|
Return to Writings
Drugs in Indian Country -
What gives the feds jurisdiction?
A column
By Hazel Bonner
RAPID CITY – Gerald LeBeau was scheduled to appear before United States Magistrate Marshall Young on April 7, however the hearing was cancelled, because some evidence needed for the hearing had not arrived. It has been delayed for 45 days.
LeBeau was sentenced to 10 years in federal prison in early 2002 for possession of a controlled substance. The drugs were found in a haystack just off the Pine Ridge Reservation in April 2001. The discovery followed a high-speed chase off the Reservation.
LeBeau, has challenged his conviction and sentence. A Federal Defender not identified on the weekly court docket represents him. LeBeau’s projected release date from federal prison is in 2010.
If the drug war were getting drugs off the streets and off the reservations, I would be the first in line to cheer on the effort. However, in spite of the billions spent on that war, drug use has remained steady. However it has accomplished a huge increase in the incarceration of brown skinned persons in both federal and state prisons.
While the percentage of inmates charged with violent offenses has decreased in federal prison, the percentage of persons charged with drug offenses has gone from 16.3 percent in 1970 to 54.3 percent in 2002. Minorities are incarcerated at very disproportionate rates in both federal and state prisons, especially for drug offenses.
Neither the Major Crimes Act and its amendment or the Controlled Substances Act and its amendments name drug crimes as a crime over which the federal government has jurisdiction in Indian Country. I have been unsuccessful in locating any federal statute extinguishing the right of tribes to punish drug crimes.
The 1868 Fort Laramie Treaty gave jurisdiction over Indian wrongdoers in Indian country exclusively to the tribe. Because of that jurisdiction, the United States Supreme Court overturned the conviction of Crow Dog in Federal Court in Deadwood in 1883.
In that case the Supreme Court ruled that the federal government possessed no legislative power giving it criminal jurisdiction over the tribes and that criminal disputes involving tribal members were to be settled according to tribal law.
In spite of the passage of the Indian Intercourse Acts from 1790 to 1834, the Federal enclave Act in 1817 and the Assimilative Crimes Act in 1825, the court ruled that under the 1868 Treaty the tribe had jurisdiction over Crow Dog’s crime.
The court said that to justify a departure from the rule of tribal jurisdiction in such cases, Congress would have to clearly express such an intention. None of the statutes involved prior to 1883 had done so.
To remedy this fact Congress attached a bill to the general appropriation act of 1885 enacting the Major Crimes Act. The act identified seven major crimes, none of which involved controlled substances. The act was amended in 1988 to include 14 crimes. That amendment did not add crimes involving controlled substances to the list of enumerated crimes.
According to Vine Deloria, author and attorney, the Major Crimes Act did not specifically amend the provisions of the 1868 Treaty except for the specified crimes.
Felix Cohen in his 1942 Handbook of Federal Indian Law explains Indian sovereignty by saying it is “the principle that those powers which are lawfully vested in an Indian Tribe, are not, in general delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which have never been extinguished.”
Under former President Bill Clinton the United States Department of Justice issued a memorandum entitled Principles of Indian Sovereignty and the Trust Responsibility. In that memorandum it states that the United States has a trust responsibility to Indian tribes, which guides and limits the Federal government in dealings with tribes. Thus tribal law generally has primacy over Indian Affairs in Indian country, except where Congress has provided otherwise.”
In 1976 the Eighth Circuit Court clearly delineated the plenary powers of congress to abrogate treaty provisions without the consent of the tribes. The court held that a Congressional statute must clearly indicate its intention to change a treaty. U.S. v. Winnebago Tribe of Nebraska, 542 F.2d 1002 (8th Cir. 1976).
In 1980 the Supreme Court held that Congress had not specifically abrogated the 1868 Treaty in the legislation taking the Black Hills. Since Congress had not specifically amended the Treaty, the taking of the Black Hills violated the treaty.
The federal statutes regarding drugs are found in the Drug Abuse Prevention and Control Act, and a 1970 and 1990 version of the Uniform Controlled Substances Act. Neither of these acts specifically states that jurisdiction of tribes to punish drug crimes in Indian Country is extinguished.
Calls made to the Native American Rights Fund in Boulder Colorado and to the Office of Tribal Justice of the United States Department of Justice were unproductive in producing cites to congressional statutes removing jurisdiction from tribes to punish members for drug crimes committed on the reservation.
A call to the United States Attorney’s office in Pierre was also made. An assistant U.S. Attorney stated that the general police power of the United States gives it jurisdiction over drug crimes on reservations. He gave no statutory citation.
A man sitting in federal prison seeks to challenge his conviction and sentence for drug possession stemming from possession of drugs on the Pine Ridge Reservation. Just how does the federal Government have jurisdiction over those crimes?
A publication of the FBI on line included a report of facts and figures for 2003. Under Indian Country, it was stated, “ the 1994 Crime Act expanded federal criminal jurisdiction in Indian Country in such areas as guns, violent juveniles, drugs and domestic violence.”
I could not find a 1994 Crime Act. I did find the Violent Crime and Law Enforcement Act of 1994, 42 U.S.C. 14081. It has a section entitled Rural Crime and Drug Enforcement Task Forces. That section states that the Attorney General shall consult with Governors, mayors and chief executive officers of State and local law enforcement agencies, to establish a task force. There is no mention of Tribal or BIA agencies.
No act of Congress was located specifically extinguishing the jurisdiction of a tribe to punish Indians for drug crimes. That does not mean that none exists. My calls were all made asking for a citation to a law that extinguished tribal sovereignty over drug crimes after 1994, and no one could cite one.
Under the sovereignty theory, the power is inherent unless it has been specifically extinguished. It does not appear that it has been. Of course, if the jurisdiction of the federal government over drugs in Indian Country is successfully challenged Congress will simply pass a law extinguishing the Tribe’s right to punish wrongdoers under the 1868 treaty as they did in the case of Crow Dog.
Bonner is a freelance writer who writes from her home. She can be reached electronically at hbonpidge1@hotmail.com; by mail at PO Box 3712, Rapid City, SD 57709-3712; or by phone at (605) 343-4467.
home : mission statement : contact : site map : search : store : links
DLN coalition : DLN issues : DLN nation : related issues Any reprints are under the Fair Use doctrine of international copyright law : See http://www.dlncoalition.org/fair_use.htm.
|
