DEBORAH AMOS: At the Justice Department, recent scandals have dragged public confidence to an all time low. A special prosecutor is now digging into charges that former Attorney General Alberto Gonzales put political partisanship ahead of the law.
And the record on the quality of justice – as in ‘equal justice for all’ – that’s also in question. No more so than on the roughly 300 American Indian reservations across the country. This is a scandal that’s been going on for decades.
Because of a strange tangle of laws, because of historical precedent, the Justice Department is responsible for investigating and prosecuting major crimes on most reservations. But as the DENVER POST reported in an award-winning investigative series, law enforcement in Indian country has become quote “dangerously dysfunctional.” The “Post” depicted a place where terrible crimes are committed, investigations bungled, and prosecutions rare. The result: Indian reservations, already some of the poorest and most crime-plagued communities in America, have become what one Navajo official calls “Lawless Lands.” Our colleagues at Expose bring you that story. It’s narrated by Sylvia Chase.
MARLENE WALKER:It was the morning of September 4th, 2004. I was sleeping and the phone rang. And Arthur’s girlfriend called me and said, “Marlene, did you hear about Arthur?” And I said, “No, what’s wrong?” “He’s dead.” And I said, “What? No, you’re just joking with me. He’s not.” And she says, “Yeah, he was attacked.”
SGT. LIZ GRIEGO:I was called at home about three o’clock in the morning and advised of a homicide call out at this location and I was advised that there were actually two people that were stabbed, one had passed away.
MARLENE WALKER:We took off and went to the scene. And most of my family was already there, I kept asking everybody, “What’s going on? What’s going on? What happened? What happened?” No one had anything to say to me. And then, finally, the detective came to me and told me what had happened. And with all the chaos, I never knew my son was laying a few feet away from me.
SYLVIA CHASE: Marlene Walker’s son, Arthur Schobey, was murdered in 2004 in Albuquerque, New Mexico. He died of a stab wound to the heart. His killer, Leonard Apachito, lived on the nearby Navajo Reservation, in a village called To’hajiilee. And it may be hard to believe, but if Apachito hadn’t lived on the reservation, Arthur Schobey might still be alive today.
MICHAEL RILEY: I think as Americans, that we have a strong expectation of the way our justice system ought to function; that we live in a society where, if you commit a crime, especially a serious crime, people will investigate that crime, people will arrest you and people will try and convict you. What happens actually on reservations doesn’t look at all like that picture.
SYLVIA CHASE: Indian reservations operate nearly autonomously within the United States. Many, like the Navajo Nation, have their own police forces, courts, and jails. But the tribes have severely limited powers.
And the major investigation by the DENVER POST would show that the people living on reservations are subject to severely limited justice.
MICHAEL RILEY: You commit serious crimes and many of them aren’t investigated or they’re under investigated. If they are investigated and sent to prosecuting attorneys, many times the prosecuting attorney simply declines to prosecute the case, so when you combine lots and lots of those kinds of examples, what you’ve got is a level of impunity that most Americans, I think, would be shocked at.
Take the case of Leonard Apachito. Four months before he killed Arthur Schobey, he was involved in another violent crime. This one occurred on the reservation. The victim was his cousin, Alex Apachito.
ALEX APACHITO: It was about four years ago, we were walking home from a party, and we met up with another one of my cousins, Leonard. And he invited us over to his house for a couple of beers.
SYLVIA CHASE: Although they were related, Alex and Leonard had a history of tension. And on that night, Alex says, they fought.
ALEX APACHITO: He just walks around me and grabs me, and cuts me across the neck. And I turned, once he grabbed me, and I just felt that cold slice. I pushed him. And I don’t even remember how I made it home, or – but I remember being in the ambulance and telling them what happened. And I think that’s when I just passed out.
SYLVIA CHASE: When a crime is committed on an Indian reservation, the tribal police and prosecutor are the first to review the case.
CHUCK MURPHY:The local tribal prosecutors are doing the very best they can in order to try and find some justice for victims out there when others maybe don’t care, don’t have time, don’t understand – whatever the issue may be.
SYLVIA CHASE: But if a crime is serious enough to be considered a felony, as Leonard Apachito’s slashing of his cousin was, most often the tribal authorities are nearly powerless. And local and state police, and state district attorneys are entirely without authority.
That’s because in most of Indian country – the legal term for Native American lands – the federal government has the sole authority to investigate and to prosecute almost all felonies.
After Alex Apachito was slashed, an FBI agent interviewed him.
ALEX APACHITO: : He came and took pictures of me at the hospital, and I really couldn’t talk at the time, at the hospital, but he just wanted me to say the name – Leonard’s name. And like, I think the next day I got released, and he came to my house and – yeah, he got the whole report, what happened. And he said that – yeah, he was gonna do everything he could to see that I got justice.
