12 Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

Direct Enforcement off
Reservation

Multi-jurisdictional collaborations are a necessity
for any kind of direct off- reservation enforce-
ment, especially those aimed at off-reservation
points of sale. Off-reservation direct enforcement
requires collaboration with the law enforcement
agency of the jurisdiction to which underage
drinkers are traveling to buy alcohol. Such direct
enforcement may include increased police
patrols, compliance checks, DWI checkpoints, or shared ride-along patrols.
Increasing direct enforcement often results in increasing costs for both juris-
dictions. The off-reservation jurisdiction (town, city, county, or State) must
see the increased effort and cost to be an investment that will benefit their
community, not just the tribal community, To that end, the tribal officers
may find themselves having to educate the off-reservation officers and
police leadership on the need for such collaboration.

Cross-Deputization

Cross-deputization is the process by which a tribal officer is deputized to
enforce State laws off the reservation and the State officer is deputized to
enforce tribal laws on the reservation. Such arrangements are relatively
common and can be very useful in enhancing collaboration and coordina-
tion. Any arrangement that alters jurisdictional norms or creates potential
liability must be formalized through agreement.

A formal intergovernmental agreement needs to contain several elements,
such as

H@ an introduction identifying the parties participating in the agree-
ment, purpose of the agreement, and duration of the agreement.

statements describing the problems or issues that require the juris-
dictions to work together.

M@ language that recognizes the authority of each jurisdiction partici-
pating in the agreement, and in particular

e general responsibilities and the general purpose of each party in
the agreement;


6 Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

'y are both pre-constitutional and extra-constitutional. For these reasons,
the U.S. Constitution does not automatically apply to Indian nations.

Tribes have varied forms of government by which to exercise their inherent
sovereignty. Some have tripartite governments with executive, legislative,
and judicial branches of government. Some tribes have adopted constitu-
tions (some resulting from the 1934 Indian Reorganization Act or from the
Oklahoma Indian Welfare Act), Others, such as the Navajo Nation, do not
have constitutions but have distinct government branches. Some tribes, such
as the Alaska Natives, exist as corporations and are headed by a board of
directors or business council. Others have a general council (the people
assembled with authority to make decisions). General councils often co-
exist with tribal councils and have substantial policy powers. Still others
have a tribal council form of government headed by a chairperson, presi-
dent, or chief who represents the executive arm of government but usually
does not make decisions without the entire tribal council weighing in on
decisions. Pueblos in the Southwest still base their government in tradi-
tional theocracy with no written documents.

The ability to develop underage drinking policies and to enforce them
requires an understanding of the tribal political process. Most tribes enact
laws and policies through the passage of ordinances and resolutions.
Ordinances are usually passed and incorporated into
the tribal code for matters of long-term importance.
Ordinances often require enforcement and, if non-
compliance occurs, can involve imposition of sanc-
tions by the tribal courts. A resolution is generally
for matters of short-term importance or to show
tribal intent.

Each tribe’s legislative body, usually called the tribal
council, passes the ordinances and resolutions. The
size and structure of tribal councils vary from tribe
to tribe. For example, the Navajo tribal council has
88 members; the Mescalero Apache tribal council
has eight tribal council members. Some tribal councils elect representatives
with term limits and other councils mandate members to lifetime terms. For
most Pueblos, council membership is an acquired status attainable only by
those appointed to serve as governor, whereas others require all male mem-
bers older than 18 to serve on the council. Some tribal councils are in ses-
sion for long periods of time like state legislatures; others may only meet
occasionally,



16

Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

Community Folicing

Community policing is based on the concept that effective and respected
police officers need to be an integral part of the community in which they
work. According to the Community Policing Consortium, community polic-
ing is a collaborative effort between the police and the community that iden-
tifies problems of crime and disorder and involves all elements of the com-
munity in the search for solutions. Prevention activities, investigations, and
response to calls are made easier and more effective when the officer is seen
to be invested in the community. Community policing works to integrate the
officer into the community and enhance the relationship between the officer
and the community. An additional benefit is the strengthening of the
community.

Community policing is another step in the evolution of law enforcement in
American Indian communities. Before contact with European nations and
American Government, Indian tribes maintained peace and order based on
indigenous philosophies, values, traditions, and practices. When reserva-
tions were established, the BIA organized police from the local community.
Over the years, as BIA bureaucracy grew and the idea of the professional
police officer developed, officers were assigned to police reservation com-
munities other than their own and were encouraged to climb the bureau-
cratic ladder, This placed the police officer on the outside of the local com-
munity. There was no attempt to resolve this problem until the concept of
community policing was embraced nationally. The concept of community
policing brings law enforcement in Indian and Alaska Native communities
back full circle to its traditional roots.

Integrating the officer into the community is the basis for underage drinking
prevention strategies. That integration enhances the success of prevention
activities. Various programs have been developed to
integrate the officer into the community, such as par-
ticipation in youth activities, coaching youth athletic
activities, mentoring programs, and other activities
that promote the law enforcement officer as a positive
role model. Examples of such programs follow.

