Pilot prosecuting program to start in South Dakota on Pine Ridge Reservation

By Mary Garrigan
Rapid City, South Dakota (AP) August 2010

Gregg Peterman has helped Russia develop a better criminal justice system, so the assistant U.S. attorney is a logical choice to do the same thing for another sovereign nation closer to Rapid City: Pine Ridge Reservation.

Peterman went to Russia as part of the Department of Justice’s Overseas Professional Development Assistance and Training program. OPDAT lends federal prosecutors to developing democracies all over the world – including Iraq and Afghanistan – to help them develop more effective, efficient criminal justice systems.

“I remember thinking 10 years ago we should do a detail in Indian Country,” Peterman said. “If we can do that overseas, I thought, why are we not helping communities in this country who need assistance improving the function of their tribal justice system?”

So when U.S. Attorney Brendan Johnson called recently, looking for someone to lead his new Community Prosecution Strategy pilot program on Pine Ridge, Peterman volunteered for the job.

“I thought, well, here’s your chance. Step up,” he said.

The U.S. Attorney’s office in South Dakota is launching the multi-faceted project when public safety on Native American reservations is facing a crisis of confidence. At the same time, the recently passed Tribal Law and Order Act is shining a national spotlight on the issue.

In September, with overwhelming approval from the Oglala Sioux Tribal Council, Peterman will begin spending three or four days per week in Pine Ridge to mentor, instruct and constantly ask the question: What needs to be done to help Pine Ridge improve public confidence in its criminal justice system by improving the functioning of its attorney general’s office, the tribal courts and the police department?

He sees his initial role as providing an “infrastructure audit, if you will.”

“I want to spend days and weeks and months, if necessary, among the people who are working in the attorney general’s office, the tribal courts, the police department, the judges,” he said.

Peterman’s new job is at the center of the Pine Ridge pilot project, which also includes funding for one victim/witness advocate. The Pine Ridge project, in turn, is the cornerstone of a larger Community Prosecution Strategy for all nine South Dakota reservations. That umbrella initiative is a collaborative response by federal and tribal governments to a deteriorating public safety situation on many of them, Johnson said.

Other elements of the strategy will:

–Create a new cross-deputization program to allow some tribal prosecutors access to federal courtrooms by making them Special Assistant United States Attorneys, or Tribal SAUSAs.

Matt Rappold, chief tribal prosecutor for the Rosebud Sioux Tribe, is the first Tribal SAUSA created in South Dakota. Rappold expects that new role to bring his office more respect from non-Natives who may commit crimes on the Rosebud reservation. Currently, tribes do not have the right to prosecute non-Native lawbreakers on a reservation.

“It’s one of the jurisdictional gaps that exist in Indian Country, and criminals exploit that,” Rapppold said.

Just how much of a deterrent it will be remains to be seen, but the new SAUSA said he hopes to follow those non-Native crimes through the federal court system. Johnson expects tribal SAUSAs to elevate the standing of the tribal courts in the eyes of the community, as well as strengthening the tribe’s reach into federal court.

–Improve prosecutorial communication with the tribes. That includes sending tribal prosecutors detailed letters that fully explain the reasons why the U.S. Attorney’s office declined to prosecute a case on the reservation.

That policy change will make more evidentiary information available to tribal prosecutors and aid Rappold and others by keeping them better informed when making their own decisions about charging suspects in the many criminal cases that share concurrent jurisdiction.

“Knowing what that decision is based on lets us know exactly what’s going on and why,” Rappold said. “And if there’s problems getting it into trial court, it helps us so we don’t waste our resources coming to the same conclusion.”

–Form an advisory council to the initiative that will bring “community” into the Community Prosecution Strategy. “We’ll ask them, ‘What’s happening in your community? How are we doing there, and where do we need to improve? What do we need to do better?”’ Johnson said.

The council will be a small working group of people who won’t hesitate to speak truth to power about public safety on reservations, he said. It currently has seven members: Dani Daugherty, Tracey Fischer, Lisa Iyotte, B.J. Jones, Sherman Marshall, Frank Pommersheim, Roger Campbell and Tom Shortbull.

–Foster better government-to-government relationships with tribes. Johnson and the new Chief Tribal Liaison Randolph Seiler have committed to regular visits to the tribal courts of each of the state’s nine reservations, no less than twice a year. Each tribal court will also be assigned its own assistant U.S. attorney in the Pierre, Sioux Falls or Rapid City offices.

Rappold gives Johnson high marks for delivering on his promise of bringing a public-safety directive to reservations and for respecting tribal sovereignty in the process. “Implementing these types of strategies and policy changes within the framework that is respectful of tribal sovereignty is a great first step in improving the working relationships between the Department of Justice and Indian tribes,” Rappold said. While he views the Community Prosecution Strategy in light of a difficult history of tribal/federal relations, he says, “We have to start someplace. He gets an A+ for that.”

–Technology updates for tribal court systems and records.

Too often, judges, prosecutors and police lack the computerization, proper training and necessary staff to deliver efficient, predictable justice to its citizens, Rappold and Peterman said.

“Predictability is one of the hallmarks of any good criminal justice system,” Peterman said.

Too often, the most predictable thing about reservation crime is that there won’t be any consequence for it, Peterman said.

In most systems, an arrest will lead to one of three results: a guilty plea, a trial or the dismissal of charges for a legitimate reason.

In too many tribal courts, it is not unusual for criminal defendants to have dozens of past arrests, without any legal disposition of the charges. Peterman recalls one criminal he prosecuted who had 70 arrests, and 98 percent of them had no disposition at all.

“That frustrates tribal members to no end,” he said. “They ask, ‘Why are they still here in my neighborhood?”’

The Pine Ridge tribal court system is underfunded and understaffed, given its current caseload, Johnson said. With only one licensed attorney and two lay prosecutors, it services a criminal docket comparable in size to Pennington County’s, he said. The story is similar on Rosebud, where three tribal judges – one civil, one criminal and one juvenile – handle between 5,000 and 6,000 court cases each year.

Although lack of money and resources are often an issue for an underperforming court system, Peterman knows it is not the only problem. Training and leadership are also necessary components.

“I think we can lend some expertise to the clerk of courts’ office for tribal record keeping,” he said, “and I think we can do it without spending a lot.”

A lot of its systemic problems can be resolved through instruction and training, he said. Many federal agencies in South Dakota don’t know it yet, but Peterman will be asking them for their help.

The 48-year-old New Jersey native is a graduate of Brooklyn School of Law whose first job in South Dakota was as a staff lawyer with Dakota Plains Legal Services. He lived in Mobridge and drove to work in Fort Yates on the Standing Rock Indian Reservation. He has an 18-year history on South Dakota’s reservations, 15 of them with the U.S. Attorney’s office.

“I’m used to working in Indian Country,” he said. He brings familiarity, flexibility and patience to the job, but also knows he has a short, two-year window to show the kind of results that will justify expanding the pilot project to other reservations.

What will success look like?

Perhaps it will be higher numbers of arrests, trials and successful prosecutions for class A misdemeanors on the reservation, such as assaults, arsons, thefts and property crimes. But Peterman says it may also be something that can’t be so easily measured in numbers: improved confidence in public safety on Pine Ridge.

Right now, Peterman perceives a “profound lack of confidence” by tribal members in their criminal justice system.

“I want to increase that confidence. The members deserve it.”