Justice Denied

"It's not safe. There's no safety. You can't trust anybody. You got to protect yourself," Rebekah Apachito says. As one of about 1,600 tribal members who live in the Navajo community of To'hajiilee, 90 miles west of Santa Fe, she has good reason to be afraid: According to federal crime data, Native American women are 10 times more likely than the average American to be murdered. Even more shockingly, approximately one in three Native American women will be raped in her lifetime.

Bright sunshine streams through gaps in the curtains covering Apachito's windows, illuminating a photo of her son, Jordan, wearing a cap and gown at his 2008 graduation, and another of her mother in a traditional Navajo dress. It's her day off from her job at a health facility in Albuquerque, and Apachito is dressed casually in a loose red jersey and black pants. Her dark hair is somewhat disheveled from rounding up her seven dogs—along with deadbolts, window locks and a shotgun, they're her way of protecting herself.

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She gazes out the window, holding back tears. Apachito was visiting her mother in a nursing home when violence shook her life, but she recounts her son's version of the story: Codie Willie, a 22-year-old also from To'hajiilee, allegedly broke in through a back door of Apachito's home and demanded to take whatever he wanted. Jordan's federal file states that Willie had a .48 blood-alcohol content and traces of marijuana in his system. (In New Mexico, .08 is considered legally drunk.) According to what Jordan told his mother, Willie refused to leave and made actions that appeared to be menacing, so Jordan shot him.

"He felt threatened. It was self-defense," Apachito says.

But the federal judge assigned to rule on the case didn't see it that way. Willie suffered gunshot wounds to most of his internal organs and is now permanently disabled; the judge sentenced Jordan to four years in federal prison for assault with a deadly weapon.

Jordan's story illustrates two sides of a flawed tribal justice system: rampant crime and imperfect punishment.

Earlier this year, the New York Times reported that violent crime rates in Native American communities are more than twice the national average. The causes are myriad—joblessness, poverty, insufficient police forces and a notoriously ineffective justice system. For decades, tribes lacked the judicial systems—as well as the resources to create those systems—to successfully prosecute serious crimes. Federal authorities, too, often failed to take charge, leaving tribal offenders stuck in a justiceless limbo.

In 2010, in response to the growing violence in Native American communities, the Pres. Barack Obama administration passed the Tribal Law and Order Act, a groundbreaking attempt at improving tribal justice systems. But two years later, results are spotty, and people like Apachito and her son still feel the need to protect themselves—are still casualties of a criminal justice system that has repeatedly failed to halt violence, bring justice or foster healing.

 "With all the drugs going on, deaths going on, murders, escapees...sometimes you hear dogs barking all night," she says. "It keeps me up all night, wondering what's around."


According to US Attorney Kenneth Gonzales, most of the serious crimes that plague the state's 23 Indian tribes are, like Jordan's case, assaults with deadly weapons.

"The manner by which people carry out these assaults really is without exception, because it will be firearms, rocks, baseball bats, crowbars or hockey sticks—whatever is within reach," Gonzales says. "It's eye-opening—really quite startling—the kind of violence that can be perpetrated on another human being. This is not unique in Indian country, but we certainly see it in Indian country. In To'hajiilee, in Zuni, Pojoaque—whatever the area, it is what keeps us very busy."

Until the passage of TLOA, however, tribal judges were unable to sentence offenders for more than one year or fine them for more than $5,000—meaning virtually all major crimes had to be referred to federal prosecutors.

But federal agencies often didn’t deliver: According to a 2010 US Department of Justice study, they failed to prosecute nearly half of the major crimes—such as murder and felony child abuse—committed on Indian lands. Worse, when a federal agency declined a case, it often failed to let the tribe know.

"Lack of notification frustrates tribal efforts to prosecute, because requests for evidence from the federal case languish, evidence is lost or damaged or federal witnesses are unavailable," FBI Special Agent Michael Bulzomi wrote in a 2012 law enforcement bulletin.

Pueblo of Acoma Public Safety Director Glenn Kelsey says he often threw up his hands in frustration because he didn't have a large enough police force and couldn't access federal data to press for convictions. Acoma has 13 law enforcement officers and six conservation officers to cover 702 square miles of land and protect a population of more than 4,000 tribally enrolled people—not to mention the thousands of tourists who visit cultural and recreation sites on Acoma lands each year.

"We depend on the Bureau of Indian Affairs to prosecute these crimes, but the BIA doesn't complete the investigations on time, so we have people waiting to go to federal court for years who have committed violent crimes, including rapes of children and weapons violations," Kelsey says, adding that many offenders, after being released back into the community after just one year, commit the same crime again.

