Published May 31, 2011
WINDOW ROCK, Ariz. – There was swelling on the little girl's skull and hemorrhages around her brain. There was a tear between her right ear and scalp. The scars on her 36-pound body were consistent with burns from a space heater, a curling iron and hot noodles.
The mother said she had accidentally rolled over onto her daughter in bed, smothering her. The medical examiner concluded that the brown-eyed toddler with the wavy dark hair had been beaten, declaring her death a homicide.
Had 2-year-old Kiara Harvey died elsewhere the case likely would have been handled by the county sheriff or police, and the local district attorney.
But Kiara was a Navajo and she lived on the expansive Navajo Nation. On tribal lands, only federal prosecutions can lead to serious penalties for major crimes involving Native Americans. Those prosecutors, however, end up declining to pursue half of the cases nationally.
"No one speaks for that baby," said Bernadine Martin, the Navajo Nation's chief prosecutor. "It's OK to kill her and go on because prosecutors apparently don't want to put a little more effort into investigations."
In the Arizona portion of the Navajo Nation, which also stretches into New Mexico and Utah, Kiara's case was one of 37 that federal prosecutors declined to take during a 9-month period last year, an Associated Press review found.
Among all tribes in Arizona during the same period, there were 122 such cases. The overwhelming majority were alleged sex crimes that included rape and abusive sexual contact, followed by assaults. Nineteen cases involving deaths were rejected.
The AP's analysis found the reasons to be both complicated and frustratingly similar, and perhaps as exasperating to federal prosecutors as they are to tribal authorities. They cited poor evidence, reluctant witnesses and jurisdictional issues.
Federal authorities "want to prosecute the individual, they want to get a stiff sentence, they want to go to trial, so declining it is tough," said Arizona U.S. Attorney Dennis Burke, whose office issued the letter saying that it would not take the Kiara Harvey case.
"It's not a process that leaves anyone with any comfort," he said.
Whatever the reasons, no one disputes that many people suspected of violent crimes are walking free on reservations, or are lightly punished under tribal laws that allow only a year in jail — or up to 3 years if the tribe has trained judges and tribal courts can guarantee that defendants get legal aid.
The Arizona letters provide a window into a much larger government study of Department of Justice records in which 50 percent of the 9,000 cases filed from tribal lands during fiscal years 2005-2009 were declined.
In the study, 42 percent of rejections were attributed to weak or insufficient admissible evidence; 18 percent to "no federal offense evident;" and another 12 percent to witness problems.
In the AP's Arizona review, the reasons — many cases cite more than one — were:
— 59 percent cited insufficient or inadmissible evidence. That could mean anything from inferior investigations by law enforcement to inadequate crime scene preservation.
— 27 percent cited witness problems, which can include witnesses recanting, being viewed as not credible, or simply disappearing.
— 16 percent cited a lack of jurisdiction, which can speak to the level of a crime. For example, the injuries of a detention sergeant beaten by an inmate weren't serious enough to be a federal crime.
The Government Accountability Office's study was published after a change in federal law last summer meant to bolster justice on tribal lands. The report was produced at the behest of the U.S. Senate Committee on Indian Affairs led by then-Sen. Byron Dorgan, D-North Dakota.
Former U.S. attorneys testified that reservation cases were often not treated as a priority, Dorgan told the AP in an interview before the bill was passed. "In many cases, it didn't get done. The result is that violent crime continues and those that commit them don't get prosecuted."
DOJ officials don't like being measured by declination rates.
"Unfortunately, federal declination numbers on face value, without full context, are not an appropriate measure of whether justice was served," DOJ spokeswoman Jessica Smith said. The numbers don't capture the reasons cases are rejected and miss those that are prosecuted outside the federal system, she said.
The declination rate for other federal cases, which can include terrorism, environmental violations or corruption, is not directly applicable since they are so different from the types of cases in Indian Country, said David Maurer, who helped author the GAO study.
The Justice Department has reported that the crime rates experienced by Native Americans are two and a half times higher than those experienced by the general population, and that violent crime happens in Indian Country at a rate of 101 per 1,000 persons.
Federal prosecutors in South Dakota and Arizona had the largest number of cases reported from Indian Country. Each comprised some 24 percent of the total national caseload, according to the GAO report.
Arizona has 12 federally recognized tribes, with the Navajo Nation being the largest in number and land area. Federal prosecutors received 2,538 cases and declined 38 percent of them. South Dakota has seven federally recognized Indian tribes, including the well-known Oglala Sioux at Pine Ridge and Rosebud Sioux at Rosebud. Federal prosecutors there received 2,414 cases, declining 61 percent.
Brendan Johnson, the U.S. attorney for South Dakota, said a lack of manpower makes it more difficult to investigate and prosecute cases. "We need more police officers. We need more investigators," he said.
Johnson said a lack of collaboration between tribes and federal prosecutors is also to blame.
His office has focused on improving ties with tribes by having an assistant U.S. attorney spend most of his week at one reservation and working to have the tribal prosecutor on another reservation designated a special U.S. attorney, he said. That would allow the attorney to come into federal court and help prosecute cases.
