We continue our special report, diving into the history of the corrections system on tribal lands in North Dakota.
As a former U.S. Attorney explained to KX News, there’s nowhere else in America where your citizenship affects which law enforcement agency shows up to help you. That complex web of jurisdictions carries over into the court system, causing a domino effect that results in fewer prosecutions and a loophole for criminals from outside of tribal lands.
For the Standing Rock Sioux Tribe, the Law Enforcement Center is home to police, the Tribal District and Supreme Courts, and right next to it, the jail.
“We’re talking about communities where you have to prioritize what resources you have, and I’m sure if Standing Rock had more resources, there would be a different building,” explained Grant Christensen, an Associate Justice for the Supreme Court of the Standing Rock Sioux Tribe.
He tells me it’s a perfect example of life in Native Country, and according to Christensen, the trouble for Tribal justice began with a Supreme Court decision back in 1978.
“And that’s been a fight for what… 30 to 50 years,” added Turtle Mountain Band of Chippewa Indians Chairman Jamie Azure.
“The U.S. Supreme Court, in this case, Oliphant, said that Tribes do not have jurisdiction over non-Indian persons,” Christensen said.
MHA Nation Chairman Mark Fox says it created a bad situation, where non-Native perpetrators began taking advantage of a sort of immunity on tribal lands.
“It’d be similar to somebody claiming, that comes from Montana and crosses into North Dakota and commits a serious crime, and then says to them, ‘Well you can’t prosecute me. Only Montana can,'” the Chairman explained.
Even in cases in recent years where tribal officers are cross-deputized and can cite, and in many cases, arrest a non-Native person, it doesn’t mean they can be tried in Tribal Court. Tribal courts can prosecute major crimes where an enrolled member is the defendant, but with the exception of Standing Rock’s District Court, they generally don’t.
Chairman Fox explained why: “We can prosecute them under tribal law. We could say aggravated assault, underneath our laws, we’re going to prosecute you here, we can do that, but we are limited in our jurisdiction even over our enrolled members.”
It’s true. The reason being, tribes can only impose a minimal sentence.
Erin Shanley was a District Court Judge on Standing Rock for about five years, up until July when she became the in-house counsel. For the purposes of this report, she is not speaking on behalf of the Sioux Tribe.
“Tribal courts were limited under the Indian Civil Rights Act. The sentencing power was limited to six months and a $500 fine. That was amended to a maximum sentence of a year in jail and a $5,000 fine,” explained Shanley, who is also an enrolled member of Cheyenne River Sioux Tribe.
So in order to achieve justice for victims, major, violent crimes generally fall on federal prosecution through the U.S. Attorney’s office, if they take the case.
“And that’s one of the biggest issues that we got in Indian Country is that the federal government is busy, the federal government has priorities that don’t always include Indian reservations. And so when that happens, they begin to create these standards of when they’re going to prosecute and when they’re not,” Chairman Fox shared.
The most recent data from the Department of Justice shows 39% of cases were declined prosecution by U.S. Attorneys nationwide in 2018. It doesn’t fluctuate much back to 2011 when there was a 38% declination rate.
This data is a result of the 2010 Tribal Law and Order Act that required the DOJ to release how many cases result in indictment or are declined by U.S. Attorneys Offices every year, from every reservation in the country. That accountability did not exist before.
In North Dakota, the rate is higher than the national average. It has fluctuated over the last few years but in both 2015 and 2018, more cases were declined than prosecuted.
“I’m not saying a declination rate should ever be zero, but it is a rough metric that is useful in looking at how an office is doing,” explained Tim Purdon, an attorney and partner at Robins Kaplan LLP, and a former U.S. Attorney for the District of North Dakota.
He says the struggle with crime rates in Native Country is unjust. Purdon wrote an “Anti-violence Strategy” to tackle the problem head-on in 2011.
“We worked hard to get additional agents, additional focus by the FBI. We increased the resources we were devoting to those issues, and I would think…I like to think that things got better for a period of time,” he added.
“We’ve got a special trust obligation out there,” the current U.S. Attorney said.
Drew Wrigley is in his 10th year as the U.S. Attorney for North Dakota. He first served from 2001 to 2009 and was appointed again in 2019. Wrigley tells me the vast majority of cases his office declines are because they don’t have jurisdiction after all.
