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HOW CONCURRENT JURISDICTION CONTINUES TO FAIL THE OYATE

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COUNCIL REPORT

By Rep. Calvin "Hawkeye" Waln

I want to explain a serious issue that has plagued the Oyate since 2007, when the Rosebud Sioux Tribe Constitution & Bylaws was amended and the U.S. Senate passed the Tribal Law and Order Act (TLOA).

Historically, concurrent jurisdiction was granted to the Rosebud Sioux Tribe that created the tribal court system. The Indian Civil Rights Act (ICRA) established maximum sentencing guidelines for tribal courts. ICRA governed court procedures until the Senate enacted TLOA.

TLOA gave tribes authority to meet certain procedures and increased sentencing from a maximum of one year to three years. TLOA was presented to RST in 2009 to enable prosecuting tribal members at the tribal level and not the federal level.

Since being elected, I have always questioned RST’s stand on the Indian Self-Determination Act and TLOA. I questioned RST’s legal representatives repeatedly and received nothing but political excuses.

Motions by RST Council and legislative committees have been passed and nothing has been started toward exercising Self-Determination or implementing TLOA. RST pays an attorney general and a tribal attorney from the General Account, in a combined salary totaling $194,000, yet nothing is in the works to exercise concurrent jurisdiction.

One of the main excuses used is lack of funding and manpower within the prosecutor and public defender’s office. We know it’s common sense that funding and caseload is an issue, but nothing is being done about it.

Concurrent jurisdiction is a double-edged sword. We can prosecute minor assaults and other crimes in tribal court with sentences of three years and less. The bad part is that we are the only ethnic group in the United States that can be convicted of the same crime twice—once in tribal court and again in federal court.

This can be easily resolved if RST had strong legal representatives and a strong governing body that demanded its legal representatives and Administration implement TLOA and exercise the authority available in the Indian Self-Determination Act.

I have paid close attention to federal court news online and in the Sicangu Sun Times Newspaper. You see repeatedly tribal members being sentenced in federal court to one year and one day, making the conviction a felony. I have also noticed that several federal court plea agreements have been less than three years.

In my estimation, a majority of tribal members sentenced with the above timeframes were 18-21 years old. Others were 22-30.

In several RST Council meetings, the attorney general and tribal attorney were asked questions about implementing TLOA. We received nothing but excuses why we couldn’t come into compliance with TLOA, and no solutions were offered.

In a recent legislative committee meeting, it was reported by the president and attorney general that we are not ready for Self-Determination and it’s a lot of work to implement TLOA. In my opinion, it’s not hard to exercise Self-Determination or start the process of enacting TLOA. The only barriers that I have witnessed are tribal politics, a lack of understanding how to perform these tasks, and passing the buck of former legal representatives that are no longer employed by the tribe.

In 2007, the RST Constitution & Bylaws was amended and under Article XI (tribal court) the chief judge was to draft court procedures for RST Council to implement. To this day, this has not happened; and it also states that if the chief judge does not draft procedures, then the council can do it.

When a tribal member is arrested for a Class A offense, the incident is usually referred to the FBI and U.S. Attorney in Pierre. If arrested and charged in RST Court and placed on a $5,000 cash bond, the prosecutor receives information that feds have the case for possible indictment by a federal grand jury.

In the meantime, tribal prosecutor and public defender continue the case in tribal court while waiting for the feds to act. Since court procedures have not been drafted or passed by RST Council, the jailed tribal member sits on a high cash bond with no tribal court due process, just waiting on the feds to act. No motion for bond reduction; no motion for a probable cause hearing; no motion for suppression of evidence.

If the tribal member is indicted, you hear of federal public defender filing for a suppression hearing or probable cause hearing in federal court.

So, why isn’t this happening in tribal court?

The scales of justice is structured to work both ways. That’s why its titled “scales of justice.” The totality of the circumstances are weighed. The scales represent justice for the victim/society and justice for the person who allegedly committed the crime.

An 18-year-old RST member I read about was convicted in federal court for assault resulting in serious bodily injury. This young person signed a plea agreement for one year and one day in detention, making him a federal felon. The young man was also charged in RST Court with (Class A) aggravated assault, maximum one year detention; simple assault (Class B) with maximum detention of six months; and disorderly conduct (Class C) with no detention time.

