TATTERED JUSTICE

On U.S. Indian Reservations, Criminals Slip Through Gaps

Limited Legal Powers Hobble Tribal Nations; Feds Take Few Cases

CHEROKEE, N.C. -- Jon Nathaniel Crowe, an American Indian, had a
long-documented history of fighting with police officers and
assaulting women. But the tribal court for the Eastern Band of the
Cherokee, under whose jurisdiction he lives, couldn't sentence him to
more than one year for any charge. Not when he left telephone
messages threatening to kill an ex-girlfriend, not when he poured
kerosene into his wife's mouth, not when he hit her with an ax handle.

"We put him away twice for a year, that's all we could do," says
James Kilbourne, prosecutor for the tribe. "Then he got out and
committed the same crime again."

Indian tribes are officially sovereign nations within the U.S.,
responsible for running services such as schools and courts. But a
tangle of federal laws and judicial precedents has undermined much of
their legal authority. As a result, seeking justice on Indian
reservations is an uneven affair.

Tribes operate their own court systems, with their own judges and
prosecutors. Sharply limited in their sentencing powers, they are
permitted to mete out maximum jail time of only 12 months for any
crime, no matter how severe. The law also forbids tribal courts to
prosecute non-Indians, even those living on tribal land.

Federal prosecutors can intervene in serious cases, but often don't,
citing the long distances involved, lack of resources and the cost of
hauling witnesses and defendants to federal court. In the past two
decades, only 30% of tribal-land crimes referred to U.S. attorneys
were prosecuted, according to Justice Department data compiled by
Syracuse University. That compares with 56% for all other cases. The
result: Many criminals go unpunished, or minimally so. And their
victims remain largely invisible to the court system.

The justice gap is particularly acute in domestic-violence cases.
American Indians annually experience seven sexual assaults per 1,000
residents, compared with three per 1,000 among African-Americans and
two per 1,000 among whites, says the Justice Department. The acts are
often committed by non-Indians living on tribal land whom tribal
officials cannot touch. Local prosecutors say members of Indian
communities have such low expectations about securing a prosecution
that they often don't bother filing a report.

"Where else do you ask: How bad is the crime, what color are the
victims and what color are the defendants?" asks Mr. Kilbourne, who
has prosecuted cases on Cherokee lands since 2001. "We would not
allow this anywhere else except Indian country."

The lack of prosecutorial discretion is one of many ways in which
Indian justice has been split off from mainstream American due
process. For example, some defendants appearing before Indian courts
lack legal counsel, because federal law doesn't require tribes to
provide them with a public defender. Although some tribes have them,
others can't afford to offer their members legal assistance. It's not
unusual for defendants to represent themselves.

The Indian Civil Rights Act, passed by Congress in 1968, limited to
six months the sentences tribes could hand down on any charge. At the
time, tribal courts were seeing only minor infractions. Congress
increased the maximum prison sentence to one-year in 1986, wrongly
assuming that the Indian courts would continue to handle only
misdemeanor-level crimes. Tribal offenses, meanwhile, escalated in
both number and severity, with rape, murder and kidnapping among the cases.

The Supreme Court weighed in on another level, with its 1978 Oliphant
decision ruling that tribes couldn't try non-Indian defendants in
tribal courts -- even if they had committed a crime against a tribe
member on the tribe's land. In its ruling, the court held that it was
assumed from the earliest treaties that the tribes did not have
jurisdiction over non-Indians.

"If you go to Canada and rob someone, you will be tried by Canadian
authorities. That's sovereignty," says University of Michigan law
professor and tribal criminal-justice expert Gavin Clarkson. "My
position is that tribes should have criminal jurisdiction over
anybody who commits a crime in their territory. The Supreme Court
screwed it all up and Congress has never fixed it."

Jeff Davis, an assistant U.S. Attorney in Michigan who handles
tribal-land cases, acknowledges that his hands are often tied. Mr.
Davis is also a member of North Dakota's Turtle Mountain Band of
Chippewa. "I've been in the U.S. Attorney's office for 12 years, and
both presidents I have served under have made violent crime in Indian
country a priority. But because of the jurisdictional issue and
questions over who has authority and who gets to prosecute, it is a
difficult situation."

