by Eileen Luna-Firebaugh. Tucson: The University of Arizona Press, 2007. 168pp. Paper. $29.95. ISBN: 0816524343.Reviewed by Jill Norgren, Department of Government, John Jay College and The Graduate Center, The City University of New York (Emerita). Email: jnorgren [at] gc.cuny.edu.
pp.538-541
Eileen Luna-Firebaugh’s small volume makes a large and important argument: “through the creation of empowered and accountable tribal police departments, tribes can seize the opportunity to advance their sovereignty and their right to self-government, as well as improve the lives of tribal members” (p.3). Her book walks the novice through the complicated history of policing in Indian Country, the term she employs (as defined in 18 USCA 1151), and describes the complexities of law and jurisdiction as they affect the work of tribal police departments. (She has chosen not to include security personnel at tribal gaming facilities, because they are generally not considered part of tribal law enforcement by tribes).
Indian tribes hold a unique relationship to the United States and its local governments. As Luna-Firebaugh explains, American Indian tribal governments are not creations of the US government and their right to act flows from inherent sovereignty, not the US Constitution (p.34). She acknowledges, however, that tribal governments are subject to legal and political constraints in their relationship with the federal government as well as state governments, formalized in statutes and court cases. Indian sovereignty has been acknowledged in treaties (treaty-making with tribes ended in 1871, see 25 U.S.C. 71). The US Supreme Court has recognized tribal sovereignty repeatedly but nearly always limited its scope. Moreover, the creation, in the nineteenth century, of Indian police units and courts by the US Department of the Interior’s Bureau of Indian Affairs was “in large measure for the purpose of controlling the Indian and breaking up tribal leadership and tribal government” (p.21). This book explores the possibility of a modern tribal policing that flows from tribal authority and values, institutions which will express and enhance the integrity of tribal government. In particular, the author considers changes that have occurred since the 1990s when the full assertion of policing responsibility moved forward at a “rapid pace” (p.25).
Luna-Firebaugh understands the constraints and challenges. Tribal police are responsible for vast geographic areas but lack, she writes, “resources that most mainstream police officers take for granted,” including working police vehicles, operational 911 systems, access to police radios, and unlimited phone service (p.3). Training is often limited and departments experience difficulty receiving assistance from other (non-tribal) law enforcement agencies. Tribal officers are generally not cross-deputized. A 2003 report from the US Civil Rights Commission found that per [*539] capita spending on law enforcement in American Indian communities was roughly 60 percent of the US average. At the same time, US Department of Justice studies report “what many in the American Indian community already knew: crime victimization rates in the American Indian community are significantly higher than in the U.S. population at large, and more than twice as high as the next highest, the African American community” (p.92). Luna-Firebaugh describes rates of victimization for American Indian women almost fifty percent higher than that for African American men. The violent crime experienced by Native American women has been discussed repeatedly in congressional hearings on the Violence Against Women Act (Tribal Title IX). The claim is made that the federal government’s erosion of tribal government authority, along with the chronic under-funding of law enforcement agencies that should protect Native American women has compounded rates of violence against them. It is an issue explored in depth in Amnesty International USA’s recent report (2007). The argument is made there that despite the disproportionate levels of crime experienced by indigenous women the US government has created “substantial barriers to accessing justice.” (http://www.amnesty.org/Join_Voices ) These are serious charges, ones that should have been analyzed by Luna-Firebaugh who devotes more attention to tribal-state relations than the impact of US government policy and budgets on law enforcement in Indian Country.
Clearly the need for better policing exists. Luna-Firebaugh writes that there has been “rapid development of tribal police departments” in the last several decades (p.5). In this book she gives the findings of a multi-year study employing interview techniques to determine the approaches tribes have taken in developing and implementing these new and expanded departments.
