Effective Policing In Indian Country
Wakeling et al. conclude from their study of reservation policing in non-Public
Law 280 jurisdictions that effective policing in Indian country depends on tribes
27
44 Id. at 105-06.
45 Wakeling, supra note 8, at 45-46.
46 Id. at 47.
47 Id. at 46.
48 Id. at 44
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
acquiring meaningful control over police activities.49 Where federal and tribal
departments share policing responsibility, accountability is diffused, and there is no way
for tribal communities to ensure that reservation police act according to tribal priorities.
Departments administered by the BIA are not agents of the tribes but rather of the federal
government; consequently these departments have limited incentive to look to the
communities they serve for legitimacy.
50 Over time, this arrangement has created a
significant gap between the tribal police and the communities they serve. As Wakeling et
al. summarize, “The ongoing dominance of the BIA and other Federal agencies on
policing in Indian Country has diffused accountability for Indian policing, limited tribal
capacity to improve policing, deterred tribes from strategic and long-term planning,
discouraged community priority setting, and prevented tribal communities and police
departments from aligning their priorities, values, and resources.”51
Eileen Luna claims that this divergence between non-tribal police and the
community is exacerbated by Public Law 280 which “has allowed local police forces to
act in Indian Country without being accountable to tribal councils or tribal laws.”52
Michael Barker goes further, stating that, under Public Law 280, “any opportunity for
tribes to practice self-policing, whether traditional or otherwise, was completely
eliminated; the termination movement forced affected reservation communities to rely
exclusively on off-reservation law enforcement institutions.”53 Barker’s assertion is an
overstatement, as tribal authority is widely understood to be shared, or concurrent with,
state authority under Public Law 280. The real problem has been a lack of federal
funding and other support for tribal law enforcement in Public Law 280 jurisdictions.
Nonetheless, it is true that tribal police departments are far less likely to exist on
reservations subject to Public Law 280.54 And, to the extent that Public Law 280 puts
control over law enforcement and criminal justice in the hands of state or local officials
rather than tribal authorities, the problems of accountability, responsiveness, and
legitimacy of reservation police that Wakeling et al. identify remain. According to the
Wakeling study, the most effective solution to these problems is to give tribes increased
control over the police because “[s]overeignty brings with it accountability.”55
28
49 Id. at 49-50.
50 Id. at 46.
51 Id. at 51.
52 Eileen M. Luna, “Seeking Justice: Critical Perspectives of Native People: Law Enforcement Oversight in
the American Indian Community,” 4 Geo. Public Policy Rev. 149, 152 (1999).
53 Barker, supra note 43, at 47.
54 See Chapter 1 at pp. 12-15.
55 Wakeling, supra note 8, at 50.
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department.
Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
One potential mechanism for generating tribal community control over
reservation law enforcement is the establishment of tribal-federal or tribal-state
cooperative agreements.56 These agreements can enable tribal police to become
deputized federal or state officers in circumstances where tribes lack criminal jurisdiction
as a matter of federal Indian law, such as the commission of an on-reservation crime by a
non-Indian. Deputized tribal officers can also be useful to engage Indian offenders when
tribes lack their own police departments and tribal courts, a state of affairs more common
in Public Law 280 states. Besides allowing deputization of tribal officers under federal or
state law, cooperative agreements can commission state police officers to carry out
reservation law enforcement according to tribal priorities, either through the enforcement
of state or tribal law.
57 Because Indian country criminal jurisdiction is so complex and
uncertain,58 all these forms of deputization can obviate the need to sort out legal authority
when coming across an offender. Apart from deputization, cooperative agreements can
allow for sharing of resources, mutual assistance, and training.
