Thursday, December 18, 2008

EXPOSÉ (On Bill Moyers' Journal) : Michael Riley Answers Viewer Questions on US Reservation Justice

EXPOSÉ: Michael Riley Answers Viewer Questions on Reservation Justice

We thank reporter Michael Riley of the DENVER POST for taking time to answer questions about the controversial justice system on Indian reservations across America.

Please note that the views and opinions expressed by Michael Riley are not necessarily the views and opinions held by Bill Moyers or BILL MOYERS JOURNAL.


Question: I was aware of the complicated judicial system enforced in the Native American reservations, but I was appalled to find out the statistics that involve so many unsolved crimes and lack of any accountability by the US Attorneys and the FBI. Has there been any improvement since the exposure of the DENVER POST investigation and how can we help to raise more awareness to the public?

-- Sara Pollock

Answer: Thanks for the question, Sara. As far as I can tell, there has been little improvement in the situation since the publication of the series -- in part because the Department of Justice doesn't acknowledge even now that a problem exists. There was a recent experiment on the Standing Rock reservation in South Dakota that did show some results, however.

The Bureau of Indian Affairs implemented what they called a "surge" -- significantly increasing the number of police officers on that reservation in an effort to dampen rising crime. The surge was designed to be temporary, but did show some success (after an initial increase, arrests suddenly dropped). It shows that more resources can make a difference. But those resources will have to be sustained over time -- and that will cost a significant amount of money.

Question: What didn't necessarily come through is what the possible solutions to this problem are, so I would like the reporters to comment- Do they feel that we should subject sovereign nations to the same laws and systems of the rest of the country? Or, should we try to compel the U.S. Attorneys, FBI and DOJ to do a better job at enforcing the law in Indian Country?

-- David Armstrong

Answer: Thanks for the question, Mr. Armstrong. The question of solutions is a complicated one and I'd suggest reading the fourth part in the DENVER POST series, which you can find on-line and which tries to get at the question in detail. One of the things that the series finds is that this problem has been hiding in plain sight for decades, and that successive administrations have tried and failed to address it in any comprehensive way - partly because the political will simply hasn't been there.

But yes, the possible solutions break down broadly in two ways. You could push for more aggressive investigation and prosecution of Indian country crimes by the federal government - in other words, keep the current legal framework but find ways to make it function better. Or you could give tribal nations more power (and presumably more resources) to investigate and prosecute serious crimes themselves - especially the authority to sentence those convicted of serious crimes to more than a year in tribal jail.

Each is harder than it might sound. Improving the federal record of investigating and prosecuting Indian Country crime would likely require substantial new resources for a Department that is already juggling many priorities, including organized crime, terrorism investigations, big drug cases, among others. As the series points out, it would also require creating a culture in the Justice Department that validates those prosecutions and investigations in a way that doesn't occur now.

On the other hand, giving Indian nations power to prosecute felonies would also require a big infusion of money and training (many tribal judges and prosecutors don't have law degrees, for example); tribal justice systems would all have to meet basic requirements for protection of the accused that aren't always in place now (many tribal justice systems don't provide indigent accused with defense lawyers); and their verdicts would presumably have to be appealable to federal court, something not all tribes would agree to.

Since the series was published, Sen. Byron Dorgan has introduced comprehensive legislation in the Senate that tries to combine the two approaches. It would expand tribal authority to sentence offenders to up to three years in prison. It would also push the Justice Department to more aggressively pursue Indian Country crime, in part by requiring the publication of crime and prosecution statistics - something that doesn't regularly occur now and which might pressure FBI investigators and US Attorneys to take a more results-oriented approach to reservation crime.

But that said, the bill hasn't yet made it out of committee. And past experience suggests that it is likely to face substantial obstacles during the legislative process (lawmakers historically have been skeptical of giving tribes more power to prosecute felonies, for example, in part because constituents in border towns don't like the idea that they can be tried in tribal courts for serious crimes, even if those crimes are committed on reservations).

Question: A landmark report! As you wrote the series and talked to various people, what thoughts do you have for a proposed solution and are there groups moving on those

-- Barbara Webber

Answer: Thanks for the question, Barbara. Just building on what I said above, the Dorgan bill -- called the Tribal Law and Order Act -- is one attempt at a comprehensive solution that has a lot of innovative ideas in it. The problem is that similar efforts have been tried before, both by Congress and by successive presidential administrations. The politics are tricky. Communities near reservations often oppose giving tribal courts more power, and they can carry a lot of weight with their lawmakers. The tribes themselves aren't always willing to do things that would be necessary to strengthen tribal courts, including allowing tribal verdicts to be reviewed by federal courts and updating tribal codes to conform with things that some lawmakers will see as necessary if those courts are given more authority - training requirements for lawyers and judges, free defense attorneys for defendants who can't afford them, etc. And then there is the question of who pays for it all. Stronger tribal courts would also require new prisons - existing ones are already overburdened and that's when tribes can only sentence prisoners to a year. Tribes generally want the federal government to pay for updated prisons and more training. Lawmakers would like tribes -- especially those with healthy budget balances due to gaming or minerals -- to pay for part as well.

Outside of Congress, the group most active on the issue is the National Congress of American Indians, which represents hundreds of tribes and their interests in the Capitol. They have worked closely with lawmakers for years to craft various solutions and have had important input on the Dorgan bill.

It's that legislation that will test whether Congress sees this as a priority issue and can overcome the complicated politics involved. Unfortunately, history doesn't provide a lot of evidence for optimism.

Question: I have worked as a Registered Nurse for several years on the Navajo Nation and have seen first hand the abuse and lack of prosecution of the offenders. I know of a MD who had to personally go to the State Attorney General to even get an investigation of a repeated rapist. I too would like to know, what do you see as a solution? What can/should a non Native living there be doing? Thank you for bringing this to the public.

-- Don Cusick

Answer: Thanks for the question, Don, and for personalizing the problem a little more through your own experience. I hope the answer to the previous question addresses the issue of potential solutions. You do raise an interesting question about what non Natives living on or near reservations can do. Certainly pressing the FBI and the local U.S. Attorney's office to be responsive to Indian Country crime might help. Bringing examples like the one you mentioned to the attention of the press and public is one way to hold authorities accountable. That should be part of a larger effort to educate the public about this problem and potential solutions. There is often resistance in communities bordering reservations to give tribes more authority to prosecute felony crime. Certainly, those courts must meet standards for the protection of the rights of the accused. But prejudice and misunderstanding can also play a role in that resistance and education always helps.

Question: Has anyone in Congress seriously taken up the mantle to get jurisdiction handed back to the tribes and teeth put into the punishments they can assign? And whose head needs to roll in the FBI for this serious mismanagement of their mandate?

-- Lin Neiswender

Answer: Thanks, Lin. Heads have not rolled at either the FBI or the level of the DoJ leadership in general over this issue. Officially, the Department of Justice simply doesn't see the problem and has made that case in public forums several times since the series has been published. If there is no problem, no one needs to be held accountable, right? Obviously many other people disagree, including important lawmakers. And as I said in previous answers, there is now an important effort to give tribes more power to prosecute felony crime on Indian lands, although it would still be much more limited than the power enjoyed by state or federal courts. The Dorgan bill is a compromise, and we'll just have to see whether even that compromise can succeed.

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