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Monteau: Will new crime effort make an impact?

The U.S. Department of Justice delivered its report on Indian country crime at the National Congress of American Indians midyear meeting.

I always experience a modicum of fear whenever DOJ decides to put an emphasis on crime in Indian country as it’s usually followed by a slew of tribal leader indictments.

I always experience a modicum of fear whenever DOJ decides to put an emphasis on crime in Indian country as it’s usually followed by a slew of tribal leader indictments. Remember the big raid at Coyote Valley a few years ago where the chairwomen, most of the council and their family members were indicted for theft from the tribal casino and myriad other crimes. The raid was a coordinated effort from the DOJ, FBI, National Indian Gaming Commission, BIA, State Police and the State of California Gaming Division. It was touted as the first big action by the federal governments’ new joint task force on Indian country crime.

Tribal records, tribal property, tribal computer information as well as private property were seized. Families, including children and senior members of the tribe, were kept captive for most of the day, some at gunpoint and handcuffed while their homes were torn apart. To date there have been no convictions in that case and the “last” defendant, tribal chairwoman Priscilla Hunter, pleaded guilty this month for failure to file an income tax return.

I wrote a column about this in Indian Country Today in July 2004. As a result of the raid the chairwomen and most of the council lost their seats and have not regained them. The net result of the raid at Coyote Valley was that the federal government influenced a forced change in tribal government, a “coup” so to speak. No apologies, not even a “my bad” from the feds. Some of the alleged “crimes” were based on not flying business class and not staying in cheaper hotels and not eating at cheaper restaurants.

Around the same time as the Coyote Valley debacle I took evidence of a major theft from an Indian casino to the federal joint task force and they refused to pursue it, characterizing it as a “contract dispute” between the tribe and its gaming management contractor. There was a contract dispute but that did not belie the fact that there was also a “conversion” of tribal property and money in violation of federal criminal law. The feds gave the non-Indian perpetrators a pass despite having jurisdiction under no less than three statutes.

Outside of well-educated grave robbers and tribal leaders, what is the new federal thrust going to be?

Last year, I turned over to the U.S. Attorney information regarding a theft from an Indian casino in New Mexico that may have exceeded $1 million dollars. The NIGC and U.S. Attorney refused to pursue it. They said it falls under State of New Mexico criminal jurisdiction because the pueblo “gave” the state federal jurisdiction. The Indian Gaming Regulatory Act only allows the shift of criminal jurisdiction to the state for “gaming” related offenses. Any other criminal jurisdiction can only pass by utilizing P.L. 280. Tribes can’t give away federal jurisdiction any other way, especially jurisdiction over major crimes. The feds still have jurisdiction over the crime but refuse to exercise it. To my knowledge no one has ever been prosecuted despite the existence of reams of evidence.

I commend Secretary Salazar and Assistant Secretary for Indian Affairs Larry EchoHawk for the new initiative to prosecute non-Indians for what is essentially Indian grave robbing. It is abhorrent behavior and also a criminal act under federal law. It is not a “hobby” or a “family activity” as it is being characterized by the non-Indian Utah community. They apparently view stealing Indian remains and grave goods as a “legacy” activity which should be taught to the following generations. The GOP members of the Utah Legislature apparently support that characterization. A lot of the indignation surrounding the indictments results from the suicide of two perpetrators, one a doctor. The family loss is tragic. However, we Indians know that if you disrespect the spirits, you should not be surprised with the consequences.

So, outside of well-educated grave robbers and tribal leaders, what is the new federal thrust going to be? I doubt the rapists, drug dealers, murderers, arsonists, wife beaters and child molesters are trembling in their boots. As the new Dean of the New Mexico School of Law Kevin Washburn (Chickasaw) suggested in his scholarly article on the subject, there is probably nothing short of returning full criminal jurisdiction to the tribes that is going to have any real effect on crime in Indian country. Federal and state prosecutors in P.L. 280 states certainly haven’t been able to make an impact.

A pending study on Indian country crime being done by UCLA professor Carole Goldberg will, I predict, tell us how ineffective the current labyrinth of federal, tribal and state criminal jurisdiction has been.

I would say Washburn’s right on. A pending study on Indian country crime being done by UCLA professor Carole Goldberg will, I predict, tell us how ineffective the current labyrinth of federal, tribal and state criminal jurisdiction has been.

Not only should tribal courts exercise criminal jurisdiction over all individuals, property and territory within their jurisdiction, but they should be able to sentence criminals to federal prison after they are tried in court with a law-trained judge and represented by a free attorney if they can’t afford one. Tribal judges should have full discretion in sentencing. Mandatory sentencing has been a dismal failure. We who live in Indian country know that we can put an army of police officers on the street and put in place a “Cadillac” tribal court system but with no access to federal resources to try, incarcerate, or divert offenders, we are fighting a losing battle.



Harold Monteau is a Chippewa Cree lawyer living on the Coeur d’Alene reservation in Idaho. He is the former chairman of the National Indian Gaming Commission. He can be reached at hamlaw@live.com.