DOJ report: prosecutions up in Indian Country

By Alysa Landry
Special to the Times

WASHINGTON, June 6, 2013

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J ustice in Indian Country can mean headaches when it comes to manpower, resources and questions of jurisdiction.

On the Navajo Nation, law enforcement officers are stretched thin with vast geographic areas to cover. Jail space is wanting and, even when criminals are arrested, there often is no guarantee that they will be prosecuted.

These are problems shared by Indian Country as a whole, where law enforcement lacks proper funding and prosecutions of the most violent crimes are left to the discretion of the already-burdened federal justice system. The result is that violent felonies - even those that are investigated by tribal police or the FBI - often are ignored by U.S. attorneys because they don't take priority.

Between 1997 and 2006, for example, federal prosecutors rejected nearly two-thirds of cases brought to them by the FBI and Bureau of Indian Affairs investigators in Indian Country, the Denver Post reported in 2008. That's more than twice the rejection rate for all federally prosecuted crimes.

While federal prosecutors focus on murder and aggravated assault, crimes like rape and child abuse are sent through tribal misdemeanor courts.

The U.S. Department of Justice is working to change this.

In its first public look at government investigations and prosecutions on tribal land, the department reported a 54 percent increase in criminal prosecutions in Indian Country between 2009 and 2012. The report, released May 30, is the result of the 2010 Tribal Law and Order Act, which requires the Justice Department to publicly release these figures.

"Across the country, U.S. attorneys have been focused on fighting crime in Indian Country and reinforcing the bond between federal and tribal law enforcement, which also strengthens the faith that people have in their criminal justice system," Attorney General Eric Holder said in the report. "This report on federal law enforcement efforts in Indian Country shows that we are beginning to see results, but there is more work to be done."

The report shows that 5,985 cases were referred to the federal government in 2011 and 2012. Of those cases, more than 2,000 came from Arizona. South Dakota referred nearly 1,000 and Montana had 500.

About two-thirds of the total cases led to convictions while one-third were declined for prosecution. Most of the declined cases were physical assault, rape or sexual assault, the report states. This is not unique to Indian Country, but structural barriers on reservations may compound the challenges.

"The issues brought up in the report are ones Indian Country has been very vocal about," said Brian Quint, government and legislative affairs associate at the Navajo Nation Washington Office. "There is an increase in collaborative efforts that is very encouraging."

The report comes on the heels of a massive effort throughout Indian Country to support reauthorization of the Violence Against Women Act. The act, signed by President Barack Obama in March, gave unprecedented authority to tribes to prosecute violent crimes against women occurring on Indian lands.

But more must be done, Quint said.

"The Department of Justice has done a good job of making themselves available to listen to concerns from tribal leaders, and they do seem to be striving to ensure that justice shall be done throughout Indian Country," he said. "It's encouraging, but there is more work to be done still."

The Navajo Nation is taking steps to create safer communities, said Erny Zah, a spokesman for President Ben Shelly. The tribe recently opened two new jails in Tuba City and Crownpoint and a third is being built.

But a shortage of federal dollars means the tribe may have problems staffing the jails, Zah said. Law enforcement already is stretched too thin, with Navajo police serving at the rate of 0.4 officers per 1,000 people; the national average is three officers per 1,000 people.

"We have less than 300 officers for 27,000 square miles," Zah said. "The reality is that you have officers working 40-hour weeks and putting 300 to 500 miles on their cars in one day, just responding to calls. We're stretched."

More funding to law enforcement can help ensure that more crimes are prosecuted. According to the Justice Department report, most of the cases that were declined had insufficient evidence. A larger police force means officers can be more adequately trained, respond to calls in a more timely fashion and collect evidence before it is destroyed.

"Obviously, we need more resources," Zah said. "Even though prosecutions might be up, conditions on the Navajo Nation are still vulnerable. That's a reality for us, and we'd like to see more resources coming so we can fight crime."

The report also outlines efforts to train police officers to become federally certified or to cross-commission public officers to police tribal lands.

In Arizona, for example, the U.S. Attorney's Office trained more than 950 tribal and local police officers to receive their Special Law Enforcement Commissions. These officers are cross-commissioned to enforce federal laws on Indian land.

The Justice Department calls this cross-training a "force-multiplier" and says it is essential for tribal communities where federal law enforcement resources are thin or remotely located.

The Navajo Nation is seeking similar training with county and state law enforcement. It wants cross-commissioning with sheriff's offices in the six counties in three states that encompass the Navajo Nation, along with three additional counties in New Mexico where outlying Navajo communities exist.

New Mexico's McKinley County in 2007 was the first to cross-commission its officers in an agreement that provides for "the orderly, efficient and effective enforcement of the criminal and traffic laws of the Navajo Nation and the state ... to prevent each jurisdiction from becoming a sanctuary for the violators of the laws of the other, to prevent inter-jurisdictional flight and to foster greater respect for the laws of each jurisdiction."

The Justice Departments calls these agreements an "unprecedented level of collaboration" and wants to see more sharing of cases, training and grants.

Because this report is the first of its kind, the Justice Department hopes it provides context as continued improvements are made. The report comes as the federal government faces budgeting shortfalls, however. It already has threatened cuts to tribal law enforcement in an effort to cut the nation's deficit.

As the largest tribe on the largest reservation, the Navajo Nation continues to lobby for federal dollars, Zah said.

"Overall this is good news for Indian nations," he said of the report. "However, much work needs to be done to create safer communities on the Navajo Nation. The federal government is making some serious strides to help Indian nations, but we're going to continue to fight for more."