Oklahoma Criminal Defense Blog

There are 33 federally-recognized Native American tribes in Oklahoma, and 310 Indian reservations in the country.  Each tribe legislates and administers its own laws, including criminal laws.  Their laws can punish only up to 3 years for a violation, so for more serious crimes, the tribes send the matter to the federal government for prosecution.   But that hasn’t been working so well.

The rate of crime on Indian land is high.  Statistics shows the following:  Indian reservations have violent crime rates exceeding 2 ½ times the national average.  Indian women are 10 times more likely to be murdered than non-Indians and are sexually assaulted at 4 times the national average.

These crimes are investigated by the tribes and the F.B.I., and they are sent to the Department of Justice for prosecution.  That means the local U.S. Attorney’s offices prosecute them, but they are filing charges in only half the murder cases sent to them and only one-third of the sexual assault cases.  The tribes can’t understand why.

In 2011, federal prosecutors declined to file over half the most serious crimes of all types on Indian reservations.  They declined 61 percent of sexual abuse of children cases and declined 65 percent of rape cases.    But contrast, the Justice Department declined only 20 percent of drug trafficking charges for the country as a whole.

The F.B.I. is notoriously slow and painstaking in its investigation of crimes.  Any experienced criminal defense attorney will tell you that.  But as the years tick past while matters are “under investigation,” no one from the reservation has been informed of anything.  One problem may be the quality of investigations by the tribe police because federal prosecutors are much more selective than state prosecutors in accepting cases to file.  But it is the F.B.I. that is investigating many or most of these cases, so that does not explain the startling lack of prosecutions.  A former tribal judge has complained that U.S. Attorneys declined to file a rape case of a 13 year old girl by a 31-year-old man, even though two family members interrupted the attack and there was a DNA match.  Neither did the U.S. Attorneys offer any explanation why no charges were filed.  After the U.S. Attorney declined to file, the man was eventually prosecuted in tribal court but received only a year in jail.

Matters have caused so much outrage in Indian Country that one family has filed a lawsuit in Montana to complain about the federal government’s failures to enforce the law.  The  family of Steven Bearcrane has brought an action in U.S. District Court in Montana, alleging lack of due process and lack of equal protection under that laws.

The family of Steven Bearcrane was so incensed that the federal authorities did nothing to prosecute the death of Steven Bearclaw on the Crow Reservation that they brought a lawsuit in federal court against the FBI and the U.S. Attorney’s office and a couple of individuals.  They filed it interestingly under the Administrative Procedure Act rather than as a civil rights lawsuit, and claimed the U.S. Attorney’s office in South Dakota had followed “a pattern and practice of declining prosecutions in cases in which the victims of those crimes are North Americans.”

The district court agreed that precedent had established that law enforcement officers cannot exercise their discretion in a discriminatory fashion.  However, upon several legal bases, the district court dismissed the claims that was based on due process of law as to the FBI and the U.S. Attorney’s office, keeping alive only one claim against one Matthew Oravec.  The point here is not so much whether they prevail in their lawsuit but the situation is so unsatisfactory that they feel the need to sue the authorities for protection.