The Crow Reservation’s lack of an extradition agreement with the state turns its invisible border into a concrete issue.
By Nathan Rott
Lucas Deputee stepped out of the car into the warm July night. He shut the passenger side door and stood alone in the moonlit silver sage bordering the road as the roar of the car engine faded into the distance.
A few feet behind him, silhouetted by the stars, was a large rectangular sign: “Welcome to Crow Country.”
For Deputee, the sign read: “Safe.”
As he waited for another car to pick him up and take him further south, further into his sanctuary, he thought about what had happened.
He remembered the beer-fueled argument. He remembered snapping, acting, he says, “out of built-in anger and depression.” He remembered threatening the kids and hitting his girlfriend—over and over. He remembered being shaken, scared and drunk.
He also remembered knowing immediately what to do.
“I didn’t think, I just reacted,” he says. “The first thing that came to my mind was ‘hit the reservation.’ As soon as I hit it, I knew I was safe.”
Deputee, 28, quickly fled a Hardin trailer park and called one of his friends, who gave him a ride. He was dropped off just beyond the sign delineating the reservation.
He had made it inside the border of his home, his heritage, but also what would be his self-imposed prison for the next nine months â€“ the Crow Reservation of southcentral Montana.
Deputee, an enrolled member of the ApsÃ¡alooke Nation (mistranslated by settlers to become the Crow Tribe), knew that by crossing the physically invisible, but legally impermeable line between Big Horn County and the Crow Reservation, Montana state law enforcement couldn’t touch him. On the reservation, that jurisdictional distinction is common knowledge.
As David Sibley, Big Horn County’s chief deputy attorney, puts it, “It’s like a game, and everyone knows what the rules are.”
Each of the seven Indian reservations in Montana has limited sovereignty and partial governing powers agreed to by treaty with the federal government. The Crow and Blackfeet reservations are the only two without state extradition agreements, so on those reservations, state-issued arrest warrants for misdemeanors or felonies aren’t enforced.
For alleged criminals—both Indian and non-Indian—this provides a vehicle to effectively escape the law. “It’s like a bubble, like you got a shield around you,” Deputee says.
Within 36 hours of the beating, on July 16, 2007, Big Horn County issued a warrant for Deputee’s arrest based on statements gathered from witnesses and the victim, who spent a week in the hospital. Deputee was accused of aggravated assault, a felony under state and federal laws. But he was untouchable on the reservation. The state’s warrant was useless until Deputee crossed that line. All Montana authorities can do is issue a warrant and wait for the accused to enter their jurisdiction.
“The result is that we have any given number of warrants at any given time,” Sibley says. “We know where they are, we know we can’t get them, and they certainly know we can’t. They are bulletproof.
“If you’re a federally recognized tribal member on the Crow Reservation, you may as well—for our practical purposes—be in Brazil.”
Diane Cabrera, a Crow tribal prosecutor, resents that idea.
“We don’t want to be perceived as a safe harbor for any type of criminal,” Cabrera says from behind a paper-laden desk. Just outside of her office a ceiling-high wall of file cabinets testifies to the extensive jurisdictional and legal resources Cabrera and her fellow legal counselors need to complete their daily work.
The issue of extradition is one that Cabrera tried to address at the beginning of her tenure as a prosecutor, in December 2007. During the Crow Legislature’s 2008 session, she proposed what she calls a “carefully drafted” bill, which would establish an extradition agreement with the state while maintaining tribal sovereignty.
“I thought we needed [an extradition agreement] for the basic principle of having one,” she says. The tribe, as a sovereign nation, she says, should have the power to take dangerous individuals out of their communities and hand them over to the state.
After initially reviewing the bill in April 2008, the Crow Legislature decided to hold public hearings on the issue, Cabrera says. As far as she or anyone else in the tight-knit reservation community knows, those hearings never happened.
So the problem persists.
“We get requests continually from the federal government, state and county governments to have certain persons given over into their authority so they can face charges,” Cabrera says. “Yet, I don’t have a statute under which I can proceed without violating his civil rights and return him to that jurisdiction to face those charges.”
For Cabrera, whose job is to protect the public safety, it’s an undesirable position—for everybody involved.
“It cuts against the tribe and the public interest here because I potentially have a felon with violent tendencies running around loose,” she says in frustration. “And, the best I can hope for is if he commits a crime under tribal law while on the reservation, I’ll get a crack at him.”
Giving Cabrera or any prosecutor that opportunity was something Deputee had no intention of doing.
While Deputee says he didn’t definitively know that there was a warrant out for his arrest, he assumed as much. He kept a low profile on the reservation, moving from town to town, researching and asking questions about jurisdictional laws.
When he did leave the reservation, he says he was careful not to drive or drink, always becoming paranoid and anxious to return.
