Mr. Chairman, I offer an amendment. Mr. Chairman, I rise to offer an amendment to ensure that the U.S. Attorney General appoints attorneys to assist in enforcing Federal law when it comes to public interest as outlined in 28 U.S.C. 542 and…
Mr. Chairman, I offer an amendment.
Mr. Chairman, I rise to offer an amendment to ensure that the U.S. Attorney General appoints attorneys to assist in enforcing Federal law when it comes to public interest as outlined in 28 U.S.C. 542 and 28 U.S.C. 543. It is in the public's interest to prosecute crimes committed against Native women, including domestic violence, sexual assault, stalking and dating violence. As they take on this task, I also urge them to consult with tribes as practiced and required under Executive Order 13175.
As we know, there are 4 million American Indian and Alaska Native people throughout the United States, and jurisdictional questions today are preventing the enforcement of Federal laws. Indian women suffer 2\1/2\ times more domestic violence and 3\1/2\ times more sexual assaults than the rest of the American population. An Amnesty International report showed that 86 percent of these crimes are committed by non-Indian men, and the law prevents Tribal courts from prosecuting them.
As a former prosecutor, I was shocked that the majority of criminals go unpunished. Justice Department data compiled by Syracuse University showed that in two decades, only 30 percent of tribal land crimes referred to U.S. Attorneys were ever prosecuted. I would like to see U.S. Attorneys consult with the tribes and work to enforce Federal law, especially when it comes to crimes of domestic violence, stalking and sexual assault. And ensuring that U.S. Attorneys appoint special attorneys to assist in prosecuting these Federal laws is imperative.
I will include for the Record information from a Wall Street Journal article entitled, ``Tattered Justice on U.S. Indian Reservations, Criminals Slip Through Gaps.'' It is time we close those gaps, and I urge U.S. Attorneys to act with dispatch in this regard.
[From the Wall Street Journal, June 12, 2007]
On U.S. Indian Reservations, Criminals Slip Through Gaps
(By Gary Fields)
Cherokee, N.C.--Jon Nathaniel Crowe, an American Indian,
had a long-documented history of fighting with police
officers and assaulting women. But the tribal court for the
Eastern Band of the Cherokee, under whose jurisdiction he
lives, couldn't sentence him to more than one year for any
charge. Not when he left telephone messages threatening to
kill an ex-girlfriend, not when he poured kerosene into his
wife's mouth, not when he hit her with an ax handle.
``We put him away twice for a year, that's all we could
do,'' says James Kilbourne, prosecutor for the tribe. ``Then
he got out and committed the same crime again.''
Indian tribes are officially sovereign nations within the
U.S., responsible for running services such as schools and
courts. But a tangle of federal laws and judicial precedents
has undermined much of their legal authority. As a result,
seeking justice on Indian reservations is an uneven affair.
Tribes operate their own court systems, with their own
judges and prosecutors. Sharply limited in their sentencing
powers, they are permitted to mete out maximum jail time of
only 12 months for any crime, no matter how severe. The law
also forbids tribal courts to prosecute non-Indians, even
those living on tribal land.
Federal prosecutors can intervene in serious cases, but
often don't, citing the long distances involved, lack of
resources and the cost of hauling witnesses and defendants to
federal court. In the past two decades, only 30% of tribal-
land crimes referred to U.S. attorneys were prosecuted,
according to Justice Department data compiled by Syracuse
University. That compares with 56% for all other cases. The
result: Many criminals go unpunished, or minimally so. And
their victims remain largely invisible to the court system.
The justice gap is particularly acute in domestic-violence
cases. American Indians annually experience seven sexual
assaults per 1,000 residents, compared with three per
1,000 among African-Americans and two per 1,000 among
whites, says the Justice Department. The acts are often
committed by non-Indians living on tribal land whom tribal
officials cannot touch. Local prosecutors say members of
Indian communities have such low expectations about
securing a prosecution that they often don't bother filing
a report.
``Where else do you ask: How bad is the crime, what color
are the victims and what color are the defendants?'' asks Mr.
Kilbourne, who has prosecuted cases on Cherokee lands since
2001. ``We would not allow this anywhere else except Indian
country.''
The lack of prosecutorial discretion is one of many ways in
which Indian justice has been split off from mainstream
American due process. For example, some defendants appearing
before Indian courts lack legal counsel, because federal law
doesn't require tribes to provide them with a public
defender. Although some tribes have them, others can't afford
to offer their members legal assistance. It's not unusual for
defendants to represent themselves.
The Indian Civil Rights Act, passed by Congress in 1968,
limited to six months the sentences tribes could hand down on
any charge. At the time, tribal courts were seeing only minor
infractions. Congress increased the maximum prison sentence
to one-year in 1986, wrongly assuming that the Indian courts
would continue to handle only misdemeanor-level crimes.