Mentoring Programs

Community policing provides a way for law enforce-
ment to make an investment in the future of the com-
munity through its youth. A good example of such an
investment is the development of police sponsored mentoring programs. In
police mentoring programs, officers develop one-on-one relationships with


ontents

Acknowledsments! ax: suisse sax sauaver Gy UNG BR SWAE ehaererensce ounmncmse-aua end iv
Foreword v
Introduction |
Varying Local Environments 2
The Service Delivery Environment ..........00. 0000000 cece ee eeeuee 8
The Constituent Environment .......0..0 0.000. c cece cece v eve eeues 3
4
Indian Country Law Enforcement Environment . . 7
Direct Law Enforcement on Reservations ........00. 000.0 cece eee es 9
Specialty Patrols
Compliance: Checks sci scares seine smcenecct OOO HE PLOEN BE 10
Resources and Planning 2.2... .0 0.00 c cece eee cece cece eens 10
Direct Enforcement off Reservation ...........0 0000000 e eevee veee I
CrosssDSpUrZatOn vcs ssesunew an seater wor secon Se ORCNS RCE Be 12
Law Enforcement Collaborations .....00..000.0 0000 e cece eee eee ee 13}
Underage Drinking Is a Shared Responsibility ................. 14
Collaborative Policy Development ....0...6.. 06 600.00 eves cao 14
Collaborative Service Delivery ........06 0006000 c cece cece 15
Community Policing 0.0.0.0. c cee cece cece cece ee eeeeeens 15

Mentoring Programs

Cadet Programs
Community Education and Pai
Police HAUCAUOH wc sanaesres see.crscevive sue

Culture eect eee eee eee en ees 18
GOMENISIOH! sys sas-spseaes caus, BE Hissseuesaee tarsorens gun tarunaens vee exvanamee exmcerncoed 20
ENGHOIES cscs: sesimcens aaron UOTE ER SIE BE AE BY AWSLIN pena n 21


Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

e a listing and definitions of all terms, phrases, and words, and
their derivations as it pertains to the agreement; and

© specific responsibilities and commitments made by the parties
of the agreement (i.e., addressing areas of confidentiality,
notice, and enforcement).

identification of mutually agreed-upon goals and objectives for the
agreement.

provisions for termination of the agreement, either by choice or
default.

@ language that addresses specific issues, such as training require-
ments, liability, and limits (if deemed necessary) on arrest and
investigations.

language identifying enforcement and specific explanation of
guidelines for adherence to the agreement, which includes sanc-
tions for noncompliance.

@ provision for necessary signatures by designated parties.

The relationship among local jurisdictions may give rise to other issues. If
there are bad relations among jurisdictions, the level of trust among agen-
cies will be low. In such cases, a cross-deputization agreement (if one is
possible) would address such issues as officers checking in before conduct-
ing law enforcement activities in another jurisdiction, whether a local offi-
cer accompanies the visiting officer while in the local jurisdiction, and com-
mand and control issues for joint operations. If there are good relations
among jurisdictions, most of these issues are informally worked out and just
need to be spelled out in the agreement.

Because cross-deputization agreements are based in extending local law
enforcement authority and liability to officers of another jurisdiction, the
agreement needs to be ratified by the governmental body that established
the local law enforcement authority. This would mean that the tribe’s leg-
islative body and its counterparts at the town, city, county, or State level
acknowledge the agreements and are among the signatories. If BIA law
enforcement provides the police for a tribal community, the agreement
would have to include the appropriate BIA officials.



Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

provides a source of pride and spirituality. Traditional activi-
ties, such as dancing, singing, drumming, arts and crafts,
learning the language, and participating ceremonially, create
a knowledge base that can protect youth and also protect the
tribe for years to come.

In American Indian communities, enforcing underage drink-
ing laws not only protects youth from themselves, but also
protects the general population from out-of-control drinking
behavior. Because drinking patterns are established early in
life, the effort to stop underage drinking is also an attempt to
reduce the number of people who will become alcoholics B®
later in life. Alcoholism is not only a medical condition but

also a spiritual affliction. Adult alcoholism threatens the traditional way of
life within tribal communities. Participating in traditional or other religious
activities is a way of ensuring that spirituality is a part of the youth’s way of
life and that the traditional spirituality will also be part of the tribe’s future.

By involving community cultural and religious leaders in planning commu-
nity response strategies, the community can provide a means for at-risk
youth to become knowledgeable about their tribal culture. Whether the
community uses graduated sanctions, teen court, drug court, or other mech-
anisms, participation in tribal cultural activities can be a part of the strate-
gies used. Community service can include assisting in preparations for cere-
monies or pow wows. Participation in drum groups or language classes can
be used as an incentive in teen or drug courts. Being allowed to travel to
another community to participate in powwows, ceremonies, or other
religious activities can also be used as an incentive. Although tra-
ditional culture can be integrated into the community response
strategies, it should never be seen as a punishment. In all
instances, participation in the traditional tribal culture should be
seen as an honor.

When a tribal law enforcement agency encourages its offi- ee
cers to participate in traditional cultural and religious activi-

ties, it is sending a powerful message to the community. By
participating in traditional activities, the officer becomes fully inte-
grated into the community. He becomes more than a police officer; he
becomes a relative to all who participate or are affected by the tradi-
tional activity. Officers who participate in traditional activities are seen as
being human and are respected as role models. By encouraging their offi-
cers to participate in traditional activities, the law enforcement agency is

19


Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

Collaborative Policy Development

Many tribes need to develop visible and viable community responses to
underage drinking. Without a community underage drinking policy, there
are fewer reasons and opportunities to coordinate service delivery and
enforcement activities. Community policy development on substance abuse
among youth can be spearheaded by tribal agencies but should also involve
community elders and youth, as well as other interested community mem-
bers. All of these parties should feel a part of the policy development. Each
brings a unique and valuable perspective on the issue and what can be done
about it.

