WSJ: On Tribal Land, Tragic Arson Leads to a Life Sentence



FEDERAL CASE
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.

Map: http://tinyurl.com/27j4gy

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.

Utah Federal District Court Judge Paul Cassells, a former federal
prosecutor, says the federal sentencing guidelines were designed with
a different set of criminals in mind, such as multiple, violent
offenders. And yet, "we give everyone the same sentence, even when we
know, and everyone in the courtroom knows, it's not the right thing to
do."

Rescue Attempt

In Blaine County, Mont., where the fire took place, prosecutor Donald
Ranstrom says he would have weighed the fact that the death was
unintentional and that the defendants were involved in a rescue
attempt. All three options available to him were less severe than the
punishment the couple received. Whatever the sentence, the couple
would have been eligible under state law for parole after serving one
quarter of it.

The federal "guidelines and statutory requirements are very
restrictive," says Mr. Ranstrom. "It's a train wreck anyway you look
at it."

There are 3,470 American Indians serving time in the federal prison
system. That's more, proportionately, than any other racial group.
According to census and Bureau of Prisons data, tribal members living
on reservations are incarcerated at a rate of more than 249 per
100,000 residents. The next group is African-Americans, who are
imprisoned at a rate of 198 per 100,000.

The rate of incarceration only partially tells the story, according to
a 2003 study commissioned by the U.S. Sentencing Commission, a federal
agency that creates the guidelines federal judges use in sentencing.
It showed that Indian offenses amount to less than 5% of the overall
federal caseload, but constitute a significant portion of the violent
crime in federal court. "Over 80% of manslaughter cases and over 60%
of sexual abuse cases arise from Indian jurisdiction and nearly half
of all the murders and assaults arise from Indian jurisdiction," said
the report.

Fort Belknap Reservation, like many reservations here, is far from any
major population centers. Great Falls, the closest, is 160 miles away.
The communities on the reservation are spread over 1,200 square miles,
making them even more isolated. Lodge Pole is one of the larger ones,
situated in the Little Rocky Mountain chain, where farming and
ranching are the primary occupations.

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.

Angel Lynn Denny, Ms. Wing's second-cousin, was there too. She left at
one point and went home to call her parents, who were at a basketball
tournament with her younger siblings.

"We told her she had to leave because there was drinking," says Ms.
Wing's husband, Kenneth Arcand, 23, in a phone interview from the
federal prison in Colorado where he is serving his sentence. There was
beer and whisky. Some participants left and went to local bars before
returning, Mr. Arcand and Ms. Wing say.

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.

Overcome by Smoke

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.

After the body was discovered, tribal police, realizing the crime was
out of their jurisdiction, called the Federal Bureau of Investigation.
During questioning, the couple confessed to setting the fire, but
later recanted. They were released on their own recognizance, and
later received instructions through the mail on when to report to
court.

At the time, prosecutors were operating under instructions from
Attorney General John Ashcroft to pursue the severest possible charges
in all cases. The federal district of Montana followed the
instructions: In 2006, according to the U.S. Sentencing Commission,
defendants there received sentences nearly double the national
average.

Mr. Arcand recalls thinking that he and his wife would be found not
guilty, because concluding that they had set out to purposely kill the
young woman "was wrong."

It took the jury in Great Falls less than four hours to convict them.

As he sentenced Ms. Wing, federal district Judge Sam Haddon noted that
a state court would have handed down a more lenient sentence. But he
continued: "My personal preference -- what I would do as an individual
if not constrained by the law -- is, itself, in the view of the court,
irrelevant." He said the court was "obliged to impose a sentence of
life imprisonment."

During their subsequent appeal, the Ninth U.S. Circuit Court of
Appeals upheld the convictions. One judge on the three-judge panel,
Richard Clifton, while upholding the convictions, wrote "separately to
express my dismay at the consequences of the result we reach."

Judge Clifton continued: "It is appropriate that the defendants be
seriously punished for what they did, but these life sentences do not
square with my concept of justice." He expressed hope that the
executive branch might intervene to reduce the sentence.

Anthony Gallagher, the federal public defender who defended Ms. Wing,
says a clemency request for a pardon or commutation is his last
option. The Supreme Court decided in June not to take the case.

Recently, Congress has begun discussing changing the way jurisdiction
is decided on tribal land. A committee with the Federal Bar
Association has taken up the cause of pushing for changes, as well as
the National Association of Criminal Defense Lawyers.

Sitting in a conference room at the women's prison outside Oakland,
Calif., Ms. Wing wiped away tears as she talked about her cousin,
acknowledging how the incident has torn apart the tribe and her
family. She says she has come to terms with the possibility she won't
see her home or husband again.

Ms. Wing was offered a plea bargain that would have given her 30
years, but she wanted to go to trial. "We knew we would face life, but
I wanted the truth to be known, that there was no malice and we didn't
know she was there," she says.

She and Mr. Arcand once worked at the Tastee Bite Café in Chinook. Ms.
Wing was a waitress. He had worked his way up from dishwasher to cook.

In letters written on their behalf before they were sentenced, the
owners of the cafe, Karen and Frank LaTray, said they sometimes left
the couple in charge. "I trusted them to operate the business in these
occasions and also trusted them with the money. I knew every penny
would be in the till and accounted for until I returned," Ms. LaTray
said in court papers.

Now Ms. Wing reports for work at 6:20 a.m. at the prison's garment
factory, which produces parachutes for the military and blankets used
in disaster relief. There she works on a computer and helps develop
cost estimates for the products the prison produces. Remembering the
battle for the house, which led to her cousin's death, is painful, she
says. "It was just greed."

Asking for Forgiveness

Ms. Wing has written to her cousin's immediate family asking
forgiveness, but says they haven't responded.

"My life is nothing compared to Angel's," Ms. Wing says. "Nothing can
ever replace her life. I do pray I get a second chance, but I know God
has a plan," she says. "I'm not saying he'll take me out of here, but
I know he has a plan."

The spot where Angel died is marked by a 6-foot white cross. Friends
and family have left a softball and a pink, portable cassette player
at its base, symbols of the teen's love of music, dance and sports. A
small herd of horses graze at the site of the burned structure, and
the outhouse is barely visible through the tall grass.

Less than a mile away, there is a sweat lodge, resembling a cloth-
covered igloo, behind an uncle's home, heated by granite rocks in a
pit. Several times, Ms. Wing's parents have gone there to sweat moral
and physical impurities out of their system in preparation for a three-
day fast and a sun dance, where they have prayed for the incarcerated
couple and Ms. Wing's deceased cousin.

Angel's father, Bruce Denny, 50, sitting in the family living room
that has become a shrine to the teen, says the incident has forever
changed his family. At first, he refused to believe she was dead. "I
was in shock. I went blank there. I'm still inside myself," he says.
"Her high-school class just graduated. I couldn't go to the ceremony,
I just couldn't."

Mr. Denny says he hasn't thought about whether the life sentences are
just. "I just went with what the system said the punishment should
be," he says. "We live by a system and whatever the system gives,
that's what I go with."


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