Legal Issues Affecting Native American Communities

Three roundtable discussions on legal issues affecting Native American communities resulted in several recommendations to the Access and Fairness Advisory Committee. To date, the advisory committee has taken some of the recommendations drafted by roundtable participants under submission and will develop a plan for implementation, where appropriate. Programs currently in progress include a bench guide on legal issues affecting Native Americans. Additionally, the advisory committee, in conjunction with the Center for Judicial Education and Research (CJER), is developing a curriculum in this area that can be employed in judicial education. Tribal court judges are invited to participate in all CJER programs for bench officers. Further, a website on Indian issues, with linkages, is scheduled to be in place by the end of this year.

California is, undeniably, one of the most racially and ethnically diverse states in the nation. Currently more than 224 different languages or dialects are spoken in this state. It is anticipated that the next 20 years will bring a marked increase in most population groups and in the number of languages and dialects spoken. Non-Whites currently constitute a majority of the state's population, a transition that occurred 20 years earlier than projected.i Although Native Americans are a relatively small percentage of the California population (less than 1 percent), unknown to most residents is the fact that California is home to a greater number of Native Americans than any state other than Oklahoma.ii

State court commissions on bias
California is not alone in facing dramatic population shifts or increases. New York, New Jersey, Michigan, and Washington State, in the mid-1980s, considered the future and questioned their respective justice systems' abilities to function effectively in this changing landscape. In 1989, representatives from the four states met with the Conference of Chief Justices in Lake Tahoe, Nevada. Under discussion was the 1988 Resolution of the Conference of Chief Justices, urging each Chief Justice in every state to establish separate task forces to study gender bias in the court system and minority concerns as they relate to the justice system. As a result, then Chief Justice Malcolm Lucas, in 1989, announced the future appointment of an advisory committee on racial and ethnic bias. Two years earlier, in 1987, an advisory committee on gender bias had been appointed.

In March 1991, Chief Justice Lucas appointed an advisory committee to (1) study the treatment of racial and ethnic minorities in the state court, (2) ascertain public perceptions of fairness or lack of fairness in the judicial system, and (3) make recommendations on reforms and remedial programs and training for the bench, the bar, and the public. This Advisory Committee on Racial and Ethnic Bias studied the public perception of bias, including courtroom experiences, the treatment of counsel, and language and cultural barriers. The committee also conducted a demographic survey of the California courts and began a preliminary study of the jury system.

Just three years later, in March 1994, the Judicial Council Advisory Committee on Access and Fairness was appointed to oversee implementation of the recommendations of the Gender Bias Advisory Committee. Additionally, the committee's mandate provided that implementation of the recommendations of the Advisory Committee on Racial and Ethnic Bias would be carried out and coordinated by the new advisory committee.

In reviewing the literature on women of color and the justice system, as part of its research plan, the committee realized that the unique relationship existing between tribal governments and state and federal courts made it difficult to discuss the issues affecting Native American women in a generalized context. The committee reasoned that the same would be true for Native American males, families, and children.

State, federal, and tribal jurisdiction
Perhaps the first principle to understand is that Indian tribes "view the tribal-federal relationship as one between sovereigns, a government to government relationship."iii How federal criminal and civil jurisdictions overlap is one part of this puzzling relationship. According to the report of the Gender Bias Task Force of the U.S. Court of Appeal, Ninth Circuit, Public Law 280, enacted by Congress in 1953, gave five states (California, Wisconsin, Minnesota, Oregon, Nebraska) and the territory of Alaska jurisdiction over crimes committed within their borders on Indian reservations.iv

Due to varying jurisdictional provisions, some federal courts in the Ninth Circuit have jurisdiction over criminal acts committed on Indian lands. Nevertheless, tribal police may be the first law enforcement officials to arrive. If their investigation determines that federal intervention is warranted, then the law requires that federal law enforcement personnel be notified (usually the FBI).v

If federal agents become involved, then the case may be referred to the U.S. Attorney's Office. If there are no tribal police officers, or if federal law enforcement officers are located a considerable distance from tribal lands, there is a danger of underprosecution of criminal behavior, including acts of violence.

In the civil arena, jurisdictional disputes may occur over the custody of children or in other areas affecting children if one parent is a tribal member and the other is not. The Indian Child Welfare Ace of 1978 (ICWA)vi places Native American children who reside or are domiciled on reservations under the jurisdiction of the tribal court. If custody proceedings concerning Native American children begin in state court, then the child's tribe must be notified and permitted to intervene. The ICWA provides for the transfer of cases from state to tribal court and specifies under what circumstances the state court may refuse to transfer a case. There are also protections in the standards that must be used before parental rights can be terminated. In the event of termination, placement preference must be given to the child's family, tribe, or other Native American families before non-Indians can adopt.