Arrest and punishment are not the only responses that a community can
have to underage drinking. The community needs to determine what re-
sources and programs address prevention and treatment. Sharing informa-
tion and cooperation is an important goal for underage drinking strategies to
be successful.

Once the community knows where it stands on underage drinking, it can
develop community-based responses. Ideally, the community responses
should be guided by a plan that includes a role for courts, schools, youth
programs, recreation programs, health agencies, social services agencies,
elders, and young people. The development of programs such as teen courts,
prevention education, counseling, and various youth recreation programs
are often based on community policies and attitudes toward underage drink-
ing.

Collaborative Service Delivery

Underage drinking is not an isolated phenomenon, separated from the rest
of tribal society. It is part of a complex constellation of actions and reac-
tions influenced by individual, family, and community values and problems.
Addressing underage drinking is not simply the job of law enforcement in
its arrest and detention mode. A juvenile may be drinking due to the lack of
supervision by parents or perhaps a more serious dysfunction in the family.
A youth’s alcohol use affects school performance and participation in
extracurricular activities. The drinking child may become emotionally iso-
lated or unstable. The police may come across a child who is suffering from
alcohol poisoning or delirium tremens. Each of these situations requires
more than arrest and detention. Each requires the coordination of serv:
from several agencies and programs. Each also requires protocols and pro-
cedures that access needed services, maintain confidentiality, and act in the
best interests of the child. The underage drinking policy through inter-
agency cooperation provides the basis for effective service delivery.



10 Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

thorough examination of possible risks helps law enforcement avoid danger-
ous or harmful situations for the public, the offenders, and the officers.

Compliance Checks

For Indian communities that have legalized the possession and sale of alco-
holic beverages in their jurisdiction, compliance checks (sometimes known
as “sting” operations) provide an effective method of regulating the distribu-
tors. Compliance checks involve volunteers who are under the legal drink-
ing age attempting to purchase alcoholic beverages under the supervision of
law enforcement. Outlets that sell to them are then penalized for illegal
sales.

Compliance checks require involvement of the agency that regulates the
alcohol industry in a given jurisdiction. Because of the interagency aspect of
compliance check operations, they require planning, extensive collaboration,
coordination, and communication that would not always be required of
other direct enforcement activities. Some areas of planning include

@ identifying, training, and supervising the buyers.
@ processing violators.

@ ensuring the administration of certain and immediate sanctions for
violators.

@ ensuring that a broad range of contacts are made before the sting
operation becomes known among the distributors.

@ follow-up by the regulatory agency.

Successful sting operations have a long-range deterrent effect in addition to
the immediate citation of offenders.

Resources and Planning

Increased direct enforcement, although extremely effective, is expensive.
Officer overtime hours, increased vehicle use, and administrative costs
related to planning and coordination all require resources. The reality is that
any enhancement of existing services often pushes expenses beyond depart-
mental budgets; therefore, planning needs to be a major priority in any
direct enforcement effort that a tribe pursues, The planning needs to take
place at two levels. The first level is to plan the direct enforcement activity.
The second level is to build that activity into the agency budget.


2

Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

involving youth 14 tol5 years of age in 1995. Suicide was the third leading
cause of death that year. The IHS further reports that mothers younger than
18 years of age were the age group most likely to drink during their preg-
nancy.

A 1994 OJJDP report cited that 61 percent of youth confined by the U.S.
Bureau of Prisons (BOP) were Indian with 81 percent adjudicated for vio-
lent offenses. Sex offenses accounted for 32 percent of offenses, assault for
28 percent, negligent manslaughter for 20 percent, and robbery for one per-
cent. By 1997, Indian youth in BOP custody had increased to 70 percent.

In its 1999 report on American Indians and Crime, the U.S. Bureau of
Justice Statistics (BJS) indicates that the alcohol-related arrest rate for
American Indians younger than age 18 was twice the national average.
Another BJS survey of Indian Country jails revealed that at midyear 1999,
overall Federal, State, local, and tribal authorities were supervising 45,913
American Indians. Juveniles comprised 16 percent of the total custody pop-
ulation in Indian Country. Of these, 75 percent were male and 25 percent
were female. At least 20 Indian juveniles were held as adults in June 1999, a
decrease from 26 in June 1998. Although two-thirds of the jails offered drug
or alcohol programs, little is known about their success in helping youth
inmates.

In spite of these grim statistics, the truth is that the majority of Indian peo-
ple do not engage in alcohol use or abuse. In most Indian communities,
alcohol has no cultural roots; rather alcohol has been an imported contam-
inant of Indian cultures since its introduction. It is important to know and
understand this because it allows Indian people to fall back on their cultural
strengths to overcome the problem; in particular, this knowledge allows
Indian nations and communities to reclaim and restore a healthy future for
our Indian children and youth.

