NVAA 2000 Text

Chapter 3 Supplement Specific Justice Systems

and Victims' Rights

Section 4, Tribal Justice

Tribal Law

Collaborative initiatives between state and federal agencies and tribal courts are taking a serious look at crime, delinquency, and abuse in Indian Country to develop judicial procedures and interventions addressing criminal activity that merge the Native American and the criminal justice approaches to dispute resolution and sentencing. An integral part of the programs is the investigation into the cultural and economic conditions that give rise to higher than average levels of alcoholism and other substance abuse, child abuse, and other violent crimes in Indian Country.



The investigation and prosecution of child sexual abuse in Indian Country are complicated by multi-jurisdictional issues that create confusion among victim service providers and conflicts among tribal and state and federal law enforcement and prosecutors. Victim service providers are frustrated by overlapping investigations and repeat interviews of child victims. The lack of clear jurisdictional protocols that cause an overlapping of responsibilities among criminal justice professionals and tribal leaders also negatively affects the well-being of the victim and the victim's nonoffending family.

Factors that lead to confusion over criminal jurisdiction in Indian Country are:

Furthermore, the U.S. Supreme Court has ruled that charging a defendant in both federal court and tribal court does not amount to double jeopardy, a ruling which provides greater flexibility to tribal and federal courts in the handling of child sexual abuse cases (United States v. Wheeler, 435 U.S. 313 (1978)). Because the tribal court is in a better position to proceed quickly with an investigation and intervention into the abuse, they frequently make the first move to punish the offender. Nevertheless, investigations may eventually be carried out by federal, tribal, and even state agents, leading to multiple interviews and a longer, more frustrating process for the victim. Clear written protocols clarifying agency roles for the coordinated investigation of child abuse cases in Indian Country, agreed upon by the participating agencies, are essential to minimize further trauma to the child victim and the victim's nonoffending family.

The Office for Victims of Crime (OVC) has moved to address unnecessary trauma to child victims of sexual abuse during investigation and prosecution through the Children's Justice Act (CJA) Partnerships for Indian Communities Program. The goal is to facilitate the better coordination of the investigation and prosecution procedures. The creation of multidisciplinary teams comprised of law enforcement, social services, medical, child welfare, victim assistance, and judicial agencies with tribal representation on state- and federal-based teams, and federal and state criminal justice representation on tribal-based teams, is an approach that can minimize onerous investigative and prosecutorial procedures.

In addition, the U.S. Department of Justice has implemented several programs to improve coordination between federal and tribal courts:

(Portions of the preceding section are summarized from Improving Tribal/Federal Prosecution of Child Sexual Abuse Cases Through Agency Cooperation, U.S. Department of Justice, Office for Victims of Crime, Washington DC, June 1999).


A high rate of violent crime and victimization committed by Native Americans under the influence of alcohol prompted the U.S. Department of Justice, Drug Courts Program Office (DCPO) to launch the Tribal Drug Court Initiative in 1997. Research has shown that in tribal communities, alcohol is the most abused substance by both adults and juveniles (the use of the term "drug" for purposes of the initiative includes alcohol). Planning and implementation and, later, continuation and enhancement grants have been awarded to tribal governments through applications to the DCPO. Specialized training and technical assistance programs assist tribal communities with the development drug court programs that work effectively within tribal justice systems and tribal culture (Tribal Law & Policy Institute and DCPO July 1999).

There are currently twelve operational Native American and Alaska Native tribal drug courts, and thirty-three are in pilot or planning stages. There is a special name for the program within each tribal court, but they are referred to generally throughout Indian Country as the Healing to Wellness Courts. Their challenge has been to merge the traditional, sociocultural, restorative aspects of the American Indian justice system with the criminal justice model for drug courts that helps offenders achieve abstinence and alter criminal behavior through a combination of judicial supervision, treatment and drug testing, incentives, sanctions, and case management. Each tribe attaches its unique interpretation to the program. For example, one Indian chieftain described the drug court as a "council of responsible professional elders and their warriors of both genders coming together in harmony to do battle against both a visible and an invisible enemy--the disease of alcohol and drug abuse. The tactic that the team/council/war party takes is to act as a legal and culturally sanctioned authority that meets the patient/client/tribal member where he or she is at in relation to his or her abusive relationship with the mood and behavior altering chemical" (Ibid.).

Promising Practices

- Project Peacemaker, a collaboration with the UCLA American Indian Studies Center and tribal colleges, develops, pilots, and implements Tribal Legal Studies curricula for tribally controlled colleges.

- The Tribal Law and Policy Institute provides technical assistance to the Tribal Drug Courts in developing tribal court specific resource materials and also serves as the training and technical assistance provider for OVC's CJA program.

- The Tribal Law and Policy Institute collaborates with Tribal Court CASA and the National Court Appointed Special Advocate Association (CASA) for training and technical assistance in the development and enhancement of tribal court CASA programs.

Tribal Law and Policy Institute, P.O. Box 460370, San Francisco, CA 94146 (415-647-1755) <http://www.tribal-institute.org>.

Tribal prosecutors, officials, and elders work with law enforcement, probation, and victim service providers to make a concerted effort to understand the needs of the victim, the victim's family, and the community. Victim impact statements are obtained in person through a team member's visit to the victim's home on the reservation. In juvenile cases, they seek the court's permission for victims and their families to participate in the hearings and sentencing. Efforts are made to see that restitution is ordered appropriately and routinely, including payments for traditional healing ceremonies, death anniversary ceremonies, and third-party reimbursement for tribal costs incurred for counseling or other services to crime victims. U.S. Attorney's Office, District of Arizona, 110 S. Church Street, Suite 8310, Tucson, AZ 87501.

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2000 NVAA Text
Chapter 3.4
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