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The natives are arrestless; the Justice Department has jurisdiction over Indian reservations, but is letting people get away with murder.

The Natives are Arrestless

On a cold January night in 1984, while Mrs. Aliene Lee and her daughter, Priscilla Lee Yazza, were watching television in Priscilla's trailer in Fort Defiance, on Arizona's Navajo Indian Reservation, the lights went out and the two women were confronted in the darkness by a man with a gun.

After a violent struggle, the gunman dragged Priscilla into her mother's car and drove off, leaving Mrs. Lee for dead on the floor of the trailer with two gunshot wounds to her head and Priscilla's baby crying on a couch nearby. The next morning, Priscilla's naked body was found in a nearby gully. She had been raped repeatedly and shot in the back of the head as she struggled up a roadside embankment.

Mrs. Lee survived the attack and still lives with her husband on the Navajo Reservation. She asserts that crucial evidence was destroyed by incompetent tribal police officers and that a lazy FBI agent, who made no effort to hide his prejudice against Indians, failed to follow up on important leads. Ultimately, the case lapsed into obscurity along with hundreds of other unsolved murders and rapes on the reservation.

Eddie Lee is convinced that if the crime had occurred in Phoenix or Albuquerque the murderer would have been caught within 24 hours. "Just because it's on the reservation it seems like it's all neglected," Mr. Lee said. "And it's been the same way for other people and other investigations. Just because we're Indians they're not getting in here and solving these crimes."

The government's own statistics support Mr. Lee's charges. On reservations in Arizona, Nevada, and Utah, Bureau of Indian Affairs officers investigated 2,456 felony cases in 1986 and the first half of 1987 but arrested only 181 suspects; that's a rate of 7.4 percent. By comparison, 23.6 percent of felony cases elsewhere in Arizona led to arrest. During this period, BIA officers presented 390 cases to the U.S. Attorney, of which 233 were rejected for prosecution. From 1984 through the middle of 1987, there were 974 serious crimes reported on six Montana reservations, but only 87 convictions.

In those rare instances when people who commit crimes on Indian reservations are prosecuted and convicted, the criminals tend to serve much shorter sentences than those convicted in Anglo communities. Although new federal sentencing guidelines may have some effect in the future, recent prosecution statistics from the U.S. Sentencing Commission show that murderers serve about a third as much time for crimes committed on Indian reservations as do those committing the same crime elsewhere. The disparity is even greater for bank robbery, auto theft, and transportation of stolen property.

Statistics compiled by the FBI suggest that this miserable enforcement record contributes to Indians being victims of violent crime almost twice as often as the general public.

The murder of Priscilla Yazza is a textbook example of what is wrong with law enforcement on Indian reservations. Investigators from several different agencies--federal and local--showed up. FBI and BIA agents were already in Fort Defiance, investigating a rash of violent assaults and rapes against the nurses at the local hospital, when the call came in about the shooting of Mrs. Lee and the abduction of her daugther. The FBI, BIA, and Navajo Tribal Police all converged on the crime scene. Col. Jonas Hubbard, the Director of the Navajo Department of Public Safety at the time, admits that there was a great deal of confusion. "Nobody took overall responsibility for the investigation," Colonel Hubbard said. "Everybody took it as 'my investigation.'" To compound the confusion, the investigators were indifferent, if not incompetent.

The Anglo file

Mr. Lee, after rushing to the hospital to see his wife, returned to the crime scene with some friends and relatives. They offered to help the police search for Priscilla but were told to go home. Mr. Lee later examined the embankment where Priscilla was shot and believes she escaped as many as five times before being killed. If only he and his friends had been allowed to help in the search that night, he says, the first place they would have looked would have been along the road where Priscilla was taken.

BIA investigators later claimed they combed the area completely, but were unable to track the killer from the place where he abandoned the car. Mr. Lee and his friends did their own investigation and found tracks leading to a nearby hogan. They also found a bloody towel and a piece of the pink shirt Priscilla was wearing that had been overlooked by the initial investigators.

The principal FBI agent assigned to the case was a six-foot-four-inch Anglo with blue eyes and red hair named Charles Moffett. Mr. Lee argues that it would have been better to have had Indian agents investigating the murder on the reservation since it would have been easier for them to collect evidence and get witnesses to talk. "If it's a white man with a red head and blue eyes who looks like a big carrot, he's going to stick out like a sore thumb out here," Mr. Lee said.

Moffett never interviewed Mrs. Lee about the details of the murder. Mrs. Lee didn't meet Moffett until four months after the murder, when he drove up to her house to show her a single picture of a dark complexioned person she didn't recognize. "He didn't never come here to ask me all these questions like you~re doing now," Mrs. Lee said. "If he was really interested in the case he would have come out to ask me questions. But he never came back. That was the first time he came and that was the last time I saw him."

