Sunday, June 5, 2011

US Declines to Try Half of Native Crimes

Below is an interesting story from the Associated Press regarding the Federal Government's failure to prosecute crimes within Indian Country. The violent crimes referenced are those that included some type of physical injury.  However, a definition of "violence" includes: an unjust or unwarranted exertion of force or power, as against rights or laws. Something to think about as the Protest at the Tribal Leaders Conference nears.
The arbitrary and capricious acts of those in power to strip and/or deny targeted individuals or groups of rights or laws guaranteed by state, tribal, or federal actions are acts of violence. Just as the acts referenced in the story below, the federal government must remove itself from its practice of declining to prosecute such actions less the number of crimes continue to rise and those suspected of such crimes continue to walk free to violate again.

There was swelling on the little girl's skull and hemorrhages around her brain. There was a tear between her right ear and scalp. The scars on her 36-pound body were consistent with burns from a space heater, a curling iron and hot noodles.

The mother said she had accidentally rolled over onto her daughter in bed, smothering her. The medical examiner concluded that the brown-eyed toddler with the wavy dark hair had been beaten, declaring her death a homicide.

Had 2-year-old Kiara Harvey died elsewhere the case likely would have been handled by the county sheriff or police, and the local district attorney.

But Kiara was a Navajo and she lived on the expansive Navajo Nation. On tribal lands, only federal prosecutions can lead to serious penalties for major crimes involving Native Americans. Those prosecutors, however, end up declining to pursue half of the cases nationally.

"No one speaks for that baby," said Bernadine Martin, the Navajo Nation's chief prosecutor. "It's OK to kill her and go on because prosecutors apparently don't want to put a little more effort into investigations."

In the Arizona portion of the Navajo Nation, which also stretches into New Mexico and Utah, Kiara's case was one of 37 that federal prosecutors declined to take during a 9-month period last year, an Associated Press review found.

Among all tribes in Arizona during the same period, there were 122 such cases. The overwhelming majority were alleged sex crimes that included rape and abusive sexual contact, followed by assaults. Nineteen cases involving deaths were rejected.

The AP's analysis found the reasons to be both complicated and frustratingly similar, and perhaps as exasperating to federal prosecutors as they are to tribal authorities. They cited poor evidence, reluctant witnesses and jurisdictional issues.

Federal authorities "want to prosecute the individual, they want to get a stiff sentence, they want to go to trial, so declining it is tough," said Arizona U.S. Attorney Dennis Burke, whose office issued the letter saying that it would not take the Kiara Harvey case.

"It's not a process that leaves anyone with any comfort," he said.

Whatever the reasons, no one disputes that many people suspected of violent crimes are walking free on reservations, or are lightly punished under tribal laws that allow only a year in jail — or up to 3 years if the tribe has trained judges and tribal courts can guarantee that defendants get legal aid.

The Arizona letters provide a window into a much larger government study of Department of Justice records in which 50 percent of the 9,000 cases filed from tribal lands during fiscal years 2005-2009 were declined.

In the study, 42 percent of rejections were attributed to weak or insufficient admissible evidence; 18 percent to "no federal offense evident;" and another 12 percent to witness problems.

In the AP's Arizona review, the reasons — many cases cite more than one — were:
• 59 percent cited insufficient or inadmissible evidence. That could mean anything from inferior investigations by law enforcement to inadequate crime scene preservation.
• 27 percent cited witness problems, which can include witnesses recanting, being viewed as not credible, or simply disappearing.
• 16 percent cited a lack of jurisdiction, which can speak to the level of a crime. For example, the injuries of a detention sergeant beaten by an inmate weren't serious enough to be a federal crime.
The Government Accountability Office's study was published after a change in federal law last summer meant to bolster justice on tribal lands. The report was produced at the behest of the U.S. Senate Committee on Indian Affairs led by then-Sen. Byron Dorgan, D-North Dakota. Former U.S. attorneys testified that reservation cases were often not treated as a priority, Dorgan told the AP in an interview before the bill was passed. "In many cases, it didn't get done. The result is that violent crime continues and those that commit them don't get prosecuted." DOJ officials don't like being measured by declination rates.

"Unfortunately, federal declination numbers on face value, without full context, are not an appropriate measure of whether justice was served," DOJ spokeswoman Jessica Smith said. The numbers don't capture the reasons cases are rejected and miss those that are prosecuted outside the federal system, she said.

The declination rate for other federal cases, which can include terrorism, environmental violations or corruption, is not directly applicable since they are so different from the types of cases in Indian Country, said David Maurer, who helped author the GAO study.

The Justice Department has reported that the crime rates experienced by Native Americans are two and a half times higher than those experienced by the general population, and that violent crime happens in Indian Country at a rate of 101 per 1,000 persons.

Federal prosecutors in South Dakota and Arizona had the largest number of cases reported from Indian Country. Each comprised some 24 percent of the total national caseload, according to the GAO report.

Arizona has 12 federally recognized tribes, with the Navajo Nation being the largest in number and land area. Federal prosecutors received 2,538 cases and declined 38 percent of them. South Dakota has seven federally recognized Indian tribes, including the well-known Oglala Sioux at Pine Ridge and Rosebud Sioux at Rosebud. Federal prosecutors there received 2,414 cases, declining 61 percent.
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