Often cases don't rise to the level of felony federal crimes unless
the victim has suffered a severe injury. Federal prosecutors have
limited resources and focus almost exclusively on the most serious
cases. Compounding that is the fact that domestic-abuse cases are
difficult to prove, especially if the lone witness recants.

"It requires stitches, almost a dead body," says Mr. Davis. "It is a
high standard to meet."

For some non-Indians, tribal lands are virtual havens. Chane Coomes,
a 43-year-old white man, grew up on the Pine Ridge Reservation in
South Dakota -- home to the Oglala Lakota, near the site of the
infamous 1890 massacre at Wounded Knee. Marked by a small obelisk,
the mass grave is a symbol of unpunished violence, literally buried
in the soil of the tribe. The 2000 census documented Shannon County,
which encompasses the remote and desolate reservation, as the
second-poorest county in the U.S., with an annual per-capita income
of $6,286 at the time. Only Buffalo County, S.D., was poorer.

According to local authorities, Mr. Coomes used his home on the
reservation as a sanctuary, knowing he would be free from the
attentions of tribal prosecutors.

Tribal Police Chief James Twiss says Mr. Coomes was suspected of
dealing in small amounts of methamphetamine for years. Tribal police
also thought he might be trafficking in stolen goods.

In 1998, Mr. Coomes assaulted a tribal elder, Woodrow Respects
Nothing, a 74-year-old decorated World War II and Korean War veteran.
Because it couldn't prosecute, the tribe ordered Mr. Coomes off its
land. But attempts to remove him were unenforceable.

"All I could do was to escort him off the reservation," says tribal
police officer Eugenio White Hawk, who did that several times, the
last when he spotted the banned man hauling horses in a trailer. "He
kept coming back. After a while I just left him alone and let it go.
It was just a waste of time."

Mr. Coomes remained in his Shannon County home until 2006 when he was
accused of beating his estranged wife in nearby Nebraska and
threatening to kill her, according to Dawes County District Attorney
Vance Haug. The crime was committed off the reservation, and the
subsequent investigation gave state authorities official jurisdiction.

After raiding his home, they found stolen equipment as well as 30
grams of methamphetamine and $13,000 hidden in the bathroom, along
with syringes.

Mr. Coomes is now in the Fall River County Jail charged with
possession of stolen property, grand theft and unauthorized
possession of a controlled substance. He also faces separate charges,
of assault and "terroristic threats" related to his wife, in Dawes
County, Neb. If convicted on the latter charges, he faces up to six
years in prison, Mr. Haug said. Mr. Coomes's attorney declined to comment.

The jurisdictional quagmire also has implications for Indian members
on the other side of the tribal border. Gene New Holy, an ambulance
driver on Pine Ridge, had been arrested by the tribe more than a
dozen times for various drunk-driving offenses, for which he received
only two convictions totaling about a month in a tribal jail. In
state court, four convictions would have led to a maximum sentence of
five years.

Lance Russell, the state prosecutor for Shannon County and
neighboring Fall River County, had never heard of Mr. New Holy until
Feb. 11, 2001, when Mr. New Holy got drunk at a Fall River County
bar. According to court documents, he nearly hit one car on a main
highway, forced two others into a ditch and sideswiped a third that
had pulled off the road as Mr. New Holy approached it in the wrong lane.

The last car he hit contained three tribe members -- cousins Bart
Mardinian, Anthony Mousseau and Russell Merrival -- all of whom died.
The accident was less than a mile off the reservation, enough to give
Mr. Russell and the state jurisdiction in the case. Mr. New Holy is
serving 45 years in state prison for three counts of vehicular
homicide -- much longer than the 12 months per count he would have
served under tribal law. His attorney didn't return a call seeking comment.

"The holes in the system are more practical than legal, and the
victims of crime pay the price," says Larry Long III, the South
Dakota attorney general. "The crooks and the knotheads win."