Varying Local Environments

Underage drinking is having a terrible impact in American Indian and
Alaska Native communities and in American cities and towns across the
country. Drinking behavior established early in life turns into habits, addic-
tions, and medical conditions later in life. Medical expenses, lost opportun-
ities, and the toll of human suffering are just a few of the cost:
people and communities face if alcohol problems are not dealt with firmly
and with persistence and commitment. Without intervention, current levels
of underage drinking indicate a potentially disastrous future for American
Indian and Alaska Native youth.





oreword

The U.S. Department of Justice (DOJ), Office of Juvenile Justice and
Delinquency Prevention (OJJDP) is helping states and Indian tribes to
address the problem of underage drinking through the Enforcing the
Underage Drinking Laws Program. OJJDP has set aside $25 million in
block grants, discretionary programs, and training and technical assistance to
develop comprehensive and coordinated initiatives to enforce state and
tribal laws that prohibit the sale of alcoholic beverages to minors and to
prevent the purchase or consumption of alcoholic beverages by minors.
Through this initiative, eight Indian tribes received funds to address under-
age drinking in their communities. The Indian tribes included

Red Lake Chippewa, MN _ Ponca Tribe, OK

Pueblo of Zuni, NM Pawnee Tribe, OK
Southern Ute, CO Tlingit and Haida Tribes, AK
Santee Sioux, NB Ft, Peck Assiniboine and Sioux, MT.

The Pacific Institute for Research and Evaluation (PIRE) is the national
training and technical assistance provider supporting local and state gov-
ernment efforts. Through a subcontract with PIRE, the American Indian
Development Associates (AIDA) provides training and technical assistance
to the eight tribal grantees. AIDA also facilitates planning, design, and coor-
dination of four regional conferences to address underage drinking issues in
Indian communities. This is done with assistance from tribal leaders, prac-
titioners, community members, and youth. Community partners are enlisted
to assist with conference design by addressing the specific needs and con-
cerns of each region regarding underage drinking. In addition, AIDA pre-
pares and moderates audio conferences to discuss policy, law enforcement,
youth involvement, and needs assessment with regard to underage drinking
in Indian Country.



cknowledgments

The American Indian Development Associates would like to thank the
following people and organizations that contributed to the writing of this
document.

U.S. Department of Justice, Office of Juvenile Justice and
Delinquency Prevention Enforcing the Underage Drinking Laws
Program

Pacific Institute for Research and Evaluation

Ada Pecos Melton, MPA, president of American Indian
Development Associates, a 100 percent Indian owned small busi-
ness in Albuquerque, NM, since 1989. Previously, she had a
15-year public service career as a juvenile probation officer, court
administrator, director of the Jemez Youth Program in New
Mexico, and the first director of the U.S. Office of Justice
Programs, American Indian and Alaska Native Affairs Office in
Washington, DC.

Stephen Wall, Esq., a University of New Mexico Law School grad-
uate, currently an associate with American Indian Development
Associates serving as a tribal justice specialist. In his early career,
he served as behavior health coordinator for Tohono O’ odham
Health Department in Sells, AZ. He was the prosecutor for the
Mescalero Tribal Court in Mescalero, NM, for 9 years. He com-
pleted his tenure with the Mescalero Court as the chief judge.

Steve Emery, Esq., a Harvard Law School graduate, currently the
director of the Sicangu Policy Institute. For 11 years, he was attor-
ney general for the Cheyenne River Sioux Tribe. Before becoming
a lawyer, he was the chief of police at Santee, Nebraska, and a
police officer for the Yankton Sioux Tribe and the City of Wagner,
both in South Dakota.


Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

The first planning level is developing an approach,
method, and strategy and formulating them into a plan
for direct enforcement.

The approach is the thought, value, or philosophy that
directs the method. An example of an approach is com-
munity policing.

The method is how the approach will be used to enhance
direct enforcement, such as through foot patrols, mounted

Reflection and Projection

Why—Vision or mission
What—Goals and objectives
When—Strategies and evaluation

Attain and Sustain
Who—Fartners and population

Where—Scope and accessibility

When—Intensity and duration

police, plain clothes officers in schools, and so on. One

method would be law enforcement meeting with commu-

nity members to involve them in identifying problems and together designing
response strategies that include the community in appropriate and meaningful
ways.

Strategies identify how to use methods and approaches. The plan should
demonstrate reflection of problems, needs, or issues and projection of
actions to take. The plan should answer the basic questions in the text box
and explain how to attain and sustain the activity and funding.

Identified issues could receive priority, and the most critical issue could be
selected and analyzed. For example, if youth leaving the reservation to buy
alcohol is identified as the most critical issue, then analysis of that issue
would identify the times they leave, where they go, how they get there, who
they go with, what they do to get alcohol, when they return, and any other
factors that would affect police action against that issue. From this, strategy,
goals, objectives, and action plans would be developed to identify what law
enforcement resources would be used, who would be involved, their actual
activities, when and where the activity would be initiated, when it would
terminate, and any other factors that need to be addressed before conducting
the activity.

The second planning level is to build the plan into the agency budget. If the
planning takes place early enough, it may be possible to request funds in the
following year’s budget to cover the increased costs. However, in most
instances, enhanced direct enforcement does not occur until a few months
before the event. In those situations, the development of the plan provides
justification for additional funds in the following year or to justify budget
modifications in an existing budget.*

nN


ntroduction

In October 1997, the executive committee for Indian Country Law
Enforcement Improvement reported its findings to the U.S. Attorney
General and the U.S. Secretary of the Interior indicating that there is a
public safety crisis in Indian Country. The executive committee’s summary
of concerns expressed by the Indian nations included

@ the need to address the limitations of tribal criminal jurisdiction.
@ the lack of adequate funding for tribal [juvenile] justice systems.

W@ the lack of access to and provision of training and technical assis-
tance to Indian nations.

@ the need to enhance tribal courts and tribal law enforcement
response systems.

