When federal prosecutors decide not to pursue criminal cases in Indian country, should they be required to file detailed reports explaining those decisions?
“Yes,” says Tom Heffelfinger, former U.S. attorney for Minnesota.
“No,” says Drew Wrigley, the U.S. attorney for North Dakota.
Both men appeared last week before the Senate Committee on Indian Affairs to testify on the potential benefits and pitfalls of such “declination reports,” which would be required under terms of a bill introduced by Sen. Byron Dorgan, D-N.D., who is the committee chairman.
His Tribal Law and Order Act of 2008 would impose accountability measures at the federal level and strengthen justice systems at the tribal level to fight what Dorgan calls “epidemic” crime levels on some Indian reservations.
“Studies predict that more than one in three Native American women will be raped in their lifetimes, and two in five will be victims of physical abuse,” Dorgan said in introducing his bill in July. “Drug traffickers are targeting Indian reservations as safe havens because of the lack of police presence and the disjointed system of justice that is in place.”
More than 60 percent declined in 2004-2007
Part of the problem, he said, is that from 2004 to 2007 the United States declined to prosecute more than 60 percent of the criminal cases from Indian country that were referred to federal prosecutors.
The rate is 50 percent for murder cases, he told about 300 tribal leaders from throughout the Great Plains at a summit earlier this month in Bismarck, and 76 percent for rape and other sexual assault cases.
The bill has drawn broad support from Indian country, according to the Internet site Indianz.com. Jackie Johnson Pata, executive director of the National Congress of American Indians, said it would boost accountability in the Department of Justice and the Bureau of Indian Affairs.
Heffelfinger, who was U.S. attorney from 2001 to March 2006, supervised the handling of many cases involving American Indians in Minnesota, including the 2005 shootings at Red Lake High School. He also served as chairman of the Department of Justice’s Native American Issues Subcommittee. As a partner now in the Minneapolis law firm of Best & Flanagan, his clients include tribal communities.
In May 2007, a Justice Department official testified before Congress that Heffelfinger was on a department list of 30 U.S. attorneys who had been designated for replacement because he was paying too much attention to American Indian issues.
Heffelfinger responded angrily to that suggestion, noting that the Red Lake tragedy was the second-worst school shooting in U.S. history and was throughout a federal responsibility.
Neither he nor Wrigley cared to discuss the replacement-list issue this week.
“Tom and I have never talked about it,” Wrigley said. “But we’ve worked well together (including in the early stages of the 2003 Dru Sjodin abduction and murder case), and he is a very capable prosecutor and hard-working guy who cares a lot about what’s happening in Indian country.”
Heffelfinger returned the compliment. Wrigley was dispatched to present the Justice Department’s position to Dorgan’s committee, he said, but he “is one of the most dedicated prosecutors in the nation when it comes to crimes committed in Indian country.”
The two men disagree, however, on the value of mandated declination reports and the statistics that might be drawn from them.
In his testimony (PDF) last week, Heffelfinger said declination reports “can assist law enforcement, prosecutors and government officials in properly training their employees, identifying resources necessary to investigate alleged criminal misconduct and refining their procedures for investigating and prosecuting crimes.
“There is no reason,” he said, “why federal law-enforcement officials and prosecutors considering prosecution of crimes in Indian Country should not issue declination reports and realize the benefits of such reports.”
Providing details seen as risky
But Wrigley testified (PDF) that providing detailed information on why a particular investigation was dropped would be risky “because the information could be rendered discoverable in any subsequent prosecution,” which “might well compromise the safety and privacy of victims and witnesses, and also provide a damaging roadmap to any weaknesses in the case.”
Wrigley said the Justice Department “understands your desire to better understand how decisions to prosecute or decline cases are made by those on the ground in Indian country,” and that better data would help in the fight against crime on reservations. But he cited a recent South Dakota case in which the U.S. attorney’s office in that state had explained, in a letter sent to a sex-crime victim, the decision not to prosecute the alleged offender because of “weak or insufficient admissible evidence and a potential witness problem.”
That alleged offender later was prosecuted on another sex offense, and his attorney called the first victim as a defense witness and used the declination letter to discredit the prosecution.
“The department agrees that there is a need for close coordination with tribal prosecutors to ensure that criminals are brought to justice,” Wrigley told the committee. But “we need to ensure that’s done in a way that doesn’t jeopardize future prosecutions or compromise victim and witness safety and privacy.”
Concerns ‘can be handled in the statute’
In an interview this week with Minnpost, Heffelfinger said that Wrigley was right to raise concerns about victim safety and privacy, “but those can be handled in the statute,” he said. The bottom line is that “the government ought to be disclosing this stuff.”
Detailed reports on cases that U.S. attorneys decline could show a pattern of cases derailed by illegal searches, he said, or the need for such resources as nurses and other professionals trained to recognize and deal with sexual assault, child abuse and other serious crime. “How is a tribe to know when and where it needs more training if it doesn’t know why cases are being declined?” he asked.
In a separate interview this week, Wrigley said there is a misperception that large numbers of cases in Indian country are not making their way to prosecution because federal prosecutors aren’t interested in those cases or lack the resources to pursue them.
“The reality here in North Dakota is that there are zero declinations for lack of interest or resources,” he said. “We don’t turn back cases unless we have no jurisdiction, or there is insufficient evidence of a federal violation, or there is insufficient evidence generally.”
Proportion has held steady
Wrigley agreed that “a significant violent crime and sexual-assault-crime problem” exists in Indian country,” but the proportion of his office’s caseload involving crimes on reservations has held steady at about 25 percent in recent years.
“We have the prosecution resources we need, and the people here are really committed to prosecuting those crimes,” he said, so the potential dangers of mandated declination reports outweigh any potential benefits.
Heffelfinger said the benefits would be real and the dangers can be mitigated.
Female Indians “are the most heavily victimized people in America,” he said. “If you are a Native American living on a reservation, your chances of being a victim of a serious crime are 2½ times that of the general population — and 3½ times if you’re female.”
Same factors as elsewhere
Crime on reservations is driven by the same factors that cause crime to spike elsewhere in the country, he said, including drugs and alcohol, poverty, unemployment and a lack of resources. On many reservations, the number of police officers “is half what it should be,” he said.
“Tribal communities do have one advantage,” he said, “in the broad family ties that come with tribal identity.”
In addition to encouraging more aggressive prosecution of reservation crimes at the federal level, Dorgan’s legislation would increase tribal courts’ sentencing authority, make national databases and other resources more available to tribal police, enhance training in the investigation and prosecution of crimes involving sexual violence, and improve tribal courts and jails.
A Bureau of Indian Affairs report last month declared that many jails on reservations are overcrowded, understaffed, unclean and unsafe.
Chuck Haga, a Star Tribune staff writer from 1987-2007, is a reporter for the Grand Forks Herald. He can be reached at chaga [at] minnpost [dot] com.