How Cooperative Are Reservation-based Witnesses?
Criminal justice workers in Public Law 280 and non-Public Law 280 jurisdictions were
asked: Do you have difficulty getting cooperation from witnesses on the reservation? Twentyone Public Law 280 criminal justice workers commented, and 15 (71.4%) say they do not have
difficulty, or that the difficulties they meet with are the same as anywhere else. Six Public Law
280 respondents (28.6%) say they meet with difficulties getting cooperation from reservationbased witnesses. Some comments include:
Well, I have had a number of assault-related cases where there are multiple
witnesses, and maybe the only person who is willing to be cooperative is the
actual victim. ..
. The defendants themselves are often more forthright than
witnesses would be, maybe more than non-Indian communities.
(A) lot of times on the reservation, because there is some interest to protect each
other even though there might be some animosity, I just think the types of cases
that we deal with, most people, they are not going to talk to you. And I don’t
think it’s because they are not trying to be cooperative, I just think they say the
right thing, and sometimes they just don’t want to be involved in the system.
I just depends, I just wouldn’t separate it as a tribal versus non-tribal. It’s what
family is involved. Who are the players? And there are some tribal members that
are historically and continually opponents to law enforcement. And you have a
case involving them, you are going to have a problem. There are other tribal
members which are very supportive of what we do...
Non-Public Law 280 criminal justice workers (n=12) answer a similar question about
non-Public Law 280 tribal courts. Seven non-Public Law 280 respondents (58.3%) say they do
not experience difficulties getting cooperation from reservation-based witnesses, while 5 (41.7%)
268
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
say they experience difficulties, at least sometimes, when trying to secure cooperation from such
witnesses. Some comments include:
Yes. Sometimes. From Witnesses
. Sure. You know, I am such an outsider …
If you are a prosecutor, it’s going to happen more often than not whether on or off
the reservation. Sometimes witnesses are afraid of retaliation or scorn from other
tribal members.
The trend in the sample data, comparing rates of noncooperative witnesses in Public Law
280 (28.1%) and non-Public Law 280 jurisdictions (41.7%) as reported by criminal justice
workers, is not significant (Fisher’s Exact Probability Test, df= 1, p = .70). Criminal justice
workers in both Public Law 280 and non-Public Law 280 jurisdictions say the reservation-based
witnesses are uncooperative at about the same rate. The proportion of Public Law 280 criminal
justice workers commenting on state/county court systems and reporting noncooperative
reservation-based witnesses is about the same as non-Public Law 280 criminal justice personnel
reporting noncooperative reservation-based witnesses in non-Public Law 280 tribal courts. The
effects of jurisdiction, Public Law 280 or non-Public Law 280, on the reporting of
noncooperative reservation-based witnesses are about the same for criminal justice workers in
state/county and tribal courts, respectively.
Is It Difficult to Get Information to Prosecute or Defend Indian Cases?
Public Law 280 criminal justice personnel, usually prosecutors, were asked: “When
prosecuting tribal members,
do you have difficulty getting information to prosecute them?”
Other respondents, usually public defenders, were asked a variation of the first question: “Do
you have difficulty getting information to defend your clients?” Forty-four Public Law 280
criminal justice workers provided comments and 22 (50%) say they do not have trouble securing
information from tribal residents, or they meet with no significant difficulties that are not met in
non-Indian jurisdictions. Twenty-one Public Law 280 criminal justice workers (47.7%) say they
have encountered difficulties securing information from tribal members. One respondent (2.3%)
says that availability of information is case specific depending on the persons involved and what
infraction is committed. Some comments from Public Law 280 criminal justice workers who
met with difficulties gaining needed information from tribal members include:
Absolutely. It’s not uncommon, and one of the things I see very often, I find it
actually a little humorous, is many witnesses say,
“Well, yeah, I will talk to you,
but I am not going to give you a written statement.”
Yes. There are a couple of places were we have difficulty getting information —
trust lands of the property which is more BIA ... but some tribes will not disclose
269
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
tribal convictions. ... Many times it’s very difficult to get that kind of information.
Their convictions are not readily available to us.
No, it’s somewhat more difficult getting convictions done because the witnesses
are hesitant to speak. So, I don’t think lack of information from the client but
more difficulty getting investigators out (to the reservation). ... I think there is,
sometimes, a difficulty getting things from the tribal government ... so then you
write a letter to the reservation saying, you know,
did you send in your voting
records (for jury-panel selections), did you send in license (numbers), and they are
completely noncooperative.
Because witnesses, they are so afraid that they are going to get somebody in more
trouble, bigger trouble, then they try to fib with me. And I tell them that I will not
tolerate lying to me, because if you are lying to me then I don’t need you as a
witness.
Slightly less than half of Public Law 280 criminal justice respondents say they experience some
difficulty securing information to prosecute or defend Indian-related cases in Public Law 280
state and county courts.
Logistical Difficulties Associated with Prosecuting Indian Cases
Twenty-two Public Law 280 criminal justice personnel responded to the question: Do
you find it to be logistically more difficult to prosecute tribal members?
Do you find it to be
logistically more difficult to defend Indian clients? Sixteen Public Law 280 criminal justice
personnel (72.7%) report that the logistical difficulties associated with prosecuting or defending
Indian cases are not significantly different from those associated with non-Indian cases in state or
county courts. Six respondents (27.3%) say they come across logistical difficulties prosecuting
or defending Indian cases because of rural locations, poverty of defendants, and the need for
more court staff. The number of respondents is too small to make reliable analysis, but the trend
indicates that a very high proportion of Public Law 280 prosecutors report that the logistical
issues associated with prosecuting Indian cases in county and state courts are not significantly
different from those associated with the prosecution of non-Indian cases.