Had we exercised concurrent jurisdiction, RST Court could have offered a plea agreement of one-year detention for aggravated assault and two days detention for simple assault, and the young man would have paid his debt to society as a misdemeanor and not been convicted as a federal felon, to follow him for the rest of his life. RST could draft a memorandum of agreement with the U.S. Attorney asking to meet or exceed the federal plea agreement to keep young RST members from being convicted of federal felonies, yet still pay their debt to tribal society.

If the tribe were to successfully implement TLOA, a member charged with tribal aggravated assault and federal assault with a dangerous weapon resulting in serious bodily injury, the average federal sentence is less than three years. This offense can be tried in RST Court and sentenced up to three years in detention. This prevents a federal indictment and makes all players in the tribal system to do their due diligence and not rely on the feds to do their jobs.

We have a $25 million Tribal Detention Center that is totally capable of holding members in line with sentencing guidelines of TLOA. We have a detention center capable, with a drafted MOA with the feds, to bring our members home to Rosebud who are awaiting federal sentencing. RST members can be home where the family can go visit them and not in Hughes County Jail or Winner Jail. We can generate revenue for our detention facility by bringing our members home.

Many of our members make mistakes at a young age and we don’t protect their future by handing them over to the feds when we can properly hold them accountable by preventing a federal felon. A young member returns home with a lifetime label as a felon to an unemployment rate of 80% plus, and no created jobs in sight.

Oftentimes we see our young members fall into a rut turning to substance abuse and sometimes becoming a second-time offender. This can all be prevented, but tribal government is failing the people. I have witnessed selective prosecution and referral to the federal system due to tribal politics. Everyone should be treated the same regardless, and a system is in place, but it’s not in place to be manipulated.

I will continue and push for tribal government to hold our legal representatives accountable to employ those federal acts that empower us. For our legal representatives to make excuses for not immediately working on TLOA is unacceptable. To not even immediately propose an amendment to RST Law & Order Code to bring sentencing guidelines into compliance with the TLOA is blatant disrespect for sovereignty of this tribe and its members.

I read that Pine Ridge amended their law and order code and was publicized in the newspaper. So, if tribal legislators were told to draft amendments to RST Law & Order Code, mandatory sentencing guidelines, and other legal legislation, I will gladly take that challenge on.

Various tribes in Indian Country have already amended their statutes and have implemented TLOA over the past two years. All you have to do is go online and read how legislation they drafted that was accepted by the feds is preventing federal felonies. I accept this challenge by our legal representatives and I will cut, copy and paste other tribes’ approved procedures with TLOA and fill in the blanks to fit our tribe. When our legal representatives pass the buck, their pay should be decreased and given to tribal programs to enhance services to the people.

In closing, thank you for taking the time to read this. I try hard to be transparent with the Oyate by attending as many community meetings as I can, being elected at-large, and informing the Oyate in writing. I encourage you to read the Indian Self-Determination Act, TLOA, RST Constitution & Bylaws (Article XI Tribal Court), and RST Ordinance 88-01. Ask you’re elected officials why none of this is being placed as a priority to enact.

I plan on aggressively pursuing TLOA and getting a MOA in place for our Tribal Detention Facility. I will no longer accept excuses for allowing members to become felons while our own tribal system contributes and condones this issue. Again, this only pertains to minor offenses that can he handled in RST Court, not major crimes such as sex crimes.

Wopila,

/s/ Rep. Calvin Waln

Antelope Community

—Rep. Calvin “Hawkeye” Waln, a former criminal investigator, is serving his first three-year term, representing Antelope Community.

Comments

The assault case you mentioned is a federal felony. The reason for the one-year-and-a-day sentence is so the defendant can receive "good time" credit. If he was sentenced to a year or less he wouldn't be eligible to receive good time. In this case, the judge actually did him a favor. Federal misdemeanors carry sentences of less than a year; however, you can still be convicted of a federal felony and receive probation without doing any jail time. It's not the jail sentence that dictates if the person is a convicted felon. It's if they plead guilty to an offense that carries a maximum prison sentence of more than one year.

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