denverpost.com/ci_7429560;
Michael Riley, Lawless Lands: Justice: Inaction's Fatal Price, THE DENVER POST,
at
AI,
available
at
http://www.denverpost.com/
Nov.
12,
2007,
ci_7437278?source=pkg; Michael Riley, Lawless Lands: Principles, Politics ColNov.
13,
2007,
at AI,
available at
lide, THE DENVER POST,
http://www.denverpost.com/ci_7446439?source=pkg;
Michael Riley,
Lawless
Lands: Path to Justice Unclear, THE DENVER POST, Nov. 14, 2007, at AI, available at http://www.denverpost.com/ci_7454999?source=pkg.
151. Riley later collaborated with the PBS television show Bill Moyers Journal,
which summarized some of his findings: "Justice Department statistics show that
the rate of violent crime per every 100,000 residents of Indian country is 492; for
the United States as a whole, 330." Bill Moyers Journal, EXPOSE on THE
JOURNAL: Broken Justice (Nov. 14, 2008), http://www.pbs.org/moyers/journal/
11142008/profile2.html (last visited Aug. 10, 2010); "The Department of Justice's
own records show that in 2006, prosecutors filed only 606 criminal cases in all of
Indian country. With more than 560 federally recognized tribes, that works out to
a little more than one criminal prosecution for each tribe." N. Bruce Duthu, OpEd., Broken Justice in Indian Country, N.Y. TIMES, Aug. 10, 2008, at A17.
152. Eid, supra note 136, at 38 (discussing the declination-reporting provisions
of the Tribal Law and Order Act).

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ment officers and prosecutors often share with their tribal
counterparts in Indian country cases.
For example, the chief prosecutor for the Navajo Nation,
Bernadine Martin, recently told several members of Congress
in a letter that, while there were 367 total reported sexual assaults on the reservation in 2009, federal records showed that
just twenty-eight arrests were made in those cases. 153 The FBI
typically serves as the lead law enforcement agency in such investigations. 154 But because no uniform reporting protocols exist, Martin-a veteran former state prosecutor-wrote that she
could not determine from these records how many of the twenty-eight arrests were actually presented to the respective U.S.
Attorney's Offices in the three different states serving the N avajo Nation. 155 While tribal law investigators sometimes work
sexual assault cases, often alongside the FBI, Martin explains
that "Navajo prosecutors are rarely involved in cases that involve the federal government," adding, "[i]t could be years before the Navajo Nation is notified of either a filing of charges or
decline in these cases." 156 This systematic lack of communication and coordination has tragic consequences:
I received a letter from an Arizona Assistant U.S. attorney
[sic], dated December 16, 2009, who informed me that she
was declining to prosecute an individual for a sex assault on
a 6-year-old child which had occurred in 2004. One of the
reasons they gave for declining the case was because "the
suspect was never interviewed." Be that as it may, there is
absolutely no excuse to wait 5 years to decline a case, especially given that the Navajo Nation has a sex assault statute that this offender could have been charged with. Obviously, the statute of limitations had run out on the Navajo
Nation hence the child victim received no justice and that
sex offender was free to apply for jobs in our school systems
placing other 6-year-olds at risk! This particular offender
has since been charged with sex assault on another 6-year
old child in Maricopa County (Phoenix, Arizona). 157

153. Letter from Bernadine Martin, Chief Prosecutor, The Navajo Nation, to
United States Representatives John Conyers, Lamar Smith, Bobby Scott, & Louis
Gohmert 1 (Apr. 15, 2010) (on file with University of Colorado Law Review).
154. See Federal Bureau of Investigation, supra note 139.
155. Letter from Bernadine Martin, supra note 153, at 1.
156. Id.
157. Id. at 2.

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Martin noted that since taking office as chief prosecutor for
the Navajo Nation in September 2009, she "received 19 decline
letters from the Arizona U.S. attorney's office [sic], none from
New Mexico and none from Utah." 158
Experiences like this are all-too familiar for tribal prosecutors like Martin, yet it took until the fall of 2009-and only after substantial public outcry-for U.S. Attorney General Eric
Holder to reverse the Justice Department's longstanding policy
and agree to accept at least some form of case-declination reporting. 159 The Department carefully monitors many other
categories of investigations, ranging from terrorism to drugtrafficking, regardless of whether they result in actual prosecutions. 160 Case-declination reporting of Indian country cases
was always a matter of internal executive branch policy. Under these circumstances, it is only reasonable to wonder
whether legislation would be required if these particular declination decisions did not involve Indian country crimes.
4.

Federal Prisons and Probation

Finally, in addition to the federal court system, which is
discussed in more detail in Section II(C), the federal penal system plays the dominant role in punishing violent crimes committed in Indian country. The Bureau of Prisons ("BOP"), part
of the U.S. Department of Justice, is responsible for incarcerating criminal defendants convicted and sentenced by the federal
courts and for handling probation services. 161 In addition to
the BOP, the BIA Office of Justice Services maintains its own
network of detention facilities. 162 Importantly, there is no parole for offenders sentenced to the federal prison system. 163 As
a result of this and the relatively more severe sentences often
imposed by the Federal Sentencing Guidelines, federal sen158.

