Justice in Indian country

It is always disappointing when a distinguished academic withoutstanding credentials attempts to buttress his argument forchanges in the law by using an example of supposed injustice, whenthe actual facts of the case reveal a far differentcircumstance.

In his August 3 Op-Ed article “Reservations beyond the law,” professor Gavin Clarkson, himself amember of the Choctaw Nation of Oklahoma, characterized America’sIndian reservations as lawless havens for non-Indian criminals. Heblamed this alleged state of affairs on the U.S. Supreme Court’s1978 decision in Oliphant vs. Suqamish Indian Tribe, whichheld that Indian tribal courts do not have jurisdiction over crimescommitted in Indian country by non-Indians. He also asserted thatU.S. attorneys’ offices often decline to prosecute non-Indiancrimes against Indians. In an attempt to support this assertion, hereferred to the federal prosecution of Lonnie Mack Oglesbee, anon-Indian who terrorized his Indian wife and children for yearswith physical and sexual abuse. As the U.S. attorney for thewestern district of North Carolina, the district that has federaljurisdiction over the Eastern Band of Cherokee Indian reservation,and which prosecuted the case of United States vs. Oglesbee,I felt compelled to complete the record concerning this case andour office’s dedication to the prosecution of violent crimes inIndian country.

There is no dispute regarding the staggering rates of victimizationin Indian country. Indian women in particular are victimized atmore than 2½ times the national average, and morethan one-third of Indian women are raped during their lifetimes. Itis for this reason that the western district of North Carolina U.S.attorney’s office is dedicated to the vigorous prosecution of thesecrimes. Contrary to Clarkson’s assertions, this office does notdecline to prosecute violent crimes committed in Indian country,particularly those perpetrated by non-Indians against Indians thatlack state or tribal court jurisdiction.

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

The respective state courts only have jurisdiction for crimesinvolving non-Indians against non-Indians, and the Oliphantdecision prevents tribal courts from exercising jurisdiction overnon-Indians. Our current system of determining jurisdiction basedon an analysis of the Indian status of the participants arose inpart by historical accident and in part out of respect for thesovereignty of our Indian tribes. Although complex, these roughwaters of jurisdiction are navigable, though often not easily so. Acasual reader of Clarkson’s article might erroneously conclude thatnon-Indians are subject to no laws while in Indian country. This isnot the case. Every crime committed on our nation’s Indianreservations has a court of recourse. Indeed, in many cases,criminals in Indian country are prosecuted more vigorously thantheir counterparts in the state court systems because of overallstricter punishment doled out by the federal courts.

Clarkson goes on to assert that the U.S. attorney’s offices are notdoing enough to combat the high rates of crime in Indian country.He bemoans the fact that most domestic-violence cases areclassified as misdemeanors because of high thresholds of injury tothe victim required to reach the level of a federal felony. Whilethis is true, it is also true in the state courts — the vastmajority of domestic-violence crimes are misdemeanors, whether theyappear in federal, state, or tribal courts. The professor thenconcludes that domestic-violence misdemeanors “rarely, if ever, getprosecuted.” This is far from the truth in the western district ofNorth Carolina. The U.S. attorney’s office prosecutes everymeritorious domestic-violence crime committed by a non-Indianagainst an Indian, whether felony or misdemeanor, and has done sofor years.

It was particularly frustrating to read Clarkson’s characterizationof the Oglesbee case as evidence of our imagined failure, when infact that case represents a great victory for justice in Indiancountry. The details of that particular case are too horrific torepeat, but suffice it to say that Oglesbee’s wife and childrensuffered years of terrible physical and sexual abuse. This abusewent on for years not because the U.S. attorney’s office failed todo anything about it, but because like many (if not most)domestic-violence victims, Oglesbee’s wife suffered in secret. Herhusband threatened her and her daughters with further violence ifshe reported him to the police. When she finally mustered thecourage to come forward and report the abuse, the U.S. attorney’soffice was there to help. She received extensive victim services,and, most important, Oglesbee was tried and convicted of all 13counts of assault, sexual abuse and kidnapping in October 2004.Astonishingly, Clarkson failed to mention that Oglesbee wassentenced to life imprisonment without the possibility of parolefor these crimes.

The resounding success of the Oglesbee prosecution would not havebeen possible in Cherokee Tribal Court because Congress has limitedthe maximum possible punishment such courts may impose to one yearof imprisonment and a $5,000 fine. It therefore is difficult toenvision how Clarkson’s proposed solution of expanding tribal courtjurisdiction to allow the prosecution of non-Indians would behelpful in the most serious cases.

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

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