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 Abstract

Excerpted From: Adam Crepelle, Holding the United States Liable for Indian Country Crime, 31-SPG Kansas Journal of Law & Public Policy 223 (Spring, 2022) (364 Footnotes) (Full Document)

Police killings of unarmed African Americans have inspired calls to defund the police. Although the number of African Americans killed by police is troubling, Indians are killed by police at higher rates than African Americans or any other racial group in the United States. Rather than seeking to defund the police, Indian tribes have sued the federal government for increased law enforcement funding in recent years. This is not because tribes have a particularly pleasant history with the police; in fact, federal law enforcement has been wielded to systemically oppress Indigenous culture for nearly two hundred years. Tribes have not forgotten these historic injustices, but tribes have few other options as their homelands have become criminal havens.

Crime is a massive problem in Indian country. country violent crime rates exceed ten times the national average on some reservations. For example, the Navajo Reservation reports more rapes than San Diego though San Diego's population is nearly ten times that of the Navajo Reservation. On some reservations every single woman has been raped, and Indian women are being murdered and going missing at crisis levels. The violence extends beyond crimes against Indian women as Indian men experience violent crime at twice the rate of any other group in the United States, and Indian children experience violence at the highest rate of any children in the United States.

Violence against Indians is unique not only for its high rate, but also because of its racial dynamic. Crime is overwhelmingly intraracial. Hence, the vast majority of violence perpetrated against African-Americans and Caucasians is by a person of the same race. When an Indian is the victim of violence, the criminal is a non-Indian over ninety percent of the time. This is no accident, and there is not much tribes can do about it.

Federal law prohibits tribes from prosecuting non-Indians. If a non-Indian victimizes an Indian, only the federal government has jurisdiction to prosecute the crime. Federal law enforcement officials are usually uninterested in reservation crimes for a variety of systemic reasons, so non-Indians are free to torment reservation Indians. Non-Indians know this and exploit the system. In fact, non-Indians have been known to report themselves to police simply to flaunt their immunity from prosecution. Similarly, reservation crime rates soar when non-Indians enter Indian country in large numbers, such as during oil booms on tribal land.

Although Congress has long been aware of non-Indian violence against Indians, Congress only began addressing Indian country crime in 2010. Congress implemented reporting requirements to entice United States Attorneys to tackle Indian country crime and increased tribal sentencing authority from a one year maximum jail sentence to three. Congress also created the Office of Tribal Justice to improve Indian country public safety. In the Violence Against Women Reauthorization Act of 2013 (“VAWA”), Congress authorized tribes satisfying certain procedural safeguards to prosecute non-Indians who commit dating violence, domestic violence, or violate a protective order. VAWA has drastically improved public safety among implementing tribes; however, far more needs to be done.

Until Congress takes further action, tribes should sue the United States for its failure to prevent reservation crime. Tribes have a sui generis trust relationship with the United States. The trust relationship is a special relationship, and a special relationship permits lawsuits against governments for failure to protect. Accordingly, the United States may be found negligent for ignoring Indian country's public safety crisis. Governments can also be held liable for harms suffered by individuals if the government has created the danger. By divesting tribes of the ability to protect their citizens, the United States bears responsibility for the violence inflicted upon Indians. Additionally, tribes have a property right to public safety from the federal government, and individual Indians have a property right to compensation for injuries inflicted by non-Indians. Tribes and Indians should pursue these remedies.

The purpose of this litigation is to incentivize the federal government to fix Indian country's broken criminal justice system. Federal neglect of Indian country has been the norm because Indians are a small percentage of the population and have the highest poverty rate in the United States, so Indian voters and issues do not usually move the election needle. Holding the federal government liable for reservation crimes resulting from flagrant federal neglect could change the political calculus. After all, the options are expend taxpayer dollars reimbursing Indian crime victims or spend money improving a broken system. The latter seems the better option.

The remainder of this Article proceeds as follows. Part II provides an overview of the history of Indian county law enforcement. Part III discusses the basis for holding governments liable for law enforcement failures. Part IV applies theories of government liability to Indian country crime.

[. . .]

The United States is responsible for Indian country's appalling crime rate. Although the United States has a special treaty and trust relationship with tribes, the United States perennially fails to take even basic steps to address Indian country's public safety crisis. This is negligence. Furthermore, the United States has played an active role in undermining Indian country's public safety. By divesting tribes of jurisdiction over non-Indians and limiting tribal sentencing power, the United States has left tribes exceedingly vulnerable to crime. The United States' failure to address Indian country crime has also harmed tribes and individual Indian property rights. Tribes should file suit to hold the United States liable for Indian country crime.

Adam Crepelle is an Assistant Professor of Law and the Director of the Law & Economics Center's Tribal Law & Economics Program at George Mason University's Antonin Scalia Law School. Adam is also a Campbell Fellow at the Hoover Institution at Stanford University. He serves as an Associate Justice on the Pascua Yaqui Tribe's Court of Appeals.

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