II. PROSECUTION

The USAOs have established good communications and working relationships with Native American tribes in their districts. However, USAOs currently use three different case management systems to track Native American criminal cases. As a result, data maintained on The USAOs have established good communications and working relationships with Native Indian country criminal cases are not consistent among offices, preventing analysis on a national basis.

The federal government has jurisdiction over most felony violations in Indian country (See Appendix II, beginning on page 33, for a full discussion on criminal jurisdiction in Indian country). Because the USAOs are responsible for prosecuting most felony and some misdemeanor crimes, they must often fill the role of a state or local prosecutor for crimes committed in Indian country.

The 1975 DOJ Task Force Report concluded that tribal officials felt that the USAOs did not provide adequate prosecutorial services in Indian country. We found that as a result of current actions taken by the Executive Office for U.S. Attorneys (EOUSA) and the USAOs, prosecutorial services in Indian country have improved. In fact, tribal representatives at the four audit sites felt that they now have a better understanding of the federal processes for prosecuting cases, including why some cases are declined for federal prosecution. Tribal representatives also stated that they now have good working relationships with the USAOs and believe that the USAOs currently provide adequate prosecutorial services. One area that still needs improvement is gathering and consolidating comprehensive information on Indian country cases from the USAO's case management systems.

The actions taken by the EOUSA and USAOs to improve prosecutorial services in Indian country were in the areas of: communication, prosecution priorities, and case management systems.

Communication

In the past, USAOs often failed to establish good communication with the Native American tribes in their district. Tribal officials at the four audit sites stated that a major concern related to the lack of good communication was the fact that tribes were not informed of prosecutorial decisions. As a result of the USAO's failure to communicate prosecutorial decisions:

Native American tribes had a perception that U.S. Attorneys declined to prosecute an inappropriately high number of Indian country cases, without a reasonable justification.

Victims and their families believed that the offenders would never be punished for their crimes.

Some cases were never prosecuted in tribal courts because tribal officials were not informed of the USAO's decision to decline a case for federal prosecution. [Crimes committed in Indian country that fall under joint tribal and federal jurisdiction can be prosecuted concurrently in both tribal and federal court. Double jeopardy does not apply in these cases because federal and tribal courts are separate sovereignties. There is no requirement, therefore, that tribal officials defer prosecution until the case is declined by the USAO. However, in the past, tribal officials often chose to postpone tribal prosecution of these cases until the case was declined for federal prosecution.]

To address these issues, at each of the four audit sites, the U.S. Attorney had appointed at least one Assistant U.S. Attorney to act as a liaison with the tribes. A tribal liaison had also been appointed in the District of New Mexico, which we visited during our preliminary survey. The tribal liaisons are assigned full-time to coordinate prosecutorial services in Indian country, and serve as the point of contact for Native Americans regarding questions on cases referred to the USAO for prosecution. At two of the audit sites the tribal liaisons were also responsible for prosecuting Indian country cases.

The U.S. Attorneys at each of the four audit sites have established procedures to ensure that tribal officials are informed about prosecutorial decisions, including the basis for declining cases for federal prosecution. Generally, the Assistant U.S. Attorneys responsible for prosecuting crimes in Indian country communicate prosecutorial decisions because they are in contact with tribal law enforcement officials regarding the status of current cases. Tribal, FBI, and BIA officials are generally notified of prosecutorial decisions verbally, although frequently formal written notification is also provided.

The following are additional examples of actions taken by USAOs to improve communication with the Native American tribes in their districts:

The U.S. Attorneys for the Districts of Arizona and South Dakota both provide an Annual Report to the tribes in their districts. These Annual Reports include information on: (1) activities within the USAO to serve Indian country more effectively, (2) Indian country crime prevention initiatives, (3) statistics on Indian country cases referred for prosecution, and (4) prosecution highlights.

The USAO for the District of South Dakota held conferences on the reservations to address sexual abuse crimes. Members of the tribal communities received information on how to handle sexual abuse crimes, and how to file charges against sexual abuse offenders. The conferences were geared toward the tribal communities rather than tribal officials, providing tribal members with an understanding about the role of the USAO.

Actions taken by the USAOs improved communication with tribes. Tribal officials at the four audit sites stated that the USAOs had established good working relationships with tribal officials and felt that the USAOs were accessible to the tribe. Generally, tribal officials were informed timely of prosecutorial decisions, and the basis for the decisions, especially when the USAOs declined to prosecute a case. One tribal prosecutor said she had not been contacted by the USAO; however, the prosecutor had only been in office a month, so we provided the name of the USAO tribal liaison to her.

Prosecution Priorities

Tribal officials at the four audit sites stated that historically, prosecution of Indian country cases was not a priority of the USAOs. In addition, representatives from the USAOs stated that, in the past, lengthy delays in prosecuting Indian country cases conveyed an appearance that offenders would never be punished for crimes committed in Indian country.

Tribal officials at the four audit sites indicated that the recent actions taken by USAOs demonstrated that crime in Indian country is a high priority. In particular, the tribal representatives stated that the U.S. Attorneys at each audit site went to each tribe to meet personally with the tribal officials. Tribal officials stated that this was the first time a U.S. Attorney had come to them for a meeting. Tribal officials felt that these meetings confirmed that the U.S. Attorneys were committed to working with tribes in providing prosecutorial services in Indian country.

