On Tribal Land, Tragic Arson Leads to a Life Sentence

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The Wall Street Journal

On Tribal Land, Tragic Arson Leads to a Life Sentence
Justice Can Be Unequal In Reservation Crimes; Prayers at Sweat Lodge
By GARY FIELDS
August 13, 2007; Page A1

LODGE POLE, Mont. -- In 2005, Bobbi Jo Wing and her husband were convicted of helping burn down a ramshackle house on the Fort Belknap Indian Reservation. At the time the fire started, the couple say they didn't know that Ms. Wing's 15-year-old cousin was asleep in a back bedroom. The girl's badly charred body was later found, after the house collapsed, in what had once been the basement.

Because Ms. Wing, 27 years old, and her husband are both members of a Native American tribe, they were tried in federal court. Since the arson caused a death, both were charged with felony murder, which automatically turned into a first-degree murder charge and a mandatory life sentence. Ms. Wing is now at a Federal Correctional Institution in Dublin, Calif. Her husband is serving life in a Colorado prison. There is no parole in the federal system. But if the crime had taken place off the reservation, just five miles to the east or southwest, the case would have gone to a local prosecutor. The likely state charge -- deliberate homicide -- carries a penalty as low as 10 years, with the chance of parole after as little as 2½ years, according to the local state prosecutor and the state attorney general's office.

Indian tribes once had control over the dispensation of justice on reservations. But federal laws -- some passed a century apart -- have whittled away that authority, and, critics say, helped create a legal system that's often separate and unequal. In 1883, the U.S. Supreme Court ruled that the Dakota Territory court had no jurisdiction in a case in which a member of the Lakota nation killed a fellow member on tribal land. The decision overturned a death sentence and effectively gave exclusive jurisdiction for crimes to tribes. Congress, uncomfortable with the decision, passed the Major Crimes Act in 1885, taking away the tribes' authority to prosecute murder, manslaughter, rape, assault with intent to kill, arson, burglary and larceny. That meant serious crimes committed by Indians on reservations could be prosecuted only by the federal government.

Because the tribes don't have jurisdiction for serious crimes committed on their lands, outcomes of cases can be uneven. In some cases, the federal government doesn't have the resources to prosecute such crimes, allowing criminals to slip through gaps. But Native Americans who do end up being prosecuted face a federal system that has become tougher in recent years. Since the 1980s, Congress has been toughening federal penalties by adding mandatory minimum sentences -- which are often more severe than those handed out by states. Coupled with that was the abolishment of parole in the federal system. As a result, American Indians, especially the million or so living on tribal land, can face harsher punishments than non-Indians for what are effectively local crimes, say tribal officials and legal experts.

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Two years ago, Ms. Wing, who is about 5 feet tall with long, black hair, was attending Fort Belknap College in a health program. She says she wanted to do research for the tribe on a contaminated-water problem. She also worked with teens on the reservation, supervising those who were considered by the tribal court to be at risk for drugs and delinquency. Before it burned, the house she lived in was a small, wood-frame structure with three bedrooms, a basement and a carport. It had neither plumbing nor a well. Water had to be hauled in, in five-gallon jugs and blue water bottles, from about a mile away. Residents had to use an outhouse. April 9, 2005, began as a big party to celebrate multiple birthdays around that time. Cousins, friends, siblings, aunts and uncles -- all tribe members -- gathered at the decrepit wood-frame house. Ms. Wing was the primary guest of honor. It was a Saturday and her 25th birthday was the following week.

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The alcohol brought out simmering animosities over a central question: Who owned the house? The land had been in the family for generations, evidenced by a vacant, one-room log cabin that had belonged to Ms. Wing's great-grandfather. But the house itself was claimed by two branches of the family: that of Ms. Wing's father and that of her uncle. A fistfight broke out. Two years later, no one is sure who started the fight or who came up with the idea to burn the house. What the participants do agree on is that most were drunk. The fire that caused the most damage began in the living room, according to court documents. The party-goers evacuated and were standing outside the house when a young teen began crying, says Ms. Wing. Ms. Wing says her cousin Angel had returned to the house unnoticed and had been asleep in a back room. Several people, including Mr. Arcand, tried to go back inside but were turned away by the heat and smoke, according to court testimony. "I ran through the back door and tried to get into the house but the flames were already climbing up the wall," he recalls. The crowd formed a human pyramid to boost would-be rescuers through the bedroom window. One of the rescuers thought he found the girl, but was overcome by the smoke and couldn't pull her out, according to court testimony.

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