Id.
Eid, supra note 136, at 38.
160. See, e.g., Declination Reporting: Hearing Before the S. Comm. on Indian
Affairs, HOth Congo u.s. Senate (2008) (statement of Drew H. Wrigley, U.S. Attorney for the Dist. of N.D.) available at http://indian.senate.gov/publicljiles/
DrewWrigleytestimony.pdf.
161. Fed. Bureau of Prisons, About the Bureau of Prisons, http://www.bop.gov/
about/index.jsp (last visited Aug. 8, 2010).
162. Dep't of Interior Office of Law Enforcement, Sec., and Emergency Mgmt.
Watch Office, BIA Office of Justice Services: Deputy Director, http://www.doi.gov/
watch_office/bia/dd_ojs.html (last visited Sept. 21, 2010).
163. Greenholtz V. Inmates of the Neb. Penal and Corr. Complex, 442 U.S. 1, 7
(1979).
159.

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tences of incarceration are on average twice as long as those
imposed by state courts for the same or similar offenses. 164
While an exhaustive review of the treatment of Native Americans in the federal correctional system is beyond the scope of
this Article, we examine some of those disparities now, particularly with reference to juveniles.

B.

Harsher Punishments for the Same Crimes

Due to the absence of parole and the operation of the sentencing guidelines, punishments for federal crimes committed
by Native Americans in Indian country are systematically
harsher for adult offenders as compared to the punishments
doled out for identical offenses committed off-reservation. Yet,
this systemic disparity pales in comparison to the gap between
Native American juveniles who enter the federal justice system
and those who do not. As most recently documented by Jon'a
Meyer, nearly two-thirds (61 percent) of juveniles held in federal detention are Native American. 165 This is a result of the
MeA, the Federal Juvenile Delinquency Act of 1938, and other
statutes that automatically transfer jurisdiction over serious
felonies from Indian tribes and nations to the federal government. 166 Tribal youth form the majority of the juvenile
caseload in federal court, yet the BOP fails to provide juvenile
diversion programs, alternative-sentencing, restorative justice,
or other rehabilitative programs that are comparable to services available at the state leveLl67 In Professor Meyer's words,
"the BOP cannot control the type or quality of programs to
which juveniles are exposed." 168
Another inequity concerns the number of Native American
youth sentenced by the federal courts as adult offenders. Only
between 1 and 2 percent of juveniles processed in the state

164. Jon'a Meyer, Ha'alchini, haadaah naasdah / "They're Not Going to Be
Young Forever:" Juvenile Criminal Justice, in CRIMINAL JUSTICE IN NATIVE
AMERICA, supra note 16, at 32, 38.
165. Id. at 34.
166. Id. This means that Native American youth age fifteen or older who
commit serious crimes on reservations such as murder, sexual assault, or robbery
enter the federal court system, "as do youth aged thirteen and fourteen whose
tribes consent to the transfer." Id. However, Professor Meyer notes that the legal
requirements that would ordinarily apply to juveniles being transferred to the
BOP "do not seem to apply ifthe juvenile is Native American." Id. at 35.
167. Id. at 34-35.
168. Id. at 36.

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courts are waived to the adult system. 169 Yet, in the federal
prison system-with its majority Native American juvenile inmate population-approximately one-third of juveniles are sentenced as adult offenders. 170 Once in the adult federal system,
juveniles are obviously exposed to harsher sanctions than those
who remain in youth detention. Youth adjudicated in the
state-level adult courts can earn significant amounts of "good
time" credit toward early release or avail themselves of parole
for earlier release. In contrast, Native American delinquents
sentenced as adults in the federal system have no access to
good time or parole, and they must serve nearly their entire
sentences under the federal sentencing guidelines. 171
Such discrimination against Native Americans is plainly of
constitutional dimension. For instance, Native American juvenile offenders tried as adults cannot benefit from the Supreme
Court's recent decision in Graham v. Florida that sentencing
juveniles who have committed crimes other than homicide to
life without parole is cruel and unusual punishment in violation of the Eighth Amendment. In Although the question was
not before the Justices, the Graham majority's suggestion that
other unduly severe punishments for juveniles might be unconstitutional 173 may offer a path to challenge the constitutionality of the disproportionate sentencing of Native American
juveniles as adults in the federal system. 174

C.

Lack of Federal Judicial Access

Not one federal courthouse in the United States is located
on an Indian reservation. 175 This is in sharp contrast to the
judicial access available off-reservation, where almost all

169.
170.

Id. at 37.
Id. In contrast, tribal governments are comparatively advanced when it

comes to providing sentencing alternatives such as peacemaking to many juvenile
delinquents. Id. at 42.
171. Id. at 37-38.
In. 130 S.Ct. 2011, 2033 (2010).

173.

Id.

174. Native American juveniles sentenced to the BOP are also far less likely to
be incarcerated close to home. See, e.g., BOP: Fed. Bureau of Prisons Web Site,
http://www.bop.gov/ (last visited Sept. 21, 2010) (follow "WXR", "NCR", and "SCR"
hyperlinks embedded in U.S. map) (North Dakota, Montana, Idaho, Nevada and
Alaska have no federal detention facilities; South Dakota, New Mexico and Utah
each have only one).
175. See U. S. Courts, Court Locator, http://www.uscourts.gov/CourLLocator
.aspx (last visited Aug. 29, 2010).

