Tribes want to mete out justice to non-Indian drug offenders : NPR
S E E D E D C O N T E N T
February 20, 20245:01 AM ET Heard on Morning Edition
Martin Kaste
Tulalip Tribes Police arrest a suspect from another Indian tribe on drug charges. One charge — possession of drug paraphernalia — wouldn't apply to non-Native suspects in Washington state Martin Kaste/NPR hide caption
toggle caption Martin Kaste/NPR
Tulalip Tribes Police arrest a suspect from another Indian tribe on drug charges. One charge — possession of drug paraphernalia — wouldn't apply to non-Native suspects in Washington state
Martin Kaste/NPR
As fentanyl addiction and overdose deaths ravage Native American communities, some tribal leaders want Indian law enforcement to take drug enforcement more into their own hands.
"We can't wait anymore," Jamie Azure, chairman of the Turtle Mountain Band of Chippewa Indians, told the Senate Indian Affairs Committee in November. "We are very close to losing a generation to an opioid, to a synthetic drug."
Tribal leaders testified about an insufficient response by state and federal law enforcement to the drug traffickers who bring fentanyl onto reservations. Azure said his tribe was moving ahead with its own "tribal drug task force."
But tribal law enforcement is limited in what it can do. Because of the landmark 1978 Supreme Court ruling Oliphant v. Suquamish Indian Tribe, tribal courts are not allowed to prosecute non-American Indians for most crimes — including drug trafficking.
That distinction between Native and non-Native is an ever-present factor for tribal police on reservation land.
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Tulalip Tribal Court Chief Judge Meredith Drent takes a seat below the court's official seal, which depicts four salmon encircling the scales of justice. Martin Kaste/NPR hide caption
toggle caption Martin Kaste/NPR
Tulalip Tribal Court Chief Judge Meredith Drent takes a seat below the court's official seal, which depicts four salmon encircling the scales of justice.
Martin Kaste/NPR
The Tulalip Tribes in Washington state, for instance, has a police department with a specialized team of narcotics detectives, who try to identify and interrupt the flow of fentanyl into their small reservation located between Interstate 5 and Puget Sound, north of Everett. When they detain or arrest someone on suspicion of drug crimes, a key question is "Are you tribal-enrolled?"
They asked that question recently of two men in a black Camaro in the parking lot of one of the Tulalip casinos. Visible inside the car was a hollowed-out pen, typically used to smoke fentanyl.
The men confirmed they were American Indian — enrolled in the Upper Skagit, another tribe in Washington. For purposes of tribal criminal jurisdiction, that's enough to make them subject to the Tulalip Tribes' drug laws.
"All right, so it is a crime to have drug paraphernalia, OK?" the officer says, making the arrest.
Just minutes earlier, Tulalip officers had encountered a white woman with a suspected meth pipe, and let her go. As a non-Native, she was subject to Washington state's more permissive drug paraphernalia law, and couldn't be charged.
Detective Haison Duong says the tribe's drug paraphernalia law gives Tulalip Police leverage over the two men because they're Indian.
He says they may be encouraged to opt for treatment, through the tribe's drug-diversion court system, called Wellness Court.
They might also be nudged into helping the police.
"Sometimes, let's say we get this gentleman and he wants to work off his charge and take us to his dealer, right?" Duong says.
Finding the dealers is the priority for the tribe. It recently made drug-dealing a felony — it used to be a misdemeanor — but only if the dealer is enrolled in a tribe. If a suspected dealer turns out to be non-Native, reservation police have to take the case to state or federal prosecutors, who may not give it the priority the tribe would.
"We are bearing the brunt of criminal activity without being able to address it," says Angelique EagleWoman, director of the Native American Law and Sovereignty Institute at Mitchell Hamline School of Law in St. Paul, Minn.
"We have to reach out to state and federal partners and hope that they devote resources. Hope they hear the call. Hope they understand the crisis. And it's very frustrating," she says.
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Tulalip Tribal Police narcotics Det. Haison Duong shows a hollowed-out pen used to inhale fentanyl smoke. Possession of "drug paraphernalia" like this is a chargeable offense under tribal law — but only for Natives Martin Kaste/NPR hide caption
toggle caption Martin Kaste/NPR
Tulalip Tribal Police narcotics Det. Haison Duong shows a hollowed-out pen used to inhale fentanyl smoke. Possession of "drug paraphernalia" like this is a chargeable offense under tribal law — but only for Natives
Martin Kaste/NPR
The system doesn't have to work this way. In that 1978 ruling, the Supreme Court said Congress could choose to give tribal courts the authority to prosecute non-American Indians. And for certain crimes, it has.