Roundtable discussion groups
An exhaustive examination of laws governing Indian lands was not feasible given the limited time and resources available to the Advisory Committee on Racial and Ethnic Bias. Further, any case arising under federal statute may test the authority of the federal courts over that of tribal rules and procedure. Yet, the committee recognized that future investigation of this area was critical. As part of its implementation plan to enhance fairness in the courts, the Access and Fairness Advisory Committee conducted a series of roundtable discussions among committee members, Native American lawyers, health workers and other advocates, and individuals interested in legal issues affecting Native Americans. The first roundtable served to identify the issues that were most compelling to the participants. These issues include Public Law 280, ICWA, family law, environmental law, criminal sentencing alternatives, and the development of tribal courts.

Following the first roundtable in September 1996, the committee organized a second conference in April 1998 to continue the committee's study of fair access to the courts for Native Americans by promoting coordination among state and tribal courts and tribal communities. During the two-day conference, the participants (1) reviewed the characteristics of tribal courts, (2) discussed the state court system's mission about implementing fairness, (3) explored areas of mutual concern and overlapping areas of substantive law for both state and tribal interests, (4) reviewed and discussed the work completed to date on developing additional tribal courts in California, and (5) developed recommendations to improve the working relationship between state and tribal courts.

The committee held a third roundtable in August 1999 on the reservation of the Sycuan Band of the Kumeyaay Nation. It was attended by state court judges, tribal court judges, tribal representatives, a legislative representative, Indian resource people, and other interested persons. The participants discussed the present status of Native Americans in California, criminal law and law enforcement (including sentencing alternatives), and environmental law and land. They also explored issues and concerns in establishing tribal courts, discussed family law and ICWA, and examined factors that affect fair access to state courts by Native Americans. Working groups examined the recommendations made by participants at the April 2, 1998, Conference on Native American Legal Issues (the previous roundtable) and designed action plans dealing with the subject areas.

Roundtable Recommendations and Strategies
In October 1999, when Attorney General Janet Reno began disbursing the largest law enforcement grants for tribal lands in her department's history, she promised that the $89 million program would "help ensure that all Native Americans living on Indian lands will enjoy the decrease in crime felt throughout the nation." As previously stated, California is home to more American Indians than any state except Oklahoma. However, California receives only $747,000 in grants to just 4 of its more than 100 federally recognized tribes.vii That represents less than 1 percent of the total awards nationwide. This lack of funding was a major topic of discussion at the Sycuan roundtable meetings.

Federal officials have admitted that California's tribes are getting shortchanged in the grant program because of Public Law 280 and contemporary political realities. The Justice Department is committed to giving the money only to tribes that already have some semblance of police and court systems in place.viii Because Public Law 280 gives state governments jurisdiction over criminal and some civil matters on tribal lands most California tribes have not developed police departments or tribal courts. In what roundtable participants characterized as a Catch 22 situation, California tribes must scramble to find the money for police departments and courts because the federal government is funding only those tribes that already have these institutions.

Although increasing in quantity and prominence, uneven political, legal, and financial support impedes the ability of many tribal governments and justice systems to function in full parity with state and federal systems. The challenges facing tribal governments and their justice systems are significant and complex:

  • A chronic shortage of resources and technical assistance;
  • An increase in the level and severity of violent crime, including youth and gang violence;
  • Disputes and conflicts related to economic development initiatives;
  • Congressional limitations on tribal court sentencing authority;
  • Insufficient facilities for incarceration and rehabilitation; and
  • Confusion over jurisdictional lines between federal, state, and tribal authorities.

Recognizing these and other challenges, in his recent directive on "Law Enforcement in Indian Country," President Clinton expressed concern that "many Indian citizens receive police, investigative, and detention services that lag far behind even this country's poorest jurisdictions." Similarly, the U.S. Department of Justice has noted that "there is a public safety crisis in Indian country" and that the "violence and crime interfere with the ability of Indian tribes to achieve meaningful self-governance and assure peace and stability in their communities."ix The President's August 1997 directive to Secretary of the Interior Bruce Babbitt and Attorney General Reno culminated in the creation of an Executive Committee on Indian Country Law Enforcement Improvements. The primary task of the Executive Committee was to draft a report on the present state of law enforcement in Indian country. Research and consultation with Indian tribal leaders by the Executive Committee in the latter months of 1997, pursuant to the President's directive, detailed the following systemic deficiencies in law enforcement in Indian country:

  • Law enforcement, as presently organized, often fails to meet basic public safety needs;
  • Serious and violent crime is rising significantly in many parts of Indian country-in stark contrast to national trends;
  • The single most glaring problem is a lack of adequate resources in Indian country; and
  • The current criminal justice system results in poor coordination and delivery of services.x

This working group set as a goal advising and educating the state and tribal courts about Public Law 280. It also recommended steps toward achieving this goal, which included conducting forums, gathering information, persuading the Attorney General to render an opinion on Public Law 280 (with input from all interested parties), developing a pilot project on Indian land, and developing cultural awareness training that includes training on sovereign rights and their historical underpinning.

