Kevin Washburn, a member of the Chickasaw Nation, is an associate professor of law at the University of Minnesota. In 1994, he worked for the Justice Department litigating cases involving Indian tribes, and in 1997, he moved to the U.S. attorney's office in New Mexico, where he prosecuted serious crimes in Indian Country. Since joining the faculty at UMN in 2002, he has written and lectured on why the current justice system on Indian lands is not working and why it is having detrimental effects on tribes and the wider community. Washburn is currently on leave from UMN to serve as the Oneida Indian Nation visiting professor of law at Harvard Law School.
HIGH COUNTRY NEWS: Why should the federal government not be responsible for prosecuting felonies in Indian Country?
KEVIN WASHBURN: They shouldn't be responsible in the way they are now because they're not very good at it. The FBI and U.S. attorneys are good at prosecuting white-collar crime and big cases. They're not so good at prosecuting street crimes such as assault, domestic violence and sex offenses.
But it's deeper than that. In the U.S., crime is thought to be a local concern. Usually, the feds are only brought in on things that affect the national interest. We don't bring them in for routine local offenses.
(Federal prosecution of local crime) is inconsistent with our general notions of American justice. For example, we have a jury because the community is supposed to be involved in the prosecution of crime. When a jury of your peers tells you that you're guilty, that hits home in a much more serious way than if strangers do it.
And we just don't have that in Indian Country cases because the courthouses are often 100, 200, 300 miles from where the offense occurred. Imagine the victim who has to testify in court in Phoenix but lives on the northern part of the Navajo Reservation. She may be facing a six-hour drive in a rust trap of a car in extreme weather.
We see this pattern over and over in the West. In Colorado, the Southern Ute Tribe's cases are tried in Denver ... several hundred miles away.
HCN: What other factors make federal jurisdiction over Indian Country felonies a problem?
WASHBURN: Another cultural problem is that federal agents haven't always been beloved on Indian reservations, and tribes have long memories. That's one of the beauties of oral history is that the memories stay very fresh. The FBI agents and federal prosecutors are in some respects the direct descendents of the cavalry officers who committed atrocities on Indian reservations in the last century and the century before that.
So when a federal agent shows up and says, "I work for the federal government and I'm here to help you," people are very skeptical. One outcome of that distrust is that sometimes witnesses don't want to cooperate with federal agents. The worst situation is in child sexual offense cases, which a lot of these cases are. When an 8-year-old girl reports an offense, it's a federal felony that draws a federal investigation. Federal agents come on the reservation to get involved in local affairs. That can be controversial. One ramification is that sometimes the community turns against the girl for bringing the feds onto the reservation. That happens only because of the dynamics of the system we've created.
HCN: How did the federal government come to have this responsibility in Indian Country?
WASHBURN: Until about 1885, Indian nations dealt with criminal offenses on the reservation. But in the 1880s, the federal government was trying to ensure Indians stayed on reservations. The U.S. had some ways of exercising power on reservations: A lot of the treaties called for commodities or other goods and services to be paid to the tribe. One way that Indian Affairs controlled reservations was by deciding who would help distribute those goods. That was a carrot approach. But the government didn't have a stick. There was nothing that they could really do to tribal citizens who refused to cooperate with the government.
In the 1880s, a case called ex parte Crow Dog went to the Supreme Court. The court said the feds didn't have jurisdiction over crimes committed on Indian reservations.
Congress then acted to create federal criminal jurisdiction on reservations. The Major Crimes Act gave the feds jurisdiction over eight so-called major crimes. There are now over 30 crimes covered by the act, and we just added another two years ago.
HCN: What was the effect?
WASHBURN: Over the last century, we have continuously displaced tribal justice systems. By taking authority over the eight major crimes, the federal government caused many tribal systems to atrophy. And they atrophied more and more, so that now the feds are doing a significant amount of it, but not doing that great of a job. While Congress could give the U.S. attorney's office this power, it couldn't make the office really love the work or want to do it.