Five forms of law enforcement agencies operate within Indian Country. These include the Bureau of Indian Affairs Law Enforcement Services; police officers funded through the Indian Self-Determination and Education Assistance Act (PL 93-638); police officers funded through the Indian Self-Determination Act of 1994 (PL 103-413); tribally funded officers, and state law enforcement agencies operating under PL 280 (1950s legislation through which Congress gave six states civil and criminal jurisdiction with respect to local tribes). Luna-Firebaugh gives a brief description of each and in Chapter 11 offers a cogent history of the implementation and impact of PL 280. Here, in frank political analysis, she urges tribes in PL 280 states to address the failure to provide necessary law enforcement and to increase their application for federal funding. PL 280 tribes, she concludes, “should vigorously pursue retrocession with the state” (p.125). Here, as in too many Indian communities, there is a crisis of jurisdiction and resources, with non-enforcement of the law the too-common norm.
In examining cultural preferences, the author finds that community policing [*540] prevails as the most widespread model for tribal police. Its methods and concept of restorative justice, and enhancement of community cohesion and action are ideas, she argues, that fit well within Indian Country. The “professional model” of policing is, she explains, burdened by its earlier use to dispossess Indian people of their land, leadership, and sovereignty (pp.45-47).
Luna-Firebaugh’s data indicate that the training of officers suffers from high attrition rates for new recruits. The Indian Police Academy has experienced fifty percent loss through attrition, a problem further complicated by fifty percent of those hired leaving Indian Country law enforcement within two years (p.53). The pay is low and on-the-job dangers (long shifts, scarcity of back up officers, and so on) higher than those experienced by non-tribal police.
An interesting chapter of the book explores the role of women within tribal police departments. The author’s survey data reveal that tribal police departments diverge from non-Indian departments in the number of midlevel managerial and command positions held by women. She considers this outcome “impressive,” hopes that more tribal police departments will expand opportunities for women, and concludes, perhaps because community policing is popular with women tribal officers who traditionally have held peacekeeping roles, that “the empowerment of women officers to function fully as police may have a significant bearing on the ability of tribal police departments to contend successfully with the rampant violence on reservations” (pp.84-85). This is an important hypothesis, one that ought to have been more fully discussed.
The issue of police accountability is taken up in Chapter 9. The author argues that the idea has support in Indian communities and should be the subject of further research, particularly with regard to the enhancement of civilian oversight. Chapter 10 describes the high rates of incarceration for American Indians and the state of the various facilities to which tribal members are committed (institutions run by the Bureau of Indian Affairs; tribal jails; state jails and prisons in PL 280 states; and federal prisons for those convicted of a felony enumerated by the 1885 Major Crimes Act).
TRIBAL POLICING offers a useful introduction to a topic insufficiently discussed in the literature. The book ought to provoke practitioners and theorists to consider how better to address the complicated issues of policing in communities burdened by a colonial history, including a maze of law addressing civil and criminal jurisdiction. Professor Luna-Firebaugh suggests the depth of the dilemma when she reports that the pursuit of de facto sovereignty (‘sovereignty which arises naturally from the undertaking of the competent provision of essential government services whether or not it is explicitly permitted under existing state or federal laws”), may be one way to advance community empowerment (p.47). Elsewhere, and not without irony, she observes that “the rise of the political concept of states’ [*541] rights enhances the opportunities available to Indian Country” (p.34). Although states’ rights politics are hardly new, it is interesting to read that tribes may benefit. What she has yet to address, however, is if, and how, dependence upon federal funding compromises advancement of tribal sovereignty and self-government. She is in an excellent position to take up that question and, hopefully, will do just that in future writing on tribal policing.
REFERENCES:
Amnesty International USA. 2007. MAZE OF INJUSTICE: THE FAILURE TO PROTECT INDIGENOUS WOMEN FROM SEXUAL VIOLENCE IN THE USA. New York: Amnesty International. Online at http://www.amnestyusa.org/women/maze/report.pdf
© Copyright 2007 by the author, Jill Norgren.