Tribal justice systems
Roundtable participants in San Diego observed that every nation's survival and self-governance hinges on its ability to maintain law and order and secure "comfortable, safe, and peaceable living" among its citizens. Indian nations are no different. Tribal governments need to maintain an adequate measure of justice and peace among their members if they are to survive and develop as viable entities. Roundtable participants expressed the opinion that tribal justice systems, including tribal courts and law enforcement, are essential institutions of tribal self-government. Currently, many tribal justice systems find themselves at a critical point in their development.xi In response, and as an outgrowth of the San Diego meeting, Assemblyman Michael Honda, 23rd District, has proposed legislation to create an Office of California Tribal Justice at the Administrative Office of the Courts (AOC).xii

Environmental law
The Working Group on Environmental Law and Land Use established as goals the development of educational programs, the development of tribal courts, and Judicial Council support or sponsorship of legislation regarding reciprocity of state and tribal court judgments. These goals would coincide with and assist in protection of access to public land for cultural purposes, protection of access by road to tribal lands, and protection of archeological resources. These same goals would help address environmental concerns related to pure water, use of pesticides on tribal and non-Indian land, air quality, waste management and the impact of each on public health. The overarching goal defined by the Working Group was the development of tribal courts.

The Working Group on Environmental Law and Land Use identified several partners in this effort. These included CJER; the State Justice Institute (SJI); the Judicial Council; the ABA's Committee on Race and Minority Issues; the Environmental Protection Agency, which has a pilot program that involves working with tribal government; California Indian Legal Services; and the National Indian Justice Center. The Working Group also recommended a planning group for such an effort and suggested that within that group should be representatives from the Access and Fairness Advisory Committee, CJER, National Indian Justice Center, Tribal Court Judges, and California Indian Legal Services.

Family law
The Working Group on Family Law established two goals. One goal is to encourage and enhance collaboration between state courts and tribes on children and family issues via the creation of mechanisms for regular interaction. These would include cooperative initiatives intended to enhance access to state courts while recognizing issues of tribal self-governance. The other goal is to expand and develop judicial education and training in order to heighten awareness of cultural differences and family issues. This training would also heighten awareness of the specific legal status of Indians and their tribes so that state court judges and tribal court judges understand and respect each other and the processes they employ.

The Working Group on Family Law identified a number of steps toward reaching these goals, including:

  • Establishing an Indian Desk in the AOC as a regular mechanism for addressing Native American issues and systems interactions;
  • Mainstreaming Native American issues;
  • Identifying and exploring agreements among states and counties and tribes, including developing models as guides;
  • Developing rules of court and suggested protocols for dealing with Indian issues;
  • Creating a page on the California Courts Website, with links to sites like California Indian Legal Services;
  • Cooperating with efforts to fund tribal courts, including a model tribal court pilot project;
  • Exploring potential for agreements regarding funding and availability of support services and enforcement;
  • Developing and recommending judicial education about the Indian Child Welfare Act (ICWA) and other family law issues for the initial Judicial Orientation and Judges College, and as part of continuing judicial education;
  • Working with the State Bar to suggest ICWA and family law training as part of their regular continuing education program;
  • Requiring ICWA training for appointed counsel who appear in juvenile court;
  • Developing a rule of court to clarify and provide direction that ICWA does apply to custody actions, including probate guardianships and private adoptions; and
  • Improving access to resource people and providers of services.

The Working Group on Family Law concluded: "With the courts and tribes working together, you can actually increase resources that are available to participants in the system."

Sentencing alternatives
The Working Group on Sentencing Alternatives established four goals: (1) develop an education and training standard for judges and court staff; (2) collect demographic data from local courts and survey court users and personnel regarding Native American, as well as non-Native American, defendants or parties coming before the court; (3) develop an information resource center, including the use of the website; and (4) by resolution have the Judicial Council encourage the development of tribal courts and tribal rehabilitation programs.

The strategic steps in reaching these goals identified by the Working Group on Sentencing Alternatives include developing training that includes Indian law and culture, the Indian Child Welfare Act, and the Indian Civil Rights act; organizing committees at the local level and at the county level dealing with local law enforcement, county judges, county policymakers, and legislators; collecting data to determine the extent of the Indian population using the state court system as well as determine the particular issues and needs that have to be addressed. In addition, it is necessary to encourage and assist in the creation of resource directories for all existing programs relevant to Native Americans, such as rehabilitation programs, and post this information where it will be accessible to state court judges. A resource manual for state court judges on some of the primary legal issues such as Public Law 280 and ICWA should also be developed. Further, an informational hotline should be set up and experts should be tapped to write articles for submission to Judicature on a regular basis to ensure that relevant information on legal issues affecting Native Americans is readily available.

