From the Wenatchee News:
NESPELEM — Charlene Bearcub looks out her office window in Nespelem and does not see justice.
A probation officer for the Confederated Tribes of the Colville Reservation, Bearcub lost her son to a gun nearly five years ago.
A few blocks away, she can see the small, gray house where her oldest son, Ronald D. Thomas Jr., was shot and killed Jan. 12, 2005.
Next to her office sit two pale yellow prefabricated buildings which house Colville Tribal Court, where a tribal jury acquitted the teenager arrested and charged with her son’s homicide.
They were both 18, and best friends.
Even if he had been convicted, the boy would have spent only a year in jail for the crime, at most, because he was tried in tribal court. Under terms of the Indian Civil Rights Act of 1968, no tribe may impose punishment greater than one year imprisonment. Serious crimes — like rape and murder — are supposed to fall to federal agents to investigate, and the U.S. Attorney for prosecution. But when the U.S. Attorney declines to prosecute, the only other option is tribal court.
Those who work with the Colville Tribal Court — lawyers, judges and advocates — say it’s good at what it was designed to do. Judges focus on healing and rehabilitation. Offenders might be required to research their heritage, take part in ceremonies or work with tribal elders who have the knowledge of traditional ways.
A Peacemaking Circle, now being developed, will eventually keep some cases out of court altogether, resolving them instead with guidance from elders.
But when faced with serious crimes, tribal police and their courts are not as well equipped, tribal leaders say. The Colville tribal chairman, a deputy prosecutor and Bearcub, as a probation officer, all say the one-year limit on punishment, combined with a tendency by the federal government not to prosecute crimes on reservations, gives criminals the impression that serious crimes often don’t result in serious punishments.
“We’re suffering here,” said Colville Tribal Chairman Michael Finley. He said the Bureau of Indian Affairs funds only about half of the tribe’s actual needs for law enforcement. And federal prosecutions are infrequent.
“We’ve had a repeat rape offender in and out of our tribal court for a long time. He keeps getting slapped on the hand. Had that happened 20 miles to the east, he’d still be locked up. But since he’s within the boundaries of the reservation, he seems to be able to do this at will,” Finley said.
He pointed to the death of former tribal Chairman Jude Stensgar, who was 77 when he was fatally shot in his home in Inchelium three years ago. Like Thomas’ death and others, “The federal government refused to take the case,” Finley said.
He added, “What we would like to see is jurisdiction for non-Indians. We’ve created a safe haven, and an unsafe living environment for many of our members” because tribes cannot prosecute people who commit crimes on Indian reservations if they are not American Indian.
Federal or tribal court?
Bearcub said she worried when federal prosecutors didn’t take her son’s homicide case, despite the urging of tribal prosecutors.
“The feds want it all wrapped up with a ribbon on it, and then they’ll take it,” Bearcub said.
“I thought, ‘This is going to send a message to everyone that you can kill someone and get away with it.’ And since my son’s death, it just seems to be escalating. … They have learned: Stay in the boundary of the reservation, and hope the feds don’t take your case,” she said.
Just last month, two tribal members suffered violent deaths on the sparsely populated 1.4 million-acre Colville Indian Reservation, where about 5,000 tribal and non-tribal members live. A young man was shot in Omak, and a woman was raped and beaten in Nespelem. Both later died of their injuries.
They are under joint investigation by the FBI and Colville Tribal Police.
According to the U.S. Department of Justice, American Indians experience twice as many violent crimes as the general U.S. population. A 2004 report by the federal agency titled, “American Indians and Crime” found that on average American Indians suffer one violent crime for every 10 residents age 12 and older.
Matt Haney, Colville Tribal police chief, said he doesn’t have any statistics on violent crime, but said it’s at least twice as high as other areas he’s worked. “It’s far too high. We’ve had two homicides since I’ve been here,” he said, and that’s not even a year yet. When he left his post as police chief of Bainbridge Island, with a population of about 23,000, there hadn’t been a homicide in 10 years.
Haney said he thinks more cases could move through federal courts with better communication. “Here’s what can happen: We file a case, and we think it’s all going great, and months later we can find out it was never brought before a grand jury. If we know immediately there’s a problem with the case, and we need something changed, it could be investigated right away.”
Bearcub said tribal police, and tribal courts, are just not equipped to handle homicides or other serious crimes.
In her son’s case, the suspect claimed Thomas had the gun and was trying to shoot him when they struggled and it went off. Bearcub said tribal police didn’t check her son’s hands for gun residue. She said the only witness, a woman who was inside the home, was not required to testify or give a statement. The judge would not call a mistrial even though one of the jury members was seen talking to the defendant’s mother before the trial was over, she said. And key testimony from Gina Fino, Chelan County coroner who conducted the autopsy, was given over a scratchy telephone line, with no eye-to-eye contact explaining why it was unlikely that Thomas shot himself.
“It’s like nobody cares,” she said.
Haney — who was not yet Colville Tribal police chief — said it’s not really a matter of whether police are adequately trained, but whether they gather the right evidence so that experts can later draw conclusions from it.
“We only get one shot at a crime scene,” he said. Sometimes, police process a scene and gather all the evidence they think is pertinent, but if an expert is not available to help, it’s too late by the time prosecutors are looking at the case, he said.
Jonnie Bray, deputy prosecutor for the Colville Tribes, said she thinks Thomas’ homicide could have been proved if she had the resources and expertise the FBI can provide.
She said tribal officers told her that based on where the bullet traveled, and where it entered Thomas, Bearcub’s son could not have shot himself without breaking his wrist.