Meetings between the USAO and the tribes improved relationships by establishing lines of communication and providing information on the elements and difficulties of prosecuting cases federally. Tribal officials stated that because of the U.S. Attorneys' outreach efforts, they now have a better general understanding about why some cases are declined for federal prosecution.

Misdemeanor crimes committed by non-Indian offenders in Indian country was another area of concern related to the priority of Indian country cases. Misdemeanor crimes against Indian victims that are committed by non-Indian offenders in Indian country are under the sole jurisdiction of the USAOs for prosecution. This type of crime often went unpunished because the USAOs chose to concentrate their efforts on more serious crimes. At each audit site the U.S. Attorneys have developed solutions to address this concern by using the U.S. Magistrate court to hear non-Indian misdemeanor cases. See Finding 3 (page 24) for further information on the use of U.S. Magistrate courts.

The U.S. Attorneys at the four audit sites have also taken actions to ensure that prosecutorial decisions are made timely for crimes committed in Indian country. In particular, the appointment of tribal liaisons has helped to ensure that prosecutorial decisions are made timely. Other actions have also been taken. For example, the District of Arizona, created an Intake Team to ensure that prosecutorial decisions are made timely. The Intake Team consists of Assistant U.S. Attorneys, who review cases referred for prosecution and determine whether the USAO should prosecute the case. The case is then assigned to other Assistant U.S. Attorneys who are responsible for the actual prosecution. The major benefits of the Intake Team are that prosecutorial decisions are made quickly and consistently. The goal is to make a preliminary prosecutive determination within 10 days after a referral is received. Often further information is needed to make prosecutorial decisions, which can extend the amount of time taken to make decisions.

In order to assess the results of current actions taken by the USAOs, we reviewed a sample of 58 Indian country criminal cases referred for federal prosecution. Our analysis did not reveal any instances of unreasonable delays in making prosecutorial decisions. For the 58 cases, we generally found that the USAOs were informed about cases when the crime was reported and the USAOs were updated about the facts of the cases as the investigations progressed. Out of the 58 sample cases, 32 were declined for federal prosecution. Declination decisions were generally made within 2 months after the USAOs were notified of the crime, unless substantial additional information was required. In our judgment, the bases for declinations in the 32 sample cases appeared reasonable. The bases for the 32 cases were:

weak or insufficient evidence, 18 cases;

a witness or victim refused to cooperate with the USAO, 7 cases;

the state had jurisdiction, 2 cases;

the case had already been tried in tribal court and the defendants were acquitted, 2 cases;

the case was deferred to the tribal court because the tribal law provided for longer sentencing, 2 cases; and

the defendant successfully completed an agreed upon diversion program, 1 case.

We noted that USAOs at the four audit sites no longer require the FBI to conduct independent investigations of Indian country cases before making prosecutorial decisions. The USAOs will make prosecutorial decisions and prosecute cases based on investigations conducted solely by BIA or tribal investigators, reducing duplication of law enforcement efforts and delays in making prosecutorial decisions.

Finally, another program that USAOs at the four audit sites have been involved in is the establishment of Multi-Disciplinary Teams in Indian country to address child sexual abuse. As discussed in Finding one, page 9, Multi-Disciplinary Teams are composed of an FBI agent, an Assistant U.S. Attorney, a social worker, and a doctor or nurse, all of whom work together on child sexual abuse cases from start to finish.

Based on these efforts, the USAOs established prosecution of Indian country cases as a significant priority. Efforts have been directed at overcoming delays and procedural issues. Tribal officials at the four audit sites stated that they currently believe that prosecution of Indian country cases is a priority of the USAOs.

Case Management Systems

The EOUSA's ability to conduct analysis of Indian country cases was limited because three different case management systems are used by the USAOs to track all of their cases: TALON, PROMIS, and USACT II. Case management data contained in the three systems are integrated into one system at EOUSA. Nonetheless, the three case management systems lack sufficient common identifiers for Indian country cases that would enable the EOUSA to generate comprehensive information on all Indian country prosecutions. As a result, although we were able to obtain a listing of Indian country cases at each audit site, analysis on prosecution of Indian country cases is difficult on a national basis.

The EOUSA has recognized the problems associated with having three different case management systems in use by the USAOs. As a result, a new system, LIONS, was being developed. The Executive Office currently estimates that all USAOs will be using the new case management system by the end of 1997. Representatives from the EOUSA stated that the new LIONS system will contain specific identifiers for crimes committed in Indian country. When the new system is in place at all sites, the EOUSA should be able to provide comprehensive information on all Indian country prosecutions.

Conclusion

In our judgement, EOUSA and the USAOs have taken actions to improve prosecutorial services in Indian country. The USAOs established good communication with tribes through the appointment of tribal liaisons and by communicating prosecutorial decisions to tribal officials. The USAOs have also conveyed to the tribes that federal prosecution of crimes in Indian country is a priority. On the other hand, without a single case management system that tracks the same information in each USAO, analysis on prosecution of Indian country cases was difficult on a national basis.

Recommendation

We recommend that the Director of the EOUSA:

2. Ensure that the new case management system includes the data necessary to provide comprehensive information on all Indian country cases.

Resolved. To close this recommendation, the EOUSA must provide documentation demonstrating that the new case management system has been implemented and includes the data necessary to provide comprehensive information on all Indian country cases.

#####