In an email to SFR, US Department of the Interior Indian Affairs spokeswoman Nedra Darling disputes that view.

"[I]t appears the federal cases opened by the BIA Crime Investigation Unit have been investigated in a timely manner," Darling writes. "Other federal cases may be worked by the other agencies, and we would not have the status of those cases being investigated by other law enforcement agencies."

As sovereign nations, tribes have their own courts, police departments and public safety departments. But federal treaties charge the US government with protecting the lives of Native American tribal members—and on both sides of the criminal justice system, that wasn't happening. And so, on July 29, 2010, Obama authorized the Tribal Law and Order Act.

Gonzales says TLOA broke new ground by tackling the problem of tribal crime on several fronts: increasing prosecutions, expanding training, making perpetrators accountable and increasing federal-tribal collaboration and communication. The law also aims to support self-governance by developing tribal justice systems that encompass public defense, victim advocacy, youth prevention services, alcohol and substance abuse programs and traditional dispute resolution.

Significantly, TLOA affords increased sentencing power for tribal judges, who can now sentence some felony cases up to three consecutive three-year terms and charge fines of up to $15,000. The law also gives tribes access to federal intelligence such as FBI databases; provides tribal police with specialized training in domestic violence and sexual abuse convictions; steps up collaboration with federal entities; and relaxes hiring rules so that more tribal members can qualify as police officers. And, because tribes have limited jail facilities, a Federal Bureau of Prisons pilot program allows them to house up to 100 inmates in federal prisons without charge. Gonzales says TLOA also makes cooperation between federal and tribal entities the rule rather than the exception.

"It creates a new paradigm," he says. Unfortunately, it's not that simple.

 
Although TLOA offers a roadmap for better coordination between tribal and federal justice systems, it also comes with strings attached. Many of the law's provisions require tribes to underwrite significant expenses, such as hiring a full-time public defender, a legally trained judge and a prosecutor; publishing criminal statutes and rules of criminal procedure and evidence; and recording criminal and court proceedings. Other provisions require tribes to rework their existing judicial systems by expanding or constructing detention and jail facilities—hardly an easy feat for cash-strapped tribal governments. And while some federal funding is available to give tribes a leg up, it's rarely enough.

Funding is the major stumbling block that has kept most tribes from adopting TLOA, according to a 2012 US Government Accountability Office survey.

 "If you are a small tribe, and you are looking at exercising the Tribal Law and Order Act, and you look at what it takes to hire an attorney to handle a serious matter, it is very expensive," Ohkay Owingeh's chief tribal judge, Geoffrey Tager, tells SFR.

GAO found that the cost of hiring a public defender prevented many tribes from meeting TLOA's requirements. A full-time public defender can cost between $38,000 and $100,000 a year; the city of Santa Fe only recently voted to hire one, at an annual salary of $65,000.

Apachito says a tribal public defender would have made a difference in her son's case.

"The public defenders in the city don't know what is going on [on tribal lands]," she says. "If they have public defenders on the reservation, they will know who's telling the truth and who is telling a lie."

But To'Hajiilee still has yet to hire one—which means its judges can't exercise their new sentencing authority or use the Bureau of Prisons pilot program to place offenders in federal facilities.

In fact, not one of the country's 566 tribes has utilized the pilot program, according to BOP Public Affairs Specialist Chris Burke.Navajo Nation judge Irene Toledo hadn't even heard about it until SFR asked her about it.

"Nobody has come around to say, 'Guess what, Navajo Nation, or Jemez Pueblo? This is the process to get access to send somebody…to this prison,' Toledo says. "There's nothing [like that]. It's news to me."

On top of that, none of the tribal courts GAO surveyed have adopted their new sentencing authority. This means additional delays in tribal handling of some felony cases that call for sentences of less than three years.

Tager says Ohkay Owingeh is probably one of the tribes in New Mexico making the most strides to meet TLOA requirements. The tribe recently amended its tribal code to match the federal code allowing for three-year sentencing. Ohkay Owingeh is also ahead of many tribes in having a law-trained judge in Tager, who is a licensed attorney. (Tribes can, however, opt out of the requirement to have a law-trained judge. "Realistically speaking, you are not going to find that many law-attorney judges," Toledo says. "It's not really there. It's not how our tribal court system is set up.")

Federal grants can help tribes defray the cost of building justice systems and hiring staff. On Sept. 27, the US Department of Justice announced $101 million in grants awarded to help 110 Native American tribes develop judicial systems and prevention services. Of the 23 New Mexico tribes, only three received a portion of that funding: Jemez, Laguna and Nambé Pueblos.

