Tribal Policing

Jurisdiction

Regardless of who does the actual policing, questions of jurisdiction bedevil law enforcement in Indian country. Congressional actions and Supreme Court decisions made over many years have created complex arrangements that tend to expand federal power and diminish Native American sovereignty. The first of these is the Major Crimes Act (1885), which, with supporting legislation, gives federal authorities jurisdiction over almost all felonies. This means that the small number of FBI agents near Indian lands have investigatory responsibility for all major crimes. Also, tribes have no jurisdiction over crimes outside of Indian lands, even if the victim or perpetrator is Indian. Finally, tribes have jurisdiction on Indian land only if the alleged offender is Indian; there is even some question as to whether they have jurisdiction over nonmember Indians. An increasingly common way of dealing with some of these difficulties is cross-deputization of tribal officers on one side and state or local officers on the other.

Tribal Departments

Many Indian tribes have taken advantage of Public Law 638, the Indian Self-Determination and Education Act of 1975. This law allows tribes to contract with the BIA to provide certain services that had previously been provided directly by the BIA. One of these services is policing.

Contracts with the BIA Division of Law Enforcement spell out the organization of the new tribal police department, its budget, and a list of performance standards. The federal government must approve the contract; it then funds the budgeted items, although many tribes provide additional monies. Both police officers and civilians are employees of the tribe. The police agency resembles most of American law enforcement in being answerable to local government—in this case, tribal government—for order and crime control in the community.

Amendments to Public Law 638 passed in 2000 provide even greater autonomy to tribal police forces that prefer not to be subject to federal approval of their organizations. The Self-Governance Amendments provide for compacts rather than contracts. The difference is that compacts are funded as block grants rather than as line items. Some tribes have chosen to go even further in bypassing federal control by refusing federal monies and funding their [Page 469]own police departments entirely. Given the shortage of resources on most reservations, only a very small number of tribes have chosen this option. By the year 2000, tribes operated a combined total of 171 law enforcement agencies, whereas the BIA administered approximately 40, according to the Bureau of Justice Statistics.

Not all tribal police departments provide the full range of police services. Although most tribal departments patrol and answer calls for service, only about 75% serve civil processes and 25% operate jails. Some tribal departments provide patrol services but contract with the BIA to provide criminal investigation.

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