[Editor's note: This story originally was published by Real Clear Investigations.]
By Naomi Schaefer Riley
Real Clear Investigations
Five-year-old Raven Thompson’s body was found last May in the home of her foster parents, Erich and Tammy Longie, on the Spirit Lake Reservation in North Dakota. Her autopsy revealed blunt force trauma on her head, neck, chest, abdomen and extremities. Her brother Zane, age 7, was found with similar injuries and in critical condition in the back of a Suburban parked outside. Their two other siblings also showed signs of severe abuse and were immediately removed from the home.
The horrific violence suffered by these children can’t have come as any surprise to Tribal Social Services of North Dakota, which placed the children with the Longies after their father was sent to prison. According to the Order of Detention filed by the U.S. attorney in North Dakota, four other children previously placed with the Longies had been “removed by tribal social services, and placement agreements prohibited any contact between Erich or Tammy and those children.”
Child abuse – including rampant sexual abuse and even fatalities – is a longstanding problem in Spirit Lake. A decade ago federal and state officials found that Tribal Social Services repeatedly placed children in dangerous situations, sometimes with known sex offenders. Complaints about these violations by federal whistleblowers went unheeded. The whistleblowers, instead, were punished. Tribal Services did not respond to requests for comment.
In Indian country – the official government term for all dependent Indian communities within the United States – so many indigenous women and girls are raped and killed each year that websites and podcasts know them collectively as the “Missing and Murdered.” Precise numbers are hard to pin down, but federal statistics indicate that Native American women are raped at a rate at least 2 ½ times the national average and that one in every four girls and one in every six boys in Indian country is molested before the age of 18. Homicide is the third leading cause of death among American Indian and Alaska Native women between 10 and 24 years of age and the fifth leading cause of death for American Indian and Alaska Native women between 25 and 34 years of age. Among all American women of those ages, homicides don’t rank nearly as high.
Now the Indian crime problem is on a collision course with growing demands by tribes for greater sovereignty over their territory. In June, the U.S. Supreme Court ruled that about half of Oklahoma, including the city of Tulsa, is within a Native American reservation. While the ruling’s ramifications will depend on a forthcoming agreement with Congress, it seems certain that tribes will have greater authority to administer justice in their lands.
Last September, North Dakota signed an agreement with five tribes, including Spirit Lake, to expand their authority to certify foster homes located off their reservations as well as on them. The National Congress of American Indians’ website states that “the essence of tribal sovereignty” includes the ability to “establish civil and criminal laws for their nations,” which they can enforce through their own “police departments and tribal courts.”
The sovereignty push is raising questions about the ability – and willingness -- of tribes to administer justice. Since the Supreme Court’s decision, many indigenous women have told RealClearInvestigations that greater tribal control could threaten the safety of native women and children. Tania Sue Blackburn, a member of the Cherokee tribe in Oklahoma, was abused as a child and spent time in foster care. She has seen her share of violence in Indian territories. She does not live on Indian lands, but notes the clear difference in the way law enforcement works. “In Tulsa, if a woman was assaulted, a police officer would be there in a matter of minutes. But on the reservation it can take hours.”
And that’s if it happens at all. Elizabeth Morris, whose late husband was a member of the Minnesota Chippewa tribe, recalls chasing a drunk man away from a 10-year-old girl he was assaulting. She reported it to the authorities – who remarked it was rare to get an eyewitness to such a crime. But, she said, there was no follow-up.
Nina Delacruz, a member of the Spirit Lake Tribe, said that when a cousin (someone she now considers her sister) was first brought to live with her family many years ago, the girl reported that her father and her brother had molested her. Tribal authorities came to question the girl and even had a doctor examine her. “They told us that her hymen had been broken. And then nothing ever came of it after that.”
The fact that a doctor confirmed her assault was noteworthy. An NPR investigation on the Standing Rock Sioux reservation in the Dakotas interviewed doctors who said they saw sexual assault victims several times a month but were almost never called to testify. They rarely perform rape kit exams on the victims so there is not much ability to track serial offenders either.