Historically, though, funding has been insufficient to develop fully functional judicial systems for all tribes. According to a 2001 report by the UCLA Native Nations Law and Policy Center, "Funding levels are considered too low to support law enforcement and criminal justice of adequate quality in Indian country." That's just as true today: There simply isn't enough money to go around.

Kelsey, the public safety director for Acoma, can attest to that reality.

"We are getting little funding from the Bureau of Indian Affairs or the government," he says. "It was promised by President Obama that he was going to help the Indian nations. But really, I don't know what nations he is helping, because we have gotten very little funding from the federal government, very little increases. It's just a matter of the money not getting to the tribes."


Another wrinkle in the tribal justice system concerns crimes perpetrated by non-Native tribal residents. Historically, tribal courts have been generally unable to prosecute non-Natives, even though they account for more than three-quarters of the people living on tribal lands.

What's more, approximately half of Native women nationwide are married to non-Native men—so tribal courts' inability to prosecute non-Natives can, in some cases, lead to a cycle of escalating domestic violence.

"The non-Indian man who beats his partner—knowing he won't be prosecuted by the local tribal criminal justice system—keeps battering that woman," acting Associate Attorney General Tony West explained this past August at a tribal justice conference in Pojoaque. And "the Indian woman [who] suffers extreme violence episodes—knowing that calling the tribal police is unlikely to lead to any type of prosecution—stops calling the police for help."

Earlier this year, Congress considered reauthorizing the Violence Against Women Act of 1994. US Rep. Martin Heinrich, D-NM, sponsored a new provision that, for the first time, would give tribal judges jurisdiction over non-Natives in domestic violence cases. But according to Heinrich spokesman John Blair, a Republican version of the bill was pushed through without the tribal jurisdiction amendments because of concerns over the constitutional rights of the defendant. Blair tells SFR in an email that such concerns are unfounded because the original version protected defendants' rights. Reauthorization is still pending, with a Senate version that includes similar tribal jurisdiction amendments.

According to Blair, Heinrich will continue to fight for those amendments.

"To exclude protections for Native women from the Violence Against Women Act makes absolutely no sense to me," Heinrich says in a statement to SFR. "It certainly doesn't serve the interest of New Mexico, where we have so many tribal communities."

Kateri Cervantes, lead caseworker for the Mescalero Apache Tribal Child Support Enforcement Department, says that both the TLOA and the proposed VAWA amendment will help women in her tribe, about 80 percent of whom are married to non-Natives. In fact, she says, these laws have already helped by facilitating collaboration between her department and tribal police to make her community safer for women.

"Domestic violence is a very big problem on our reservation right now," Cervantes says. "We are so small we hear about it all the time. We don't have enough law enforcement."

Other tribes face the same problem: police forces with too few members or too little funding to protect residents.

, at last count, the Navajo Nation employed approximately 393 full-time law-enforcement officials. That’s more than any other tribe, but the Navajo Nation is also one of the largest and most spread-out, meaning it has just two law-enforcement officials per 1,000 tribal residents and 0.4 officers per square mile—among the lowest ratios in the country. In an attempt to address that, one TLOA provision extends the eligible age of police recruits from 37 to 47.

But police officers, black-robed judges and brick-and-mortar facilities like jails and prisons aren’t part of traditional practices, customs or values. Many tribal leaders maintain that traditional practices must also play a role in fixing the tribal justice system—and in some cases, may even be the best approach.

In the Navajo Nation, disputes and problems were traditionally settled through a process of restorative justice in which peacemakers—highly respected members of the community—brought the offender, victim and family together so the family could regain hozho, the Navajo term for balance and harmony.

Albert Begaye, the Navajo Nation's peacemaker liaison for To'hajiilee and Alamo, says peacemaking focuses on reducing recidivism.

"We don't want…what occurred [with Apachito's son] to occur again when he comes back," Begaye says. "What happened, happened, and that stays in the past. We want him to have a clear path of what is expected of him in the community." Traditional approaches can help heal the person, the victims and the community, Begaye explains.

Patrick Ortiz, Acoma Pueblo's detention sergeant, uses the tribal language to integrate offenders back into the community through education and training opportunities.

"We try not to call our jail a jail or a detention; we call it a healing center—meaning we can get these individuals back on track, set them back on the right path, where they are offered different help to cope with anger management, alcohol and parenting problems," Ortiz says.

Speaking to them in the tribal language makes the biggest difference of all, he adds.