W@ the lack of cultural sensitivity by policymakers and federal crim-
inal and juvenile justice practitioners.

@ the lack of community-based sentencing options, treatment, and
services to respond to [youth] offender needs effectively.

In the midst of these realities, many Indian nations indicate that underage
drinking ranks high among the crime, violence, and social problems plagu-
ing American Indian and Alaska Native communities today. Reports by
tribal judges, probation officers, teachers, counselors, and other service
providers tell of Indian children starting to drink at the age of eight and
drinking regularly by the age of ten.

Statistical data show the insidiousness of adult alcohol abuse and underage
drinking and the potential it has for robbing young people of healthy futures.
For example, the Indian Health Service (IHS) has identified automobile
crashes as the leading cause of death for the age group of 10 to

24 years for 1995-97. The vast majority of those crashes were alcohol
related. In addition, alcohol was a factor in at least 40 percent of suicides


Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

youth in the community in which they work. Officers spend time with youth
in structured or unstructured activities. The youth receive needed attention
and develop relationships with officers who serve their community. Mentor
officers benefit by gaining knowledge about youth needs and learn about the
tribal community from a youth perspective.

Cadet Programs

Police cadet programs engage community youth in public safety activities
and encourage them to consider a career in law enforcement. Cadets receive
training and law enforcement experience along with responsibilities appro-
priate for their level of training and abilities. Cadet programs provide struc-
tured and supervised work experience aimed at helping young people with
life skills, in particular refusal skills, and other inoculations against under-
age drinking and other negative activities. As youth participate in these pro-
grams, respect for individual officers and law enforcement in general is
enhanced.

Community Education and Participation

Educating young people about alcohol use is an important activity of com-
munity policing and is a key component of prevention. The most effective
educational programs involve group participation and interaction, change
perceptions of social norms, and teach refusal skills, positive decision-
making, and other life skills. Perhaps the most well-known prevention
education curriculum is the D.A.R.E. program. Although evaluations of the
program have shown disappointing results, the program continues to be the
most widespread prevention education program used by law enforcement in
Indian communities. One reason for D.A.R.E.’s continued use in Indian
communities is that the basic curriculum can be modified and enhanced for
the local community. Applying tribal interpretations or substituting tribal
language and examples or activities focuses the curriculum on that partic-
ular community. In addition, tribal representatives can participate in the
D.A.R.E. presentation to ensure that tribal interpretation is included in the
presentations.

In addition to education, community policing requires law enforcement offi-
cers to consult and work with various service delivery agencies and organi-
zations. A common goal of community policing is to restore the visibility of
the police officer and demonstrate compassion through participation in
community teams. Such teams include child protection teams, multidiscipli-
nary teams, and drug court teams. Most police agencies have experience

17


INDIAN COUNTRY LAW
ENFORCEMENT AND THE
CHALLENGES OF ENFORCING
UNDERAGE DRINKING LAWS

Prepared by
American Indian Development Associates

Fall 2002


4 Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

The Constituent Environment

“Like most political communities, Indians have responded to reser-
vation problems only after they have become apparent. The custom-
ary ‘band-aid’ solution to political and legal problems inevitably
takes precedence over planned action . . . While awareness of a
necessity for long-range planning is always discussed, it seldom
receives any real attention.”

Tribal communities are made up of people who hold a variety of views on
the importance or lack of importance of underage drinking law enforce-
ment. Viewpoints are frequently the result of personal or familial experience
with underage drinking or alcohol use in general. They are also the result of
the community culture based in traditional tribal elements and are impacted
and changed by other cultural elements in the community, including the
culture of alcoholism, the culture of poverty, and American pop culture.

In communities throughout the country, what law enforcement agencies do,
how they do it, and the impact of their activities is under more public
scrutiny than ever before. As tribal communities begin to heal
from the scourge of alcoholism, members of the public are
demanding that tribal, State, and Federal agencies and pro-
grams do more, become more effective, and become more
accountable to the community. Community members are also
demanding that they be involved in the battle to overcome
alcoholism and alcohol-related problems. Throughout the
United States, American Indian and Alaska Natives share the
negative impact of underage drinking in their communities;
however, each community is unique in terms of location, governmental
structure, available services, and culture, which determines the appropriate
enforcement strategies and approaches.

The Folitical and Legal Environments

As nations exercising their inherent sovereignty, each tribe has the authority
to make laws and enforce those laws. The enforcement of tribal law
includes the power of the police and the power of the courts. However, due
to differing histories, traditions, and locations, American Indian tribes and
Alaska Native villages have varying forms and degrees of self-government.
Some tribes and villages have the authority to enact policy to develop
response strategies and to provide resources for strategy implementation.


Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

Every jurisdiction, Indian and non-Indian, has laws regulating alcohol pos-
ion and consumption and establishing an age under which possession
and consumption is illegal. The grim statistics and the impact of underage
drinking are relatively uniform throughout American Indian and Alaska
Native communities. However, as law enforcement and other agencies con-
template strategies to enforce laws prohibiting underage drinking, they must
face the reality of the local environment that gives rise to underage drinking.

Some reservations are geographically large enough to be subdivided into
districts. Some tribal districts may be wer, meaning that the tribe allows
controlled sale, possession, and consumption of alcohol. Other districts are
dry, meaning that the tribe prohibits the sale, consumption, or possession of
alcohol.