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crimes are investigated, prosecuted, and adjudicated by state
and local officials. On December 13, 2005, Chief Judge Martha
Vazquez literally took the U.S. District Court for the District of
New Mexico on the road by convening a federal criminal trial in
Shiprock, on the Navajo N ation. 176 This trial marked the first
time federal court had been held on the Navajo reservation. 177
It appears this may have been the first federal trial ever conducted in Indian country. Incidentally, the Navajo Nation covers an area nearly the size of West Virginia, a state with nine
separate federal courthouses. 178
The lack of federal judicial access for Native Americans living on Indian lands is one of the least-known civil rights challenges of our time. American citizens rightly value localism:
having government officials who are accountable and accessible
to them, and who live and work in their communities. It would
be unthinkable off-reservation for a crime victim to travel hundreds of miles just to participate in a criminal case. Yet this is
commonplace in Indian country, as is the lack of jury pools
with meaningful Native American representation. Testifying
before the Senate Committee on Indian Mfairs, Janelle Doughty of the Southern Ute Indian Tribe recently remarked on this
structural injustice in the federal court system:
It is also totally unacceptable that the nearest U.S. District

Court Judge in Colorado is 350 miles away from the Southern Ute Indian Reservation, and even farther from our sister tribe to the west, the Ute Mountain Ute Reservation.
[We] . . . have been pushing for a federal courthouse and
judgeship in our area. Trying cases that meet the elements
of the Major Crimes Act 350 miles from the jurisdiction in
which they occur stands as a road block to justice and must
be resolved. Federal juries in Colorado rarely include a single American Indian, yet they decide purely local crimes.

176. Rhys Saunders, Historic Trial Begins in Shiprock, FARMINGTON DAILY
TIMES, Dec. 14, 2005, at 1A.
177. Id. It appears that at least one other federal judge has followed her example. Federal Judge to Hold Court on Hopland Indian Reservation, LAKE
COUNTY NEWS (Lakeport, CA), June 24, 2010, http://lakeconews.com/
content/view/14651/919/ ("This is the first time that a federal court has arranged
to hold regular court sessions [for misdemeanor citations] on an Indian reservation in California, officials reported.").
178. See U. S. Courts, Court Locator, http://www.uscourts.gov/courLlocator/
CourtMapDetails.aspx?state=WV (last visited Aug. 8, 2010).

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And we have never had a federal grand jury in Western
Colorado in my lifetime. 179
When a Native American defendant, victim, or witness testifies before a federal jury, the likelihood that he or she will
perceive that justice is really being decided by a group of his or
her peers is extremely remote. In an attempt to help compensate for this within the federal District of Colorado, both the
grand jury and trial (petit) jury pools may be drawn from a local division that is closer to the reservations. 180 Nonetheless,
as a practical matter-and given the large volume of cases originating in Indian country-it is extremely rare for Native
Americans living on Indian reservations to serve on federal juries in Colorado or other states, even when local division policies are used. 181 It is perhaps just as rare for federal trial
judges to accept Native American criminal defendants' objections that they have been denied a jury of their peers 182 in violation of the Sixth Amendment. 183 And while non-Indian jurors may have no real-world experience with Indian country,

179. Examining Federal Declinations to Prosecute Crimes in Indian Country,
Hearing Before the S. Comm. on Indian Affairs, 110th Congo 49 (2008) (statement
of Janelle F. Doughty, Director, Dept. of Justice and Regulatory, Southern Ute
Indian
Tribe),
available
at
http://frwebgate.access.gpo.gov/cgi-bin/
getdoc.cgi?dbname=110_senate_hearings&docid=f:46198.pdf.
180. Under the leadership of U.S. District Court Chief Judge Wiley E. Daniel,
the court is also making a determined effort to hold trials and other criminal proceedings in Indian country cases in an existing federal courtroom facility in Durango. Shortly after his appointment as chief judge in 2009, Judge Daniel also
made a point of visiting both the Southern Ute and Ute Mountain Ute Indian
Reservations, and meeting with their respective tribal councils. See Federal
Judges Visit Tribe, S. UTE DRUM (Ignacio, Colo.), Apr. 10, 2009, at 2, available at
http://www.southern-ute.nsn.usIDRUMlDrumPDF/20090410DRUM/
09041ODRUM_PDF.pdf.
181. For an excellent discussion of Native Americans' jury rights in the federal
criminal justice system, see Washburn, supra note 135, at 748. ("The federal districts that include Indian reservations are physically among the largest in the
United States. Because of the tremendous size of the districts, each judicial district is divided into multiple divisions. Most federal courts are located in larger
cities, and they tend to assemble jury venires from the division in which they
sit.").
182. For an example of the obstacles to mounting a successful legal challenge
to a jury of one's peers, see United States V. Taylor, 663 F. Supp. 2d 1157, 1161--68
(D.N.M. 2009).
183. U.S. CONST. amend. VI; see also 28 U.S.C. § 1861 (2006) ("It is the policy
of the United States that all litigants in Federal courts entitled to trial by jury
shall have the right to grand and petit juries selected at random from a fair cross
section of the community in the district or division wherein the court convenes.").