In the 2013 reauthorization of the Violence Against Women Act, Congress created special tribal criminal jurisdiction, allowing tribes to prosecute non-Natives who commit domestic violence. The list of crimes was expanded in 2022 to include crimes against tribal-enrolled children, among others.
The Tulalip Tribes Court is one of the reservation courts exercising that new authority; just a few weeks ago, it prosecuted a non-Native woman and former school employee who had had sex with an underage member of the tribe. She pleaded guilty to "communications with a minor for immoral purposes," and the tribal court sentenced her to jail time.
The chief judge, Meredith Drent, a member of the Osage Nation of Oklahoma, says this kind of jurisdiction over non-Natives makes sense.
"When I go to Colorado, I may not know their laws but I know that I'm going to have to follow them, and they can prosecute me if they don't," she says. "And it's the same thing here. When you enter someone else's jurisdiction, you fall under their laws."
Further complicating matters for Tulalip authorities is the fact that most of the people living within reservation boundaries, roughtly two-thirds, are not Native.
" 'Tribal/non-tribal' is a distinction that doesn't really make sense if you're living in a reservation," says Brian Kilgore, a prosecutor for Tulalip Tribes. "That divides families in half. It cuts people, across the middle of the street. It doesn't make any sense at all if you're trying to do justice by community standards."
That was the rationale for allowing tribal courts to prosecute non-Natives for domestic violence crimes; now, they say it's time to extend that logic to non-Natives who live on reservations and victimize other residents with fentanyl.
At the Senate Indian Affairs Committee hearing in November, councilman Bryce Kirk of the Fort Peck Reservation in Montana asked Congress to "give us the criminal jurisdiction to be able to charge them in tribal court and to be able to hold them in our jails."
But the movement to increase tribal courts' legal powers faces powerful political headwinds. In Oklahoma, for instance, after the U.S. Supreme Court and a federal appeals court greatly expanded the state territory in which tribal courts have jurisdiction over tribal members, Oklahoma Gov. Kevin Stitt launched a pushback campaign called "One Oklahoma."
"In America, we expect that everyone follows the same set of rules, regardless of who you are or where you come from," Stitt says in a video posted to the campaign's site. "We need one, united Oklahoma. An Oklahoma where all men are created equal."
There have been moments of tension over expansions of tribal courts' jurisdiction. In December, a fight broke out between Muscogee Nation tribal police and the staff at the Okmulgee County jail. A jailer reportedly refused to book a drug crime suspect brought in by tribal police, leading to the altercation. The tribal court later charged the county jailer with battery against the tribal officer.
Some critics of expanded tribal jurisdiction don't mince words: They say they don't trust the Native courts.
"The Constitution does not apply on [the] reservation," says Lana Marcussen, the lawyer for the nonprofit arm of the Citizens Equal Rights Alliance, a group that opposes the current model of tribal sovereignty, especially in land-use cases.
Marcussen has written briefs in key federal cases involving tribal jurisdiction, and she says the tribal justice system is a potential threat to the civil rights of tribal members as well as non-Natives.
"I would say the majority of tribes try to be good to their members," Marcussen says. "But the fact is, if you cross that tribal government or you cross that police chief — boy, they know full well they don't have to give any of those rights.
CERA's opponents call the group "anti-Indian" and say this characterization of tribal courts is unfair, as they offer due process such as trial by juries selected from the community.
Ultimately, the decision to increase tribal jurisdiction over non-Indians is up to Congress, and Professor EagleWoman says congressional action usually requires a crisis. The last crisis, she says, was the public outcry over unpunished violence against indigenous women.
"That led to, 'Yes, tribes can prosecute non-Indians engaged in dating violence, engaged in domestic violence on tribal lands,' " she says. "We have the same thing happening now with the influx of fentanyl and other drugs on tribal lands."
- fentanyl
- courts
- Indians
- drugs
- law enforcement
- Native American
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Congress and SCOTUS brought this problem on the tribes and have done next to nothing to address their own huge screw-ups. If you're non-Indian there are many crimes that you can commit on Indian reservations and cannot be charged by the tribe or tribal police and that led to sexual abuse/rape crimes skyrocketing for decades until finally VAWA and some changes in federal policy slowed down the problem.
Because of the landmark 1978 Supreme Court ruling Oliphant v. Suquamish Indian Tribe, tribal courts are not allowed to prosecute non-American Indians for most crimes — including drug trafficking.
The SCOTUS decision gave free rein to non-native criminals in Indian Country.
fuck those election denying, bible thumping, trump dick suckers in congress. let the tribes operate their LE independently on NA sovereign land until the rwnj congress gets their heads out of their asses. prearrange a clemency deal with the white house for NA LE if some problems happen to get solved at the crime scene, just like in the big city white police depts down south.
