Jan. 11—GRAND FORKS — Accessing more information about a fatal shooting carried out by a police officer on the Turtle Mountain Reservation in northern North Dakota has proven difficult, continuing a trend the Grand Forks Herald has observed with all Native American reservations in North Dakota.
On Dec. 29, a Belcourt man was fatally shot by a Bureau of Indian Affairs officer during a confrontation on a highway near the Sky Dancer Casino. Although the identity of the man killed was released, a Turtle Mountain Band attorney told the Grand Forks Herald the following day that “we don’t have a lot of information, because it’s under investigation.”
Two weeks later, no further details appear to have been released.
The Herald sent records requests Monday to the BIA and Rolette County Dispatch. Dispatch referred the Herald to the BIA, but the BIA made its own referral — to the Federal Bureau of Investigation, which will be handling the investigation. The Herald now awaits a response from the FBI.
Accessing information is commonly difficult when North Dakota tribes are involved. A Herald audit late last year highlighted the challenges to access criminal court documentation when it involves Indigenous people living on tribal lands.
“The problem, when you’re looking for information, is it depends on how much,” said Grand Forks County Assistant State’s Attorney Rachel Egstad, who has years of experience in tribal court systems. “(There are) jurisdictional issues that reservations go through — you have all those layers.”
State, tribal and federal jurisdiction all could be at play in any given case, depending on where it happened, who was involved and whether those involved are Indigenous. If a case reaches the level of an FBI investigation, it seems more likely that information will be inaccessible, as was evident when looking into
Jemini Posey’s disappearance
from the Spirit Lake Reservation.
In that case, the FBI told the Herald it could release no information other than what was already made public — information about Posey’s appearance, birthday and when/where she was last seen.
“The FBI’s investigations are a lot more close-knit than, say, a state investigation would be,” Egstad said.
This has also been the case across the five tribal court systems located across North Dakota. The Herald requested criminal court documentation from each, but received none.
Egstad said she understands why tribes may limit public access to documentation more than state courts do.
“I don’t know that every tribe would want to make all their information (about) their members public for anybody to access,” she said. “They’re their own sovereign nation, so they make their own laws and enforce those, and if the general public can look at them, sometimes it does create some undue prejudice for members.”
There are five tribal courts located throughout North Dakota: Spirit Lake Nation; Mandan, Hidatsa and Arikara Nation, also known as the Three Affiliated Tribes; the Turtle Mountain Band of Chippewa Indians; Standing Rock Sioux and the Sisseton Wahpeton Oyate Nation.
The Herald filed a request with the Spirit Lake Tribal Court for a set of particular criminal court documents last year but did not receive them, nor an explanation of why the documents were withheld. In an effort to learn more about what tribal courts in the state consider public, the Herald sent written records requests to each on Aug. 6, asking for all documentation filed in criminal court the previous day.
Five months later, no records have been received. A Turtle Mountain court employee cited tribal codes that explained why they don’t release random information to the press. The remaining courts did not give definitive answers to the requests; most deferred to judges or tribal council members, who also did not respond to the Herald’s inquiries. Interview requests were unanswered.
Breanna Delorme, a defense attorney who provides public defense to Grand Forks County and Spirit Lake Nation clients, agreed that someone outside the system who wants to look into a case might have a more difficult time getting answers, despite the fact that many records are considered public.
“They’re not listed online,” Delorme said. “There’s not a central database that the public would have access to, like we would on the state side of things.”
Generally, basic information about any case filed in the North Dakota courts system — such as a defendant’s identity, charges and upcoming court dates — can be found online at
publicsearch.ndcourts.gov.
Documents filed in any given case are listed by what they entail (such as “affidavit of probable cause” or “search warrant”), but are not available to read online; they must be requested from the clerk’s office or accessed at a courthouse. Some documents are sealed entirely if they contain protected information, like medical records or the identities of children.
The public also can request some tribal court documents, Delorme said, but it helps to know what they’re looking for.
“We did have a database, obviously, (where) we kept track of all our cases but, I mean, it’s mostly paper files,” Egstad said. “When people need a background check, the criminal clerk actually has to sit down and go through all of the files and put together the background check, which costs money and time.”
The existing database was not sophisticated, she said, and the clerk of courts would generally check all the paper files anyway, to ensure nothing was missing.
“We were trying to get a new database when I was still at Spirit Lake,” Egstad said. “However, it just didn’t happen. It’s not like we can go through a state system … to actually create a database. Those cost millions of dollars.”
Since leaving the Spirit Lake court system, she believes a rather sophisticated database has been established for internal court matters, but it is not available to the public.
As a defense attorney, Delorme has to make a request to the prosecution or clerk of courts to access her clients’ criminal records. She’s never been denied, and says it’s just an extra step — not necessarily a barrier.
But having access to other cases would make her job easier, she said. Even if she isn’t representing that person, if they were involved in a case similar to one she is working on, that would allow her to see the outcome and perhaps give her ideas on how to proceed.
“In Grand Forks, if somebody were to tell me, ‘Oh, that sounds like a situation of so-and-so, and that case ended up being dismissed because of the motion that the attorney wrote,’ I could look at that,” Delorme said. “In tribal court, I can’t do that. I don’t have that same accessibility.”
When writing sentencing memorandums for state criminal cases, both the prosecution and defense regularly rely on the outcomes of other, similar cases to craft their arguments. If most people convicted of a certain crime are sentenced to one year in prison, a defense attorney likely will argue that their client should also be sentenced to one year in prison — nothing more.
Not having access to that information makes the process more difficult, Delorme said.