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some undoubtedly bring preconceptions or even prejudices
about Native Americans to the courtroom. 184
By comparison, in Strauder v. West Virginia,185 in an era of
pervasive racial intolerance that is nearly unthinkable today,
the Court spoke eloquently about the true meaning of the Sixth
Amendment in striking down a West Virginia statute that operated to exclude Mrican-Americans from jury service:
The very idea of a jury is a body of men composed of the
peers or equals of the person whose rights it is selected or
summoned to determine; that is, of his neighbors, fellows,
associates, persons have the same legal status in society as
that which he holds. . .. It is well known that prejudices often exist against particular classes in the community, which
sway the judgment of jurors, and which, therefore, operate
in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy. 186

It bears reflecting on what the virtual absence of Native
Americans serving on federal juries does for respect for justice
and the rule of law in communities that must depend on that
system in what would be handled locally almost anywhere else
in the United States.
D.

The Chronic Federal Resource Gap

Another issue is the serious and perpetual lack of resources made available to Indian country under the federal
criminal justice system. Despite many decades of federal promises, parity remains elusive today. According to the U.S. Department of Justice's own estimates, in 1997, Indian country
was served by only half as many law enforcement officers per

184. See, e.g., United States v. Benally, 546 F.3d 1230, 1231 (10th Cir. 2008)
(jury foreman's derogatory statements about Native Americans during jury deliberations are not reversible error).
185. 100 U.S. 303 (1879).
186. Id. at 308-09. Against this standard, trying a federal criminal case in the
community where it allegedly occurred, with a jury who knows and understands
reservation life, seems only the least that can be expected. Yet without massive
restructuring that includes an increase in education about Indian country for federal judges and magistrates and a court-building program across Indian country,
such expectations are manifestly unreasonable. Co-author Troy Eid is indebted to
Nicholas H. Gower, a third-year law student in his federal Indian law seminar at
the University of Colorado Law School last fall, for this observation.

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capita as similarly situated rural communities. 187 A decade
later, the Bureau of Indian Mfairs' Office of Law Enforcement
Services hired a private consultant to determine what it might
take to put tribal law enforcement and corrections on an equal
footing with similarly situated off-reservation communities. 188
The consultant's report found that, as a whole, Indian country
had an unmet need of more than 2,600 law enforcement officers
for policing functions, plus a total unmet need of more than 867
detention staff. 189 The report further recommended that the
BIA, at a minimum, hire 1,067 new employees to achieve parity
in criminal justice and correctional programs. 190 According to
the consultant's findings, the BIA had a 69 percent unmet
staffing need for sworn law enforcement officers,191 and a 61
percent unmet need for correctional facilities and programs in
the vast majority of states where the agency directly operates
detention facilities. 192 The systematic resource gap seriously
undercuts the federal government's fundamental criminal justice responsibilities in Indian country and widens when viewed
within the broader context of the comparatively limited federal
institutions based off-reservation, including federal enforcement, prosecutors, courts, and prisons.

III. ELIMINATING "SEPARATE BUT UNEQUAL" JUSTICE IN
INDIAN COUNTRY
This Part discusses how the federal government can move
beyond its separate but unequal criminal justice system by em-

187. Impact of Supreme Court Rulings on Law Enforcement in Indian Country:
Hearing Before the Comm. on Indian Affairs, lO7th Congo 14 (2002) (statement of

Tracy Toulou, Director, Office of Tribal Justice, U.S. Dep't of Justice).
188. See TECHNOLOGY & MANAGEMENT SERVICES, INC., GAP ANALYSIS (April
18, 2006) (on file with University of Colorado Law Review) [hereinafter GAP
ANALYSIS]. A later supplemental report by the same consultant also determined
that tribes should hire 1,059 new law enforcement officers, based on a staffing gap
of 33 percent in that category, and 341 correctional officers based on a 24 percent
staffing gap. See TECHNOLOGY & MANAGEMENT SERVICES, INC., TRIBAL
SUPPLEMENT TO THE GAP ANALYSIS ii-iii (June 2, 2006) (unpublished) (on file
with University of Colorado Law Review) [hereinafter TRIBAL SUPPLEMENT TO
GAP ANALYSIS], cited in Eid, supra note 136, at 40.
189. GAP ANALYSIS, supra note 188, at 24.
Id.
Id. at iii. A U.S. Civil Rights Commission report, A Quiet Crisis, found in
July 2003 that law enforcement per capita spending in American Indian communities was roughly 60 percent of the national average. Luna-Firebaugh, supra note
99, at 139.
192. GAP ANALYSIS, supra note 188, at iv.
190.
191.

