Prosecutions rise in Indian Country

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New Mexico's outgoing U.S. attorney, Kenneth Gonzales

New Mexico's outgoing U.S. attorney, Kenneth Gonzales

The U.S. Department of Justice’s prosecution of cases in Native communities rose by more than 50 percent in recent years, according to a new report.

The DOJ’s first annual report on prosecutions in Indian Country, released in June, shows a jump from 1,091 cases in 2009 to 1,677 in 2012 – a 54 percent increase.

In New Mexico, a relatively new — and small — team of assistant U.S. attorneys (AUSA) focused specifically on Native communities is tackling prosecutions on the Navajo Nation, the Mescalero and Jicarilla Apache reservations, and the state’s 19 pueblos. The bump in prosecutions means Native communities are being better served by the federal government, said Kenneth Gonzales, U.S. attorney for the District of New Mexico.

“We have a huge responsibility to make sure that the delivery of services to the people who are entitled to them is being carried out,” he said. “That means safety, and in many instances, exacting consequences on people who are causing problems in these communities, whether that’s violent crime, domestic violence, child sexual abuse, drug trafficking, white collar crime, or embezzlement.”

Having read the brief media coverage of the report’s release last month (plus this excellent piece that ran in the Navajo Times), I wanted to understand more about what those numbers actually meant, and what the federal government’s role is with respect to crime and justice in Indian Country.

Legislation passed in the late 19th Century gives the federal government jurisdiction over certain cases, including murder, manslaughter, rape, aggravated assault and child sexual abuse on tribal lands. The feds also have jurisdiction over many drug cases and financial crimes.

The DOJ team in New Mexico came out of a 2009 directive from the White House to improve efforts in Indian Country. Then, the following year, Congress passed the Tribal Law and Order Act, which expanded tribal sentencing authority; that means more cases may be transferred to tribal court for prosecution.

In New Mexico, each tribal community has its own courts and judges; many of these systems center on traditional practices and community or restorative justice. (Nationwide, the majority of crimes are handled by tribal courts.)

In response to the new law — passage of which was supported by tribal leaders who felt the federal government wasn’t sharing case information or explaining why it declined to prosecute so many cases — DOJ has tried to strengthen its relationship with tribes and improve coordination and training.

Under the 2010 law, DOJ must also report annually to Congress about how many criminal cases it is handling in Indian Country, and provide context for the cases it declines to prosecute. The department declines cases for a number of reasons, including a lack of evidence, reluctance of victims to testify, or when investigation into a case shows that a crime wasn’t actually committed.

The rise in numbers doesn’t necessarily mean more crimes are being committed; it just means that DOJ is prosecuting more of them. Higher prosecution rates are tied to a variety of factors including the ability of officers to collect evidence, the willingness of victims and witnesses to testify, and the dedication of more resources by both DOJ and the Federal Bureau of Investigations (FBI).

A ‘click or two above the national average’

Speaking just before he leaves the job — he’ll soon become a federal judge in Las Cruces — Gonzales seemed happy to spend time in his downtown Albuquerque office explaining his office’s efforts in Indian Country. As a New Mexican himself, he said he’s invested in the well-being of the state’s communities and proud of the work the AUSA’s are doing.

The number of cases DOJ is resolving in New Mexico is a “click or two above the national average,” Gonzales said — and he attributes that success to better communication between DOJ and tribal officials, including those in law enforcement, government, courts, social services and schools.

“Having a constant dialogue means stepping away from the case file, leaving the office, and actually going and meeting face-to-face with people,” he said.

In addition to prosecuting cases, DOJ also offers training for federal, state, county, and local law enforcement officers; tribal judges; social workers; and others.

“And it’s making a difference, particularly in regard to our first responders,” said Supervisory AUSA Glynette Carson-McNabb. “In law enforcement cases, it makes a difference in the quality of cases we’re getting, which only makes us more successful in providing the public safety these communities deserve.”

Training and outreach

On the law enforcement side, the FBI is also focused on training and outreach. In New Mexico, 16 agents focus specifically on Indian Country. Those agents receive special training, said Ben Bourgeois, supervisory special agent in charge of the FBI’s Indian Country Squad.

“Indian Country cases are not typical cases; it’s almost police work because you have to know how to handle a crime scene, interview and interrogate people, and have specialized training in things like evidence collection,” Bourgeois said, noting that the remoteness of many of the communities is a challenge. He added that the FBI works closely with tribal and U.S. Bureau of Indian Affairs police officers.

The FBI assigns a Victim Specialist to each case to offer counseling and other assistance to crime victims on reservations. Its agents also visit communities, giving presentations at schools about issues like sexual assault.

“When school starts up, we do presentations on the FBI, what we do, and what our role is. That’s when we start getting calls from teachers and others, and that’s a big advantage for us,” Bourgeois said. “Those presentations get the word out to the bad guys, too — that we’re out there and we do respond.”

He said there’s no bias that the tribes can’t conduct their own investigations and carry out justice within their own communities. But by and large, he said, the tribes often lack manpower and resources.

“Overall, we’re a lot more thorough, but not for the lack of trying on the part of the tribal police,” said Bourgeois. “But we have the training, tools and equipment. They’re stretched more thin than we are.”

Bourgeois said television programs give federal agents a bad rap. “They portray the FBI like we show up at the crime scene and take control and tell everyone to go away,” he said. “We don’t do any of these jobs ourselves, but always with our partners. They have good technicians, and also they know the country, the terrain, and the people. Why would we go in and push them aside?”

One thought on “Prosecutions rise in Indian Country

  1. One of the huge problems is that federal agents–both law enforcement and prosecutors–advance with big drug and corruption cases. Street crime, especially child and spousal abuse, that was handed over to the feds in the Major Crime Act–is not usually part of their training or orientation. And they are not “almost” doing police work, they ARE doing police work. It’s ridiculous to have only 16 agents working 22 Indian reservations. I hope you do more in depth reporting on this really important and really overlooked topic. By the way, the tribal courts are courts of limited jurisdiction. I believe that their maximum incarceration sentence is 1 year (could be 2). The other thing tribal courts can do is banish someone from the reservation.

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