The Eastern Band of Cherokee, located in the Smoky Mountains of North
Carolina, is one of the most efficiently run tribes in the country.
Its ancestors hid in these mountains while Cherokee east of the
Mississippi River were forcibly moved to present-day Oklahoma, a
migration known as the "Trail of Tears." Today the tribe is spread
across five counties and is economically well off: It takes in more
than $200 million annually from the Harrah's Cherokee Casino & Hotel,
which it owns, and has a robust tourist industry. About half of the
tribe's gambling spoils go to pay for infrastructure and government services.

Its court, which is housed in a prefabricated building, looks like
any other in the U.S., except the judges wear bright, red robes. The
offices, while cramped, are modern and computerized, and are a little
over one hour's drive from the federal prosecutor's office in
Asheville. Tribal authorities meet regularly with federal prosecutors
for training. The tribe's top jurist is a former federal prosecutor
who has regular contact with his successors.

Yet even here, the justice system works erratically. In 2005, tribal
police received a tip that James Hornbuckle, 46, an Oklahoma Cherokee
who had moved to the reservation, was dealing marijuana. Officers
built a case for weeks. They raided the business and then Mr.
Hornbuckle's home, where they found 10 kilograms of marijuana,
packaged in small bricks. By tribe standards, it was a big haul, and
authorities approached the U.S. Attorney's office.

Gretchen Shappert, U.S. Attorney for the Western District of North
Carolina, says federal sentencing guidelines for marijuana are so
lenient, that "we'd need 50 kilograms in a typical federal case" to
pursue it. The feds rejected the case.

If the state court had jurisdiction to prosecute the crime, Mr.
Hornbuckle might have received a three-year term. Instead, he pleaded
guilty to the marijuana charge and was sentenced to one year in
tribal court. Recently the tribal council voted to permanently ban
him from the reservation, with backing from the feds. Messages left
for Mr. Hornbuckle's attorney weren't returned.

Mr. Crowe's name is all too familiar on the reservation. Tribal
Police Chief Benjamin Reed has known him since he was a juvenile.
"What I remember is his domestic-violence incidents. He just wouldn't
stop," Mr. Reed says.

Crystal Hicks, who dated Mr. Crowe before his marriage, says the
tribal member was verbally abusive. She says she left him after she
had a miscarriage, when he berated her for not giving him a ride to a
motorcycle gathering. "He said I was using the miscarriage as an
excuse," says Ms. Hicks, 27 years old.

After that, in several telephone messages saved by Ms. Hicks and her
family, Mr. Crowe threatened to kill them and bury Ms. Hicks in her
backyard. He was jailed by the tribe and ordered to stay away from
the Hicks family.

"One year," says Ms. Hicks. "He even told me he was fine in jail. He
got fed three times a day, had a place to sleep and he wasn't going
to be there long."

After he married, the violence escalated, says Police Chief Reed.
During one incident he drove to the home Mr. Crowe shared with his
wife, Vicki. "He had threatened her, and dug a grave, and said no one
would ever find her. We believed him," Mr. Reed said. "Just look at
some of the stuff he'd done. That girl was constantly coming down
here, her face swollen up." At one point, he choked his wife, poured
kerosene into her mouth and threatened to light it, police reports
say. Mr. Crowe's attorney didn't return calls seeking comment.

None of these acts led to more than one year in jail, a sentence he
has been given twice since 2001. His criminal file at the tribal
court building fills a dozen manila folders. There are reports of
trespassing and assault convictions, telephone harassment, threats
and weapons assaults -- one for an incident when he hit his wife with
an ax handle, breaking her wrist. His latest arrest, in September,
came about a week after he finished his most recent sentence, when he
came home and beat his now-estranged wife -- again.

After seven years, his crimes finally triggered federal involvement,
although almost by accident. Federal prosecutors from around the
country met at Cherokee earlier this year to discuss crime on tribal
land. One federal official mentioned to Mr. Kilbourne, the tribal
prosecutor, a new statute that allows federal intervention where
defendants have at least two domestic-violence convictions,
regardless of the crime's seriousness.

Mr. Kilbourne, who was preparing for a new trial against Mr. Crowe
the following week, quickly turned the case over. Mr. Crowe pleaded
guilty to assault last Friday and is awaiting sentencing.