Some reservations contain a large contiguous land base; others are checker-
board, meaning that the reservation has pockets of land owned by non-
Indian citizens or the State or Federal governments. Checkerboard areas
subject tribes to multiple jurisdictions.

Some tribes are isolated and rural; others are located in the midst of urban
settings. Some reservations are larger than small states, whereas others are
just a few acres. Local environments often dictate the development of strate-
gies needed to address the underage drinking problem. Throughout the 564
federally recognized reservations, communities, and villages, there are
many different environments in which strategies to combat underage drink-
ing must be developed and implemented.

The Service Delivery Environment

Over the past decade, an environment conducive to interagency cooperation
has been created. Federally mandated child protection teams and other
multidisciplinary approaches are examples of such interagency cooperation.
Communities are beginning to see that the responsibility to address alcohol
issues, including underage drinking, cuts across many agencies. If a tribal
community is serious about enforcing underage drinking laws, a number of
agencies and service delivery organizations must be enlisted. This requires
cooperation, which may be informal or may need to be formalized through
memorandums of agreement or understanding, depending on the agencies
involved and the shared responsibilities they will carry.





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vi

Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

This document addresses issues related to enforcement of underage drink-
ing laws in Indian Country. In particular, the document

@ analyzes the nature of alcohol problems among Indian youth.

@ describes some of the legal, structural, and cultural characteristics
unique to Indian tribes.

@ offers several strategies and recommendations for Indian tribes to
consider in their efforts to develop, implement, and enforce laws
and policies that address the problem of underage drinking in
Indian communities.


4 Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

Law Enforcement Collaborations

Collaboration for direct enforcement does not happen automatically.
Someone has to take on the leadership role and begin dialogues with the
neighboring jurisdictions. It is unreasonable to expect that off-reservation
law enforcement agencies will take the lead in enforcement. Off-reservation
law enforcement agencies are just as busy in their communities as are the
tribal or BIA police in theirs. And unless the underage drinkers coming
from the reservation are causing a disproportionate amount of problems off
reservation, the issue is not likely to be a high priority of off-reservation
agencies. Therefore, tribal law enforcement leadership should be prepared
to initiate a dialogue with the surrounding jurisdictions to develop a collab-
orative relationship.

Developing a collaborative relationship is based on the recognition that a
mutual problem exists. As long as each jurisdiction sees the issue as the
other jurisdiction’s problem, there will be no collaboration. The terrible
costs of underage alcohol-related traffic fatalities are good examples. If
youth leave their reservations to buy alcohol and return to the reservation
and have an accident on the reservation, the off-reservation authorities may
not see the mutuality of the problem. However, if the accident occurs off
reservation with the youth attempting to return to the reservation with alco-
hol, the mutuality of the problem is highlighted. Such an incident provides
an opportunity for reservation law enforcement to initiate the dialogue nec-
essary to develop the collaborative relationships with off-reservation law
enforcement agencies. The understanding and recognition of mutual inter-
ests is essential to developing collaborative arrangements.>

Underage Drinking Is a Shared Responsibility

Collaboration at all levels is needed to address underage drinking. Clearly,
the different law enforcement agencies must cooperate, but cooperation and
partnering is also needed among the tribal political bodies, service delivery
agencies, and the community if resources are to be used effectively to
enforce underage drinking laws. This cooperation should occur at two
levels: policy development and service delivery. Law enforcement, although
on the front line of enforcing underage drinking laws, is not the only agency
in the community involved with underage drinkers. Underage drinking
impacts schools, hospitals, recreation programs, and social service agencies.
These agencies need to be involved in any community effort to enforce
underage drinking laws. They can participate in policy development and in
service delivery, in partnership with law enforcement.


20 Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

acknowledging to the community that the cultural traditions of the commu-
nity are of utmost importance. Such actions show that the agency is con-
cerned for the community’s cultural stability and for the future of the tribe.

Conclusion

For hundreds if not thousands of years, Indian nations have overcome
famine, war, and at times, near extinction, yet Indian people survive today
with a rich tradition, heritage, and history. Indian people must believe that
they will overcome the issues they face today and those they will face
tomorrow. Many Indian communities share the same problems; therefore, it
is important for Indian tribes to unite to address the problems created by
underage drinking. As Frank Pommersheim writes in Braid of Feathers:

“The ultimate goal is therefore not to undo difference, but rather to
create solidarity—a quality whose chief source is the imaginative
ability to see strange people as fellow sufferers. Such efforts flow
not from mere academic inquiry, but from work of the heart and
mind.


This document was prepared by the American Indian Development Associates, under a subcon-
tract from the Pacific Institute for Research and Evaluation and funding from the U.S. Department
of Justice, Office of Juvenile Justice and Delinquency Prevention. The opinions, findings, and
conclusions or recommendations expressed in this document are those of the authors and do not
necessarily represent the official position or policies of the U.S. Department of Justice.



Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

The role of the tribal executive (tribal chairperson, president, or governor)
varies. As the person charged with enforcing tribal ordinances and imple-
menting tribal resolutions, the executive sets the tone for the enforcement of
underage drinking policies and laws. In some tribes, the executive is present
at tribal council meetings and, in some places, the executive is not present.
In some tribes, the executive controls the tribal council agenda, and the
executive’s right to vote is usually limited (usually only to break a tie) in
tribal council meetings.