According to Mr. Lee, it took Moffett three weeks to pick up the bullet that had been removed from Mrs. Lee's head for ballistics tests. It took several weeks more for Moffett to respond to Mr. Lee's repeated telephone calls.

Three months after the murder, Mr. Lee called Moffett to ask him why there had been so little progress on the case. Mr. Lee said that Moffett told him that "the case was closed and there wasn't nothing I could do about it." Although he is usually a calm, soft-spoken man, he raised his voice in anger as he described how Moffett hung up on him after saying, "Why don't you just go and take your peyote and get high and stop bothering me"--a nasty reference to Mr. Lee's membership in the Native American Church, which uses peyote in its religious observances.

A local high-school teacher told the Lees that a frightened student had confided to him that her boyfriend arrived at her house the night of the murder with his jacket soaked with blood. Although the Lees gave this information and the other evidence they had found to Moffett, they got no response and don't know whether the FBI ever followed up on the leads. "There's a lot of things we ask him and tell him but he wouldn't ever give us no feedback," Mr. Lee said. "From what the FBI told me the case is closed due to lack of evidence. That's what burns me. It's scary. To this day that man's still out there walking around somewhere."

When contacted in the FBI's Farmington, New Mexico office, Moffett refused to talk about the case beyond saying that it was still open and that Justice Department guidelines prohibit him from discussing cases that are being actively investigated. In a previous interview, however, he said that the investigation into the murder was "not active," although it was not officially "closed."

Criminal negligence

Under the Major Crimes Act, the federal government has jurisdiction over major crimes committed on Indian reservations, and these crimes are violations of federal law. Public Law 280, passed by Congress in 1953, allows the states to choose to share responsibility with the federal government for investigating and prosecuting a variety of criminal cases. Tribal police forces, which have the greatest interest in maintaining law and order on their reservations, have very limited authority, as a result of recent United States Supreme Court decisions.

In Oliphant v. Suquamish Indian Tribe, the Supreme Court held that tribes do not have criminal jurisdiction over non-Indians. In Duro v. Reina, decided this year, the Court extended this principle to anyone who was not a member of the trive. In both cases the Court reasoned that because Indian tribes have only limited sovereignty, they cannot prosecute an outsider unless Congress delegates this authority, and the Court concluded that Congress had not done so. According to Michael Hawkins, a former U.S. Attorney for Arizona, the precedent set by the Supreme Court's decision in Oliphant "is a significant impediment to maintaining law and order and safe communities on Indian reservations."

The results of the statutes and Supreme Court opinions is a confusing maze of jurisdictional responsibility that paralyzes effective law enforcement on reservations. The FBI, the BIA, the state police, the local county sheriff's office, and the tribal police all have limited jurisdiction over crimes committed on Indian reservations, and it is not unusual to have all five agencies involved in at least the initial investigation of a single crime. But each agency's jurisdiction is so limited that violent criminals often fall through the cracks and avoid arrest, particularly if they happen to be white.

For instance, if a person is assaulted on a reservation, that crime is usually handled by the tribal police. But if the person assaulted is not a member of the tribe, the tribal police have no jurisdiction and the local police must be called in--if they are willing to investigate in the first place. Or if it is determined that the victim was sexually assaulted, the tribal police must hand the case over to the BIA police. And if the victim later dies, it becomes a murder case, which can be handled only by the FBI.

In one case, a non-Indian living on the Navajo Reservation repeatedly broke into the house of his ex-wife, a Navajo, and assaulted her. "When she called the tribal police for help, she was told that they couldn't help her because they didn't have jurisdiction over the crime," recalled her lawyer, Donna Chavez.

The woman then called the county sheriff's office begging for help. She was told that nothing could be done to help her because the sheriff's office did not have jurisdiction over crimes committed on the reservation. Finally, Chaez, went to the BIA to see if their agents could do something to prevent the repeated beating of her client. After looking into exactly who had jurisdiction over the crimes, the BIA eventually decided that the woman could file a complaint with the federal magistrate in Flagstaff, almost 200 dusty miles from her home. "As it turned out, the complaint was never filed with the magistrate in Flagstaff, which is what happens in a large majority of the cases where Navajos are victimized on the reservations by non-Indians," Chavez said.

In another case reported in The Christian Science Monitor, the local police arrested a man for raping a woman on the Pine Ridge Reservation in South Dakota. They could not charge the man with rape because in South Dakota only FBI agents or BIA police are empowered to charge a suspect accused of commiting a felony covered under the Major Crimes Act. The local authorities charged the man with public drunkenness in order to hold him until the federal authorities arrived. But anyone jailed on a minor charge has a right to bail or to a "temporary release" for time to pay his fine. The day after the arrest the man was out on a "TR." A young Sioux jailer shrugged, commenting with a bitter smile, "Of course, what it really means is that if the guy wants to sky out and go to places unknown, he can."

