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Washburn, Heffelfinger Recommend Greater Role, More Resources for Tribal Governments

On June 21, Associate Professor Kevin Washburn and former U.S. Attorney Tom Heffelfinger (class of 1975) testified at an oversight hearing on law enforcement in Indian country before the U.S. Senate Committee on Indian Affairs, Washington, D.C. Bonnie Clairmont, Victim Advocacy Specialist in the Minnesota office of the Tribal Law & Policy Institute (TLPI), St. Paul, and several tribal leaders also testified.

A recent report by Amnesty International sounded a wake-up call regarding problems in the criminal justice system on Indian reservations. The report, "Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA," noted that the level of sexual violence is disproportionately high among Native American women and that underfunding and other limitations in tribal governments have created substantial barriers to ensuring public safety.

TLPI, a nonprofit group owned and operated by Native Americans to promote justice and well-being in Indian country, was a primary consultant on the Amnesty International report, and Professor Washburn worked with the organization as an outside consultant.

National interest in public safety in Indian country was kindled further by a recent Wall Street Journal article, "Tattered Justice: On U.S. Indian Reservations, Criminals Slip Through Gaps; Limited Legal Powers Hobble Tribal Nations; Feds Take Few Cases."

In his testimony before the Senate committee, Washburn said that tribal governments must be given a central role and the necessary resources for law enforcement on reservations. Because of the vast land area, however, no single law-enforcement agency can manage crime alone, he said in introducing four major observations.

  • Cooperation among agencies is essential and must be facilitated, he said. "We do not need agreement on all jurisdictional issues to create public safety in Indian country, but we do need cooperation among those players whose task is to ensure public safety."
  • Coordination and cooperation among enforcement officials do not have to be formalized to create a public safety net. Even the appearance of a unified front gives the message that "there is no prosecution-free zone in Indian country."
  • Conflict and lack of cooperation among law enforcement agencies jeopardize the trust of the communities these officers are responsible for serving.
  • Agencies should have positive incentives for cooperating and alternatives to use if a given approach fails, Washburn said. For example, if a tribe were responsible for key law-enforcement issues, the state would have to be responsive to the tribe to keep it as a partner and the tribal government would be accountable to its community.

 

Washburn concluded by advising Congress to encourage tribal self-government and more vigorous use of existing tribal criminal jurisdiction. "No government has a greater interest in reservation safety than the government that calls the reservation home," he said.

Heffelfinger, who chaired the Native American Issues subcommittee of the U.S. Department of Justice for five years, advised the Committee members to read his testimony during those years, because "nothing has changed when it comes to this confusing jurisdictional mess." Efforts to manage violent crime, drug abuse, domestic violence, and lack of respect for tribal police and courts have created a "patchwork quilt of stop-gap measures," he said. Heffelfinger urged Congress to find ways to empower tribal courts and to create task forces to work on criminal jurisdictional problems. Native American issues are viewed within the Department of Justice as local issues, he said, but "This is a federal issue."

Washburn teaches American Indian law, gaming law, and criminal law and procedure, and he writes extensively on justice on reservations. He, along with two UCLA professors, received a $1.5 million grant from the National Institute of Justice to study the administration of justice in Indian country. The three principal investigators are conducting several hundred interviews and will interpret the data to produce proposals to change public policy. Washburn is a member of Oklahoma’s Chickasaw Nation.

Heffelfinger is a partner at Best and Flanagan and a member of the firm's Native American Law Practice Group. During his term as U.S. Attorney, he spearheaded creation of the Family Advocacy Center in Bemidji, Minnesota, a medical-based Center for Indian and non-Indian victims of child abuse, sexual assault, and domestic violence in rural northwest Minnesota. He currently serves as a member of its Board of Directors.

Both Washburn and Heffelfinger have testified before the Committee on Indian Affairs in the past, on Indian gaming issues.

For more information on the Senate hearing, go to http://indian.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=74.

Portrait of Kevin Washburn
Kevin Washburn