That failure reflects a lack of resources that hampers tribal law enforcement. According to the Bureau of Justice Statistics, tribal police departments employed 23 full-time officers per 10,000 residents. That figure is slightly higher than the national average, but complicated by higher crime rates and much greater distances to patrol, meaning it takes officers much longer to respond. In 2014, Oglala Lakota County, which is part of the Pine Ridge Reservation in South Dakota, received 16,500 calls for emergency assistance. There are five police officers assigned to patrol the area, which is 4½ times larger than Los Angeles.
Marty Jackley, the former attorney general of South Dakota and a former U.S. attorney for the district of South Dakota, says that these problems can mostly be attributed to a lack of support. “We need to give them the resources and backup they need. It’s the same with Indian Health Service – it’s a funding issue.”
It is not uncommon to hear tribes and sympathetic politicians blame a lack of money for problems in Indian country. Last year Karen Diver, of the Fond du Lac Band of Lake Superior Chippewa, told the online magazine Vox that “while there are many issues that contribute to negative health indicators in Indian Country, the chronic lack of funding for the Indian Health Service only makes matters worse.” Matthew Fletcher, of the Grand Traverse Band of Ottawa and Chippewa Indians, told the magazine that “the federal government fails horrifically at the fulfillment of its duties — just look at Indian country’s poverty, crime rates, suicide rates, and poor health indicators.”
But there is plenty of reason to doubt that funding levels are the real problem, according to Bill Mercer, who served as U.S. attorney in Montana before becoming acting associate attorney general during the George W. Bush administration. He says that there are simply not “enough people who are interested in being police officers that have the requisite education and who can pass a drug test. If you doubled the amount of money going to this purpose, I don’t think these departments would grow all that much.” Even the FBI had trouble getting its agents to go to Indian country, Mercer says. “We would promise, ‘If you spend x amount of time doing this work, you can pick where you want to work next.’”
Law enforcement is made more difficult by what Mercer calls the “jurisdictional morass.” In certain states, state governments have jurisdiction over crimes committed on reservations. In other states, if a crime is committed by an Indian against another Indian on a reservation, the tribe can prosecute. If a crime is committed by a non-Indian against an Indian on a reservation, the tribe cannot prosecute. But there are exceptions: The Violence Against Women Act allows domestic violence offenders (even if they are non-Indians) to be prosecuted by tribal courts. Some tribes have agreements with local law enforcement that authorize them to detain and transport offenders on the reservation but not to investigate or prosecute crimes.
The June Supreme Court ruling is already wreaking havoc in Oklahoma, where, the New York Times reports, “[p]rosecutors are giving police officers laminated index cards that spell out how to proceed depending on whether suspects and victims are ‘Indian’ or ‘non-Indian.’” Local prosecutors in Tulsa, for example, said they had to drop a second-degree murder case against Dustin Dennis, whose son and daughter, Teagan, 4, and Ryan, 3, were found dead in his sweltering pickup while Dennis was sleeping. Although Dennis was not a tribal member, it turned out the children were Cherokee on their mother’s side. The U.S. attorney’s office has since picked up the case, charging the man with child neglect rather than murder.
When tribes have concurrent jurisdiction with the federal government, it generally makes sense for them to let the feds prosecute serious crimes like the Dennis case, according to Thomas Gede, who served on the federal Indian Law and Order Commission. Tribal courts can only sentence defendants to a year in prison for a crime, whereas the federal courts can issue longer sentences.
But the Supreme Court decision makes it possible for a tribe to assert its jurisdiction even in serious cases. This is raising concerns among those who worry that some tribes don’t want to incarcerate their members at all. Gede says they will sometimes use “alternative forms of punishment, including banishment or rehabilitation and restitution.” These alternatives could include mowing grass, picking up trash or removing graffiti. Or they could involve more culturally specific options like religious ceremonies, research papers on tribal history or “public shaming.”
