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Clarkson: Justice declined

For more than a decade, Lonnie Oglesbee, a white man married to an Indian woman, sexually terrorized his entire family on the Eastern Cherokee reservation in North Carolina. If his wife complained about the rapes and beatings with a baseball bat, he shocked her with a Taser. While raping his wife, he would force his teenage daughters to stand by so he could fondle their genitalia to compensate for his erectile dysfunction. Afterward, he would show his family his AK-47 and threaten to kill them if they ever left him or told anyone.

Despite those threats, his wife finally reported the incidents to tribal police. Eastern Cherokee prosecutor James Kilbourne wanted to take the case, but the tribe did not have criminal jurisdiction over the non-Indian husband. Local and state authorities didn't have jurisdiction either because the victims were Indians.

In 21st century America, how is it that the race of a perpetrator and victim determines the availability of justice on Indian reservations? Although the federal government recognizes Indian tribes as sovereign nations, Congress and the Supreme Court have severely restricted tribes' ability to protect their citizens from violent crime.

The first blow came in 1885, when the Major Crimes Act declared that the federal government - not Indian tribes - had jurisdiction over murders, rapes and felony assaults involving Indians. Then, in 1978, the U.S. Supreme Court further stripped tribes of criminal jurisdiction over non-Indians in Oliphant v. Suquamish Indian Tribe. The legacy of that fundamentally flawed decision is a jurisdictional void that facilitates an epidemic of violence against Indian women and children.

On most reservations today, tribes prosecute misdemeanors committed by Indians, and the state prosecutes crimes committed by non-Indians against non-Indians. But when a non-Indian victimizes an Indian, only U.S. attorneys can file charges.

The problem with this system is that U.S. attorneys often don't pursue such cases. In fact, they decline to prosecute crimes committed on reservations nearly twice as often as those committed off-reservation, according to Justice Department data recently analyzed by The Wall Street Journal. Six states (including California) were given criminal jurisdiction over Indians by Congress in 1953, but prosecutors in those states turn down cases at similarly high rates, according to preliminary findings from research under way at UCLA.

Federal law enforcement officials interviewed for a recent National Public Radio story suggested that rape and assault cases simply aren't priorities for U.S. attorneys, who also work on terrorism, organized-crime and drug-trafficking cases.

I know of a number of U.S. attorneys, however, who want to prosecute domestic violence cases, but the statutory hurdle is so high that a broken nose is insufficient grounds for a felony assault charge. The federal definition of ''serious bodily injury'' requires a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty in order to qualify as a felony.

In most incidents, domestic violence cases wind up classified as misdemeanors, which means that they rarely, if ever, are prosecuted. U.S. attorneys also understandably decline cases they clearly can't win because of lack of evidence or the unwillingness of a victim to testify.

In reality, no one knows exactly how many Indian reservation rape or assault cases are referred to federal prosecutors, or how many of those go to trial. No system exists to track such cases, and no meaningful data-sharing between tribal and federal authorities occurs. My own research is directed at remedying this information asymmetry, but until the database is complete, we can only speculate as to why cases aren't prosecuted. The likely explanations are: a) federal prosecutors are willing and able to prosecute, but the statutory thresholds are too high for federal crimes; b) federal prosecutors are understaffed and do not have the capacity to cover Indian country adequately; c) the problem is exaggerated; d) federal prosecutors are just uninterested; or e) some combination of the above.

The heinous nature of Oglesbee's crimes did meet the federal felony requirement, and as soon as U.S. Attorney Gretchen Shappert's office was alerted to these crimes, her office began a vigorous prosecution. With the availability of the victim's testimony, Assistant U.S. Attorney Don Gast successfully tried and convicted the perpetrator on 13 counts of assault, sexual abuse and kidnapping, with a resulting sentence of life imprisonment, no parole.

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The U.S. attorney's office for the Western District of North Carolina appears to be the exception to the perception that non-Indian on Indian crime is a low priority for U.S. attorneys. They are one of the few offices that aggressively pursue Indian country crime, including misdemeanor domestic violence cases. Another such exception is the U.S. attorney's office for the Western District of Michigan. I'm sure there are others who are trying to make the best of a bad situation, but the hurdles are high.

The bottom line is that the current jurisdictional void generally denies Indian women and children any meaningful protection under the law, and the criminals know it.

Chickasaw Nation Police Chief Jason O'Neil said predators strut through Indian country as if they were in ''a lawless community, where they can do whatever they want.'' Former Sen. Ben Nighthorse Campbell, R-Colo., put it this way: ''The word is out that people can get off the hook, so to speak, if they are not Indian.''

Indian women are victimized at astonishingly high rates - two and one-half times the national average, according to Justice Department data. More than one-third of all Indian women will be raped at least once during their lifetimes, and nearly two-thirds will be violently assaulted. Nearly 90 percents of rapes and sexual assaults involve non-Indian assailants.

Other fallout from the Oliphant case is equally disastrous. To exploit the jurisdictional void, some pedophiles became teachers in BIA schools where they had little or no fear of prosecution even after being caught molesting Indian kids. Non-Indian drug gangs have also discovered this legal loophole and have set up methamphetamine operations on reservations. Other non-Indian drug traffickers have intentionally married Indian women to establish themselves on reservations where their risk of prosecution is lowest. According to The Associated Press, a Mexican drug cartel planted 40,000 marijuana plants on the Yakima reservation.

The Oliphant decision, roundly criticized for years, is the primary cause of this tragedy. But Congress is not without blame. The Supreme Court specifically acknowledged that Congress could fix this jurisdictional void, yet legislators have never taken action. Congress only recently allocated funds to study the problem.

Regardless of the cause, the most logical remedy is quite simple: Substitute the word ''persons'' for the word ''Indians'' in one sentence of the Indian Civil Rights Act.

That small change would allow tribes to prosecute anyone, Indian and non-Indian alike, who commits a crime on Indian land. Tribal and federal prosecutors could then work complementarily, just as state and federal prosecutors do. The restrictions on tribal sentencing authority under ICRA would still be an issue, and Congress should fix that problem as well.

Why should a non-Indian who molests an Indian child or rapes an Indian woman be able to escape justice merely by committing the crime on a reservation?

Congress has fixed other jurisdictional voids created by Supreme Court decisions. It should do so again, and soon. Indian women and children cannot afford to wait another 30 years for justice.

Dr. Gavin Clarkson, Choctaw Nation of Oklahoma, is an assistant professor in the University of Michigan School of Information, School of Law, and Native American Studies.