Justice in Indian country

There is no dispute regarding the staggering rates of victimization in Indian country. Indian women in particular are victimized at more than 2½ times the national average, and more than one-third of Indian women are raped during their lifetimes. It is for this reason that the western district of North Carolina U.S. attorney's office is dedicated to the vigorous prosecution of these crimes. Contrary to Clarkson's assertions, this office does not decline to prosecute violent crimes committed in Indian country, particularly those perpetrated by non-Indians against Indians that lack state or tribal court jurisdiction.

There is also no disputing the fact that because of the historically unique, government-to-government relationship between the United States and Indian tribes, jurisdiction over crimes committed in Indian country is often a legally and factually complex issue. Unlike the special territorial jurisdictions of the United States, such as our national parks, the federal government lacks general jurisdiction in Indian country. Federal law defines and restricts federal criminal jurisdiction in Indian country. Federal jurisdiction to prosecute criminal cases does not exist for all crimes committed in Indian country, but only for a list of "major crimes" (e.g. murder, kidnapping, arson, sexual abuse and felony assault, to name just a few) perpetrated by Indians (irrespective of the status of the victims), and for all crimes committed by Indian against non-Indians, or by non-Indians against Indians.

The respective state courts only have jurisdiction for crimes involving non-Indians against non-Indians, and the Oliphant decision prevents tribal courts from exercising jurisdiction over non-Indians. Our current system of determining jurisdiction based on an analysis of the Indian status of the participants arose in part by historical accident and in part out of respect for the sovereignty of our Indian tribes. Although complex, these rough waters of jurisdiction are navigable, though often not easily so. A casual reader of Clarkson's article might erroneously conclude that non-Indians are subject to no laws while in Indian country. This is not the case. Every crime committed on our nation's Indian reservations has a court of recourse. Indeed, in many cases, criminals in Indian country are prosecuted more vigorously than their counterparts in the state court systems because of overall stricter punishment doled out by the federal courts.

Clarkson goes on to assert that the U.S. attorney's offices are not doing enough to combat the high rates of crime in Indian country. He bemoans the fact that most domestic-violence cases are classified as misdemeanors because of high thresholds of injury to the victim required to reach the level of a federal felony. While this is true, it is also true in the state courts — the vast majority of domestic-violence crimes are misdemeanors, whether they appear in federal, state, or tribal courts. The professor then concludes that domestic-violence misdemeanors "rarely, if ever, get prosecuted." This is far from the truth in the western district of North Carolina. The U.S. attorney's office prosecutes every meritorious domestic-violence crime committed by a non-Indian against an Indian, whether felony or misdemeanor, and has done so for years.

It was particularly frustrating to read Clarkson's characterization of the Oglesbee case as evidence of our imagined failure, when in fact that case represents a great victory for justice in Indian country. The details of that particular case are too horrific to repeat, but suffice it to say that Oglesbee's wife and children suffered years of terrible physical and sexual abuse. This abuse went on for years not because the U.S. attorney's office failed to do anything about it, but because like many (if not most) domestic-violence victims, Oglesbee's wife suffered in secret. Her husband threatened her and her daughters with further violence if she reported him to the police. When she finally mustered the courage to come forward and report the abuse, the U.S. attorney's office was there to help. She received extensive victim services, and, most important, Oglesbee was tried and convicted of all 13 counts of assault, sexual abuse and kidnapping in October 2004. Astonishingly, Clarkson failed to mention that Oglesbee was sentenced to life imprisonment without the possibility of parole for these crimes.

The resounding success of the Oglesbee prosecution would not have been possible in Cherokee Tribal Court because Congress has limited the maximum possible punishment such courts may impose to one year of imprisonment and a $5,000 fine. It therefore is difficult to envision how Clarkson's proposed solution of expanding tribal court jurisdiction to allow the prosecution of non-Indians would be helpful in the most serious cases.

This is not to say that the issue of jurisdiction in Indian country is not worthy of discussion. The duty of my office, however, is not to make law, but to enforce it. Like any law enforcement agency in a post-9/11 world, it is a constant challenge to provide the necessary resources to address violent crime in Indian country when the federal government is tasked with making our nation safe from terrorism, but our office has continued to meet this challenge with vigorous prosecution and compassionate victim services. Despite the treacherous terrain of Indian country jurisdiction, I am proud of the efforts of my prosecutors and victim advocates to bring justice to the Eastern Band of Cherokee Indian reservation.

Gretchen C.F. Shappert is the U.S. attorney for the western district of North Carolina.