TOUGH BENCHU.S. Indian Tribal JudgesGrapple With Legal Limits
Mr. Flies-Away’s CourtOffers Second Chances;Admonishing Valentino
By GARY FIELDSDecember 12, 2007; Page A1
PEACH SPRINGS, Ariz. — Judge Joseph Thomas Flies-Away, a graduate of Stanford and Harvard, is a national expert on Indian tribal law. But here in the Hualapai tribe’s court, a small, windowless room fashioned out of a converted kitchen, he seems more like a social worker.
“Valentino, you were just here. Now you’re here again?” asked the judge during a recent session. Mr. Flies-Away had known Valentino Washington and his family for years. Now, the 18-year-old was facing jail after assaulting his mother and sister in a drunken rage — as well as for not paying a previous fine. Unlike courts elsewhere in the U.S., the tribal reservation system doesn’t guarantee all Native Americans the right to defense counsel. So Mr. Washington sat alone, a situation that softened the judge’s usual businesslike demeanor.
After reprimanding the teen for his behavior, Judge Flies-Away ordered him to perform community service. Mr. Washington was puzzled as to what that meant.
“You go and clean somebody’s yard. You wash cars. You go work with the elderly,” the judge explained. Mr. Washington will remain in jail until the fine has been paid in labor. “Valentino, you might be in there a while,” said the judge, his low voice tinged with both sadness and resignation.
In this separate justice system crippled by arcane laws and decades of federal neglect, Mr. Flies-Away, a 42-year-old Hualapai Indian, is trying to make a difference. He frequently ministers to defendants from the bench, taking on the dual role of judge and adviser. He has pushed for harsher penalties for repeat offenders, and has clashed with federal authorities when they impinge on tribal business. He helped create the corporation that runs the tribe’s various businesses, sat on its council and has twice been tapped as chief judge.
OLD PROBLEMS, EARLY FIXES
Mr. Flies-Away walks with his shoulders drawn forward and doesn’t smile much. He can’t think of many success stories in this world, where his fellow tribe members are plagued by alcoholism, methamphetamine abuse and domestic violence. But the idea of leaving the reservation and returning to the elite precincts where he was educated runs counter to his sense of duty.
‘My People, My Relatives’
“These are my people, my relatives,” Mr. Flies-Away says. “So despite the hardships and problems, there is also family, joy and possibility. I have to keep thinking that or I might go off the deep end.”
The hundreds of judges who serve the nation’s 275 tribal court systems bring strengths and weaknesses — and a world of diversity — to the bench. They range from tribal council members without college educations to white law professors with impeccable rÃ©sumÃ©s. No matter their credentials, the obstacles they face are formidable.
Some tribes are too poor to hire public defenders. Simple matters, such as who has the power to make arrests, are not always easily solved. And tribal courts — which also rely on their own prosecutors — have limited powers to mete out sentences.
Lacking counsel, some defendants enter guilty pleas almost by default. Victims can suffer as well, since federal prosecutors take only a minority of cases. Another flaw of the system: If a crime is committed by a non-Indian, the tribes are virtually powerless, as their limited jurisdiction generally doesn’t allow them to prosecute outsiders. By contrast, if a tribe member commits a crime off the reservation, some states can use past tribal convictions to augment a new sentence.
A number of piecemeal efforts have sought to unravel such complexities. U.S. attorneys in several states, including Oklahoma, Michigan and North Carolina, have assigned federal prosecutors to focus on tribal crime in a bid to ensure that cases don’t fall through the cracks. Nationally, the Federal Bar Association is pushing Congress to relax sentence restrictions imposed by the Indian Civil Rights Act and to give tribal courts broader jurisdiction. South Dakota Republican Sen. John Thune has introduced a bill to give federal prosecutors funding specifically for pursuing crimes in Indian lands.
“You’re not apprehending people, and if you catch them, they’re not being prosecuted, or if they are being prosecuted, they aren’t spending any amount of time in jail,” Sen. Thune says. “There is a federal role and responsibility.”
Until these potential fixes are in place, much of the procedural burden falls to judges like Mr. Flies-Away.
The Hualapai reservation sits on about one million acres along the Grand Canyon. The tribe, also known as the “People of the Tall Pines,” is best known for tourism. One attraction: a new transparent skywalk suspended 4,000 feet above the canyon.
Yet tribe members are poor. About half the adults in the 2,300-member tribe are unemployed. A third of all members live below the poverty line, supported by family members and a patchwork of tribal and federal programs.