A major issue facing tribal courts is to be able to render a decision free from
interference from other branches of government. A study carried out by the
American Indian Law Center in 2000 indicates that few justice systems
reported interference with the work of the courts by other government
branches.’ Tribal courts may be created by the tribal constitution or they
may have been created by tribal council ordinance. If they have been cre-
ated by ordinance, they are not considered independent but exist as any
other program serving the tribe. If the court is created by constitution, it
may be independent but can lose its independence if the tribal council is the
appeals court. In the case of traditional Pueblos in New Mexico, the gover-
nor is also the judge, thus the court and executive are combined.

Regardless of the structure, many tribal governments have not embraced the
separation-of-powers doctrine prevalent in American constitutional govern-
ments. Similarly, many tribal governments do not separate church and state,
in that tribal leaders seek and depend on spiritual guidance and many must
oversee or perform religious ceremonies as part of their leadership position
and status.

Indian Country Law
Enforcement Environment

The law enforcement environment varies from reser-
vation to reservation and community to community.
Some tribes have their own tribal police that they
fund or operate with Federal funding. Other tribes
have Federal police provided completely or partially
by the U.S. Department of Interior, Bureau of Indian
Affairs (BIA), the Federal Bureau of Investigation
(FBI) for felony investigations, and occasionally, the
U.S. Marshals. Some are under the criminal jurisdiction of the State or
county authorities. Some tribes and villages have the authority to enact pol-
icy and provide resources for strategy implementation and development of
response strategy options. Others do not.



Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

that is supposed to constrain it. I will call this kind of lawlessness the abuse
of authority type.” In at least six States where P.L. 280 exists, law enforce-
ment services should be provided by the State, county, or municipal govern-
ments, but the reality is that law enforcement services range from adequate
to inconsistent to non existent.

Direct Law Enforcement
on Reservations

The enforcement of underage drinking laws involves several direct enforce-
ment strategies. Increasing police presence has a strong deterrent effect and

is successful in interception and arrest. Saturation patrols (such as the inten-
sive use of foot, bicycle, horse, or vehicle patrols) increase police presence—
even if only for a relatively short time. Other high-visibility tactics include
driving-while-intoxicated (DWI) checkpoints and “Cops in Shops” pro-
grams. Two important enforcement strategies will be discussed below: spe-
cialty patrols and compliance checks at local liquor establishments.

Specialty Patrols

The use of specialty patrols is effective when communities have events such
as Pueblo feasts, community powwows or fairs. or if the tribe is involved in
the hospitality industry. Specialty patrols can provide high visibility and
deterrence, or they may operate undercover to infiltrate events having a high
incidence of underage drinking. Specialty patrols that conduct raids of
drinking parties or gatherings that have underage drinkers
can be very useful but often require high levels of planning
and have significant potential liabilities. Tactical plans for
these patrols should include

@ provisions for the security of attendees.

an attendees’ dispersal strategy.

citations and arrests.

a
@ breath tests.
a
a

a means of dealing with youth too intoxicated to
take care of themselves.

Liability issues relating to specialty patrols range from the risk of motor ve-
hicle accidents from intoxicated persons fleeing from the party scene to pos-
sible negligence in providing care to highly intoxicated youth or minors. A


Indian Country

Law Enforcement and the
Challenges of Enforcing
Underage Drinking Laws

Prepared by
American Indian Development Associates

In support of the
OJJDP Enforcing the
Underage Drinking Laws Program


18 Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

working in multi-agency operations. Multijurisdictional drug task forces are
good examples of previous experience with such operations. The challenge
is to translate multijurisdictional police agency experiences into collabora-
tions with nonpolice agencies. This provides expanded opportunities for law
enforcement to partner with other agencies to address the underage drinking
problem in Indian communities.

Police Education

Training police officers to operate in a community-oriented policing envi-
ronment is a multifaceted task. Training for officers includes ways to com-
municate with youth and communities to learn about their needs, concerns,
and wants. Officers need to learn about community development and the
way certain problems, such as underage drinking, impacts communities.
Training on underage drinking issues is not only identifying strategies and
tactics for direct enforcement but also understanding all the factors con-
tributing to the problem. Officers need to understand how and why the prob-
lem occurs. Equally important is for officers to receive education about
child and adolescent development, family dynamics, and the impact of alco-
hol on the young person, the family, and the community. Cultural education
may also be a necessity in order to place the issues in the proper cultural
context.

Culture

One of the stronger allies in the battle to enforce underage drinking laws is
the traditional or indigenous culture of tribes. There are several ways in
which that traditional culture is an asset. First, culture provides
a positive support base for youth. Second, cultural activities
can be integrated into community response strategies. Third,
culture can be a part of community policing in which the offi-
cer is fully integrated into the community because he partic-
ipates in traditional activities.

Traditional culture can provide a positive support base for

youth. All people feel the need to belong, to be a part of some-
thing greater than oneself. This is particularly true during the teenage and
young adult years. Often at the most crucial time when youth are searching
for something to fulfill that need to belong, they are not being taught the tra-
ditional ways of the tribal community. For a variety of reasons, youth have
been left out of the traditional education process. Traditional tribal culture
provides a way for inoculating youth against negative behaviors because it



This document was prepared by the American Indian Development
Associates, under a subcontract from the Pacific Institute for Research and
Evaluation and funding from the U.S. Department of Justice, Office of
Juvenile Justice and Delinquency Prevention. The opinions, findings, and
conclusions or recommendations expressed in this document are those of
the authors and do not necessarily represent the official position or policies

of the U.S. Department of Justice.