In the Navajo Nation capital of Window Rock, the Navajo prosecutor keeps the Kiara Harvey case rejection letter in a red folder on her cluttered desk. The letter offers details of Kiara's death in Cove, 145 miles to the north, on June 6, 2008:
Kiara woke up early that morning, crying, and followed her father into the living room as he was leaving for work. An aunt said he picked up the girl wearing a shirt, diaper and socks and took her to a bedroom where her mother and sister were sleeping.
When her mother tried to wake her around 8:30 a.m., Kiara was cold to the touch and her body was stiff, according to the initial report by tribal police — who arrived 75 minutes after the mother called. The officers wrote that they saw no signs of foul play, but noted bruising and burns on her body.
New Mexico medical examiner Ross Reichard, whose office was closest to Cove, ruled out the mother's assertion that she had accidentally smothered the child. The girl was "beaten by assailant(s)," he reported. But he said he couldn't rule out that the child was with her father at the time she was fatally injured.
Kiara's parents no longer live together but maintain contact for the sake of their children, her mother, Norena Joe, said in a phone interview with the AP. She declined to talk about her daughter's death.
Both parents denied any abuse, according to FBI records obtained by the AP as part of a Freedom of Information Act request.
Burke, the U.S. attorney in Arizona, wouldn't say when his office received the case from the FBI, but the bureau's records show that it was more than 19 months after Kiara's death. FBI agents — along with those from the Bureau of Indian Affairs — conduct most of the federal investigations in Indian Country.
"You have a situation where the only two people in the room are the parents, and being able to say we have enough on one as opposed to the other, that has to be really solid," Burke said. "It is really a disturbing situation, but it just doesn't get you a conviction."
Federal prosecutors rejected the case more than two years after Kiara died.
Martin received the case file from Navajo investigators at the end of March, including copies of the autopsy report, interviews, pictures and results of polygraph tests that, according to the case rejection letter, the father passed and the mother failed.
Mac Rominger, supervisory special agent for the FBI's Flagstaff office, declined to comment specifically on Kiara's death. But, he said, "There are rarely more difficult cases to prove than cases involving infants who are the victims of homicide."
Even if Martin can get a conviction in the child's death under tribal law, the maximum sentence would be one year in jail.
John Major, the chief prosecutor for the White Mountain Apache Tribe in eastern Arizona, said tribal authorities there pursue charges under tribal law even when cases are referred to the federal government. If federal prosecutors take the case, tribal charges often are dropped. If not, the tribe still can pursue justice. Federal prosecutors rejected 20 cases from the tribe over nine months last year.
"The federal system is like a huge freight train that, when it goes, it's very powerful. But it takes a long time to accelerate from a dead stop and get up to speed," Major said.
Under last year's Tribal Law and Order Act sponsored by Dorgan, federal prosecutors must explain declinations to tribal prosecutors and provide evidence that could be used in tribal court to prosecute the case.
When Burke became U.S. attorney in Arizona in late 2009, he sent a letter to tribes saying that every case referred to his office would have a 30-day turnaround. In the past, that communication hadn't been made to tribal prosecutors for months or years.
Burke doesn't dismiss criticism of those delays, and said those affected by the crimes have a right to assume a lack of interest on the part of federal prosecutors when cases are declined. By communicating better and using the rejection letters as teaching tools, "we're doing a better job" of helping tribal leaders understand why there was a problem with the case, he said.
Tribal prosecutors in Arizona say they largely agree with the federal government's reasons for declining cases but often don't have the resources to investigate for themselves.
The 270 Navajo police officers and criminal investigators respond to 235,000 calls a year on the 27,000-square-mile reservation, the size of West Virginia, and officials say it's difficult to do more than race from one crime scene to another.
The Navajo prosecutor said none of the 37 Navajo cases declined for federal prosecution in the Arizona tract of the vast reservation have been prosecuted under tribal law.
The large number of declined sex assault cases, both in the national study and in the AP's Arizona survey, are particularly problematic because the victim and suspect often know one another, making the victim reluctant to pursue charges, BIA officials said.
"I hate to see that our Native women here seek help, cry for help, but no one helps them," said Doreen Gatewood, a victims' advocate for the White Mountain Apache Tribe.
Domestic violence charges face similar hurdles.
"You have a very close-knit community that's tied together by family or traditional means," said Darren Cruzan, deputy director of the BIA's Office of Justice Services and a member of the Miami Tribe of Oklahoma. "Everybody kind of knows everybody else."
Martin, the Navajo prosecutor, holds out hope for a tribal prosecution in Kiara's case, saying evidentiary rules that differ under tribal law may provide an opening. "We can't let this one go," Martin said. "They may get a 'not guilty,' but we're going to make our best effort to let the public know you can't kill your kid and get away with it."
Kiara has now been dead longer than she was alive. Martin knows she must act quickly. The tribe's three-year statute of limitations — the last chance to file charges — expires June 6.
Thanawala reported from San Francisco.
Felicia Fonseca can be reached at — http://twitter.com/FonsecaAP