The chaos on the Mohawk Reservation this spring was an extreme example of jurisdictional confusion. In early April civil war erupted on the reservation, which straddles, the border between New York State and the Canadian provinces of Quebec and Ontario along the St. Lawrence River. When Mohawks who oppose gambling on the reservation set up road-blocks to keep outsiders out, members of the Mohawk Warrior Society, who favor gambling, squared off on the other side.

Almost 2,000 Mohawks fled the reservation during the last week in April, leaving the roads lined with burned cars and the remaining residents--including women and children--armed with guns and bats. The New York Times reported that the sound of AK-47 assault rifle fire and occassionally hand grenades could be heard on the reservation at night.

There had been a complete breakdown of law and order. Although hundreds of troopers from the New York State police and federal authorities surrounded the reservation, they could do nothing. A treaty between the Iroquois confederacy and the state of New York, signed in the early 1780s, prevented outside intervention.

Frontier injustice

The disappearance of suspects is a common occurrence in Indian country. Because federal authorities are often so slow in responding, it is not unusual for the trail to be stone cold by the time they begin to investigate. The FBI has tried to solve this problem by relying on BIA police. Yet the poor training of the BIA's police force often exacerbates the situation.

The Arizona Republic reported a recent case on the Fort Belknap Reservation in Montana where the BIA police waited 44 days before responding to a charge of incest and sexual abuse, from which a nine-year-old girl developed venereal disease. When they did investigate, the officers interviewed the frightened victim in the presence of her father even though he was suspected of the molestation. Not surprisingly, no charges were ever filed.

In another child molestation case, the BIA ignored repeated reports of sexual abuse by a remedial reading teacher at a BIA school on the Hopi reservation in Arizona. Only when the case came to the attention of other federal authorities was the teacher convicted on 142 counts and sentenced to life in prison.

"Law enforcement on Indian reservations is in serious trouble," the U.S. Department of Justice said in a report issued in the mid-1980s. "Most Indian reservations receive totally inadequate police services, given their size and extraordinarily high rate of crime. It is particularly embarrassing that this exists in an area of primarily federal responsibility."

The situation has not improved. Testifying before the House Committee on the Interior and Insular Affairs in April, Nicholas O'Hara, deputy director of criminal investigations for the FBI, conceded that the agency has only 43 agents, less than half the number it needs, to investigate major crimes on Indian reservations and to train tribal police forces.

According to Edward Reina, chief of police for Arizona's Salt River Pima-Maricopa Indian Reservation, in 1981 a single FBI agent was assigned to investigate eight reservation homicides. But when a non-Indian woman was found murdered on the reservation, dozens of federal and state investigators descended on the small community. Angered by the disparity, the tribe built a professional police force of its own, whose work has been accepted by federal prosecutors.

One of the first cases handled by the new group involved a Cahuli Indian named Albert Duro, who had been arrested by federal agents for killing Phillip Brown, a young Pima-Maricopa Indian blown off his bicycle by a shotgun blast as he rode down an isolated road on the reservation. Although the grand jury handed down an indictment against Duro for first-degree murder, the case was dismissed when the U.S. attorney's office declined to prosecute.

Frustrated in their attempts to bring the man accused of murdering Brown to justice, tribal officials filed a criminal complaint in tribal court charging Duro with discharging a firearm on the reservation in violation of the tribal code. The Federal District Court dismissed the action against Duro, ruling that a tribal court could not lawfully exercise jurisdiction over a nonmember of the tribe, and the Supreme Court upheld the District Court's decision.

The refusal of the U.S. attorney to prosecute Albert Duro is an example of the absolute power local U.S. attorneys possess over law enforcement on Indian reservations. When a major crime is committed in other areas and the U.S. attorney refuses to prosecute, state or local authorities can prosecute the crime as a felony under state law. But according to former U.S. Attorney Michael Hawkins the Major Crimes Act leaves most Indian tribes at the mercy of the local U.S. attorney, who has sole discretion over whether crimes committed on a reservation within his jurisdiction will be prosecuted. There is no further recourse for the tribe should he decide not to prosecute.

In most cases the U.S. attorney, who is often located in a large city hundreds of miles from the reservation, is completely out of touch with the social and cultural life of the Indian nations within his jurisdiction. In a 1981 report to Congress, then-FBI Director William Webster acknowledged that "a significant problem of federal prosecution is that in many districts with a large volume of crimes committed on Indian reservations, the prosecution of these matters is considered [by U.S. attorneys] ... as being undesirable work."