Tribal offenses, meanwhile, escalated in both number and
severity, with rape, murder and kidnapping among the cases.
The Supreme Court weighed in on another level, with its
1978 Oliphant decision ruling that tribes couldn't try non-
Indian defendants in tribal courts--even if they had
committed a crime against a tribe member on the tribe's land.
In its ruling, the court held that it was assumed from the
earliest treaties that the tribes did not have jurisdiction
over non-Indians.
``If you go to Canada and rob someone, you will be tried by
Canadian authorities. That's sovereignty,'' says University
of Michigan law professor and tribal criminal-justice expert
Gavin Clarkson. ``My position is that tribes should have
criminal jurisdiction over anybody who commits a crime in
their territory. The Supreme Court screwed it all up and
Congress has never fixed it.''
Jeff Davis, an assistant U.S. Attorney in Michigan who
handles tribal-land cases, acknowledges that his hands are
often tied. Mr. Davis is also a member of North Dakota's
Turtle Mountain Band of Chippewa. ``I've been in the U.S.
Attorney's office for 12 years, and both presidents I have
served under have made violent crime in Indian country a
priority. But because of the jurisdictional issue and
questions over who has authority and who gets to prosecute,
it is a difficult situation.''
Often cases don't rise to the level of felony federal
crimes unless the victim has suffered a severe injury.
Federal prosecutors have limited resources and focus almost
exclusively on the most serious cases.
Compounding that is the fact that domestic-abuse cases are
difficult to prove, especially if the lone witness recants.
``It requires stitches, almost a dead body,'' says Mr.
Davis. ``It is a high standard to meet.''
For some non-Indians, tribal lands are virtual havens.
Chane Coomes, a 43-year-old white man, grew up on the Pine
Ridge Reservation in South Dakota--home to the Oglala Lakota,
near the site of the infamous 1890 massacre at Wounded Knee.
Marked by a small obelisk, the mass grave is a symbol of
unpunished violence, literally buried in the soil of the
tribe. The 2000 census documented Shannon County, which
encompasses the remote and desolate reservation, as the
second-poorest county in the U.S., with an annual per-
capita income of $6,286 at the time. Only Buffalo County,
S.D., was poorer.
According to local authorities, Mr. Coomes used his home on
the reservation as a sanctuary, knowing he would be free from
the attentions of tribal prosecutors.
Tribal Police Chief James Twiss says Mr. Coomes was
suspected of dealing in small amounts of methamphetamine for
years. Tribal police also thought he might be trafficking in
stolen goods.
In 1998, Mr. Coomes assaulted a tribal elder, Woodrow
Respects Nothing, a 74-year-old decorated World War II and
Korean War veteran. Because it couldn't prosecute, the tribe
ordered Mr. Coomes off its land. But attempts to remove him
were unenforceable.
``All I could do was to escort him off the reservation,''
says tribal police officer Eugenio White Hawk, who did that
several times, the last when he spotted the banned man
hauling horses in a trailer. ``He kept coming back. After a
while I just left him alone and let it go. It was just a
waste of time.''
Mr. Coomes remained in his Shannon County home until 2006
when he was accused of beating his estranged wife in nearby
Nebraska and threatening to kill her, according to Dawes
County District Attorney Vance Haug. The crime was committed
off the reservation, and the subsequent investigation gave
state authorities official jurisdiction.
After raiding his home, they found stolen equipment as well
as 30 grams of methamphetamine and $13,000 hidden in the
bathroom, along with syringes.
Mr. Coomes is now in the Fall River County Jail charged
with possession of stolen property, grand theft and
unauthorized possession of a controlled substance. He also
faces separate charges, of assault and ``terroristic
threats'' related to his wife, in Dawes County, Neb. If
convicted on the latter charges, he faces up to six years in
prison, Mr. Haug said. Mr. Coomes's attorney declined to
comment.
The jurisdictional quagmire also has implications for
Indian members on the other side of the tribal border. Gene
New Holy, an ambulance driver on Pine Ridge, had been
arrested by the tribe more than a dozen times for various
drunk-driving offenses, for which he received only two
convictions totaling about a month in a tribal jail. In state
court, four convictions would have led to a maximum sentence
of five years.
Lance Russell, the state prosecutor for Shannon County and
neighboring Fall River County, had never heard of Mr. New
Holy until Feb. 11, 2001, when Mr. New Holy got drunk at a
Fall River County bar. According to court documents, he
nearly hit one car on a main highway, forced two others into
a ditch and sideswiped a third that had pulled off the road
as Mr. New Holy approached it in the wrong lane.
The last car he hit contained three tribe members--cousins
Bart Mardinian, Anthony Mousseau and Russell Merrival-- all
of whom died. The accident was less than a mile off the
reservation, enough to give Mr. Russell and the state
jurisdiction in the case. Mr. New Holy is serving 45 years in
state prison for three counts of vehicular homicide--much
longer than the 12 months per count he would have served
under tribal law. His attorney didn't return a call
seeking comment.
