On Indian Land, Criminals Can Get Away With Almost Anything

Violence is on the rise at a North Dakota reservation. And tribal officers are often powerless to stop it.

indian.jpgAn oil boom at the Fort Berthold reservation has attracted thousands of newcomers—and a wave of hard-to-prosecute crime. (Sierra Crane-Murdoch)

On an early morning last June, on the Fort Berthold Indian Reservation in western North Dakota, tribal officer Nathan Sanchez was nearing the end of his shift when he noticed a frantic stirring in the cattails alongside the road. A girl emerged. Her jeans were wet, her halter-top fallen to her waist. Sanchez approached in his car to ask what had happened. The girl, in hysterics, mumbled that she had been raped and took off running.

Sanchez caught her on foot. He saw she was white—not a member of the tribe. "Ma'am," he recalled saying, though she was only 16, "I know you're upset, but I need to get you out of here." He wrapped her in a blanket and led her to the car. Was the man who raped her Indian, he asked? She said he was.

Sanchez met Criminal Investigator Angela Cummings at the police station in New Town, a low brick building that doubles as the Civic Center, and Cummings took the girl into a private room. The victim had run away from Texas to find her father who worked in the Bakken oilfields. He had refused to let her stay with him, and in the weeks that followed, she'd lived with an acquaintance on the reservation.

The night before Sanchez found her, an oil worker at a bar in New Town had bought her drinks and taken her to his camper. She remembered only that several men and a woman were having sex. "Just do it," someone had said as a man climbed on top of her. Were any of the men Indian, Cummings asked? No, the girl said this time.

Why did it matter? If the girl's rapist was, in fact, an enrolled member of a Native American tribe, then Cummings had every right to continue the investigation. But now the girl struggled through her shock and inebriation to recall the story: The men, she believed, had been white and Latino. If true, then the right to investigate and prosecute the case belonged not to Cummings, nor to the U.S. attorney, but to the state. "I did what I could," Cummings later told me, but in the end, she called a county deputy to take the girl off the reservation.

“Basically,” a mechanic told me, “you can do anything short of killing somebody.”

In 1978, the Supreme Court case Oliphant v. Suquamish stripped tribes of the right to arrest and prosecute non-Indians who commit crimes on Indian land. If both victim and perpetrator are non-Indian, a county or state officer must make the arrest. If the perpetrator is non-Indian and the victim an enrolled member, only a federally certified agent has that right. If the opposite is true, a tribal officer can make the arrest, but the case still goes to federal court.

Even if both parties are tribal members, a U.S. attorney often assumes the case, since tribal courts lack the authority to sentence defendants to more than three years in prison. The harshest enforcement tool a tribal officer can legally wield over a non-Indian is a traffic ticket.

The result has been a jurisdictional tangle that often makes prosecuting crimes committed in Indian Country prohibitively difficult. In 2011, the U.S. Justice Department did not prosecute 65 percent of rape cases reported on reservations. According to department records, one in three Native American women are raped during their lifetimes—two-and-a-half times the likelihood for an average American woman—and in 86 percent of these cases, the assailant is non-Indian.

Last April, Senate members added a provision to the Violence Against Women Act, first passed in 1994, that would allow tribal courts to prosecute non-Indians who sexually assault tribal members. But the bill has languished since House Republicans opposed the measure as a dangerous expansion of tribal independence—it is, after all, a partial reversal of the Supreme Court's 1978 decision.

Fort Berthold, like many reservations, has a long history of crimes slipping through jurisdictional cracks. Sadie Young Bird, director of the Fort Berthold Coalition Against Violence, told me that before 2010, when the Tribal Law and Order Act passed Congress, very few sexual assault cases reported on the reservation were prosecuted. The Act provided greater resources for tribal law enforcement agencies, in part by encouraging U.S. attorneys to hire special assistants to boost prosecution rates. In 2011, Assistant U.S. Attorney Rick Volk was appointed to work specifically with Fort Berthold. Between 2009 and 2011, federal case filings on North Dakota reservations rose 70 percent.

When I asked Tim Purdon, North Dakota's U.S. attorney, if the numbers had anything to do with a rise in crime, he first insisted they did not. He believed there was a growing sense among Native American victims that the crimes they reported would be prosecuted, and this encouraged more women to come forward.

But beginning last summer, Purdon noticed a peculiar pattern emerging from Fort Berthold. Many of his filings—a surprising number of them—involved non-Indian perpetrators. "We had five or six in a month," he told me. "Why was this? We realized it's non-enrolled folks moving to the oil patch."

The Bakken oil boom hit western North Dakota in 2008, and for all the hype, there's been little said about the reservation at its center. When I first reported on Fort Berthold in April 2011, the development had barely begun. Since then, thousands of oil workers have rushed onto the reservation, the boom a salve to foreclosure, debt, and the recession's other wounds. Now Fort Berthold really is in the middle of it all, and while the tribe and its members will earn billions of dollars in taxes and royalties before the decade is out, the development, for many residents, is far from a relief.

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Sierra Crane-Murdoch is a freelance journalist and contributing editor for High Country News.

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