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Criminal Justice in Navajo Nation: We Can Do Better; Trust Me; I’m A Lawyer

In 1978, the United States Supreme Court decided a case called Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). The question before the Court was whether tribes had the power to prosecute non-Indian defendants in tribal court for crimes committed on reservations. The late Chief Justice Rehnquist wrote the majority opinion in which the Court held that tribes did not have that power because it was “inconsistent with their status” as wards of the federal government.

Rehnquist further justified the holding on grounds that tribes lacked competent tribunals and generally were “without laws.” The tribes that did have laws based them on savage customs which were “external and unknown.” Basically, Rehnquist was saying that tribes cannot be trusted with prosecuting non-Indians because tribes are incompetent and do not understand the rule of law hence his citation to Ex Parte Crow Dog, one of those most racist, anti-Indian opinions ever issued by the U.S. Supreme Court.

For those who are unaware, the U.S. Constitution and its Bill of Rights do not apply to tribes. See Talton v. Mayes, 163 U.S. 376 (1896). Moreover, tribes are prohibited from trying anyone for major crimes such as murder, rape, and arson. The Major Crimes Act took that power away in 1886 and gave it to the feds, meaning if a murder occurs on a reservation the FBI and federal prosecutors are responsible for handling the case. Oliphant dealt the final blow to criminal jurisdiction in Indian Country, establishing a blanket rule that tribes do not have the authority to prosecute non-Indians.

The ruling in Oliphant created a major jurisdictional gap in Indian Country. Non-Indians were coming on to reservations and committing crimes without facing any legal repercussions. Today, Native women are 3 times more likely to be victims of sexual assault than any other ethnic group. As a whole, the violent crime rate in Indian Country is 3 times higher than anywhere else in the U.S. To exacerbate the issue, tribal police are severely under staffed and under funded; state police have no jurisdiction on reservation lands except in P.L. 280 states; and the feds have exclusive jurisdiction over non-Indian perpetrators.

According to a 2010 report issued by the U.S. Government Accountability Office, the U.S. Attorney’s Office declined to prosecute 52% of the violent crimes occurring in Indian Country. The main reason was insufficient evidence. For reservations as large as the Navajo Nation, it takes tribal police on average a couple hours to respond to an incident. Imagine, for instance, how long it must take the FBI to respond to a murder out in a remote area of the Navajo reservation like Shonto or Blue Gap where many roads are unpaved and unmarked. By the time the feds get to the scene, evidence goes stale and is lost. You ever see the movie Wind River?

Since Oliphant, tribes have been trying to regain criminal jurisdiction over non-Indians who commit crimes on the reservation, particularly sexual assault. In 2013, the Violence Against Women Act (VAWA) was re-authorized and included provisions allowing tribes to prosecute non-Indians in tribal court for domestic violence so long as tribes meet certain requirements. Navajo Nation, for many reasons, is not a participating tribe under VAWA.

As a criminal defense attorney who practices in Navajo courts, I can say that there are many things that the Navajo Nation has done right, namely the recognition and use of common law. However, there are many things that can be improved in the Navajo judicial system, mainly criminal justice.

It is not uncommon for me to receive calls from people complaining about how they were arrested by Navajo police and thrown in jail, sometimes for days. After looking into their cases, I came to see many offenses had no evidence or probable cause. A lot of times the police officers do not mirandize (i.e. read Miranda rights) defendants upon arrest as is required under Navajo law. It is typical for police officers to make assumptions such as people being drunk or high without conducting any test to verify.

You can read statements online from people labeling Navajo police, courts, and prosecutors as “corrupt” and “biased.” Of course, people say crazy things online, but check the google reviews of the Chinle District Court for some interesting statements. Obviously, most people who go through the system are not happy because they are defendants and forced to go through the system. However, there seems to be a generally consensus, given my communication with clients and folks from different communities, that the Navajo people are not happy with the criminal justice system. Their reasons are they do not understand it and they are not treated well during the entire ordeal. The discontent with a criminal justice system is a symptom of a greater, looming issue: it creates distrust among the community and eventually people lose respect for the rule of law.

Accordingly, the people who work in the judicial system like attorneys and judges would do well to remember that courts and attorneys serve the people regardless if they are plaintiffs, defendants, or witnesses. I've reviewed too many cases brought to me by prospective clients where their previous attorney billed them thousands of dollars. I see a lot of fees that are upwards of $7,000. The client would complain that their attorney never answered emails, returned messages, or even scheduled meetings to update the client on their case. If you're an attorney billing a client $7,000, or any amount for that matter, you better return their calls and messages. Those of us with state bar licenses would find ourselves in hot water with the state bar association if we ever billed a client $7,000, ignored emails, and did not return calls.