``The holes in the system are more practical than legal,
and the victims of crime pay the price,'' says Larry Long
III, the South Dakota attorney general. ``The crooks and the
knotheads win.''
The Eastern Band of Cherokee, located in the Smoky
Mountains of North Carolina, is one of the most efficiently
run tribes in the country. Its ancestors hid in these
mountains while Cherokee east of the Mississippi River were
forcibly moved to present-day Oklahoma, a migration known as
the ``Trail of Tears.'' Today the tribe is spread across five
counties and is economically well off: It takes in more than
$200 million annually from the Harrah's Cherokee Casino &
Hotel, which it owns, and has a robust tourist industry.
About half of the tribe's gambling spoils go to pay for
infrastructure and government services.
Its court, which is housed in a prefabricated building,
looks like any other in the U.S., except the judges wear
bright, red robes. The offices, while cramped, are modern and
computerized, and are a little over one hour's drive from the
federal prosecutor's office in Asheville. Tribal authorities
meet regularly with federal prosecutors for training. The
tribe's top jurist is a former federal prosecutor who has
regular contact with his successors.
Yet even here, the justice system works erratically. In
2005, tribal police received a tip that James Hornbuckle, 46,
an Oklahoma Cherokee who had moved to the reservation, was
dealing marijuana. Officers built a case for weeks. They
raided the business and then Mr. Hornbuckle's home, where
they found 10 kilograms of marijuana, packaged in small
bricks. By tribe standards, it was a big haul, and
authorities approached the U.S. Attorney's office.
Gretchen Shappert, U.S. Attorney for the Western District
of North Carolina, says federal sentencing guidelines for
marijuana are so lenient, that ``we'd need 50 kilograms in a
typical federal case'' to pursue it. The feds rejected the
case.
If the state court had jurisdiction to prosecute the crime,
Mr. Hornbuckle might have received a three-year term.
Instead, he pleaded guilty to the marijuana charge and was
sentenced to one year in tribal court. Recently the tribal
council voted to permanently ban him from the reservation,
with backing from the feds. Messages left for Mr.
Hornbuckle's attorney weren't returned.
Mr. Crowe's name is all too familiar on the reservation.
Tribal Police Chief Benjamin Reed has known him since he was
a juvenile. ``What I remember is his domestic-violence
incidents. He just wouldn't stop,'' Mr. Reed says.
Crystal Hicks, who dated Mr. Crowe before his marriage,
says the tribal member was verbally abusive. She says she
left him after she had a miscarriage, when he berated her for
not giving him a ride to a motorcycle gathering. ``He said I
was using the miscarriage as an excuse,'' says Ms. Hicks, 27
years old.
After that, in several telephone messages saved by Ms.
Hicks and her family, Mr. Crowe threatened to kill them and
bury Ms. Hicks in her backyard. He was jailed by the tribe
and ordered to stay away from the Hicks family.
``One year,'' says Ms. Hicks. ``He even told me he was fine
in jail. He got fed three times a day, had a place to sleep
and he wasn't going to be there long.''
After he married, the violence escalated, says Police Chief
Reed. During one incident he drove to the home Mr. Crowe
shared with his wife, Vicki. ``He had threatened her, and dug
a grave, and said no one would ever find her. We believed
him,'' Mr. Reed said. ``Just look at some of the stuff he'd
done. That girl was constantly coming down here, her face
swollen up.'' At one point, he choked his wife, poured
kerosene into her mouth and threatened to light it, police
reports say. Mr. Crowe's attorney didn't return calls seeking
comment.
None of these acts led to more than one year in jail, a
sentence he has been given twice since 2001. His criminal
file at the tribal court building fills a dozen manila
folders. There are reports of trespassing and assault
convictions, telephone harassment, threats and weapons
assaults--one for an incident when he hit his wife with an ax
handle, breaking her wrist. His latest arrest, in September,
came about a week after he finished his most recent sentence,
when he came home and beat his now-estranged wife--again.
After seven years, his crimes finally triggered federal
involvement, although almost by accident. Federal prosecutors
from around the country met at Cherokee earlier this year to
discuss crime on tribal land. One federal official mentioned
to Mr. Kilbourne, the tribal prosecutor, a new statute that
allows federal intervention where defendants have at least
two domestic-violence convictions, regardless of the crime's
seriousness.
Mr. Kilbourne, who was preparing for a new trial against
Mr. Crowe the following week, quickly turned the case over.
Mr. Crowe pleaded guilty to assault last Friday and is
awaiting sentencing.
Corrections and Amplifications
The attorney for James Hornbuckle, a Cherokee who was cited
in this article, couldn't be reached for comment. This
article incorrectly says his attorney didn't return calls
seeking comment.
Mr. Chairman, I ask unanimous consent to withdraw my amendment.