Criminal Justice in Navajo Nation: We Can Do Better; Trust Me; I’m A Lawyer

In 1978, the United States Supreme Court decided a case called Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). The question before the Court was whether tribes had the power to prosecute non-Indian defendants in tribal court for crimes committed on reservations. The late Chief Justice Rehnquist wrote the majority opinion in which the Court held that tribes did not have that power because it was “inconsistent with their status” as wards of the federal government.

Rehnquist further justified the holding on grounds that tribes lacked competent tribunals and generally were “without laws.” The tribes that did have laws based them on savage customs which were “external and unknown.” Basically, Rehnquist was saying that tribes cannot be trusted with prosecuting non-Indians because tribes are incompetent and do not understand the rule of law hence his citation to Ex Parte Crow Dog, one of those most racist, anti-Indian opinions ever issued by the U.S. Supreme Court.

For those who are unaware, the U.S. Constitution and its Bill of Rights do not apply to tribes. See Talton v. Mayes, 163 U.S. 376 (1896). Moreover, tribes are prohibited from trying anyone for major crimes such as murder, rape, and arson. The Major Crimes Act took that power away in 1886 and gave it to the feds, meaning if a murder occurs on a reservation the FBI and federal prosecutors are responsible for handling the case. Oliphant dealt the final blow to criminal jurisdiction in Indian Country, establishing a blanket rule that tribes do not have the authority to prosecute non-Indians.

The ruling in Oliphant created a major jurisdictional gap in Indian Country. Non-Indians were coming on to reservations and committing crimes without facing any legal repercussions. Today, Native women are 3 times more likely to be victims of sexual assault than any other ethnic group. As a whole, the violent crime rate in Indian Country is 3 times higher than anywhere else in the U.S. To exacerbate the issue, tribal police are severely under staffed and under funded; state police have no jurisdiction on reservation lands except in P.L. 280 states; and the feds have exclusive jurisdiction over non-Indian perpetrators.

According to a 2010 report issued by the U.S. Government Accountability Office, the U.S. Attorney’s Office declined to prosecute 52% of the violent crimes occurring in Indian Country. The main reason was insufficient evidence. For reservations as large as the Navajo Nation, it takes tribal police on average a couple hours to respond to an incident. Imagine, for instance, how long it must take the FBI to respond to a murder out in a remote area of the Navajo reservation like Shonto or Blue Gap where many roads are unpaved and unmarked. By the time the feds get to the scene, evidence goes stale and is lost. You ever see the movie Wind River?

Since Oliphant, tribes have been trying to regain criminal jurisdiction over non-Indians who commit crimes on the reservation, particularly sexual assault. In 2013, the Violence Against Women Act (VAWA) was re-authorized and included provisions allowing tribes to prosecute non-Indians in tribal court for domestic violence so long as tribes meet certain requirements. Navajo Nation, for many reasons, is not a participating tribe under VAWA.

As a criminal defense attorney who practices in Navajo courts, I can say that there are many things that the Navajo Nation has done right, namely the recognition and use of common law. However, there are many things that can be improved in the Navajo judicial system, mainly criminal justice.

It is not uncommon for me to receive calls from people complaining about how they were arrested by Navajo police and thrown in jail, sometimes for days. After looking into their cases, I came to see many offenses had no evidence or probable cause. A lot of times the police officers do not mirandize (i.e. read Miranda rights) defendants upon arrest as is required under Navajo law. It is typical for police officers to make assumptions such as people being drunk or high without conducting any test to verify.

You can read statements online from people labeling Navajo police, courts, and prosecutors as “corrupt” and “biased.” Of course, people say crazy things online, but check the google reviews of the Chinle District Court for some interesting statements. Obviously, most people who go through the system are not happy because they are defendants and forced to go through the system. However, there seems to be a generally consensus, given my communication with clients and folks from different communities, that the Navajo people are not happy with the criminal justice system. Their reasons are they do not understand it and they are not treated well during the entire ordeal. The discontent with a criminal justice system is a symptom of a greater, looming issue: it creates distrust among the community and eventually people lose respect for the rule of law.

Accordingly, the people who work in the judicial system like attorneys and judges would do well to remember that courts and attorneys serve the people regardless if they are plaintiffs, defendants, or witnesses. I've reviewed too many cases brought to me by prospective clients where their previous attorney billed them thousands of dollars. I see a lot of fees that are upwards of $7,000. The client would complain that their attorney never answered emails, returned messages, or even scheduled meetings to update the client on their case. If you're an attorney billing a client $7,000, or any amount for that matter, you better return their calls and messages. Those of us with state bar licenses would find ourselves in hot water with the state bar association if we ever billed a client $7,000, ignored emails, and did not return calls.

To help the general public understand the criminal justice process, here is a general overview of how it works. Police respond to an incident after receiving a call. Officers will interview people at the scene, take statements, and gather any evidence. If after investigating, the officers suspect a crime has been committed (develop probable cause), they arrest the person suspected of the crime. The suspect will be booked and may spend time in jail.