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powering Indian tribes and nations in a manner that reinforces
tribal sovereignty and self-determination instead of undermining them. There can be no serious doubt that more than a halfcentury after Brown, the Equal Protection Clause guarantees
Native Americans a level of civil rights protection commensurate with their fellow citizens. This is what we mean by returning to constitutional first principles: acknowledging once
and for all, much like what the Supreme Court did in Brown,
that the federal government cannot continue to maintain a
separate system of criminal justice solely for one group or subset of Americans that is inferior to criminal justice systems
elsewhere in the United States.
Before proceeding further, a caveat: there is a pronounced
tendency even for well-intentioned reformers to invent their
own policy "solutions" for Indian country, then dictate how tribal governments should implement them. We won't play that
game. This Article has no intention of dictating to Indian tribes and nations the path they should take to maintain order
and enforce the rule of law in their communities.
Instead, our watchword is freedom. We think much of
what ails the federal criminal justice system in Indian country
can and should be addressed by interpreting and enforcing the
U. S. Constitution based on its text, structure, and the meaning
that the Supreme Court has given in invalidating invidious racial and ethnic discrimination since Brown. As the three
branches of the federal government reinterpret their constitutional responsibilities in this way, the result should be increasing freedom for tribal governments to maintain order and preserve the rule of law in their own communities. This is because
the Constitution itself recognizes three distinct sources of sovereign authority: federal, state, and tribal. 193 The U.S. Supreme
Court has often struggled with how much power tribes retain
vis-a-vis the other two sovereigns. 194 But none of these sove-

193. See U.S. CONST. art. I, § 8, d. 3 (identifying "the Indian Tribes" as a separate political entity).
194. Compare Worcester v. Georgia, 31 U.S. (6. Pet) 515, 519 (1832) ("The very
term 'nation' ... means 'a people distinct from others.' The constitution ... has
adopted and sanctioned the previous treaties with the Indian nations, and consequently, admits their rank among those powers who are capable of making treaties."), and Williams v. Lee, 358 U.S. 217, 220 (1959) ("[T]he question has always
been whether the state action infringed on the right of reservation Indians to
make their own laws and be ruled by them."), with Lone Wolf v. Hitchcock, 187
U.S. 553, 565 (1903) ("Plenary authority over the tribal relations of the Indians
has been exercised by Congress from the beginning ...."), and Nevada v. Hicks,

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reigns, including the federal government, may discriminate
systematically and perniciously against an entire category of
U.S. citizens based on race or ethnicity. Once the federal government accepts this reality and acts accordingly, tribes will
have greater freedom to chart their own destinies, as state and
local governments do.
The Constitution itself holds the key to correcting this injustice. Within the federal government, each of the three
branches should dare to see the federal criminal justice system
in Indian country for what it is-separate but unequal-and
then do its job. Emphatically, this must start with the President and Congress. There is a precedent for this. President
Nixon in 1970 stunned many observers by embracing tribal
self-determination and sovereignty as cornerstones of a new
national policy.195 There was hardly a consensus on Capitol
Hill at the time for such a bold shift, yet even years after his
death, Nixon's willingness to lead on this issue still confounds
supporters of the tribal sovereignty tidal wave that has since
surged forward. 196
President Obama now has an opportunity to create his own
path-breaking legacy in Indian country. This should include
restoring the inherent criminal jurisdiction of Indian tribes and
nations over non-Indians, a power stripped from them by the
Oliphant Court in 1978. 197 This would give Indian tribes and
nations the flexibility to enforce their own laws on their own
lands regardless of the race or ethnicity of the alleged victim or
perpetrator, so long as they respect the federal constitutional
rights of both, just as state and local governments elsewhere
currently do. 198 Each tribe would also be free to decide whether the federal criminal justice system should still exercise concurrent jurisdiction on its land. Federal laws of general application, such as those addressing anti-drug trafficking and
terrorism, and other federal statutes that apply to all persons
533 U.S. 353, 361 (2001) ("State sovereignty does not end at a reservation's border.").
195. WUNDER, supra note 31, at 127, 145-46.
196. Id. at 148-49.
197. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208 (1978).
198. See Troy A. Eid, Point: Beyond Oliphant: Strengthening Criminal Justice
in Indian Country, FED. LAW., Mar.-Apr. 2007, 40, at 45-46 (outlining possible
requirements for a post-Oliphant "roadmap" that respects tribal sovereignty and
protects criminal defendants' civil rights). For a contrasting outlook, see Elizabeth Ann Kronk, Counterpoint: Promoting Tribal Self-Determination in a PostOliphant World: An Alternative Road Map, FED. LAW., Mar.-Apr. 2007, 41, at 4143.

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in the United States regardless of land status, would of course
continue to apply to Indian country. But tribes otherwise
would be free to innovate and implement their own criminal
justice systems with or without continued federal concurrent
jurisdiction, if they so choose, and at their own pace. Monies
currently expended by the federal government on its criminal
justice responsibilities in Indian country should, at a bare minimum, be remitted in perpetuity to Indian tribes and nations
electing to undertake this velvet divorce. At the same time, the
wishes of tribes that want to retain federal criminal justice systems must be respected. 199
Congress likewise should embrace the movement for greater tribal freedom, following the President or bringing him along
as the case may be. Again, this demands fresh thinking; but it
is hardly unthinkable, as evidenced by the recent passage of
the Tribal Law and Order Act (the "Act").200 The Act enhances
tribal courts' sentencing authority to permit stronger punishments for many tribal offenses. 201 Certainly much more work
would need to be done to garner the necessary support for a
meaningful tribal choice agenda that includes the restoration of
criminal justice authority. Yet enforcing the Constitution's
civil-rights guarantees often demands reforms that are initially
thought to be unachievable, such as the passage of the Voting
Rights Civil Rights Acts after Brown.
This brings us to the Supreme Court. It is virtually an article of faith among several respected commentators that the
current Court majority does not decide Indian law issues in a
manner that respects the role of tribal governments as sources
of legitimate governmental power in the constitutional

