TOPEKA — In Vivien Olsen’s experience as an American Indian tribal attorney, she has seen firsthand how the complicated tribal, state and federal law enforcement relationship has led to over-victimization of native people in Kansas.
Olsen, the former tribal attorney for the Prairie Band Potawatomi Nation in Kansas, said native people often face questions about tribe authority over their own land.
“There is a major misconception that Native Americans have control over all the land, but that is not the case,” Olsen said. “Tribal law is one of the most complex and difficult areas of the criminal justice system to navigate.”
Native people across the country and in all four of Kansas’ federally recognized tribes — Prairie Band Pottawatomie Nation, Kickapoo Tribe in Kansas, Iowa Tribe of Kansas and Nebraska, and the Sac and Fox tribe of Missouri in Kansas and Nebraska — have long struggled with the limitation of tribal authority, exposing them to higher rates of incarceration, the potential to be tried twice and higher victimization rates.
Nationally, native people are more likely per capita to be killed by police than any other group, including Black people. American Indians are more than three times as likely to be killed by law enforcement than white Americans.
In Kansas, American Indians make up 2% of the incarcerated population, though they account for only 1% of the population.
Olsen joined Gov. Laura Kelly’s Commission on Racial Equity and Justice on Thursday to discuss these complications and tribal authority, a previously designated area of interest for the commission. She was joined by Sarah Deer, a professor of women, gender and sexuality studies, and a citizen of Muskogee Creek Nation of Oklahoma.
Olsen and Deer addressed several gaps in tribal authority coverage that occur in Kansas and beyond.
Tribal authority only extends to the exterior limits of the reservation. Even within the reservation, tribal courts are limited by their ability to only sentence offenders to no more than three years per offense.
Tribes also lack jurisdiction over non-native people for all crimes except domestic violence, even on native territory. While non-native people may still be tried federally, this gap is likely a factor in the higher victimization of American Indians, Olsen said.
When state legislators passed the Kansas Act of 1940, jurisdiction was conferred on the state of Kansas over offenses committed by native or non-native people on the reservation to the same extent as they would enforce a crime elsewhere within the state.
The act means a native person in Kansas on Indian territory is subject to three layers of criminal jurisdiction — federal, state and tribal. The law has not been amended in the 80 years since it was passed.
It was not until 2007 that law enforcement officers employed by the tribe could even exercise the same authority as state officers within the external boundaries of the tribe. Still, county sheriffs often broadly patrol tribal reservations in the same areas as tribal officers.
“Often state and tribe law enforcement are using the same resources in the same area,” Deer said. “That exposes native people to the possibility of being tried twice, which we see in many cases.”
To avoid overlap, a high level of communication is necessary, Deer said.
For example, Jackson County and Prairie Band have a long-standing cooperative agreement to communicate to avoid duplication of resources and double prosecution.
Another existing vehicle to promote communication between the federal and state criminal justice system is the Tribal-State Judicial Forum, an advisory committee of the Kansas Judicial Council. The committee’s purpose is to encourage greater understanding and appreciation of the tribal system within the court system.
Unfortunately, Deer said, this agreement and council are the exceptions in communication, not the norm. On top of a lack of communication, she says, data on the relationship between criminal justice and American Indians in Kansas is almost nonexistent.
“I would like to see some sort of study commissioned that would examine this relationship in further detail,” Deer said. “Whether the priority subject is police brutality, prosecution or victimization, any data would be better than none in helping address this issue.”
Olsen proposed there also be some state body or vehicle that creates or encourages communication between state and tribal law enforcement. A successful understanding and relationship between tribal and state law enforcement is key to a healthy community, Olsen said.
Tiffany Anderson, co-chairwoman of the commission and superintendent of the Topeka public school district, suggested both propositions be added in some form to the first draft of the commission’s report to the governor.
“This is an ongoing conversation, and we will be revisiting issues of tribal law as we move closer to our final report,” Anderson said.
The first full report draft is expected Nov. 11. The commission will have a complete draft to submit to the governor following its Nov. 25 meeting.