He added, “So while it’s a declination, it’s really just a reassignment.”
The rest, he says, is due to a lack of evidence.
“100% of the provable felony cases that make it to our desks in the U.S. Attorney’s Office, we prosecute,” he repeated.
“…so that’s not the hold-up.”
On a national level, in 2018, 64.3% of declinations were for this reason. Only about 18% were actually referred back to Tribes, or to the state.
“I know many of the FBI agents. They are working their tails off, they’re just overwhelmed,” shared Heidi Heitkamp, a former U.S. senator from North Dakota.
As a former senator and North Dakota Attorney General, Heitkamp says the DOJ has to do more.
“The resources aren’t there, the collaboration isn’t there. We absolutely have to do better if we’re going to change outcomes,” she concluded.
Beyond that, autonomy is the goal. You can ask just about every one of the about 15 people I interviewed on this project and they’ll tell you the same thing: the solution should be sovereignty, in other words, the ability to prosecute anyone who commits a crime on tribal land. But, as was made clear in the months I spent searching for answers, it won’t come easy.
The Tribal Law and Order Act of 2010 moved in that direction, tripling the sentencing power for Tribes, allowing a max of three years per offense for a 15 year maximum, and $15,000 in fines.
But, as Shanley explains, the Tribe would actually have to amend its Constitution to implement the new law, which has been unsuccessful for several reasons.
Shanley explained, “You know our facilities are not adequate to house people long term. They’re constantly over capacity, so we don’t want to take on this additional responsibility without the ability to fulfill it.”
She tells me when she was a tribal court judge, they were constantly forced to release people early. She says this is a predicament a lot of tribes are finding themselves in.
In the Turtle Mountains, Chairman Azure says the way to sovereignty is through economic self-sufficiency.
“The truth is that the BIA and the federal government have dropped their trust responsibilities from day one. You know, we’re underfunded, we’re undermanned. We are held under the thumb on a lot of different things that are federally funded, because of that funding,” he told me.
The Chairman, who was just elected to a second term in November, said the Tribe is very dependent on federal grant funding. But, he said the last few years have brought strides toward new, diversified, local income sources.
“And if that takes putting our foot down and flexing that sovereign muscle to get some things moving forward, then that’s what we’re going to do,” he concluded.
“…and I would bet any money that all tribes would have that same sentiment.”
Purdon says nothing is stopping Congress from restoring tribal jurisdiction over all crimes committed on tribal lands by overturning the Oliphant case in a single bill. This could lower violence rates, particularly sexual violence because right now, outside offenders know they can get away with it on tribal lands.
But, as Purdon explains, tribes are not going to arrest and prosecute their way out of high-crime rates, no one is.
In fact, the recidivism rate on Standing Rock is at least 90%. Comparatively, the re-offense rate at the state Department of Corrections is typically less than half of that.
Shannon Silbernagel is the Lead Probation Officer for the Standing Rock Sioux Tribe. She operates out of a trailer. She’s been in her current position for well over 10 years and before that, she was the first probation officer the Tribal Nation ever had.
She says the reason for the incredibly high re-offense rate is complicated, involving the Tribe’s inability to address the root causes of crime, like substance abuse and the lack of economic opportunity on Standing Rock. And, because of a lack of funding to address those underlying issues, many just end up back in custody.
But, Silbernagel says the caseload is too big, with 412 people currently being monitored in probation, by herself and only two other probation officers. And, because the territory spans eight districts and 2.3 million acres, she says they really can’t get out to all of the local districts to monitor people.
“I believe if we had the staff, that we could reduce that recidivism because they would expect us. They would know we’re coming. And of course, we just can’t do that,” Silbernagel added.
Purdon says the key to reducing re-offense anywhere is three things: enforcement, crime prevention and support services for re-entering the community, which would ultimately require more funding, and personnel. And because probation services all come from federal funding, a big portion of Silbernagal’s time is taken up by grant applications, something the state doesn’t rely on nearly as heavily.
She did say the Tribe recently received a grant for a “healing to wellness” court, a program designed to help re-offenders heal from addiction and close the revolving door.