Most Tribal Police are fully authorized in cross parterships with local police, and they get killed just like non Indian LEOs'
I've never had the demeanor to be a cop. as a dyslexic I'd keep getting due process confused with process due.
Well that could be a problem as a cop, devan.
I'm all about maximum efficiency and economy...
Tribal lands, tribal business on how they handle things in their own tribal nations. Bottom line.
Forgot to add above that that's the way it ought to be.
Totally agree.
let the rez prisoners dig the holes out in rez bfe during the day, and then NA LE can fill them with dealers at night.
That came pretty close to reality on one rez I'm familiar with, devan.
The tribes/nations have the necessary power/jurisdiction to prosecute drug offenders under the Tribal Law and Order Act - even non-Indians.
HOWEVER, the following caveat MUST be adhered to, which Washington State refuses to -
18 U.S. Code § 1152 - Laws governing
Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country .
This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.
18 U.S. Code § 1153 - Offenses committed within Indian country
But, we know how Rehnquist screwed the pooch on that one, eh?
Oh, do we ever.
And it is not only Washington state that refuses and now that there is a Native American on the Washington Supreme Court hopefully it will be challenged.
From the article:
Some critics of expanded tribal jurisdiction don't mince words: They say they don't trust the Native courts.
Once again the old racist trope yet they seem to think that non Indians committing a crime on a rez is just fine.
If you don't want to be tried by us savage crooked Indians don't commit crimes on the reservation, it really fairly simple and since we have an abundance of experience in judicial matters I wonder if they can explain why we have Indian governors, Lt. Governors, Senators, congressman/women, Federal Judges, State judges, State supreme court judges, and Law professors at major law schools. Seems kind of strange that we're both ignorant and crooked.
Google CERA and you'll find an anti-Indian group pouring millions into ending all treaties between the US and Indian Nations.
CERA is as racist as they come. Were NAs to make the same argument against rural southern whites the CERA people would be pissed.
BINGO
This is a ridiculous situation. Law enforcement that is not able to treat criminals equally isnt really law enforcement.
It's bizarre to say the least, if you're non indian you can commit a number of crimes on the rez and walk away clean.
Been aware of this for many years being close to Oklahoma.
Seems incomprehensible and yet Congress ignores it
White Congress....
Seems incomprehensible and yet Congress ignores it
White Congress....
They are good at ignoring problems and especially good at ignoring ours since our population is small, around 9.5 million.
They are afraid that non Indians will be targeted in disproportionate numbers, lol.
Had a good friend of mine worked for several years on the White Mountain Apache Reservation hospital in Northern Arizona as a Medical Laboratory Technologist. He had some pretty hair raising stories to tell. Most Apache's crimes committed on that res had zero criminal record off the res and as was said above the majority walked.
Truly a very sad situation, Doc.
This strikes me as a complication of the "debate" over how self-ruling tribes should be. It seems Oklahoma wants a strict limit on that.
We are as sovereign and the Feds allow us to be, depending on the situation.
American Indians need better lobbying in Washington DC.
Congress writes the laws, we can only challenge them in court which we do, and spend millions of dollars trying to right wrongs.
getting all the mackerel snappers off the SCOTUS bench would be a big help ...
I just posted an article about this huge problem. The dealers are traveling great distances to get to tribal areas just to poison the youth with fentanyl. If a crime happens on the Rez, it really shouldn't matter if they are Indian or not. A crime is a crime and the Rez is autonomous and should be able to punish those who are committing a crime.
And for the record, the DEA operates in Mexico and makes arrests there. They are not Mexican. So I don't see why Indians can't take care of their problem. It is a double standard otherwise.
Yes, it is. Go to Canada or any other country in he world and commit a crime and tell them they cannot arrest and prosecute you because you're not whatever race or nationality of the country your in...I'm sure that will work. /s
Had a guy I knew of try that in the Philippines when his ship was in port and got caught driving drunk and beating up a prostitute. The Philippines Constabulary slapped a legal hold on his butt so fast it made his head spin! They held on to him in jail for a year until he could pay fines and restitution to the young woman in question. Then the Navy got hold of him and court martialled him for being AWOL.
I would love to see that on the rez, Doc.
Yes, DEA does operate in Mexico but the agents are paired with specific specialty trained Mexican counterparts who make the actual arrests, not the DEA. Mexico then usually retains them in custody until extradition requests are received from the US.
It makes no sense whatsoever that the tribal authorities are not able to enforce the law on their territory despite the ethnicity of the offender. If Congress needs to pass a law, they should.
Many laws that SCOTUS and Congress passed do not make sense but they were done to remove the sovereignty away from NAs, G.
I understand that was their intention, but I do not approve of it.
doubling down on manifest destiny...
Sadly, that is true, but as we say, ''We Are Still Here''.
I will always have your back brother...