Posted Friday, March 8, 2013, at 9:00 AM
Courtesy Burleigh County Detention Center
The Bismarck, N.D. Tribune brings us the story of Morning Star Brown, a 30-year-old woman recently charged with killing her boyfriend’s cousin. Brown, a member of the Standing Rock Sioux Tribe, allegedly started drinking early this past Sunday morning. By the afternoon, according to an affidavit by an FBI special agent, she’d consumed the better part of a liter of whiskey. Her boyfriend, Skip Summers, says she then became “rowdy” and grabbed a knife. Soon, Summers’ cousin Jarrett Two Bear was dead of a stab wound, and Brown was in federal custody, facing a charge of second-degree murder.
Summers claims that this stabbing wasn’t unusual—he told investigators that Brown had stabbed or threatened to stab him at least six times during their two-to-three-year relationship. In April 2012, she was convicted in a tribal court of aggravated assault for one of those incidents. So, how is it possible that a woman convicted of a violent stabbing in April gets freed less than a year later to commit yet another stabbing?
The answer has something to do with the quirks and limitations of the Native American justice system. Generally, the federal government grants native tribes jurisdiction over many crimes committed on their reservations. The federal government shares jurisdiction in the case of major or violent crimes like murder, rape, and assault with a deadly weapon. There are a lot of these sorts of crimes: According to a November New York Times article, murders and rapes are reported on Native American reservations at a rate more than 20 times the national average. And that's lowballing it: The Times article went on to note that "crime on reservations may actually be 10 times or more higher than official rates because people seldom report violence."
But for various reasons—limited resources is a big one—the feds often decline to investigate or prosecute cases. The Times reported that, from 2000 to 2010, “as crime on some reservations surged by as much as 50 percent, the number of suspects on Indian lands being investigated for violent crime by United States attorneys declined by 3 percent.” When the feds decline to prosecute, the case is sometimes still brought in tribal court. Unlike the state and federal court systems, these tribal courts are not standardized. Some resemble traditional courtrooms; others utilize alternative methods of dispute resolution. The judges and attorneys do not always have formal legal training. Many courts depend on federal funding, which is meager: President Obama’s 2013 budget requested $24.6 million in total for the hundreds of tribal courts that exist today.
A Bismarck Tribune article from 2010 reported that the Standing Rock Sioux tribal court was a very good one, featuring “law-trained prosecutors, defense attorneys and judges and a written criminal code and constitution.” But, like all tribal courts, it has limited power to punish. Before 2010, the maximum sentence that could be imposed by a tribal court was a year in jail. The Tribal Law and Order Act of 2010 boosted the maximum sentence to three years, but some tribes have not yet responded to that new law. (The most recent copy I could find of Title IV of the Standing Rock Sioux Tribal Code of Justice indicates that one year in prison remains the maximum penalty in its tribal courts.)
Brown wouldn’t necessarily have received a much harsher sentence if she’d been prosecuted in federal court. (Federal sentencing guidelines recommend a 15- to 21-month sentence for a first-time offender convicted of aggravated assault.) It’s just that, as the Native American justice system currently stands, there are few systemic mechanisms for preventing situations from escalating from bad to worse. The feds lack the resources to prosecute every case, and the tribal courts lack the power to impose a punishment that fits the crime.