SYLVIA CHASE: But, the DENVER POST would report, even though Alex, the victim, had identified Leonard Apachito as his assailant, it wasn’t Leonard who was arrested.
MICHAEL RILEY: Despite Alex’s ID of Leonard as the person who stabbed him, the FBI arrests the wrong person. After that, after they discovered that they arrested the wrong person, they then dropped the case.
SYLVIA CHASE: A free man, Leonard Apachito would go on to kill Arthur Schobey in Albuquerque.
MARLENE WALKER: I didn’t find out ’til Mike Riley told me, that Leonard had stabbed someone before, and I was shocked.
SYLVIA CHASE: The FBI declined to discuss the case with the DENVER POST. But as Riley discovered, it’s common for justice to go un-served in Indian country. Why? Because of the strange quirks in a justice system that treats Native Americans differently from other Americans.
MICHAEL RILEY: It’s the only place in the U.S. where the race of the victim and the race of the perpetrator determines who has jurisdiction, whether it’s the state government, whether it’s the tribal government or the federal government.
SYLVIA CHASE: Riley learned that if a felony in Indian country involves two non-Indians, it is tried in state court. However, if either the assailant or the victim is an Indian, neither the state nor the tribe has jurisdiction. The crime must be tried in federal court. To better understand an extremely complex system, Riley turned to the U.S. attorney for Colorado: Troy Eid.
TROY EID: I have seen people over the years face a level of despair over this situation that I’ve not seen elsewhere in the United States, with any other group of people. And in some cases, these reservations are the land that time forgot.
SYLVIA CHASE: Eid has prosecuted hundreds of felonies committed in Indian country. He has also published articles in favor of giving tribes greater legal authority.
TROY EID: Why can we drive around a reservation and have 160 acres that’s in tribal jurisdiction, with the federal prosecutors doing the major crimes, and then suddenly you’re on state jurisdiction, with the state D.A., the local D.A., doing the crimes? It’s mind boggling, and so, when you get out into the field and you deal with it, you find often times very good people struggling to make this system work.
VERNON ROANHORSE: Crime always occurs minute by minute. We deal with domestic violence, we deal with problems involving firearms…
SYLVIA CHASE: Vernon Roanhorse is the tribal prosecutor for the village of To’hajiilee.
VERNON ROANHORSE: The police are primarily the, the people that investigate these crimes. And they turn over their reports to us. But we have to look to the federal government for support and for prosecution of major crimes when they occur.
SYLVIA CHASE: Roanhorse has one Assistant: Racquel Hurley.
RACQUEL HURLEY:It’ll most likely come to our office first. And if it’s really bad, it will be referred to the criminal investigator. We’ll give him the police report; we’ll give him the names. If we have photos, we’ll give it to him. FBI agents will usually come out and conduct their interviews also and I rarely see them.
SYLVIA CHASE: Why is the justice system on Indian reservations so different from that of the rest of the country? The answer lies in American history.
TROY EID: It used to be that the tribes could punish their own members. If an Indian tribe got into a conflict with another tribe, or if say two tribal members got into a fight, whatever it might be, the tribes would work that out. But, starting in 1885, Congress took that power away.
SYLVIA CHASE: It had all begun in 1881, in the Dakota Territory, when many believed a Sioux Indian named Crow Dog literally got away with murder.
Crow Dog had shot and killed a Sioux Chief. In U.S. District Court, in the Dakota town of Deadwood, he was convicted and sentenced to hang.
But he appealed, and the case went all the way to the U.S. Supreme Court. The court ruled that because crow dog was an Indian, the Dakota Territory had no jurisdiction over him. In fact, the ruling went, tribes, like the Sioux, retained exclusive jurisdiction over their own affairs.
According to Sioux custom, crow dog’s punishment was having to make a payment, so-called “blood money” to his victim’s family. There was a public outcry, and in 1885, largely in response to the crow dog case, congress passed the “Major Crimes Act.”
Major crimes committed by Indians in Indian country would now have to be tried in federal court, meaning Native Americans would be subject to American style justice. Ironically, the DENVER POST’s Michael Riley would show, the result has been just the opposite. He found an example in the story of a 12-year old To’hajiilee girl who had been babysitting for a neighbor.
Racquel Hurley Vernon took her into the conference room. And they spoke for a long time. Vernon came back out. He told me, “Racquel, call the criminal investigator. We have a sexual abuse case that needs to be investigated.”
SYLVIA CHASE: But no one came that day. Or the next day. The girl’s mother wondered when investigators would come.
RACQUEL HURLEY: And she would call every, like maybe every other day wanting to know what was going on. And it got frustrating because I didn’t know what to tell her.
