Tribes discuss proposed law enforcement change

Lake County’s recent push to withdraw from an agreement to prosecute felony crimes involving tribal members on the Flathead Indian Reservation drew criticism last week, as officials with the Confederated Salish and Kootenai tribes held a public hearing discussing the implications of the jurisdiction change.

In front of a packed council chamber, members of the tribes’ legal department called the county’s Jan. 11 passage of a resolution of intent to withdraw from Public Law 280 a “fundraising effort,” and assured the audience that the move will bring no immediate changes.

“It is a request to make a request to make a request which is then decided upon,” attorney Ryan Rusche said. “The tribes will have plenty of opportunity to weigh in.”

Rusche said a full dissolution of the agreement, established in 1964 between the state and federal government, hinges on a series of actions from higher agencies. The county’s resolution, he explained, merely calls for the Montana legislature to pass a bill requesting the federal government relieve the state of its responsibility. Such a request would need to be issued through a proclamation by Gov. Steve Bullock, and ultimately approved by the U.S. Secretary of the Interior.

Rusche and fellow attorney Rhonda Swaney went on to criticize the narrative used by Lake County to justify its position.

While county officials argue that the prosecution of tribal members carries too much of a financial burden, Rusche said many of the statistics offered as evidence were “cherry picked” and unrepresentative of the situation at hand.

Rusche said the tribes contribute an equal if not greater amount of funding for law enforcement than the county. Swaney added that the over representation of tribal members in jail stems from socioeconomic reasons rather than crime rates.

But in a departure that was followed by many speakers at the hearing, Swaney and Rusche described the potential of a jurisdiction change.

When asked by Councilwoman Shelly Fyant if withdrawing from Public Law 280 represents an opportunity to increase tribal sovereignty, Rusche offered a cautious “yes.”

Although the federal court system, which would handle felony crimes if withdrawal were to take place, carries significant disadvantages, such as stricter sentencing and parole requirements, Rusche said the current situation is not perfect either.

“At the end of the day criminal law should be reflective of society,” he said. “If the system can be improved upon this is the opportunity to do it.”

Eldena Bear Don’t Walk, the local managing attorney for the Montana Public Defender’s Office, said that under Public Law 280 she often sees tribal members tried twice for certain crimes.

She gave the example of a person caught with pipe used for smoking methamphetamine. They will initially be tried in tribal court for the misdemeanor paraphernalia offense. If the pipe contained any drug residue, however, they can also be charged later by the state for felony possession of dangerous drugs.

Unaware of these secondary charges, Bear Don’t Walk said victims of this “double prosecution” are often arrested on warrants after fulfilling their sentences from tribal court. She said county prosecutors continue to bring cases several years after the incident occurred.

“Why would you?” she said. “Because they want the numbers…That’s part of the frustration of 280.”

While some officials noted flaws in the court system under the law, others pointed out the benefits of the agreement.

Tribal Chief of Police Craig Couture said that local law enforcement agencies work well together and adding federal agents into the mix would create complications.

Couture also noted significant “threshold issues” that would come into play under a jurisdiction change. He said federal agencies only prosecute serious crimes, while tribal courts can only impose relatively short sentences. If a drug dealer stayed below the threshold needed to trigger federal prosecution, they could continue to operate with minimal risk.

“It would encourage them to set up shop on the reservation,” Couture said.

Despite the potential challenges, however, Couture expressed frustration with the county’s recent actions.

“I honestly think we should represent our own people,” He said. “If the county wants to prove they can’t do their job, than we should let them. We should take the higher ground.”

This message resonated with many speakers as the hearing stretched on.

Laurence Ginnings, managing attorney for the Tribal Prosecutor’s Office, cautioned council members about the additional caseload following a withdrawal. While federal agencies would step in to prosecute felonies, tribal law enforcement would remain responsible for initiating investigations and providing short term detainment.

“I don’t want you to grab it and not fund it,” he said. “We will have a disaster on our hands.”

Ginnings said the fact that Lake County is even considering withdrawing from the agreement should serve as a testament to the strength of the tribal court system, which took over jurisdiction of misdemeanor crimes in the early 1990s.

“This is a good thing,” he said. “It was done in the past and it was very successful.”