Posted on September 6, 2010

Race Complicates Reservation Crime Fight

Sudhin Thanawala, Comcast News, Sept. 5, 2010

For more than two hours on the night of May 16, 2007, Shane Maggi terrorized a Native American couple at their home on the Blackfeet Indian Reservation in Montana, pistol whipping them and firing bullets above the husband’s head.

Maggi, who suspected the couple had stolen his drugs, was convicted by a federal jury in 2008 and sentenced to more than 42 years in prison. But an appellate court here found Maggi did not meet its definition of a Native American and, as a result, had been prosecuted under the wrong federal statute.

The 9th U.S. Circuit Court of Appeals overturned Maggi’s conviction in March.

The case illustrates a hazard of the complex legal system used to mete out justice on American Indian reservations–a system that relies largely on race to determine jurisdiction, and then charges police and prosecutors with the sometimes delicate task of determining a person’s race.

“The whole flaw in the system is that it’s premised upon being an Indian defendant or Indian victim, and yet we have no clear-cut definition of who an Indian is,” said BJ Jones, director of the Tribal Judicial Institute at The University of North Dakota law school.

In most states, federal and tribal authorities can arrest and prosecute Indians on Indian lands. But criminal offenses by non-Indians are handled by federal or state authorities, depending on whether the victim is Indian.

That means when a crime is committed on Indian lands, authorities must determine the suspect and victim’s race before they can answer fundamental questions like which agency can make the arrest and try the case, and sometimes which law applies.

Tribal officials and legal experts say this process creates confusion that can lead to delayed cases and even overturned convictions on reservations, which already endure high crime rates and shortages of law officers.

“Everybody in law enforcement wants to do the right thing,” said Sen. Byron Dorgan, D-N.D., chairman of the Senate Indian Affairs Committee. “It’s just, you have this very complex, Byzantine jurisdictional system that impedes effective law enforcement.”

Legislation introduced by Dorgan and signed into law in July aims to increase the powers of those tribal police who are unable to arrest non-Indians on their reservations.

Tribal officials say enrollment cards generally make it clear who is a tribal member, but difficulties can arise when that identification is lacking. Matters also can be complicated by intermarriage with other races and the movement of Indians to other tribes’ reservations.