‘Awkward Patchwork’ of Laws Governs Crime Investigations on Tribal Land

Three high-profile cases of crime on Native American reservations in northern San Diego County have moved into the court system in the past few months, sparking interest in how serious crime on tribal lands is handled.

A preliminary hearing is due to begin Wednesday for two men accused of setting the 14,100-acre on Los Coyotes Indian Reservation near Warner Springs. Meanwhile, the case of a on that tribe’s reservation near Ramona awaits a retrial, after a deadlocked jury. In a third case, two parolees were arraigned Monday on charges of armed robbery at Barona Casino, as well as several other places in California.

The cases raise an opportunity to discuss who holds jurisdiction to investigate and prosecute crimes on local tribal lands, how that authority is carried out and what efforts are being made to encourage relationships between tribes and local law enforcement.

In a three-part series that will run through Thursday, Patch has set out to answer the questions.

Crimes Prosecuted

About 450 cases of serious crime on the county’s 17 federally recognized reservations have been brought into San Diego County courts since mid-2005, according to statistics provided by the District Attorney’s Office. That’s when staff began keeping records.

“The majority of them happened in and around the casinos,” said David Greenberg, deputy district attorney.

Crimes included attempted murder, assault on a peace officer, arson, rape, burglary, selling drugs, possession of firearms, grand theft, receiving stolen property, identity and auto theft, bad checks and driving under the influence.

Greenberg said 93 percent of the resolved cases ended in the defendant being found guilty of a felony; some were reduced to misdemeanors. Seven went to trial, ending in convictions. Twenty-five cases were dismissed; 27 are yet to be resolved.

Legal Jurisdiction

Laws relating to crimes on reservations stem from a complex mixture of Supreme Court rulings and Congressional legislation dating back to the late 1700s. They reflect the changing views of judges, presidents and the legislature, and their application varies from state to state, sometimes, tribe to tribe.

The laws are “an awkward patchwork,” according to Bryan Wildenthal, professor of Native American Law at Thomas Jefferson School of Law in San Diego. “They drive my students crazy when I teach them.”

Jurisdiction in California and five other states is different from the rest of the country. In those states (including Alaska, Nebraska, Minnesota, Oregon and Wisconsin), state agencies are empowered to investigate and prosecute serious crime on reservations, rather than the federal government. The states are empowered by Public Law 280, which Wildenthal calls “an old relic” from 1953. He said it was an experiment that threw tribes and states together to resolve criminal cases themselves.

“The feds can’t come into cases on reservations covered under PL 280 unless the cases involve federal-level crimes,” he said. “There are certain crimes, such as those involving federally controlled drugs, which the feds would handle. There’s also some federal jurisdiction over casinos.”

Greg Thompson, policy adviser and tribal liaison for the San Diego County Sheriff’s Department, told Patch that sheriff’s staff doesn’t go into the casinos to investigate.

In some cases, the FBI or Drug Enforcement Agency may become involved if there’s a possibility of a federal violation or nationwide angle.

In cases that involve both federal- and state-level charges being brought against a person, the federal government could decide to prosecute its charges or let the state handle the state charges only in a state court, Wildenthal said. The other charges could be prosecuted at another time, or the U.S. government could decide that the person is already serving enough time in prison and there’s no need, he said.

“Perhaps the feds don’t want to allocate the resources, or perhaps they might not feel that they have the time in their calendar. The charges don’t get dropped; they’re always there,” he said.

Tribes can now petition for the federal government to have concurrent jurisdiction with the state under President Barack Obama’s Tribal Law and Order Act of 2010, Wildenthal said.

“The tribes prefer federal jurisdiction over the state, though they don’t like either much,” he said. “They tend to see the feds as having more of an interest in them because the federal government has always had a responsibility and duty toward the tribes. Also, I think they see the federal government as a more unified system.”

Wildenthal is not aware of any San Diego County tribes that have petitioned for concurrent jurisdiction so far. The rules for the petition process are being established, he said.