Peach Springs, the tribe’s capital, with a population of 1,800, is split by the famed Route 66. Much of the traffic is gone now, taken by interstate highways. It doesn’t even have a gas station. There’s little in the way of activity, aside from the milelong Burlington Northern Santa Fe freight trains, which rumble through town every 20 minutes, forcing the lone hotel, the Hualapai Lodge, to give earplugs to patrons.
Mr. Flies-Away was raised on the reservation, where the impact of drugs and alcohol has taken a toll on his own family. Four of his mother’s 11 siblings drank themselves to death or committed suicide, he says. One uncle hanged himself in jail.
Intense and studious for much of his life, Mr. Flies-Away earned a scholarship to study at Stanford University. After graduating in 1989, he returned here to teach seventh grade. Eventually he became involved in tribal government, first as a planner who developed proposals for economic growth and revitalization of the tribe.
He left again for law school but quit his studies after a year when tribal elders asked him to become chief judge. After one term on the bench, he headed off to Cambridge, Mass., to study at Harvard’s Kennedy School of Government. From there, he went to Arizona State University, where he received his law degree.
He could have joined a private firm and earned “more money,” as he still recalls. Instead, a sense of obligation led him back to the reservation in 2006, when he became the first chief judge of the tribal court with a law degree. Mr. Flies-Away is now in the middle of a two-year term.
His court calendar is a full one. Aggravated assaults are some of the major crimes; baseball bats and knives are the weapons of choice.
Although it has only 2,300 members, the tribe handles about 1,000 criminal cases annually. The judge says the high number stems mostly from recidivists. Federal law permits him to hand down a maximum sentence of one year per charge, even for the most heinous of crimes such as rape. Jail overcrowding leaves free some of the criminals he’d like to lock up. The result: Those people often commit new crimes.
Mr. Flies-Away typically arrives at the court about 7 a.m. and puts in an 11-hour day. The judge, who is divorced and has no children, spends much of his time building his administration or helping other tribes develop their systems. His office is small and crowded with papers and books such as “Federal Rules of Evidence.”
Not shy to controversy, the judge has challenged some of the tribes’ cherished legal prerogatives, such as their protection against civil suits. Indian nations, by law, are effectively sovereign governments. As such, they can assert immunity against lawsuits. That quirk has created tensions with non-Indians as some tribes build vast commercial enterprises, including casinos. The judge, in his rulings, has opposed such a blanket immunity.
On a recent typical day, Judge Flies-Away headed to court for the afternoon session. Everyone stood as he entered the courtroom. The judge wore a black ribbon shirt, traditional American-Indian garb, instead of the black robe that some other judges prefer. “If I wear that robe I might as well put on a white wig, too,” he says.
Although the docket was filled only with arraignments — short procedures where defendants enter pleas — Mr. Flies-Away stayed for hours.
In Judge Flies-Away’s courtroom, some defendants actually prefer to take their chances solo, relying on the judge’s sideline counsel.
Appearing first before the judge was Kermit Marshall. The 21-year-old was accused of attacking his parents, lunging through the window of a car to punch his father and choke his mother. He already had three past assault convictions. The latest infraction, then, exposed him to the tribe’s maximum penalty: one year per charge. That also happens to be the maximum penalty Congress says a tribal court judge can hand down. To lengthen potential jail time, some tribes file multiple charges for each crime committed.
As Mr. Flies-Away began, Mr. Marshall quickly pleaded guilty to the battery and domestic-violence charges against him. The judge slowed the proceedings as he explained the ramifications of a guilty plea — several times.
“You have the right to be represented by the office of the public defender. You have the right to call witnesses and you have the right to question the witnesses against you,” he said. “You understand this? I really want you to understand. You have to know what you’re doing.”
Mr. Marshall stood by the guilty plea. He has since been sentenced to one year in jail and ordered to undergo domestic-violence counseling.
The local jail, which sits just about 50 yards from the courtroom, is not under tribal control. It is run by the Bureau of Indian Affairs, the federal agency that oversees certain tribal issues such as schools. Even though the facility houses criminals Mr. Flies-Away has sentenced, it is not bound by his, or any tribal judge’s rulings or detention orders. In some cases, BIA officials can essentially override the judge’s orders by releasing inmates early — often for lack of space.
“It’s tough to have a good justice system without good detention,” says Mr. Flies-Away.