The situation is particularly bad in Idaho and Montana. In Montana, tribal representatives on almost all of the seven reservations have complained about the poor performance of the U.S. attorneys. Caleb Shields, a councilman of the Assiniboine and Sioux tribes from the Fort Peck Indian Reservation, says the U.S. attorneys in Montana "typically assign a low priority to the prosecution of offenses on Indian reservations. As a consequence, crimes are committed without fear of prosecution or punishment."

In Idaho, Indian and civil rights leaders have called for the resignation of U.S. Attorney Maurice Ellsworth, citing incidents in which Ellsworth refused to prosecute crimes committed against Indians. In one case, Ellsworth initially refused to prosecute an Anglo man accused of shooting up an Indian family's home with his rifle. The man was originally arrested by Kootenai County sheriff's investigators, but a state magistrate ruled that the state had no jurisdiction in the case because the alleged crime occurred on an Indian reservation.

Even federal judges have resisted aggressive prosecution of violent crimes on Indian reservations. According to William Lutz, U.S. attorney for New Mexico, federal judges pressed him to limit the number of violent Indian crimes his office prosecuted. "They feel as federal judges they should be hearing securities fraud and big international drug conspiracies," Lutz said. "They have asked our assistants why we have these cases."

Supreme Court press

James C. Nelson, the County Attorney for Glacier County, Montana, recently told the Senate Select Committee on Indian Affairs that the lack of adequate law enforcement has "made the life of many Indian and non-Indian people trying to live and raise their families in the reservation community a living hell."

Former Montana Senator John Melcher repeatedly tried to pass legislation that would have gone a long way toward alleviating some of the law enforcement problems on the reservations. The bill would have increased the number of federal magistrates, placed them on Indian reservations, and increased their investigative capabilities by authorizing them to use state, county, and tribal law enforcement officers in warrants, summonses, arrests, and trial procedures. The bill died when its principal sponsor was not reelected.

A small step toward improving federal enforcement was taken in August. Congress passed a law that establishes a separate criminal investigation branch within the BIA and for the first time authorizes BIA police to carry weapons, make arrests, and issue warrants. The BIA needed these changes, but they also simply need more funding. Theodore Quasala, the newly appointed chief of the BIA's Division of Law Enforcement Services, said "we don't have nearly enough resources to take care of what's going on out there."

A different solution being proposed by several Indian tribes is that criminal jurisdiction on reservations be transferred to the tribal governments. Claudeen Bates Arthur, former attorney general of the Navajo Department of Justice, said her tribe's position is that "it is appropriate for the Navajo nation to have complete jurisdiction over the people who commit crimes on this reservation whether they are a non-Indian or a Navajo."

Edward B. Martin, the former court administrator for the Judicial Branch of the Navajo Nation, contends that the tribe, which has its own police force of 130, could adequately handle this new responsibility without straining its present resources. While the Navajo tribe may be able to do so, the majority of other tribes' police and courts are trained to handle only minor intrareservation disputes and do not have the resources that would enable them to assume full criminal jurisdiction over their reservations.

The San Carlos Apache tribe, whose reservation is about 120 miles east of Phoenix, attempted to run its own law enforcement program in 1984. A subsequent Interior Department inspector general's report found that none of the police officers hired by the tribe had undergone background checks and that some had criminal records. Investigators also found that only three had basic police training, and that although the officers carried firearms, none were certified to do so by the state or federal government. The report concluded that "the safety and welfare of individuals on the reservation were in immediate danger" because of the police.

It is clearly a bad idea to transfer full criminal jurisdiction to all tribal governments today. Eventually, however, tribal governments should assume at least some criminal jurisdiction and lawmaking power over their reservations, just as state governments have over their states. Before this happens, more federal help will be needed to encourage the development of tribal judicial systems able to operate under proper constitutional procedures with advanced investigative skills.

Any solution must involve congressional action to enhance the powers of tribal authorities where needed. In addition, it's essential to have a meaningful federal training program for tribal police forces, and to put federal magistrates on reservations where requested by the tribes. Indians would also benefit from increased cooperation among the various law enforcement agencies now responsible for investigating and prosecuting violent crimes on reservations.

Foremost among all these considerations, as the facade on the Supreme Court building reminds us, is equal justice under law. As Chief Joseph of the Nez Perce told a congressional delegation more than a hundred years ago: "We only ask an even chance to live as other men live. We ask that the same law shall work alike on all men. If an Indian breaks the law, punish him by the law. If a white man breaks the law, punish him also."

Nicholas Hentoff, a criminal defense attorney in Phoenix, Arizona, recently completed a clerkship with a federal judge.
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Author:Hentoff, Nicholas
Publication:Washington Monthly
Date:Dec 1, 1990
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