A Day in the Life of a Tribal Prosecutor

By Tamera Begay1

She is currently an Assistant Prosecutor for the Puyallup Tribe of Indians. Prior to that position, she was an Attorney-Prosecutor for the Navajo Nation and a Legislative and Government Affairs Associate for the Navajo Nation Washington Office in Washington, D.C.

It’s a Tuesday evening, and I lock the door to the prosecutors’ office after my staff has left for the day. I just wrapped up a day in court with pre-trial conferences and bail hearings. Much like my federal and state counterparts, my entire day was spent in the balancing act between negotiating with defendants, ensuring justice and safety for victims in my community, and being mindful of the need to preserve judicial resources. When I look out my office window at the end of a long day, instead of skyscrapers and taxis, I see a pack of horses nibbling on the vegetation that grows near the courthouse. This is a routine sight for me now—I moved back to Crownpoint, New Mexico, my hometown, to serve as a tribal prosecutor for the Navajo Nation.

A full day in court has left me mentally exhausted, but the day is not over yet. The Navajo Nation has a three-year statute of limitations on criminal matters,2 and I need to continue working to address the back log of police reports. For a time, the Crownpoint office did not have a prosecutor—the remote location makes it hard to fill these positions, and hard to find suitable housing and resources once the position is filled. The backlog of police reports I inherited means my criminal docket has the potential to climb to 800 cases.

The first police report I read is a domestic violence case—a strangulation—which triggers 18 U.S.C. § 1153(a) and § 113(a)(8), the federal statutes governing this crime when it takes place in Indian country. This report was submitted a year-and-a-half ago, but I don’t have any records of the FBI stepping in to investigate the case. Before I can determine if I can file a complaint for this case, the technicalities of criminal jurisdiction in Indian country cross with the work of a prosecutor and require me to ask a number of predicate questions: Does the reporting officer still work for the Nation? Can I locate the victim? Does any evidence exist beside witness testimony? Does the victim want to cooperate? I notice a gap with the evidence that will likely mean a declination in prosecution from the U.S. attorney general’s office, but I may still be able to proceed in tribal court.3 First, I need to see if I can locate the victim, because most victims don’t maintain the contact information we collect at the time of an incident.

A woman answers the listed number, and I introduce myself and ask for the victim. The woman responds in Navajo, and then says I don’t speak English very well. Here is an unexpected—if not uncommon—hurdle in my work: The victim needs a translator. Although I am Navajo, I am not fluent enough in my language to serve as a translator. I do my best to respond and tell the woman I will call back tomorrow. One of my legal secretaries has worked for this office for over 30 years, and in addition to carrying a wealth of institutional knowledge, can serve as an initial translator for the case.

I pull the next report and recognize the alleged perpetrator’s name—he’s been convicted multiple times for domestic assault in tribal court. Seeing no glaring evidence issues, I do some research, including on the Indian law resource blog “TurtleTalk,” for recent cases and scholarly articles about United States v. Bryant. Bryant held that uncounseled tribal court convictions which complied with the requirements of the Indian Civil Rights Act (ICRA), could be used as predicate offenses for federal prosecution under 18 U.S.C. § 117(a).4

However, I have not yet been successful in getting the U.S. attorney general’s office to take a Bryant case referral from my office. There has been a lot of criticism on the Bryant decision: A lack of common understanding of the protections of the ICRA has led to advocates concerned that Indian defendants’ basic rights would be ignored.5

I am acutely familiar with the pro se defendants common in tribal courts—I negotiated with seven of them today. As a tribal prosecutor who is also a member of my community, I don’t take my duties lightly; it is not only my job to ensure justice for victims, it is also my responsibility to ensure that it is done while upholding the federal and tribal due process rights of the alleged perpetrators. The tribal courts I practice in likewise work every day to uphold the rights of all defendants, including those pro se.

Like my state and federal counterparts, I worry about how to keep my community members safe, given the limited judicial and governmental resources at my disposal. However, because ICRA limits sentencing to a maximum of three years per charge, and a maximum of nine years collectively, I also must contend with the options available to me in tribal

The

court.6 I brainstorm some non-judicial ways to address the problem of domestic violence in my community. While a majority of my cases are petty crimes involving substance abuse, this is my fourth domestic violence case this week.

When my office-issued cell phone begins to ring, it’s a Navajo Criminal Investigator,7 which after-hours usually means there is a homicide. I ask the investigator my requisite jurisdictional questions first, the answer to each of which changes the question of which governmental office has prosecutorial authority: Do we know whether the incident has occurred within Indian country, the enrollment status of the victim, and the enrollment status of the alleged perpetrator? My district is on the eastern side of the Navajo Nation, which is full of checkerboard lands. Some of these lands are individual Indian allotments, some are lands held in trust for the Navajo Nation by the United States government, and some are private lands held in fee by non-Indian landowners.8 The Major Crimes Act, codified at 18 U.S.C. § 1153, gives the federal courts jurisdiction (exclusive of the states) for the crimes enumerated in the section—if the crime takes place in Indian country and the defendant is Indian. The investigator responds that he will know more once he gets to the site. I remind him again of the main reason that United States federal prosecutors often decline cases from tribal communities—insufficient evidence.9 I always remind my investigators and officers about the critical importance of collecting and preserving evidence. I ask the investigator to keep me updated, and I hang up the phone. Tomorrow is another day, and I will continue this work, balancing the unique needs of my tribal community with the jurisdictional complications of practicing in Indian country. 

Endnotes

1I served as a prosecutor for the Navajo Nation from 2018-2019. The views in this essay are my own and they do not represent either the Navajo Nation or my current employer the Puyallup Tribe of Indians.

217 Navajo Nation Code Ann. tit. 17, § 205(B) (2000).

3See United States v. Wheeler, 435 U.S. 313 (1978) (“[T]he power to punish offenses against tribal law committed by Tribe members, which was part of the Navajos’ primeval sovereignty, has never been taken away from them, either explicitly or implicitly, and Is attributable in no way to any delegation to them of federal authority.”) (holding that successive tribal and federal prosecutions do not violate the Double Jeopardy Clause of the United States Constitution).

4United States v. Bryant, 579 U.S. 140 (2016).

5Barbara Creel and John P. Lavelle, High Court Denies Rights of Natives, Albuquerque J. ( June 26, 2016), https://www.abqjournal. com/798285/high-court-denies-rights-of-natives.html.

6See 25 U.S.C. § 1302.

7Navajo Criminal Investigators for the New Mexico side of the Navajo Nation Reservation investigate major crimes occurring within their jurisdiction. These investigators are federally deputized and have Special Law Enforcement Commission from the Bureau of Indian Affairs. Navajo Patrol Officers are often the first to respond to a crime scene; once the Patrol Officer determines it is a major crime, a Navajo Criminal Investigator is dispatched.

8See 18 U.S.C. § 1151 (defining Indian country).

9See U.S. Dept. of Just., Indian Country Investigations and Prosecutions (2019), at *30, available at https://www.justice.gov/ media/1146971/dl?inline=.

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