Published November 2002


ndnotes

1983, DeLoria, V., Ameri
University of Texas Press

in Indians, American Justice, Austin:
at 138.

2000, American Indian Law Center, Survey of Tribal Justice Systems and
Courts of Indian Offenses.

P.L. 93-638, the Indian Self-Determination Act enacted by Congress in
1975, provided the first nationwide mechanism for Indian tribes to
receive direct funding from the Federal Government to operate, control,
and manage their own justice, law enforcement, and health programs.
The Bureau of Indian Affairs in the U.S. Department of Interior and the
Indian Health Service in the U. S. Department of Health and Human
Services were the first two Federal agencies to implement this direct
funding strategy.

For more information on planning, see the 1999 Guide to Conducting
Alcohol Purchase Surveys, Pacific Institute for Research and Evaluation,
Calverton, MD.

For more information about intergovernmental agreements, see Tribal-

State Relations and the Mutual Recognition of Judgments, American
Indian Law Center, 1998.

2


Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

Other tribes do not possess all the authority or resources they need to re-
spond adequately to the problem. The inherent sovereignty of tribes is intact
in most places; however, there are laws in some States that allow the State’s
jurisdiction to exist concurrently with the tribe’s jurisdiction.

It is important to understand the scope of tribal jurisdictional authority over
persons and territory. The basic question that needs to be resolved in crimi-
nal and juvenile delinquency cases in Indian Country is which mix or level
of government assumes jurisdiction. Depending on the identity of the vic-
tim(s) and suspect(s), the seriousness of the offense, and the State in which
the offense was committed, it can be a combination of the Federal, State, or
tribal governments. The determination of jurisdiction involves the interrela-
tionship of three factors:

1. Personal jurisdiction—what persons are subject to the authority of
tribes or tribal courts (Indian/non-Indian).

2. Territorial jurisdiction—over what land area may tribes or tribal
courts exercise authority.

3. Subject matter jurisdiction-the particular statute violated and what
conduct may be punished as a criminal or juvenile offense by tribes
or tribal courts.

The three major federal laws governing jurisdiction over crimes committed
in Indian country are

1. PL. 83-280 Indians—Criminal Offenses and Civil Causes—State
Jurisdiction, 18 U.S.C. §1162 (Supp. 1968), which grants six states
jurisdiction over crimes committed in all or part of Indian Country
within the State, except those normally included under federal juris-
diction (several other States exert some form of P.L. 280 on tribes in
their states).

2. the Major Crimes Act, 18 U.S.C. §1153 (Supp. 1986), which
applies to crimes committed in Indian Country, except for crimes
committed in P.L. 280 states.

3. the General Crimes Act, 18 U.S.C. $1152, which applies to all
crimes committed by non-Indians against Indians in Indian
Country.

American Indian tribes have governmental authority based in the fact that
tribes as governing institutions predate the creation of the United States hence


& Indian Country Law Enforcement and the Challenges of Enforcing Underage Drinking Laws

BIA took over the delivery of law enforcement services during the early
days of the reservations. Now it is recognized that BIA has the responsibil-
ity to provide law enforcement services to American Indian communities as
part of the trust relationship between the Federal Government and Indian
tribes, To that end, the BIA provides direct law enforcement services in
approximately 65 agencies (many of which serve multiple tribes). In
approximately 110 Indian communities, tribes contract with BIA through
the mechanism of “638” to provide law enforcement services.’ There are
only four or five tribal police departments funded entirely by the tribes
themselves. In recent years, funding under the U.S. Department of Justice
Community Oriented Policing Services has provided sorely needed finan-
cial support for tribal police departments to increase officers and to replace
or add new equipment and vehicles.

Several New Mexico Pueblos function under a traditional tribal government
structure. Under this structure, a tribal sheriff and deputies are appointed
who exercise the Pueblos’ inherent authority to enforce Pueblo laws, which
include surveillance and the power to arrest and detain alleged offenders. In
most instances, the tribal sheriff and deputies serve as unpaid public ser-
vants that serve their communities for up to I- or 2-year terms. For this type
of law enforcement environment, BIA supplements the law enforcement
needs of the Pueblos with support for patrol, investigations, and transporting
offenders. For the most part, the traditional tribal sheriffs and deputies
depend on indigenous community policing customs, traditions,

and practices to carry out their peacekeeping, community protection, and
law and order responsibilities.

In 1953, passage of P.L. 83-280 transferred substantial jurisdiction from the
Federal Government to States. This law was enacted on the heels of the ter-
mination era when there was a strong move to assimilate Indian people into
the dominant society. This policy was supposedly aimed at curing the prob-
lem of “lawlessness” on Indian reservations, but its actual impact has made
it difficult for the affected States and tribes to provide effective and ade-
quate law enforcement and justice to Indian citizens. As an expert on this
law, Professor Carole Goldberg notes, “P.L. 280 has itself become the
source of lawlessness on reservations. Two different and distinct varieties of
lawlessness are discernible. First, jurisdictional vacuums or gaps have been
created, often precipitating the use of self-help remedies that border on or
erupt into violence, Sometimes these gaps exist because no government has
authority, Sometimes they arise because the government(s) that may have
authority in theory have no institutional support or incentive for the exercise
of that authority. I will call this kind of lawlessness the legal vacuum type.
Second, where state law enforcement does intervene, gross abuses of
authority are not uncommon, In other words, power is uncabined by the law