At the Big Horn County Courthouse, sandwiched between Custer and Crow streets in downtown Hardin, Sibley and the sheriff’s personnel were aware of Deputee’s general whereabouts. Because of the proximity of their office to the reservation and the fact that a lot of county employees are enrolled tribal members, plus the way in which talk circulates in the small town “there’s a lot of things that I know, but I can’t prove,” Sibley says.
Big Horn County is 4,995 square miles of rolling sage-covered hills and fenced grazing pastures bisected by the thrumming traffic of Interstate 90 and the fluid meandering of the Big Horn River. The bulk of the Crow Reservation, Montana’s largest, covers more than 60 percent of the county. The Northern Cheyenne Reservation, which rests along the Crow Reservation’s eastern border, sits on another 6 percent of county land.
The Northern Cheyenne Reservation, unlike the Crow, has an extradition agreement with the state. If Montana has an active warrant for someone on the reservation, law enforcement sends a copy to the Northern Cheyenne tribal police. Should the tribal police approve the warrant, they issue a tribal warrant and arrest the individual.
The arrested person then must choose to waive his extradition rights or appear in tribal court for an extradition hearing. If the court then finds sufficient probable cause for extradition, the accused will be turned over to the authorities who issued the original warrant.
As hot summer days faded into fall on the Crow Reservation, Deputee continued to successfully avoid any legal action.
After the initial panic passed, he says he tried to live a somewhat normal lifestyle. For months, he worked as a plumber, visited friends, always keeping an eye out for the law. “My thought was just to live here and stay here forever,” he says.
If not for a growing paranoia and inner demons, he might have done just that.
Deputee learned from other people avoiding arrest on the reservation that he wasn’t as untouchable as he had believed.
Using the federal government’s Violent Crime Task Force, state or county attorneys can make a formal request for an “unlawful flight to avoid arrest warrant,” says Mark Murphy, Yellowstone County’s chief criminal deputy attorney.
If there is a federal interest in the offense, and the state or county can meet the burden of proof, the U.S. Attorney’s office can take a case, making the crime fall under federal jurisdiction. In that case, Deputee’s “immunity” dissolves.
However, the state or county rarely meet the criteria to instigate federal action, Murphy says. Especially in cases like Deputee’s.
First, “the U.S. Attorney’s office is extremely busy,” Murphy explains. “They need something to really catch their attention.”
Second, even if the crime warrants federal interest, meeting the burden of proof for violent crimes that involve multiple tribal members is often problematic. Getting witness statements from tribal members is also difficult, he says. And because of jurisdictional rules, tribal members on the reservation don’t have to recognize state or county calls to court.
So arduous is the process and so rare are situations warranting it, Murphy has only heard of the federal request being acted on six times in his six-year tenure.
But the threat of it was all Sibley needed. Deputee says Sibley advised him by phone to turn himself in, unless he wanted federal marshals to “bust down his door.”
It never came to that.
Sitting at the corner table of Crow Agency’s Shake’n Burger, a Mexican-style restaurant decorated with sombreros and beads and resonating with the sounds of a widescreen television in the front room, and an overused furnace in the back, Deputee inspects his hands and tells what happened next.
“I couldn’t sleep,” he says. “I started losing it to the point where I was almost suicidal. They had me in the corner.”
For two weeks in May 2008, Deputee weighed his options. He took a prescription sleeping aid, Ambien, and drank on and off to fall asleep. He became even more aware of tribal police. He’d peek out the window of his house to see passing cars and took special notice of strangers in town and unmarked cars—telltale signs, he says, of the FBI.
As the door to the restaurant opens, Deputee instinctively lowers his head. From under the brim of his worn Indianapolis Colts baseball cap, his eyes flick up to identify the person entering the small establishment. In recognition, he waves, shifting uncomfortably in his seat.
“I still freak out,” he says. “It still haunts me.”
Nine months after that July night, Deputee decided to turn himself in.
He contacted a public defender in Billings and pleaded guilty to one count of aggravated assault. The Big Horn County’s attorney’s office then quashed the warrant against him.
Deputee was never jailed, but got five years of probation. He was also required to take treatment classes and pay $1,000 in restitution.
In hindsight, Deputee regrets his decision to run. He dragged out the consequences of his actions, imprisoning himself for nearly a year. His decision was as much a detriment to himself as it was to the justice system that pursued him. It’s a decision Sibley sees far too many people make, sometimes inadvertently.
“When you have this kind of shield to hide behind, human beings can talk themselves into remarkable things,” Sibley says.
The majority of the 50-plus active warrants in Sibley’s office are not for violent crimes. They are less striking offenses: traffic violations, drunken driving or public drunkenness. Almost all require court appearances, fines or treatment classes.