The Working Group recommended that the following partners assist in this effort: CJER, the Judicial Administration Institute of California (JAIC), the AOC, the Judicial Council, California Indian Legal Services, the National Indian Justice Center, the courts, and law enforcement.


More Native Americans reside in the state of California than in any state other than Oklahoma; therefore, the Access and Fairness Advisory Committee determined that understanding the unique relationship existing between tribal governments and state and federal courts was of paramount importance. To promote this educational process, the advisory committee sponsored three roundtable discussions on legal issues affecting Native Americans from 1996-1999. Participants at all three meetings were a diverse group including state court judges, tribal court judges, tribal representatives, legislative representatives, Native American resource people, and other interested persons.

By the third roundtable meeting in San Diego on the reservation of the Sycuan Band of the Kumeyaay Nation, it had become clear that the areas of most concern to roundtable participants were tribal justice systems, environmental law, family law, and sentencing alternatives. Among the recommendations made to the advisory committee at the conclusion of the San Diego meeting were the following: (1) establish an Indian Desk in the AOC as a regular mechanism for addressing Native American issues and systems interactions; (2) develop rules of court and suggested protocols for dealing with Indian issues; (3) create a page on the California Courts Website, with links to sites such as California Indian Legal Services and the National Indian Justice Center; (4) develop and recommend judicial education about the Indian Child Welfare Act (ICWA) and other family law issues for the initial Judicial Orientation and Judges College and as part of continuing judicial education;xiii (5) collect demographic data from local courts and survey court users and personnel regarding the treatment and disposition of cases involving Native Americans; and, (6) work with the State Bar to provide ICWA and family law training as part of the Bar's regular continuing legal education program.

The advisory committee has taken these recommendations and the others drafted by roundtable participants under submission and will develop a plan for implementation, where appropriate. To date, a working group of the advisory committee has almost completed a bench guide on legal issues affecting Native Americans. Additionally, the advisory committee, in conjunction with CJER, is developing a curriculum in this area that can be employed in judicial education. Further, a website on Indian issues, with linkages, is scheduled to be in place by the end of this year.

i Commission on the Future of the California Courts, Justice in the Balance-2020 (1993), p.9.

ii U.S. Census Bureau, Population Division, Population Estimates for States by Age, Race, Sex, and Hispanic Origin (Internet Release Date: August 30, 2000)

iii J. Myers, Bias Against Native Americans, pp. 10-11, prepared for the Judicial Council Access and Fairness Advisory Committee's August 18, 1995, meeting.

iv When Alaska became a state, it also became a Public Law 280 mandatory state. Exempted from Public Law 280 were the Warm Springs Indian reservation in Oregon and the Red Lake Indian reservation in Minnesota.

v Id., at p. 150.

vi 25 U.S.C. ยงยง 1901-1963.

vii E. Lichtblau, Anti-Crime Grant Program Leaves State Tribes Short, Sacramento Bee (Oct. 28, 1999), p. A4. [reprint from Los Angeles Times].

viii Ibid.

ix L. Greenfield and S. Smith, American Indians and Crime, Department of Justice, Office of Justice Programs, Bureau of Statistics (February 1999).

x Ibid.

xi The Racial and Ethnic Fairness Subcommittee meeting at Sycuan and the recent emphasis on criminal justice in Indian country at the highest levels of the Federal Government might suggest that the inadequacy of law enforcement and tribal courts in tribal communities is a new phenomenon. This is not so. As early as 1975, a "Task Force on Indian Matters" within the Department of Justice found that "law and order on most Indian reservations is in serious trouble." The Task Force also found that most reservations received inadequate police services given their size and extraordinarily high rate of crime. Most significantly, the Task Force found that the complex and often ambiguous overlap of federal, state, and tribal jurisdiction in Indian country left each component of the system uncertain as to the extent of its authority. The Task Force concluded that the root of many of the problems of Indian country tribal courts and law enforcement was the confusion caused by the very federal laws intended to establish clear lines of civil and criminal jurisdictional authority among tribal, federal, and state governments.

xii The advisory committee has learned that AB 2353 has been held back. Therefore, it is unlikely that any action will be taken on the bill this year. Supporters of the bill are likely to attempt to revive it in the coming year.

xiii Currently, a curriculum is in development that explores legal issues affecting Native Americans. Also, tribal judges are cordially invited to participate in all CJER programs for bench officers.