In Barker and Mullen’s 1998 survey of 103 tribal and BIA police departments, 26
out of the 31 responding departments had existing cross-deputization agreements.59 Luna
and Walker’s survey of a larger number of departments, with 49 responding, suggests a
smaller percentage of tribes with cross-deputization agreements -- only 42.6%.60 Police
departments represented in Barker and Mullen’s sample commonly reported benefits such
as increased crime control, the ability to use the other’s facilities and equipment, closure
of jurisdictional cracks, mutual assistance, faster response times, and the ability to handle
the others calls during staff shortages.61 Cross-deputization agreements are not without
their own problems, which can include lack of funding, statutes barring tribes from
receiving shares of court fines, inadequate responses to reservation calls by the nonIndian agency, and fear or distrust from the non-Indian community.
Perhaps an even
larger problem with cross-deputization agreements is that they further encourage a crimecontrol, professional model of policing rather than an Indian police model. As Barker
notes, tribal police officers who have been commissioned to act as deputies, highway
29
56 Cooperative agreements are also imaginable regarding prosecution of on-reservation offenses, such as
provisions regarding deference by one concurrent authority to another in particular types of cases, or
diversion of cases from state or federal to tribal court. For Indian country affected by Public Law 280,
literature on this subject is not as common as literature addressing cooperative agreements regarding law
enforcement. That i because almost no Public Law 280 tribes prosecute adult criminal cases.
57 Luna, supra note 52, at 158.
58 See Robert N. Clinton, “Criminal Jurisdiction over Indian Lands: A Journey Through a Jurisdictional
Maze,” 18 Ariz. L. Rev. 503 (1976).
59Michael Barker and Kenneth Mullen, “Cross-Deputization in Indian Country” 16 Police Studies No. 4
157, 163 (1998). These departments were not identified in a way that would make it possible to determine
whether they were subject to state jurisdiction under Public Law 280.
60 Luna-Firebaugh & Walker, supra note 38, at 127.
61 Id. at 164-65.
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
patrol officers, or fish and game officers must retain that authority by exercising it in
ways deemed appropriate by the authorizing agency.
62 Wakeling et al.’s study of BIA
subcontracts for reservation policing reinforces this concern, as they point out that these
contracts tend to institutionalize federal priorities regarding basic organizational,
operational, and personnel issues rather than tribally driven planning or criteria.63 Luna
and Walker point out that many state or local agencies refuse to enter into such
agreements unless all tribal personnel are trained at the state police academy, a
requirement that militates against the officers’ capacity to conduct culturally appropriate
policing.64 Finally,
the existence and success of cross-deputization agreements depends
upon a lack of antagonism between the tribal and non-tribal police, elected
representatives, and constituents.65
Community oversight committees can also enhance police accountability as well
as provide a source of information about police misconduct, acting as an early warning
system for police administrators and helping empower communities.66 In a survey of 170
tribal police departments, Eileen Luna found that 25 out of 49 responding departments
had community oversight systems.67 In contrast to the general experience nationwide,
tribal police are overwhelmingly supportive of community oversight.68 One Public Law
280 tribe in particular used its cooperative agreement with the local county to underwrite
the county’s cost of reservation law enforcement, in exchange for which the county
created a tribal community oversight board that participated in the selection of county
officers for the reservation and in the complaint and disciplinary process for such
officers.69
Implementation of community policing policies is another means of increasing the
effectiveness of policing in Indian country through increased community involvement
and direction of police priorities. Many of the tribal police chiefs from non-Public Law
280 states surveyed by the Community Policing Consortium believe policing is more
effective when the community is cooperative and has a stake in the success of the
department’s efforts than when the police are only viewed as engaging in punitive
30
62 Barker, supra note 33, at 77.
63 Wakeling, supra note 10, at 45.
64 Luna-Firebaugh & Walker, supra note 38, at 128.
65 Id. at 164.
66 Luna, supra note 52, at 155.
67 Id. at 155-56. Of the 25 responding departments that had community oversight boards, only three were
in Public Law 280 states, and only one of those was in a mandatory state. The article does not reveal
whether the remaining 24 responding tribes were from Public Law 280 states or others.
68 Id. at 159.
69 Id. at 158.
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department.
Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
behavior.