199. While an analysis of Pub. L. 280 tribes is beyond the scope of this Article,
greater freedom should be the watchword for these tribes as well: liberty to build
their own justice systems, form partnerships with state jurisdictions, or embrace
federal jurisdiction tailored to their unique circumstances as they decide.
200. Co-author Troy Eid joined forces with former United States Attorney
Thomas B. Heffelfinger of Minnesota at the request of the bill's sponsors, cowriting a letter to House members urging the bill's passage. Troy, who had previously testified on the bill in the Senate Committee on Indian Affairs, also traveled to Washington, DC to support the bill when it was considered on the House
floor. See generally Congress Passes First Significant Indian Country Crime Bill
in Years, INDIANZ.COM, (July 22, 2010), http://64.38.12.138/News/2010/020834.asp
(despite some Republican opposition, the House voted 326 to 91 to pass the bill).
201. Troy A. Eid, Bringing Justice to Indian Country, THE DENVER POST, Aug.
3,
2010,
at
Bll,
available
at
http://www.denverpost.com/search/
ci_15661714?source=email.SeealsoEid.supranote136.at 38.

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scheme. 202 There is also a practical consideration: the Court
can only consider cases that come to it. Any review of the MCA
or of broader federal criminal justice questions might not come
for many years, if at all, and would still almost certainly be discretionary.203
There is still an urgent priority for the Court in the meantime: judicial education. This is not a criticism of any of the
justices or the Court as an institution. But the fact remains
that no U.S. Supreme Court Justice has ever been an enrolled
member of a federally recognized Indian tribe, and no current
Justice has lived or worked extensively in Indian country. It is
imperative that those who have lived or worked on Indian reservations and experienced the federal criminal justice system
redouble their collective efforts to acquaint the federal judiciary
with its on-the-ground realities. Only then can we reasonably
expect an awareness of the separate but unequal federal criminal justice system in Indian country, which in turn may influence judicial decisions over time-all the way to the highest
court in the land.
It may be difficult to imagine today that the current U.S.
Supreme Court will invalidate the segregationist federal criminal justice system in Indian country-as their predecessors did
in Brown-and provide a suitable judicial remedy to correct
that injustice. 204 But the analogy to Brown is still critically
202. Marcia Coyle, Indians Try to Keep Cases Away from High Court,
LAW. COM,
(March
30,
2010),
available
at
www.law.com/jsp/law/
LawArticleFriendly.jsp?id=1202447092378 (quoting Richard Guest, Senior Trial
Attorney for NARF). See David H. Getches, Conquering the Cultural Frontier:
The New Subjectivism of the Supreme Court in Indian Law, 84 CAL. L. REV. 1573
(1996); Sarah Krakoff, Undoing Indian Law One Case at a Time: Judicial Minimalism and Tribal Sovereignty, 50 AM. U. L. REV. 1177 (2001). See also Matthew
L.M. Fletcher, Factbound and Splitless: The Certiorari Process as Barrier to Justice for Indian Tribes, 51 ARIZ. L. REV. 933 (2009). In his analysis of Supreme
Court cases on Indian law, Professor Fletcher found that from 1959 until 1987,
Indian tribes won nearly 60 percent of cases decided by the Court, compared to
winning less than 25 percent since 1987. Id. at 942-44.
203. Professor Fletcher, who studied more than 160 certiorari petitions filed
between 1986 and 1994, concluded that the Court's discretionary review process is
itself a barrier to justice for tribes and individual Indians. Id. at 978-79. Certiorari pool memos by the Court's law clerks indicated that clerks often overstate
the merits and importance of petitions filed by state governments against tribal
interests, while understating the merits and importance of tribal certiorari petitions. Id. at 967.
204. The academy is almost universally skeptical about the Court's ability to
transform its role in Indian affairs, given how its justices have shaped its own
precedents and doctrines. The late Philip Frickey captured the mood: "The Court
has transformed itself from the court of the conqueror into the court as the con-

