3 Ways DOJ Is Working To Improve Justice In Indian Country

By Trent Shores | September 15, 2019, 8:02 PM EDT

Trent Shores
Trent Shores
Since the founding of our republic, federal law has recognized that the federal government shares a special relationship with the many Native American nations in the United States. In exchange for land and other consideration, the United States agreed to provide for the security and well-being of federally recognized tribes while continuing to respect their sovereignty.

As both a United States attorney and a member of the Choctaw Nation, I am keenly aware just how important it is for the federal government to live up to its sacred trust responsibility. I am also proud to say that today's U.S. Department of Justice, working closely with tribal, federal and state law enforcement, has taken many steps to improve public safety in Indian Country by upholding the special trust relationship that it bears. Below are but a sampling of the many initiatives and programs being implemented.

Missing and Murdered Indigenous Persons

Each year, too many Native American persons are murdered or reported missing. While much of the reporting thus far has focused on missing or murdered Native American women, Native American men also go missing or are murdered at unacceptably high rates. To grapple with this problem, the Department of Justice is working on multiple fronts to address missing and murdered indigenous persons.

To start, the DOJ and its partners need reliable data with which to work. While the National Crime Information Center's Missing Persons Database shows that Native American persons are reported missing at high rates, there is some question of whether all American Indian and Alaska Native persons are reported. Law enforcement entities with responsibilities in Indian Country would benefit from an in-depth data analysis of available databases to identify current cases of missing indigenous persons and clear out cases in which the missing person was found. Certainly, a study of data collection practices to learn the most effective ways to gather, evaluate and share information would also assist law enforcement agencies to know the breadth and scope of the problem at any given time.

Meanwhile, the DOJ is working to develop nationwide protocols and procedures to guide law enforcement tasked with investigating a missing or murdered Native American person. The DOJ is soliciting input from experts in forensics, victim advocacy, prosecution, law enforcement and Native American issues. Based on those inputs, the DOJ will work to draft model protocols and procedures. Throughout such a process, the DOJ would hold formal and informal consultations with tribes to ensure that any best practices meet their needs. Once any model protocols and procedures are finalized, United States attorneys could use them to consult with local, tribal, state, and federal stakeholders before furthering tailoring the protocols and procedures to local conditions.

I am confident the DOJ's efforts will give tribal, state and federal law enforcement better data and tools to combat the issue of missing or murdered indigenous persons.

Collaborative Law Enforcement Models

Anyone familiar with law enforcement in Indian Country knows the complex jurisdictional issues that arise where tribal, state and federal sovereignty overlaps. Jurisdictional questions have allowed some criminals to walk free. To correct that problem, the DOJ has worked with tribal, state and local law enforcement to close any procedural loopholes that allow criminals to escape justice.

Several U.S. attorneys' offices have helped foster collaborative law enforcement models. Under such models, tribal and state law enforcement leaders sign agreements permitting each to cross-deputize the other's officers. A tribal police department might cross-deputize a state sheriff's deputy to make the deputy a full-fledged tribal officer, allowing that deputy to enforce tribal law against an Indian in Indian Country. In return, the state will cross-deputize a tribal police officer, allowing the tribal officer to enforce state law against non-Indians within the county.

Meanwhile, federal agencies might induct tribal and state investigators into their ranks as task force officers empowered to enforce federal law against Native Americans and non-Native Americans. Such overlapping authority allows law enforcement to seal off any loophole through which a criminal might hope to escape. For example, the Bureau of Indian Affairs issues special law enforcement commissions to qualified tribal and state law enforcement officers. These SLEC officers receive extensive training from Department of Justice prosecutors and BIA agents before returning to the field to aid in federal investigations and prosecutions.

Collaborative law enforcement models work. For example, in the Northern District of Oklahoma where I serve, the Cherokee Nation has fostered a nearly seamless working relationship with adjacent law enforcement. The Cherokee Marshals have more than 60 cross-deputization agreements with local, state and federal partners. Time and again, those agreements have allowed law enforcement from each sovereign to stop criminals from evading justice by bolting to or from Indian Country. And the Cherokee are far from unique — the Muscogee (Creek), Osage and other nations within the Northern District have adopted the collaborative law enforcement model to protect their citizens.

Going forward, the DOJ will continue to encourage collaboration to secure our tribal communities and safeguard the well-being of Native Americans and non-Native Americans alike.

Guardians Project

Many federal agencies offer tribes grants or other funds to support tribal programs. Unfortunately, federal funds attract fraudsters hoping to profit from money meant to help tribal members. Such frauds can divert millions away from Native communities and into the pockets of criminals.

U.S. attorneys' offices have taken the lead in the fight against federal grant fraud. For example, the District of Montana has instituted what is known as the Guardians Project. The project brings experienced investigators from the FBI, IRS and agency inspectors general together with federal prosecutors to investigate and prosecute complex federal grant fraud cases. But it does not merely react to fraud. The task force also proactively trains tribal officials how to follow the often complex federal grant policies and procedures. Tribal administrators learn how to safeguard grant funds, report use and misuse, and shelter under whistleblower statutes.

Since 2013, the Guardians Project is credited with over 120 felony convictions along with over $16.5 million in restitution, $3.6 million in fines and $1 million in civil judgments. They have prosecuted crimes ranging from bribery to blackmail to tax evasion and beyond. Meanwhile, project subject matter experts have traveled to reservations located within the state to educate tribal administrators on the intricacies of the federal grant administration process. Thanks to their efforts, Montana's Native American communities receive the federal benefits to which they are entitled.

Moving Together in the Right Direction

These are but three of the many programs and initiatives that the Department of Justice employs to carry out its duties within the special trust relationship between the federal government and the tribes. I could just have easily described the DOJ's efforts to recover cultural patrimony pillaged from tribes, safeguard eagles and other natural resources while respecting tribal religious needs, exchange entry-level attorneys with tribal attorneys general's offices, or carry out any number of other programs currently in place. Each is critical to safeguarding the well-being and security of the Native American nations while respecting their sovereignty.

But most importantly, each program shows in its own way that the federal government (and in particular the Department of Justice) remains dedicated to upholding its trust responsibilities while respecting tribal self-determination and sovereignty. Together with our tribal and state counterparts, we are strengthening our Native American communities while guaranteeing that law enforcement can work in lockstep to thwart those who would prey upon tribes and their peoples. Together we will improve public safety in Indian Country. Not only is it our legal duty, it is also the right thing to do.

R. Trent Shores is the United States attorney for the Northern District of Oklahoma. He chairs the Attorney General's Advisory Subcommittee on Native American Issues.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author and do not necessarily reflect the views of Portfolio​​ Media Inc. or any of its​​ respective affiliates. This article is for general information purposes an​​d is​​ ​​not ​​intended to be and​​ should not be taken as legal advice.

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