Offenders routinely ignore, or simply forget, those court-ordered mandates. So, when they step off of the reservation, they are arrested— again and again, says Rondell Davis, Big Horn County’s undersheriff.
Davis shudders at the word jurisdiction. Waving his hand toward the jail down the hall, he says, “Most of the people here are repeat offenders. It’s like that movie Groundhog Day, it keeps repeating itself over and over.”
Davis favors treatment programs over incarceration. That the lack of an extradition agreement limits such programs’ effectiveness is a tragedy, he says.
Deputee has trouble keeping up with his treatment classes because of his full-time job and five kids, but the decision to turn himself in was “the smartest thing” he did, Deputee says. While he regrets the alcohol-induced assault and his decision to flee, he doesn’t resent the loophole that allowed him to do so, only the “bad name” it gives his home and people.
That “bad name” does more than just hurt the Crow Reservation’s public image, says Sherry Matteucci, a former U.S. Attorney whose experiences with Montana’s reservations have since motivated her to focus her career on tribal law and justice. In 2003, the Crow Nation asked Matteucci to help them strengthen their legal system and she agreed.
In this role, she has seen the effects of the “lawless lands” label firsthand.
“That belief by people off of the reservations [that reservations are lawless lands], is an economic impediment to the tribe and limits the collective agreements between them and other tribal and state governments,” she says.
Mutual law enforcement agreements that include an extradition component are the most pressing needs in Indian Country today, Matteucci believes.
From her experience with the tribe, though, she doesn’t see those agreements in the future. Tribal sovereignty is the main concern, she says, and most Indians fear that under any agreement, the state would end up with unequal authority. Tribal members can flee state jurisdiction by heading to the reservation. But just as important, the tribes in many cases lack authority over non- Indians who commit crimes on the reservations.
“You don’t have any ability for a tribal court to require delivery of any non-Indian person, because the tribal court doesn’t have jurisdiction over non-Indians,” Matteucci explains. “There is an inherent imbalance.”
Leroy Not Afraid, Big Horn County’s justice of the peace, agrees that sovereignty is the biggest impediment to an extradition agreement. Not Afraid, who has been a member of the Crow Nation Legislature and just recently was a candidate for the Crow Nation’s tribal chairman, adamantly opposes any agreement that would further limit tribal sovereignty.
“If I was a member of Crow Nation Legislature still today, my decision (on a proposed extradition agreement) would be no,” Not Afraid says with an uncharacteristic iciness in his voice. “I believe in sovereignty. It is deeply rooted in my heart, family, ancestral bloodline. I would die for sovereignty to protect it.”
Any decision on extradition, he emphasizes, resides with the ApsÃ¡alooke Nation.
Deputee agrees that Crow public opinion will strike down any extradition agreement.
“Our point of view is that they (state authorities) are trying to get us all incarcerated,” Deputee says. “The majority of them that are in prison are minorities.”
The Montana Department of Corrections’ 2009 Biennial Report backs up his claim. In 2008, Montana state’s male prison population was 19.2 percent Native American, while 28 percent of females inmates were Native American. According to the report, Native American prison rates are “almost 4 times higher than their representation in Montana’s overall population.”
Native Americans make up approximately 7 percent of Montana’s population and only a portion of all incarcerated Native Americans are reflected in state statistics. Those convicted of felonies on a reservation are sent to federal prisons. And with more than 60 percent of Montana’s Indians living under federal jurisdiction on reservations, those prison incarceration rates become even more significant.
Those discrepancies, coupled with centuries-old distrust and prejudice are hard to overcome. Dishonest tribal-federal agreements are another reason why, Matteucci believes, the Crow people oppose an agreement.
Deputee doesn’t judge the eight or nine other people he knows on the Crow Reservation who are avoiding state prosecution for violent crimes.
Part of him wants to “tell them to just do the right thing, just turn themselves in, man up. Face your consequences for what you did,” he says.
The other part of him knows how hard that is to do.
Holding his 1-year-old daughter, Luchristian, in his arms—arms scarred by a knifewielding man in a vicious fight prompted by a case of mistaken identity—Deputee surveys Crow Agency’s town park. The playground slide is broken and garbage litters the ground. It’s a tough place to make a living, and a tough place to grow up.
“I don’t like being a criminal, to tell you the truth,” he says. “I was never a criminal, I just kind of messed up.”
But Deputee’s “mess-up” turned into a drawnout jurisdictional nightmare because of a line marked by only a large blue welcome sign on the western edge of Interstate 90, a line crossed daily by commuters of all ages, races, and nations, and a line passionately protected by the people whom the U.S. government for years tried to trap, exterminate and assimilate.
Deputee’s story is over. But the line remains.