“The officer could tell me that, but we couldn’t prove it without a trajectory analysis,” Bray said. “We don’t have the sophistication here to do that.”
It’s one of many cases Bray believes could have ended in convictions had they been prosecuted in federal court. “The only cases they take are cases they know they can win. So we have many people here who think even if they have to do a year in jail, ‘I can do that standing on my hands.’ That’s the attitude.”
U.S. Attorney Jim McDevitt in Spokane said it’s simply not true that his office picks only cases that are “sure winners.” He said he’s ethically obliged to prosecute only cases justified by law and the admissible facts. And if a judge is likely to suppress evidence necessary to prove the case — like a search warrant or confession — “We have an obligation not to bring that.’ He declined to comment on any specific cases, and the reasons for not prosecuting them, but said he does insist that federal agents investigate all cases for federal court.
Federal prosecutors must convince a grand jury there’s enough evidence to win in a trial, he said. “To charge someone with a crime, even if they are later found to be innocent, is a devastating event which usually carries with it a lifetime of repercussions — financially, emotionally and professionally.”
Bearcub, Finley and others say they’re hopeful the Obama administration will do more to reduce violent crime on reservations. “I think finally something’s being done. It’s unfortunate so many people have had to suffer in the interim,” Finley said.
McDevitt, who has served on the Attorney General’s Native American Issues Subcommittee for eight years, said the U.S. Attorney General and his deputy have already been involved in a series of listening sessions and workshops with tribal representatives and various U.S. Attorneys.
It’s too early to know the results, he said, but, “I would venture to guess that there will be substantial efforts undertaken to deal with the rates of violence in Indian Country,” he said.
Focus on healing
When tribal courts are left to handle the less serious criminal cases, they often win praise.
In Judge Sheilah Cleveland’s courtroom on a recent Friday, the criminal calendar is long. But the associate judge for Colville Tribal Court keeps her patience, and lets each defendant say their piece.
She tells one woman that she’s sorry she has to set her case for trial while prosecutors come up with a new plea agreement. The woman couldn’t pay her $70 fine in the agreed time.
In another case she decides not to fine a man the $10 the prosecutor asked for because he completed all other requirements. She knows the man to be homeless, she said, and the incident occurred right after his mother passed away.
One tribal member, instead of having to post bail, is allowed to get signatures from two tribal members vouching for him.
Later, in her office, Cleveland said it’s important to be mindful of defendants’ financial situations, and how that can prevent them from complying with the court’s requirements.
“I found that you can accomplish a lot more with people when you have an understanding of where they’re coming from,” she said.
“I don’t want people coming to court being afraid. It causes stress, and stress causes sickness,” she said. “I think that tribal court can be friendly, and actually help people.”
Daryl Rodrigues, a new public defender for the tribes, said some of the differences in tribal court — like allowing hearsay — are difficult for him. But, he said, he prefers practicing here because he feels like he actually helps many of the defendants he represents.
“The difference this judge makes — by treating people like humans — is amazing. It makes my day,” he said.
Vicki Hanks, who used to act as an advocate fora battered women in tribal and state court, said state courts tend to view domestic violence as a private matter, while tribal courts see it as a community problem.
“In my personal opinion, they take domestic violence a lot more seriously than state courts do. They don’t just want to punish, they want to heal, both the perpetrator, and the victim,” she said.
Steve Graham, a private defense attorney from Republic, said he, too, is impressed by the concern shown in Colville Tribal Court. “A lot of judges in state court don’t successfully convince the defendant that they really hope the best for them, but in tribal court, that’s just apparent,” he said. Their thoughtfulness shows up in sentencing.
Graham recalled cases in which defendants were required to buy a teddy bear for the victim, or were told to write a book report, or an essay.
Bray said one defendant who threw huckleberries all over the ground of a community center was asked to write about the importance of the berries in tribal culture, and submit his writing to the Tribal Tribune, the Colville Indian Reservation newspaper.
A woman who was having issues with her mother was told to do something traditional to help her mother — who was ill — feel whole again.
“She ended up working with her mom and helping her gather things for a traditional ceremony that were given away as prayers,” she said.
Bearcub said the probation office also tries to tie its community supervision requirements to cultural and spiritual activities that may offer healing.
Things like cutting wood for sweat lodges, building a sweat, going root digging or picking berries can help turn lives around, she said.
Graham said the main problem he sees with tribal court is that it’s not autonomous from the Colville Business Council, the 14 tribal leaders elected to run tribal government.
“I do, on occasion, perceive some amount of meddling or involvement” from the council, he said. “The lack of independence of those two bodies of government has always troubled me, and a lot of my clients down there.”
To former Judge Nadene Naff, a lack of resources was the biggest impediment to success. “A lot of times, the solution is something you don’t have available to you,” she said. For example, she explained, “We don’t have a place to take a battered mother.”
Tribal leaders are now working to develop what’s known as a Peacemaking Circle. “It’s more in line with what we would have done traditionally,” explained Bray. She said rather than a court setting, with winners and losers, tribal elders are consulted, and meet with everyone to find ways to make everyone involved whole again. “We’re all connected,” Bray said, so everyone has a stake in a healing process.
“A lot of people say it’s like mediation, but we hope it’s a little deeper than that,” she said.
But, Bray added, peacemaking won’t solve everything. It might work better for a teenager who had been drinking and damaged someone’s property, she said. “But would peacemaking ever make Charlene Bearcub whole? It just can’t..”