70 Furthermore, community policing provides a framework that tribes can use to
design and implement Native policing approaches which should result in improved
quality of Indian country policing.71 Among the many advantages of bringing the police
into closer contact with the public, whether on or off the reservation, are a reduction of
fear, increased citizen satisfaction with the police, increased officer morale and job
satisfaction, and resolution of problems before they develop into criminal activity.
Wakeling et al. go so far as to claim that, because community policing has the salutary
consequence of “align[ing] police priorities and values with those of the community,”
“community policing is the appropriate first step for improving policing in Indian
country.”72
Researchers also emphasize the importance of adequate resources for reservation
police, including both funding and training. The 1998 Report of the (Joint Justice and
Interior Departments’) Executive Committee for Indian Country Law Enforcement
Improvements asserts that “[t]he single most glaring problem is a lack of adequate
resources in Indian Country.”73 As noted above, Wakeling et al. document lower levels of
funding for reservation police than for off-reservation rural police. The interviews with
reservation police chiefs conducted by the Community Policing Consortium indicate that
Indian country police departments’ primary resource need is more personnel, specifically
more patrolling officers.74 The typical tribal police department serves an area roughly the
size of Delaware with a population of 10,000 and patrols these areas with no more than
three police officers and as few as one officer at a time.75
Because distances between
department offices and remote areas of the reservation can be 100 miles or more, it may
take several hours for a responding officer to even reach the area.76
According to both the Community Policing Consortium and the Executive
Committee for Indian Country Law Enforcement Improvements, training is another vital
resource need, as enhanced professional knowledge and skills of officers are associated
31
70 “To Protect and Serve,” supra note 42, at ch. 3.
71 Id. at 54. However, at least one commentator has suggested that the divisions between “progressives”
and “traditionalists” pose serious problems for implementing a Native policing approach. Barker further
suggests that if this conflict has resulted in mixed satisfaction at attempts by tribal judiciaries to implement
a Native approach, it will be even more difficult to resolve the philosophical conflict between progressives
and traditionalists in the conflict-prone setting of policing. See, Barker, supra note 33, at 119-121.
72 Wakeling, supra note 8, at 55.
73 Executive Committee on Indian Country Law Enforcement Improvements, supra note 17, at 3.
74 “To Protect and Serve,
” supra note 42, at ch. 2. Recall that this study did not identify whether the
reservations in question were subject to state jurisdiction under Public Law 280. However, there are many
fewer tribal police departments in Public Law 280 jurisdictions. See Chapter 1 at pp. 12-15.
75 Wakeling, supra note 8, at 9; Commission on Civil Rights, supra note 30, at 77.
76 ”To Protect and Serve,” supra note 42, at chs. 2 & 3.
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
with greater community trust of the police and greater recognition of tribal police by
other law enforcement agencies.77 Some of this literature focuses on the insufficient
number of slots at the BIA’s training center for federal and tribal officers serving Indian
country, and the high percentage of such trainees who leave Indian country law
enforcement within two years.78 The state or county law enforcement officers serving
Indian country in Public Law 280 states, however, are not even eligible to attend this
BIA academy and generally receive no special training for service in reservation
communities
. The Community Policing Consortium’s interviews suggest that current
officers need ongoing training in up-to-date practices and techniques, such as community
policing philosophy, the appropriate use of discretion, gang prevention and intervention,
and how to work with service providers, families, and community groups.79
In sum, existing research that addresses policing on non-Public Law 280
reservations suggests that the two most important determinants of effectiveness are tribal
control and adequate resources (e.g., funding, training). As we have seen, however, state
jurisdiction under Public Law 280 can defeat both of these elements, denying control to
tribal communities and diminishing funding from federal sources. Hence, a hypothesis
framing our research is that state jurisdiction under Public Law 280 will be more
favorably received within affected tribal communities and more effective where tribal
police and courts have a greater role, reinforced by cooperative agreements, and adequate
resources exist to support law enforcement and criminal justice institutions that respond
to community priorities.