Joel Querta, 58, who worked for the tribe’s natural-resources department, also pleaded guilty to a charge — drunken driving — without speaking to a defense advocate. It was his second conviction on the charge. Mr. Flies-Away sentenced Mr. Querta to 45 days in jail. But given that years had passed since Mr. Querta’s last brush with the law, he took the liberty of suspending the jail sentence. In the end, he fined Mr. Querta $200.
He asked Mr. Querta if that was agreeable. The defendant said he didn’t know. For several minutes, the judge tried to explain that Mr. Querta wasn’t going to jail. Another defendant, meanwhile, leaned over and whispered to Mr. Querta that he was getting a good deal. Finally the older man looked at the bench and said, “I’m quite satisfied” with the sentence.
The next defendant, Todd Watahomigie, 20, was well known to the judge, a situation common on tightknit tribal reservations.
He was in court as a fugitive, accused of slashing his mother’s face with a knife in March 2006. When he failed to appear for a hearing later that year, authorities put out a warrant for his arrest but had been unable to locate him because he had no valid address. “You are a hard man to find,” the judge said.
The defendant told the judge he needed to be released. “I’m trying to get a job. I need to work because I have a medical bill to pay,” he said.
The judge was skeptical. Compounding Mr. Watahomigie’s problems, Mr. Flies-Away was well versed in the social services available on the reservation, having been instrumental in obtaining them.
He peppered his charge with questions. “What have you been doing for the last year? Why haven’t you been working and why do you have a medical bill? Why are you paying for treatment? You can go over to Indian Health Services and they will handle it and pay for it.”
The young man gave up making excuses when the judge suggested having the court check out his claims. Mr. Flies-Away set bail at $900, a figure that he knew was too high for Mr. Watahomigie to pay. After being locked up for weeks, he was recently released under home detention by another judge.
The most difficult case of the afternoon was Valentino Washington’s. The judge has known the teen since he was a small boy, when Mr. Flies-Away placed him in protective custody after his alcohol-abusing mother neglected him. He landed here on a bench warrant for failing to pay a $500 fine he incurred for underage drinking. In the interim, between the imposition of the fine and this court hearing, he picked up charges for disorderly conduct, domestic violence and battery.
Years earlier, Mr. Washington had received a settlement of several thousand dollars after being hit in a car accident. Yet he said he couldn’t satisfy the $500 fine because his mother controls his money and she refused to pay it.
“You trust her with your money?” the judge asked.
“No,” replied Mr. Washington.
“That’s telling,” retorted Mr. Flies-Away. To make up for the overdue payment, the judge imposed community service.
Mr. Washington had watched others enter pleas during the day and listened to the judge explain the proceedings. He pleaded no contest to the new assault charges against him, acknowledging that they were true.
According to court documents, Mr. Washington was drunk at a family member’s home when he threw a television to the floor and began yanking it apart. As his sister tried to stop him, he attacked her, then his mother.
Judge Flies-Away repeated what he had told other defendants — about the right to hear witnesses, be represented by defense advocates and call witnesses on his behalf — before setting sentencing. Weeks later, Mr. Washington was in detention awaiting transfer to a rehabilitation program.
After the defendants left, Mr. Flies-Away sat quietly on the bench. “I’ve dealt with him a long time. I had him as a child, as a juvenile and now as a young adult. It’s sad,” he said of Mr. Washington. “Todd and Valentino, they weren’t raised by anyone. I wish I had the facilities to send them to, where they could think about their problems and get to the root of those problems….I’m afraid how this will end for them.”
A Positive Outcome
Back in his office, the judge struggled to remember a case with a positive outcome. He decided on Catherine Querta. He had known Ms. Querta, an alcoholic, since the tribe operated a wellness court, which was designed to divert defendants into treatment and away from jail. Although it disbanded after federal grant money dried up, Ms. Querta, 38, continued to receive some counseling. She found a job with the tribe and was a hard worker. “She tried,” the judge recalls.
In October, Ms. Querta was heading back to Peach Springs on foot along Route 66 when a car struck her. She was killed. Tribal authorities say she was intoxicated at the time.
“People think that as a judge I love this job, but I’d rather not deal with any of it,” says Mr. Flies-Away. “There is much sadness.” He feels compelled to stay, he says, in order to help empower his fellow tribe members.
“One time my grandma said to me, ‘You take care of them’…so I have done so.”