The U.S. attorney for Minnesota has tripled the number of prosecutors working crimes in Indian Country, while taking on more cases referred from tribal jurisdictions, all against a backdrop of criticism in recent years over the federal response to crimes on tribal land.
The steps underscore a priority that U.S. Attorney Erica MacDonald announced on taking the job in June and represent a sharp change for the Minneapolis office. MacDonald said her office has agreed to prosecute 28 of the 32 cases referred this year from four tribes over which it has jurisdiction. Last year, federal prosecutors in Minnesota declined to prosecute more than two-thirds of such cases, according to a recent report by the U.S. Department of Justice.
“You’ve got to be there and be present, because many of the crimes aren’t necessarily disclosed to law enforcement,” MacDonald said during a recent interview in her office.
“Especially when it comes to sexual violence and violence against children. They might be disclosed to a neighbor, they might be disclosed to a teacher, they might be disclosed to somebody other than law enforcement. When you’re up in the community and talking to people and working other cases, it’s amazing how much you find out about other cases going on.”
The Justice Department’s approach to crimes on tribal lands has been roundly criticized for uneven data collection and a spate of unsolved killings and disappearances of native women. A government watchdog report last year faulted the country’s U.S. attorneys’ offices for failing to consistently work with tribal authorities.
U.S. Sen. Tina Smith, D-Minn., a member of the Senate’s Indian Affairs Committee, has also placed an emphasis on the issue. She helped introduce legislation this year to expand tribes’ authority to prosecute sex assaults committed by non-Indian offenders, pointing to federal authorities’ lack of success in bringing such cases to prosecution. Smith also is calling for a public hearing with federal law enforcement leaders to discuss faulty crime data and unsolved crimes against women.
“It’s clear the federal government is failing in its obligation to ensure the safety of tribal communities,” Smith said in a statement to the Star Tribune.
MacDonald said she expects to see an increase in the number of cases charged after assigning six prosecutors to work cases on the four reservations over which the office has concurrent jurisdiction. She also hired two special assistant U.S. attorneys to oversee cases in Mille Lacs and Red Lake, and a third on detail from the federal Office of Tribal Justice to work in Minneapolis.
Even before adding the new positions, MacDonald sent a veteran prosecutor up to the Red Lake Indian Reservation in the hours after a double homicide last month — putting boots on the ground in a departure from previous practice.
“When you don’t hear about a case for six months ... evidence disappears,” MacDonald said. “You really have to be there at the beginning of the investigation.”
Insufficient evidence has long been the leading reason federal prosecutors declined cases: Of the 62 cases declined in Minnesota last year, 41 were refused for that reason. Since 2011, 76 percent of all cases declined nationwide were for that reason.
The FBI’s Minneapolis division, covering Minnesota and the Dakotas, is also bringing more cases from Indian Country. Agents referred 411 cases to prosecutors in the three states last year, up from 263 in 2016.
Assistant special agent in charge Robert Perry, who oversees the division’s tribal cases, attributed the surge to the fact that the bureau’s staffing of offices in Indian Country returned to full strength — which isn’t always the case.
“The main issue is not many people join the FBI to work that type of crime,” Perry said. Tribal investigations often involve homicides, assaults, sex crimes and drugs — cases usually left to state and local police in nontribal jurisdictions. “It’s not what you think of when you think of going to the FBI.”
The FBI also recently added a forensic interviewer to help investigators question child victims, in addition to a child advocacy center in Bemidji that MacDonald helped create when she first worked Indian Country cases in the mid-2000s. More than half of the 153 cases the FBI closed without referring to prosecutors last year involved child sex abuse.
“Too often you have a young child and the suspect, and that’s all you have, and that’s a tough case to prove,” Perry said. “A 6-year-old simply doesn’t make a good witness. So it’s one person’s word versus another’s with oftentimes very little physical evidence.”
At the same time, the Justice Department is also increasing its funding for tribal public safety programs and crime victims. In September, the department awarded more than $8.6 million to six Minnesota tribes, with the Lower Sioux Indian Community in south-central Minnesota receiving the largest grant, more than $3.2 million.
Police Chief Darwin Melin said in an interview that some of the funds will be used to improve social services, mental health and youth programs and allow his department to add another young officer from within the community. The financial boost will also help because Melin’s tribe is not among those over which the Justice Department has jurisdiction for criminal cases.
“I was absolutely blessed to see it happen,” Melin said. “I think our kids are going to benefit greatly from it. And we’ve often had a discussion within my office: If you’re going to transform a community you start with a generation, right?”