MICHAEL RILEY: Almost a year later, neither she nor her daughter had been interviewed, either by the tribal police or by the FBI; the case just wasn’t going anywhere. As far as we know, all there was a police report and then nothing.
SYLVIA CHASE: The mother would tell Riley, “It’s hard for me to explain to her why nothing is happening. If this had happened in Albuquerque something would have been done.”
MICHAEL RILEY: For almost a year, the 12-year old stayed virtually locked up in her house, her personality turned very dark, from being a pretty vivacious child; and from her bedroom, you could see the house of the neighbor where all these assaults allegedly occurred.
SYLVIA CHASE: The failure to investigate an alleged child molester still troubles Racquel Hurley, not just as a prosecutor’s assistant, but as a neighbor.
RACQUEL HURLEY: You can see his house from my house and I don’t ever let my son ride his bike up there, it’s really disturbing to know that somebody that did that to a child is still free.
SYLVIA CHASE: During his investigation, Riley would hear similar stories over and over again in Indian country. To’hajiilee resident Ben Francisco was brutally assaulted in 2007. He suffered a fractured cheekbone and chips off his vertebrae. When he spoke with Exposé, chewing and speaking were still painful for him.
BEN FRANCISCO: I remember somebody pulling me out of the vehicle, then hitting me with a bat, then after that that was it, I don’t remember nothing after that. My cheekbone was broken, so they told me that they needed to put some plates in there.
DOLLY FRANCISCO: We were told that it was gonna to be in the FBI’s hand. But nothing have been said or come by at the house yet. Nothing.
BEN FRANCISCO: They don’t get things done the way they do in places, in the cities and other places. Nobody did nothing about it. After a year passed I just gave up on it.
SYLVIA CHASE: The DENVER POST would learn that in the past decade Congress has actually increased the FBI’s Indian country funds. Between 1998 and 2004, Congress “more than doubled the agency’s budget” for Indian country investigations. The increase included money for 30 new agents who “would focus solely on reservation crime.”
In a written statement, the Bureau told the paper it did assign 30 new agents in fiscal year 1999, but after the 9/11 terrorist attacks, “staffing levels changed.” By late 2007, the “Post” would report, the number of agents had increased by only 12.
On some reservations the Bureau of Indian Affairs or tribal police have the authority to investigate felonies along with the FBI.
But no matter who investigates, the case is handed over to a federal prosecutor. As he was digging further into the story, Michael Riley would learn that’s where the process can break down again.
MICHAEL RILEY: It became pretty clear, pretty fast that there was a large failure on the part of the federal government to prosecute many, many serious crimes on reservations. Our first task was to try and come up with some statistics about the rate at which they declined cases, ’cause we heard over and over again that U. S. attorneys typically just decline large percentages of cases. The first thing we were told by the Justice Department is that those statistics aren’t kept; and it turns out, in fact, they are kept, they’re just not published.
SYLVIA CHASE: Unable to get the rate from the Department of Justice, the DENVER POST team set out to crunch the numbers itself.
The POST got Department of Justice data from a Syracuse University Research Center which had obtained it through Freedom of Information Act requests.
The paper cross-referenced that information with crime data from the FBI, as well as the Bureau of Indian Affairs.
Research librarian Barry Osborne helped create the post’s database. It showed how many felonies had been reported and/or investigated, and how many of those cases U.S. attorneys had declined to prosecute.
BARRY OSBORNE: In this case we had to do a lot of due diligence and checking and double checking and triple checking.
You go row after row, hundreds of rows, manslaughter, manslaughter, murder, murder, murder. These are hundreds of individual lives and it’s sometimes stark just to see that just in text, in these little boxes and brackets, but from that you start to see just some patterns emerging. And here we have declination after declination.
CHUCK MURPHY: 65% of the complaints that are filed are just rejected out of hand by federal prosecutors. That’s an astounding number. What would we do if the district attorney for Denver, if we learned that he was declining 65% of cases? Well, it would be an outrage, it would be enough to send the citizenry into the streets.
SYLVIA CHASE: Sometimes there are good reasons why attorneys refuse to bring a case in Indian country, according to Troy Eid.
TROY EID: You gotta look at what is actually brought to the prosecutor in terms of a case that provides a viable prosecution. We, ethically, can’t do anything that is not brought to us that establishes probable cause in a court. So, if we don’t get a quality investigation, you know we’re not gonna be able to do anything.
SYLVIA CHASE: Quality investigations can be hard to come by for several reasons.
MICHAEL RILEY: It’s a triage situation where the FBI has a certain amount of resources, so they depend on the tribal police investigators to do a lot of the investigation, which creates some problems because the tribal investigators are not as well trained, often make mistakes. They can contaminate evidence. It creates a problem for the U. S. attorneys, who will complain that many of the cases they receive simply are poorly investigated and part of it has to do with that combination between the duties of tribal police and the FBI and how those are split.