"When I talk to my people, it is not in English; it is in the Keres language," Ortiz says. "When you speak your Keres language, it is better; it gets to them and it touches them in the heart."

But peacemaking may not work in every situation. A 1999 DOJ study on the impact of Navajo peacemaking concluded that peacemaking is most often used for family, business and community disputes, but is not recommended for domestic violence cases, because peacemakers don't have the authority to give protection orders to women under threat of domestic violence.

Gloria Champion, the executive director of the Home for Women and Children in Shiprock—as the largest domestic violence center in the Navajo Nation, it shelters an estimated 135 women and 300 children each year—says the solution to domestic violence and child abuse is in the hands and hearts of the people.

"I don't think it can come from the outside in—I think it has to come from the inside and the deep, internal, soul-spirit part of the people...They've got to honor this more than the paycheck, more than the position, more than anything else," she says. "It really means that our leaders need to be willing to walk in beauty."

Champion explains that walking in beauty is the Navajo way of life that respects and honors all living things and creates a life lived in balance.

"I don't think we will make it unless we get back into that kind of thinking and philosophy," she says.

Champion incorporates these kinds of teachings in her offender education classes.

"Our Navajo fellows will say, 'Wow, I remember these teachings; my grandma and grandpa would say [to] never hit a woman,'" Champion says. "And they will rekindle, and they will remember: maybe there is a different way. Maybe they grew up seeing mom and dad abuse each other, and all of sudden they will start clicking about their traditional teachings."

Champion also says partnerships, such as an agreement for Indian Health Services to come in and see children, are making a big difference. Previously, a mother had to take her kids to the local hospital, where she might sit for hours in a huge room—and possibly encounter an abuser.

"It was a dangerous situation. For the first time, [in] all of my 19 years here, the hospital is jumping in to help us, and we are just thrilled," she says.

Gonzales says his office respects and supports these kinds of community solutions and collaborations.

"I think lost in discussion is an important part of the story when we are talking about Native American communities, and that is all the things the leaders of these communities are trying to do to improve the lives of their people," he says. "That is just as important [a] part of the discussion as the crime rate and the criminal justice systems being put into place." He adds that once these systems are in place, there will be less reason to talk about crime and addiction.


Since 2010, US attorneys and tribes have accelerated their efforts to fix the law and order problem in Indian country—and despite TLOA's shortcomings and the difficulties inherent in implementing it, they're making progress.

Gonzales says he's made cracking down on crime in Indian country a priority. As soon as he began his position two years ago, he established an Indian Country Crime section and tasked its staff with getting out in the community, meeting with tribal judges and training tribal prosecutors. With better-trained tribal law enforcement, Gonzales points out, cases will be backed up by adequate evidence and not fall through cracks like they did in the past.

"Our effort is to get to these cases as early in the cycle as possible and bring to justice the perpetrators of domestic violence and take them out of the home and the community for a meaningful period of time," he says, "and really build some trust in the community, so that when people do report the victimization, they know justice will be served and the perpetrator will be prosecuted."

To that end, Gonzales' office keeps Native communities informed about tribal justice issues through press releases and newsletters and participates on multi-agency task forces to create safer neighborhoods, reduce drug use and keep children safe.

"We are doing more than before to engage with the people who live in these communities, particularly the young people—middle- and high-school and the elementary-age kids," he says. In the long run, he says, prevention and education will result in safer communities with youth better able to make choices that won't result in consequences, but in rewards. He also plans to open an office in Gallup to handle major crimes and work with prosecutor David Adams (Laguna) on domestic violence cases.

Alternative approaches are also taking hold: The Navajo traditional peacemaker program, which was codified into tribal law in 1982, now has 11 offices throughout the Navajo Nation, including one in To'hajiilee.

Begaye, the peacemaker liaison, explains how peacemaking and the Navajo way of life could help Jordan Apachito re-integrate into To'hajiilee when he returns home.

"We do say, 'Beauty be in front up of us, beauty be beside us, beauty be behind us, beauty be above us and below us.' You know, living the good life—that is what we want, and that is what we call bringing harmony back to the family," he says.

But much still remains to be done. From Apachito's point of view, even after two years, many of TLOA's provisions still haven't reached the grassroots level—and many families still need to take measures to protect themselves.

Since the shooting, Jordan has spent about a year in a New Mexico detention facility located three hours from his home, awaiting relocation. He's now serving the rest of his time in a federal prison outside the state. His sentence ends Nov. 23, 2014.

Apachito hopes that community-based prevention and peacemaking programs will be available in To'hajiilee by the time Jordan comes back home. When this happens, she says, then she will feel safe.

Santa Fe Reporter