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important because the case has come to symbolize that it is
never too late to redefine and enforce constitutional rights that
have been systematically denied to an entire population of U.S.
citizens for generations.
Regardless of how the interplay among the three branches
unfolds, the time has come for a national conversation about
comprehensive policy reform that gives Indian tribes and nations more freedom to chart their own destinies with the federal government acting as an enabler rather than impediment to
the process. Federal policy should strongly encourage tribal
governments to design and implement criminal justice systems
that are more directly accountable and responsive to the people
who actually live and work in Indian country, just as offreservation communities do. This should happen even if some
tribes decide to exit the federal criminal justice system, opting
instead for essentially local law enforcement, prosecution, judicial, and correctional services.
Far too much of the federal criminal justice system that
serves Indian country-designed as it was to keep Native
Americans isolated on reservations with the real political power elsewhere-remains trapped in a segregationist mentality.
Substantially increased federal funding would undoubtedly
help in many areas, but there is also a critical need to address
the basic structural flaws inherent in the outmoded federal
criminal justice system itself, such as the built-in lack of accountability of federal law enforcement officers, prosecutors
and judges, and their respective agencies and institutions, to
tribal communities. The system, as it currently exists, may
never be able to deliver the quality, quantity, and consistency
of politically accountable services that Native Americans living
and working on reservations should rightly expect, and which
are comparable to those available to off-reservation communities.
The ability of tribes to assume public safety functions previously handled by the Bureau of Indian Mfairs varies widely.
Several vestiges from the segregationist era still severely restrict the practical ability of many tribal governments to assert
queror." Philip P. Frickey, A Common Law for Our Age of Colonialism: The Judicial Divestiture of Indian Tribal Authority Over Non-Members, 109 YALE L.J. 1, 73
(1999). Yet it also bears remembering that such sentiments, if true, do not necessarily predict the Court's future direction. Brown attests that the Court can and
often does change course dramatically, and in unexpected ways, as public attitudes shift-much like they did in response to the Civil Rights Movement. See
Brown v. Bd. of Educ., 347 U.S. 483 (1954).

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their own sovereignty on public safety matters: especially the
federal government's reluctance to allow tribal governments to
create and manage their own credible and sustainable tax
bases. 2os Despite these inequities, a growing number ofIndian
tribes and nations have assumed many essential criminal justice and related functions previously handled by Washington,
as provided by the Indian Self-Determination and Education
Assistance Act,206 popularly known as "638," and the Tribal
Self-Governance Act. 207 These provisions enable tribal governments to reassume many of their traditional functions under contract with the BIA. One thing is clear about overcoming
the separate but unequal status of criminal justice in Indian
country: each tribe must be free to chart its own course. 208
An able cadre of scholars and advocates has already
trained its intellectual firepower on clarifying the proper relationship between the federal government and tribes. 209 This is
no small challenge, for as the late Vine Deloria, Jr., and Professor David E. Wilkins put it: "Unlike other areas of jurisprudence, federal Indian law has little logical consistency in its
substance."210 Fundamentally, the remedy to separate but
equal justice must be rooted in comprehensive public policy
reform, with Indian tribes and nations themselves charting
their own destiny, each according to its specific needs and timetables. There is no one-size-fits all solution, and the federal
government should not attempt to drive or dictate a particular
policy outcome or result. But instead of "the segregation of the
Indians," the federal government's new policy should be to provide the maximum array of credible options for tribes to design,

205. See, e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989)
(permitting duplicative state taxation of oil and gas resources on tribal trust lands
even when tribal governments already impose their own severance taxes).
206. Pub. L. No. 93-638, 88 Stat. 2203 (1975).
207. Pub. L. No. 103-413, 108 Stat. 4270 (1994).
208. Again, freedom is the watchword here, out of basic respect for tribal sovereignty and Native Americans themselves. The late Vine Deloria, Jr. said it well:
"Indians are like the weather. Everyone knows all about the weather, but none
can change it.... Likewise, if you count on the unpredictability of Indian people,
you will never be sorry." DELORIA, JR., supra note 31, at 1.
209. Among several other distinguished experts, Frank Pommersheim summarizes some ofthe recent scholarship while proposing several intriguing ideas of his
own. See POMMERSHEIM, supra note 29, at 303-12 (exploring a federal-tribal
compacting process, possibly by constitutional amendment, that reinvigorates tribal sovereignty on a federalism model).
210. DELORIA, JR. & WILKINS, supra note 80, at 158.

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staff, and fund criminal justice systems tailored to their own
needs. 211
Some tribes might want to negotiate a partial or full withdrawal from the federal criminal justice system on tribal lands
for crimes that would be handled locally were they state offenses. For instance, the Southern Ute Indian Tribe-under
the leadership of former Chairman Clement Frost, Chief Judge
Phyllis Newton, and the Tribe's former Justice Department Director, Janelle Doughty-maintained a tribal police department, jail, and court system that operated on par with those of
comparable off-reservation communities. 212 If and when an
Indian nation decides it is ready, exploring how to exit all or
parts of the federal system that otherwise applies to Indian
country-and ensuring the tribe has the necessary freedom,
tools, and means to do so-should definitely be on the table for
discussion. This conversation could discuss roles and responsibilities, resource requirements, and the necessary modifications to federal law needed to make it happen. Modifications to
federal law and jurisdiction needed to create this option would
necessarily include a partial or full repeal of the Oliphant prohibition against tribal criminal jurisdiction over nonIndians. 213 Importantly, this approach need not apply to federallaws of general application, such as anti-terrorism or racketeering statutes, which apply to all U.S. citizens regardless of
where they live or work. Rather, the federal-tribal conversation would address federal laws, personnel, and institutions in
Indian country that are currently providing what would otherwise be essentially local criminal justice services, and which
211. For instance, Deloria and Wilkins call for the restoration of the President's treaty-making power with Indian tribes and nations, which-in what can
only be considered a blatantly unconstitutional act-was unceremoniously
stripped by Congress in 1871 as part of yet another appropriations rider. Act of
March 8, 1871, 16 Stat. 544, 566-71; DELORIA, JR. & WILKINS, supra note 80, at
62-63, 161. See also United States v. Lara, 541 U.S. 193, 215 (2004) (Thomas, J.,
concurring). Even if the treaty power is not restored, another idea is to rely on
compacts-inter-governmental agreements intended to be legally enforceable contracts between tribes and the United States. POMMERSHEIM, supra note 29, at
303-12. Long used in areas such as water law, compacts depend on the parties'
willingness and ability to honor their agreements, which become judicially enforceable, but are often administered by "special masters" or other monitors committed to achieving an equitable result for parties. See, e.g., John H. Davidson, In-

