Navajo slush fund cases overwhelm tribal courts

By Felicia Fonseca
Flagstaff, Arizona (AP) March 2011


Dozens of criminal cases against former and current Navajo Nation lawmakers have overwhelmed the tribal court system to the extent that defendants must pay for jury trials themselves, if that’s what they request, and the prosecutor has been asked to consider turning over cases to the federal government.

Nearly 260 complaints were filed with the Window Rock District Court last October, charging 78 people in the alleged misuse of the Tribal Council’s discretionary fund. Some of the defendants still haven’t been arraigned, and many of those who have want jury trials.

It’s a demand that the tribal court system cannot meet. None of the tribe’s 10 district courts that manage 51,000 civil and criminal cases have set aside funds for jurors in their budgets. Jury trials aren’t common in tribal court in any event, with only eight being held on the reservation since 2007.

“In normal circumstances, the courts are expected to guard against the impairment of the defense. In this instance, the justice system itself is impaired by the flood of cases and the en masse jury demands,” the tribe’s Supreme Court wrote in a recent decision. “It is apparent that no workable solution is yet in place.”

The lack of resources in tribal courts is a common complaint in Indian Country that includes funding and staffing shortages, and limited capacity to conduct jury trials.

The Navajo Supreme Court ruling came out nine days ahead of a U.S. Government Accountability Office study that looks at how the primary federal agencies tasked with supporting tribal justice systems worked together. The GAO released its findings last week.

The Interior and Justice departments have made public safety in tribal communities a priority, but the GAO said they’ve focused more on detention programs than tribal courts. Justice officials told the U.S. Senate Indian Affairs Committee in October 2009 that they would better coordinate with Interior officials to support tribal courts, but plans hadn’t come to fruition a year later, the GAO reported.

The U.S. Bureau of Indian Affairs, which commissioned a review of 90 tribal court systems in 2005, also has not shared its assessment with justice officials. The GAO said greater cooperation between Justice and Interior departments could minimize duplication of efforts in trying to aid tribal justice.

The BIA reported that both agencies provided funding to a single tribe to purchase hardware and software for a case management system but didn’t consult one another. And then the tribe never used the system because it didn’t have money for training.

“Sharing information about training and technical assistance could help ensure that BIA and DOJ avoid such situations,” the GAO said.

The office urged the involved federal agencies to develop ways to share information. The BIA said it plans to send a liaison to the Justice Department’s Office of Tribal Justice to better collaborate.

The GAO interviewed judges, prosecutors, law enforcement and court administrators from tribes in Arizona, New Mexico, North Dakota and South Dakota and focused on criminal law. Officials from the 12 tribes, including the Navajo Nation, expressed concern about limited sentencing authority, lack of jails pace, encroachment upon judicial independence from tribal officials and not having enough resources for day-to-day court operations.

Each of their court systems are partially or fully funded by the federal government.

All of the tribes were upset with the federal government for declining to prosecute half of all cases referred from reservations and said that it signals to victims and criminals that justice doesn’t exist in Indian Country.

Tribes often rely on the federal government to prosecute cases because of limited sentencing ability, few jail spaces and overburdened court systems. Both the BIA under Interior and the FBI under DOJ are charged with investigating major crimes on Indian reservations and with referring the cases to federal prosecutors.

The GAO said the results of the 12-tribe study are not a generalization of the hundreds of federally recognized tribes, but provide useful perspectives about challenges they face in resolving crimes.

The Navajo Nation Supreme Court said tribal court resources were already scarce before the criminal charges were filed against current and former lawmakers. A defense attorney for two dozen of those charged asked the high court to take control of the slow-moving cases.

The justices rejected David Jordan’s allegations that the special prosecutor and the judge overseeing the cases engaged in ex parte communication that violated his clients’ rights. Jordan declined to comment on the decision.

The high court sent the matter back to the lower courts and ordered them to try defendants together who share conspiracy charges and have them fund their own jury trials or accept bench trials. Individual defendants would have to pay $2,500 or co-defendants could share a cost of $15,000.

The court further urged the prosecutor in the case to seek the federal government’s help if the cases cannot be resolved through plea bargains, settlements or tribal courts within a reasonable amount of time. The complaints alleged that the defendants took a combined $1.9 million in tribal funding meant to aid Navajos in need.

Some of the cases have been transferred to the defendants’ own communities, but that has resulted in inconsistent decisions. The Window Rock court has said it could take a decade to resolve the cases if each were tried separately.



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