SYLVIA CHASE: For all those investigative limitations, the paper’s Chuck Murphy notes, several former prosecutors told the post that the problem often lies with the prosecutors themselves.
CHUCK MURPHY: There are a handful of assistant U.S. attorneys and U.S. attorneys who are really committed to working these cases. But I think a lot of times it’s just, “Don’t bother me with this.”
SYLVIA CHASE: Former U.S. Attorney Margaret Chiara said: “I’ve had [Assistant U.S. Attorneys] look right at me and say, ‘I did not sign up for this’… they want to do big drug cases, white-collar crime and conspiracy.”
CHUCK MURPHY: These are prosecutors with first-rate law degrees, exceptionally smart people, men and women who have gone into the Justice Department who didn’t think they would be prosecuting rapes. They are there to take on Enron. They are interested in going after white-collar crimes, and the Gambino family. And suddenly, this whole other part of American jurisprudence from the Indian reservations gets dumped on their desk, and they don’t wanna deal with it.
SYLVIA CHASE: The tribal prosecutors told the “Post” they often aren’t even informed of the U.S. attorneys’ decisions to decline cases.
VERNON ROANHORSE: We don’t get the declinations that we should have from the federal government. And all these cases are in limbo. We have cases that have been pending with their office like, three-to-five years.
SYLVIA CHASE: If a tribal prosecutor, like Vernon Roanhorse, is officially informed of a declination, he can lower a felony charge – like murder or rape – to that of a misdemeanor and bring the case before a tribal court. But to Troy Eid, the Colorado U.S. attorney, that option just adds insult to injury.
TROY EID: On the federal side, we can prosecute all the way up – in fact, if it’s homicide we can seek the death penalty. But, if it’s a tribal government that prosecutes, the most they’re allowed to seek is a year in jail, and a $5,000.00 fine. Congress does not let them seek anything above that ceiling.
SYLVIA CHASE: After a six-month investigation examining dozens of cases from more than 20 reservations, Michael Riley published a four-part series called “Lawless Lands.” It would reveal that a shocking number of crimes simply go unpunished in Indian country.
In a recent three-year period, U.S. attorneys declined to prosecute over half of the serious assault cases brought before them, almost half the murder and manslaughter cases , and over 70 percent of child sexual abuse cases.
The most recently available FBI arrest numbers are just as staggering. In fiscal 2006, on reservations where the federal government handles felony prosecution, 658 rapes were reported, only 7% led to arrest. For aggravated assault, the figure drops to less than 4%.
Lesser crimes are “virtually ignored altogether.” Of 4,565 burglary cases just 16 were referred for prosecution.
MICHAEL RILEY: The overall result is that this system of justice functions very, very badly, to the extent that many Native Americans just don’t expect it to work at all.
MARLENE WALKER: It makes you sad – kind of makes you feel like Native Americans don’t deserve justice. So, it’s kinda hurtful to see all those cases that are pretty much put on the back-burner, so. And I hope everyone gets their day in court, too.
SYLVIA CHASE: Marlene Walker did get a day in court. Her son, Arthur Schobey, recall, had been killed by Leonard Apachito, a man who had eluded justice after committing a brutal crime on the reservation, months earlier. But the Schobey murder happened in Albuquerque, where local police, not the feds, had jurisdiction.
MICHAEL RILEY:The Albuquerque police, after a year long investigation, in which they left practically no stone unturned to find Leonard, eventually tracked him down.
SGT. LIZ GRIEGO: He was living in Albuquerque at the time, which was good for us, so I grabbed my partner, we went up there, knocked on the door, he came to the door and I said we were investigating an incident that occurred, and he looked at me, and I said, “you know why I’m here?” And he said, “Yes.”
Leonard Apachito was arrested, tried and convicted in New Mexico State Court of manslaughter in the killing of Marlene Walker’s son, Arthur Schobey.
For his crime, he was sentenced to six years. The punishment could have been more severe if he had already been a convicted felon. But he was never even arrested, let alone tried, for slashing his cousin’s throat on the reservation. Michael Riley says everything could have been different.
MICHAEL RILEY: Had the FBI arrested Leonard Apachito within that four months, he would have been in jail and he wouldn’t have been in Albuquerque and Arthur Schobey would still be alive.
RACQUEL HURLEY: There’s no justice out here. And I feel for the victims. I feel, my, it breaks my heart to know that nobody cares.
CHUCK MURPHY:Indians are not getting the same justice system that you or I get in Denver, or in New York, or in Boston, or Kansas City, or anywhere else. That, to me, is the most egregious element of this. Is that an entire class of people, based on where they live, is not getting the same services that you and I get.