The decision is the second from the 9th Circuit in the case. In January 2012, the court ruled that Oravec could not assert a "qualified immunity" defense because the family had raised a sufficient claim in their complaint, that of racial bias by the agent. Oravec then asked the U.S. Supreme Court to review the decision. His petition wasn't denied until a year later, causing another delay in justice for the family. These kinds of setbacks are common in Indian Country, where resources are woefully inadequate. President Donald Trump, in his fiscal year 2018 budget request, is seeking to cut more than $27 million from law enforcement at the Bureau of Indian Affairs -- including funds for criminal investigations -- even though reservations suffer from disproportionately high rates of violence. On the prosecution side, the Department of Justice has confirmed that tribal victims are treated differently. In fiscal year 2015, federal authorities declined to pursue 39 percent of criminal cases in Indian Country, a rate that's remained virtually unchanged since the passage of the Tribal Law and Order Act in 2010. "Since TLOA’s implementation, BIA funding for tribal law enforcement has decreased thus hindering the ability of tribal law enforcement to reduce crime and protect tribal members," Chairman Darrell Seki of the Red Lake Nation told lawmakers who control the federal government's funding levels in May.
Despite the long-standing shortcomings, the Bearcrane-Cole case appears to be the first of its kind in Indian Country. But government attorneys, in seeking to keep the family out of court, characterized the lawsuit as too general to proceed. "Instead of actual or imminent injuries, plaintiffs allege that Native Americans residing on reservations nationwide are at an increased risk of becoming victims of violent crime," the Department of Justice wrote in a brief to the 9th Circuit. "That injury is abstract, and not concrete, particularized, or actual or imminent." And one judge who heard the appeal in February remains skeptical. In a dissent, Judge Consuelo María Callahan said she wouldn't have allowed the Bearcrane-Cole family to keep pursuing the case. "Here, none of the Bearcrane family members’ non-conclusory factual allegations show a pattern and practice of racial discrimination by the FBI, or show that the FBI acted with an intent or purpose to discriminate against them because they are Native Americans," Callahan wrote. "Likewise, the statistics presented, while perhaps demonstrating gross statistical disparities, do not tend to show that the FBI intentionally or purposefully discriminated against the Bearcrane family members based on their membership in a protected class in administering its cases, or that these statistics result from the FBI’s conduct at all." Robert “Bugsy’’ Springfield, on the Crow Reservation in 2004. Springfield's claims against Oravec and the FBI were subsequently dismissed by a federal judge. She did not participate in the appeal to the 9th Circuit. The judge who originally handled the case was Richard Cebull. He stepped down from the bench after circulating a racist email about then-president Barack Obama, who is an adopted member of the Crow Tribe. Crow lawmakers called for the judge's removal from the federal court in Montana and Native activists filed a lawsuit that sought to determine whether he was biased against Native plaintiffs and defendants. Bearcrane-Cole was killed on a privately-owned ranch on the reservation where he had been employed. A fellow worker said he acted in self-defense after a fight broke out. Bearcrane-Cole was shot in the head. The property was owned by a non-Indian at the time. It was acquired by a Crow family in 2010 for $2.63 million, Cattle Business Weekly reported. Turtle Talk has posted documents from the FBI case, Cole v. Oravec. 9th Circuit Court of Appeals Decision:
Cole v. Oravec (June 26, 2017) Prior 9th Circuit Court of Appeals Decision:
Cole v. Oravec (January 10, 2012) Related Stories:
Budget document details cuts slated for Bureau of Indian Affairs (June 5, 2017)
Adrian Jawort: Indian families still seeking justice for loved ones (March 6, 2017)
Crow families can proceed with lawsuit against an FBI agent (2/3) (February 4, 2013)
Most claims dismissed in law enforcement discrimination suit (June 24, 2010)