U.S. Department of Justice Declinations of Indian Country Criminal Matters

The Department of Justice (DOJ) has reported that crime rates experienced by American Indians are two and a half times higher than those experienced by the general population in the United States. Specifically, from 1992 to 2001 American Indians experienced violent crimes at a rate of 101 violent crimes per 1,000 person annually, compared to the national rate of 41 per 1,000 persons. The federal government plays a major role in prosecuting crimes committed in Indian country. For example, unless a federal statute has granted the state jurisdiction, the federal government has exclusive jurisdiction to prosecute non-Indians who commit crimes against Indians in Indian country, while the federal government and tribal governments both have jurisdiction to prosecute Indian offenders who commit crimes in Indian country. Federal prosecution, however, carries with it the possibility of greater terms of imprisonment, as tribal courts are statutorily limited to a maximum of 3 years imprisonment per offense, regardless of the severity of the offense, for example, a homicide. Because of such jurisdictional and sentencing limitations, tribal communities rely on the federal government to investigate and prosecute a variety of crimes in Indian country. Members of Congress have raised questions over recent press reports that federal prosecutors have declined to prosecute a significant percentage of Indian country criminal investigations that have been referred to their offices, and Congress asked us to review this issue. This report addresses the following questions: 1) How many Indian country matters were referred to U.S. Attorneys' offices and what were the declination rates for those matters for fiscal years 2005 through 2009? 2) What are the reasons for the declinations as recorded in the Department of Justice's case management system?

In fiscal years 2005 through 2009, U.S. Attorney's Office (USAOs) resolved about 9,000 of the approximately 10,000 Indian country matters referred to their offices by filing for prosecution, declining to prosecute, or administratively closing the matter. USAOs declined to prosecute 50 percent of the 9,000 matters. In addition: (1) About 77 percent of the matters received were categorized as violent crimes, and 24 percent as nonviolent crimes. (2) Declination rates tended to be higher for violent crimes, which were declined 52 percent of the time, than for nonviolent crimes, which were declined 40 percent of the time. According to staff from the USAOs, the difference in declination rates may be related to the evidence that is generally available for each type of crime, because, generally, less evidence is available for violent crimes. (3) South Dakota and Arizona were the top two districts receiving Indian country matters, with 2,414 and 2,358 matters, respectively. (4) The Federal Bureau of Investigation (FBI) and Bureau of Indian Affairs (BIA) were the most prominent referring agencies, with 5,500 and 2,355 matters referred, respectively. Matters referred by the FBI were declined 46 percent of the time by the USAO, and matters from BIA 63 percent of the time. According to USAO, FBI, and BIA officials, this may be attributed to differences in the types of crimes investigated by the two agencies and the agencies' policies on which matters to refer to USAOs. (5) Two charge categories accounted for 55 percent of matters referred. There were 2,922 assault matters received (29 percent of the total), while the other leading charge was sexual abuse and related offenses, with 2,594 matters received (26 percent of the total). USAOs declined to prosecute 46 percent of assault matters and 67 percent of sexual abuse and related matters. The FBI and the BIA referred 79 percent of the Indian country matters to the USAOs. USAOs declined 63 percent of Indian country criminal matters referred by the BIA and 46 percent of Indian country criminal matters referred by the FBI. Representatives from USAOs, BIA, and FBI told us that this difference in declination rates may be the result of differences in agency protocols for referring matters to a USAO. For example, while FBI officials said that they may elect not to refer matters that they believe lack sufficient evidence for prosecution, BIA officials said that they refer all matters that they investigate to the USAO. Also, one agency may not have a presence in a certain area, leaving the other to make all of the referrals to the USAO. For example, the FBI does not have a presence on some tribal land in Arizona, and so criminal matters from that area are referred by the BIA. Furthermore, FBI officials noted that in many districts USAO guidelines assign primary responsibility for investigation of certain types of crimes to either the FBI or the BIA.