The tribal court system is often nothing more than a direct extension of the tribal government with no real separation of powers between them. As Timothy Sandefur of the Goldwater Institute points out, tribal courts are not bound by the United States Constitution or required to afford the parties basic protections as due process and color-blind justice. They also don’t have the same appeals process as U.S. courts.
Blackburn of Oklahoma’s Cherokee tribe says the interests of the tribal government – including tribal law enforcement and the courts – often clash with the interests of individual Indians. Under the Indian Child Welfare Act, for instance, the tribe can determine that a foster child with only traces of Indian ancestry should be placed with an Indian family – even if the child doesn’t know the family and her parents prefer a non-Indian. Blackburn told me: “When I was a kid and my mom had to come to court, Cherokee Nation would send an attorney to the court. My mom thought the tribe had sent her an attorney, but the attorney was there to represent the tribe, not her. It was confusing because we tended to think the tribe was trying to help us, when in fact it was about protecting the tribe itself.”
This instinct to protect the tribe, not the individuals within it, also hampers law enforcement. When he was U.S. attorney in Montana, Mercer recalled, he tired of people asking what happened with some allegation they had made weeks or months before. “The FBI doesn’t just get a call about a child sex abuse complaint and says, ‘We’ll think about it,” he said. The problem went beyond official channels. He distributed case tracker forms to residents of the reservations and publicized them through local media, but after more than a year not a single one was returned to him. “Why wouldn’t you pick up phone and call someone or send an email to say I’m checking back in. No one followed up with me.”
In the fall, the Justice Department announced the creation of a national strategy to address missing and murdered Native Americans. There will be MMIP coordinators placed in 11 U.S. attorneys’ offices to improve data collection and support local law enforcement efforts. But Mercer is skeptical that these efforts are going to make much of a difference if people don’t report the problems more quickly and if tribal law enforcement doesn’t share information with other agencies.
Morris of the Minnesota Chippewa tribe said that there is “intimidation” by tribal police on some reservations toward people who report crimes. And she says that “many people don't make reports because they themselves [or their relatives] have also done similar things.” Giving tribes more power over these matters, she worries, will only make things worse.
In the case of Raven Thompson, Morris wonders, why was it that “only two people were put in jail, the two foster parents, but it was a whole household full of adults?” Police reports say there were at least three other adults in the home. They saw what was going on (if they weren’t participating themselves), but no one reported it. And why haven’t the staff at Tribal Social Services been fired or legally sanctioned? The U.S. attorney’s office handling the case declined to comment.
According to a report from the Brainerd Dispatch, the local newspaper, “A group of Thompson's family and loved ones gathered outside the federal courthouse in Grand Forks before the hearing, dressed in red to recognize missing and murdered indigenous women and holding signs reading ‘justice for all children in foster care’ and ‘who is really accountable?’”
In 2014, Congress held hearings to discuss the problems of oversight at Spirit Lake. Though a new tribal leader promised reform, a former tribal judge told PBS that “I have heard from our present chairman along with other tribal and federal officials that changes are being made. … However, I have not seen any action that reflects it.”
Last year, North Dakota signed an agreement allowing five tribes, including Spirit Lake, to license foster homes not only on the reservation but in other parts of the state as well. "Today marks another historic leap forward in state-tribal relations," said North Dakota Gov. Doug Burgum. "It's a big leap forward in terms of services for children and families from our tribal nations." A request for comment from the governor’s office on whether this agreement should be rethought in light of Raven Thompson’s death has not been returned.
Blackburn says she has been amazed that on the one hand the groups advocating for Missing and Murdered Indigenous Women “blame the jurisdictional problems and red tape for the high rates of murder and sexual assault,” but after the recent Supreme Court decision, they were “rejoicing.” She adds, “there is a huge contradiction.” In other words, if you think the tribes are not doing a good job protecting Indian victims now, why should we expand their power?
Thinking about all of these Indian victims who have not seen justice done, Morris wonders: “When will people finally wake up? How far is America going to let this go?”
[Editor's note: This story originally was published by Real Clear Investigations.]
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