In the meantime, the officers write police reports that will be forwarded to the prosecutor’s office. Once the prosecutor receives the police reports, they review the facts, statements, evidence, offenses, and make a determination of whether charges will be filed in court against the suspect. If the prosecutor chooses to move forward with charges, a criminal complaint is drafted and filed with the court along with the police report. If the prosecutor declines, the suspect is released from jail. Usually a determination is made promptly so the suspect does not sit in jail for days. In fact, some codes like the Navajo Nation Code require that defendants in jail be taken before a court as soon as possible for an initial appearance.

At the initial appearance, the judge reviews the criminal complaint with the defendant, makes sure probable cause exists, reads defendant rights, appoints an attorney if needed, and sets the case for an arraignment where the defendant will plead guilty, not guilty, or no contest. After the arraignment, a trial is set if the defendant pleads not guilty. The case may be settled by a plea agreement before a trial takes place.

In Navajo Nation, when people are arrested, there is no initial appearance, and sometimes they end up sitting in jail for days. Cases go straight to arraignment. When the defendants show up for the scheduled arraignment, the court sometimes ends up dismissing the case because no criminal complaint was filed. Ask the prosecutors why and they will say that they cannot file a criminal complaint without receiving a police report first. In fact, the prosecutors are not even required to show up for the arraignment which is odd because in most jurisdictions, the prosecutor is present at all stages of a case. It would be interesting to see what would happen if Navajo courts required initial appearances and the attendance of prosecutors because prosecutors would have to show up, protect their complaint, and justify probable cause. Or in the alternative, explain why no complaint has been filed.

On the police side, sometimes it takes them months to deliver a police report to the prosecutors. It is unclear why. That means defendants end up spending a lot of money hiring defense attorneys who show up to the arraignment, only to have the case dismissed. Defendants think the case is over, but then months later, the police report shows up on the prosecutor's desk and a criminal complaint will finally be filed. The defendant ends up having to spend more money re-hiring an attorney to return back to court. So the question is: why set a case for arraignment when there is no criminal complaint filed?

Many criminal cases that proceed do not have sufficient evidence but prosecutors move forward anyway. For example, there is case law in Navajo Nation stating that to obtain a conviction for DUI, the prosecutor must have evidence of intoxication such as field sobriety tests, breathalyzer tests, and/or blood tests. I have seen cases where that evidence does not exist, but for some reason, the prosecutor still chooses to proceed with the case. It makes me wonder how many times defendants who cannot afford attorneys or choose to handle their cases on their own are pressured into accepting plea agreements where prosecutors leverage baseless charges that would not succeed at trial.

More frustrating, when people are charged with multiple offenses, each offense is a separate case. As a result, some defendants have multiple cases pending even though they all arise out of the same incident. This sometimes requires attorneys to file multiple documents for each case and the courts issue the same orders for every case. It is a very inefficient and obsolete system. Many jurisdictions have implemented a charging system where only one criminal complaint is issued against a defendant; counts are used for charging multiple offenses. This not only reduces the caseload but also eliminates repetitious filing and unnecessary paperwork.

I am not criticizing Navajo courts or attorneys. Rather, as a member of Navajo Nation who was born and raised near Chilchinbeto, and as a state licensed attorney who is a former prosecutor, I am raising awareness about the defects in our nation’s criminal justice system. Our people, defendant or not, deserve to be treated better and more fairly in terms of justice. Isn’t that what our rule of law and notion of justice has always been about? Bee haz’ąąnii bee hózhǫ náhoodleeł dóó hózhǫ́ nahasdlii’.

At this point, I am inclined to say that the Navajo Nation criminal justice system is not yet ready to have criminal jurisdiction over non-Indians. There has been discussions here and there about becoming a participating tribe under VAWA. Nothing has been agreed upon yet. However, as of now, my opinion is if we cannot give our own people a solid system of justice, we are shooting ourselves in the foot by trying to include non-Indians in our system. If congress men and women were to see the Navajo criminal justice system as it is now, my fear is that it would be used against us in congressional hearings and federal cases where people argue against tribes having criminal jurisdiction over non-Indians.

Nonetheless, I know this system can be improved. We need to start by defining defendant and victim rights, redrafting court rules, and revising our rules of procedure. The rules of procedure and evidence are very outdated. They do not conform to how the courts operate, and a lot times, attorneys do not follow the rules for pretrial conferences and discovery. Discovery and disclosure rules are extremely important in criminal cases, and yet there has not been an established doctrine like Brady.

There should be consistent policies among the prosecutor offices throughout Navajo Nation. Prosecutors and police officers need open lines of communication and more training opportunities. Prosecutors struggle during the charging and discovery phases. People say to me, "Well, this is how it is here." My response is, "But you know it shouldn't be like this, right?" In my experience working with multiple tribes and justice systems, I know the Navajo criminal justice system can be improved and it is not that difficult to do it. We should not accept a broken system. Instead, we should always strive to improve it. We can do better. Trust me; I’m a lawyer.