Wildenthal said the tribes didn’t like Public Law 280 when it was instituted.

“Neither did the states,” he said.

“Congress didn’t consult with the states or tribes ahead of time. It was also a classic example of an unfunded mandate. The states have jurisdiction but no tax base,” he said. “They can’t tax Indian property or casinos, which are exempt under federal law, although there is some voluntary revenue sharing under the casino compacts.”

Wildenthal said PL 280 was never expanded to other states beyond the six.

“There was a lot of bad feeling over the 1950s,” he said.

In the 1970s, there was a move to promote tribal self-government, Wildenthal said, so less serious offenses could be handled by the tribes themselves.

Self-government was further strengthened by the Tribal Law and Order Act of 2010, which empowered tribal courts to impose increased sentences of up to three years and/or fines of $10,000 for less serious crimes on their reservations, as long as the tribe's constitution and laws were published, Wildenthal said.

The small San Diego County tribes have been historically too impoverished to develop their own court systems to handle less serious offenses, Wildenthal said, compared to a big tribe like the Navajo, which has its own multi-level court system and police department. Casino income could change that, he said.

Sycuan is an example of a tribe that has established its own police department, said Thompson of the Sheriff’s Department. “Chief Bill Denke out there has done a good job.”

Crime Investigation

Most tribes contract with the Sheriff’s Department to enforce serious crime on the reservations, Thompson said. The number of staff stationed on the reservations varies, according to what is requested, he said.

Sheriffs enforce PL 280 “almost exclusively in California,” Thompson said. Locally, the department has authority to go onto tribal lands and investigate. They do not have to be invited by the tribes, according to both Thompson and Wildenthal.

Thompson told Patch, “We have the authority to investigate, as anywhere else in the unincorporated areas. We respond to 911 calls. The law is enforced out of our patrol stations and substations. Our patrol would respond but the homicide detail would take it from there if needed.”

Investigating and trying cases can be a sensitive exercise.

“It can be difficult to enforce cooperation,” Wildenthal said.

“There’s a cultural gap and there’s mistrust. When there are disputes, there needs to be a government-to-government solution at a high level, while respecting the jurisdiction of the tribe.”

While the tribes are independent entities—called “sovereign” since colonial time—their independence is limited.

“The reservations are a bit like a national park or military base,” Wildenthal said. “They fall under federal authority.”

Nikki Symington, public relations spokeswoman for the Rincon Band of Luiseno Indians, summed up for Patch the historical relationship between the state and local tribes.

“Tribes don’t like being told what to do,” she said. Symington said she has worked with various tribes in San Diego County for 27 years. Tribal chairman Bo Mazetti was not able to return phone calls because he was in a conference, Patch was told.

Tribe to Local Government Relations

Former Sheriff Bill Kolender, current Sheriff Bill Gore and District Attorney Bonnie Dumanis are credited by some tribal representatives and legal sources with improving interactions with tribal leaders.

“I think Kolender, Gore and Dumanis have made serious efforts to develop better government relations with all the local tribes,” Wildenthal said. “There’s better rapport than there used to be. They’ve tried to visit all the reservations.”

In an interview with Patch, Dumanis said the historical relationship between local government and Native American tribes “wasn't very respectful” until about nine years ago. Dumanis took office in 2003.

“There were problems serving documents like court orders,” she said. “Relations weren’t good. There’s a protocol now. We’re communicating. We needed to improve communication because the tribes are a vital part of this region.”

In , Patch discusses the tribal roundtables established by Dumanis, in which other government agencies participate.

Civil, Tort and Contractual Cases

The Intertribal Court of Southern California, based on the Rincon reservation, administers justice for the tribes in civil, tort and contractual cases. Judge Anthony Brandenburg, a retired state judge, presides. Most tribes have joined this court system, Wildenthal said. Barona has not.

“Barona wants to develop its own system,” he said.

Patch made several efforts to contact Barona’s government affairs spokesperson for more information but did not receive a response.

Patch will provide more information about the intertribal court in an upcoming story in this series.