dian Water Rights, the Missouri River, and the Administrative Process: What are
the Questions?, 24 AM. INDIAN L. REV. 1, 2 (1999-2000).
212. Troy A. Eid, Making Indian Country Safer: Colorado's "Admirable" Experiment, 38 COLO. LAW., Oct. 2009, at 21, 24-28.
213. See Eid, supra note 198, at 45-46.

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might be more appropriately handled by tribes, either by themselves or in voluntary partnerships with state or local entities.
EPILOGUE: COMING FULL CIRCLE

It may be that this latter-day civil rights tragedy stems
mostly from a lack of education, as most members of Congress
and federal judges have little real-world experience with the
federal criminal justice system in Indian country. If so, those
who have actually been part of that system have a special duty-and, as lawyers, an ethical obligation-to speak out. 214 As
so often happens in Indian country, there are signs that matters may finally have come full circle. Among those speaking
out boldly on the need for fundamental change is Chief Judge
Martha Vazquez of the U.S. District Court for the District of
New Mexico.
On April 8, 2010, at the Federal Bar Association's annual
Indian Law Conference at the Pueblo of Pojoaque, the chief
judge of a district that includes 23 federally recognized Indian
nations delivered a measured public critique of the federal
criminal justice system in Indian country.21S This is the same
judge who had joined forces five years earlier with the president of the Navajo Nation, Dr. Joe Shirley, Jr., and convened
the first-ever federal criminal trial on an Indian reservation. 216
This time, Vazquez patiently spoke before an audience of more
214. As a former United States Attorney for the District of Colorado appointed
by President George W. Bush and unanimously confirmed by the U.S. Senate, coauthor Troy Eid has spent more than two decades working in and near Indian
country. His career includes service in the U.S. Department of Justice; as a legislative staff member to former U.S. Representative Jim Kolbe (R-Ariz.), as the
chief legal counsel and later a cabinet secretary to former Governor of Colorado
Bill Owens (R), and in private law practice representing various Indian tribes and
nations as well as organizations and individuals doing business with them. Both
authors greatly respect the vast majority of federal public servants who provide
justice-related services to the roughly 300 Indian reservations and communities
currently subject to federal criminal jurisdiction. In nearly every case, these are
fine people doing their best to work with-and who must often work around-an
outmoded system of laws and institutions designed at an earlier stage of U.s. history. This is no fault of anyone serving in the field of federal criminal justice today, and we honor the thousands of men and women, including many Native
Americans, who dedicate their careers to doing justice and keeping the peace
throughout Indian country. Many of these professionals are friends, and more
than a few are personal heroes.
215. The chief judge's remarks from the FBA conference, which co-author Troy
Eid attended, are not published but summarized very generally here with her
permISSIOn.
216. See Saunders, supra note 176, at 1A.

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than 500 attorneys and tribal leaders. She offered her personal
observations about how the federal criminal justice system in
Indian country is falling short, carefully insisting that Native
Americans, especially crime victims, must gain full access to
the same civil rights that other U.S. citizens enjoy.
Chief Judge Vazquez has not yet published her remarks
from that conference or written an article on the subject. But
her public candor may prove to be a milestone for awareness of
the segregationist vestiges that unexpectedly endure through
the federal criminal laws and institutions serving Indian country. The unexpected passage of the Tribal Law and Order Act
by both houses of Congress last July could be yet another
marker. At stake is nothing less, in the Supreme Court's stirring phrase, than "the right of reservation Indians to make
their own laws and be governed by them."217 Most U.S. citizens live far from Indian reservations and have no opportunity
to discover how the federal criminal justice system operates
there. Those with first-hand knowledge and experience must
keep speaking out until what Justice Jackson called "the segregation of the Indians"218 gives way to an informed and serious discussion about constitutional first principles. First
among these principles-now and for all time-is that all men
and women, including Native Americans, are created equal,
and can no longer be sacrificed on an altar of federal neglect,
indifference, or expediency.

217.
218.

Williams v. Lee, 358 U.S. 217, 220 (1959).
Transcript of Oral Argument at 17, Brown v. Bd. of Educ., 347 U.S. 483
(1954), (No. 101), available at http://www.lib.umich.edulbrown-versus-boardeducation/oral/Marshall&Davis.pdf.