Open letter from Benewah prosecutor

On Tuesday I came to work to find laying on my desk an article in the Spokesman-Review by Dave Oliveria, denigrating Benewah County and Sheriff Bob Kirts.  Accompanying it came the outrage of several Benewah County citizens, incredulous that a journalist would be so partisan, so uninformed, and so fundamentally unfair.

    Despite the fact that my profession is to prosecute human beings for hire, in many cases I can't escape wondering why the person did what they did. and whether I could be they but for luck, the love of my parents, or just the grace of God.  We should be careful not to hastily judge the stupidity of others from afar.  Often when answers seem simple it is because we just don't understand the problem.

    In case you missed it, Mr. Oliveria held editorial court on Sheriff Bob Kirts. Oliveria affirmed Judge Christie Woods' (Kootenai County Task Force on Human Relations) Coeur d Alene Press verdict saying Benewah County Sheriff Bob Kirts is a racist, an "uber-conservative" and a crude embarrassment to the enlightened.  Further, he passed judgement on the residents of Benewah County saying Kirts' crudeness would "play well in St. Maries"  but  obviously not in the sophisticated social circles Mr. Oliveria moves in.

    Unlike Dave Oliveria or Christie Woods, I live on the Coeur d'Alene Reservation and in Benewah County and I personally know many of  the people he has insulted, and I know Bob Kirts. They are rural people; less impressed by money or power than by hard work, humility and loyalty to principle.  They are not so easily offended by the inartfulness of words used as by the ill intent of the one who uses them.

    When I was still in grade school, Sgt. Bob Kirts, U.S.M.C., was doing our dirty work in southeast Asia. His was not to reason why, but to do his job. He did what we told him to do and lived to not tell about it. Regardless of my crystal clear college educated retrospective about Viet Nam, it gives me pause. He has had more endless moments,and more years, to ponder what we fight for than I have.

    Bob Kirts has been a peace officer for a third of a century.   In the 1980's he was Benewah County Sheriff and pioneered the idea of deputizing what were then Bureau of Indian Affairs Police Officers.  The practice was expanded and advocated for by myself, Sheriff Thormahlen and Sheriff Blackburn in the 1990's. We were criticized statewide for opening Pandora's box and now our critics can say they told us so.

    The decision of the Supreme Court in 2001 quieting title to the southern end of Lake Couer d'Alene in the Tribe (minus Heyburn State Park) has driven a wedge between the Couer d'Alene Tribe and Benewah County.  The Tribe insists it has the right to the exclusive use of the water and that the Tribe owns all of Lake Couer d'Alene, including Heyburn State Park, despite the Supreme Court opinion.  Benewah County's position is that the public trust doctrine applies to the lake and that all persons can use it, not to be discriminated against because of their race or lack of tribal membership, and that Indian tribes never have criminal jurisdiction over non-tribal members (because this is the law of the United States).

    By 2005 the Tribe was systematically citing non-tribal persons into tribal court and extracting fines. Some of these tribal officers were cross-deputized.  Sheriff Kirts believes this is illegal, with good reason, and insisted the practice stop.  When it did not, in 2007 he revoked his deputization of tribal officers and delegated to them emergency powers only.  In October of 2008 I drafted and presented to the Tribe a cross-deputization  agreement.  The Tribe's attorneys accepted this agreement, except for one issue: they would not cease exercising criminal jurisdiction on the water over non-tribal persons.  

    The issue is not trivial.  Its outcome may affect the free use of all of Lake Couer d'Alene (and other lakes) by all citizens from now on.  If tribal jurisdiction is conceded on the lake, it is difficult to imagine why it would be different on dry land, or vice versa.  The issue is simply not racial.  Neither is it about public safety.  It is one  of governmental power. Specifically it is the problem created when tribes try to expand their power beyond their own members, who have a vote, to control others who have no vote.

    It is standard practice for tribal advocates to attempt to humiliate and marginalize any opponents of tribal power by calling them racists.  This is perplexing since it is the tribal lawyers that are advancing government by race. It is the states and counties that are dedicated to the principle that all people are created equal and sworn to uphold non-discriminatory government of, by, and for all people. 

     It is important to provide for tribal autonomy to avoid dissolving tribal culture and identity.  And, of course, Ms. Wood and Mr. Oliveria, it is also a valid concern that minority populations can be economically and politically oppressed by the majority.  But here David and Goliath are reversed. The tribe had 2100 members in 2008 and that year alone the Couer d'Alene Tribal government received $50.1 million from federal grants and gambling revenue and that does not include the $39 million extracted from Avista for "water storage," or thousands of acres purchased for the tribe by the Bonneville Power Administration. By contrast, in 2008 Benewah County had only $6.4 million total revenue to provide services for 10,000 residents, including tribal members.  The tribe is a tax exempt economic Goliath with fourteen police officers paid for by the federal government, too many lawyers and law firms to keep count, full time grant-writers, a full time legislative lobbyist, a full time spokesman to avoid missteps, Bill Roden (an influential hired gun lobbyist in Boise who is on the tribe's payroll specifically to push this bill) and a tribal government  subsidized by $25,000 for every man, women and child tribal member, many of which don't even live on the reservation.

The Coeur d'Alene Tribe gave $1,000,000 to the Kroc Center in 2008,  and Senator Jorgensen cites this as how the Tribe is a part of the     "fabric" of the Coeur d'Alene Community.  In Benewah County the tribe spent nearly $15 million in 2008 alone, to buy land, which it immediately requested the federal government take off county tax rolls,  further weakening Benewah County and exploiting the tribe's economic advantage of rich over poor. This paper and local news channels know how much the tribal casino spends in advertising, so the tribe's point of view is well presented. Benewah County has no money to spend on the Kroc Center or advertising.  It is all we can do to keep roads maintained, dispose of waste, provide medical care for indigents, and keep the courthouse and schools open for all citizens regardless of race, religion, gender or national origin.

    There is no non-tribal crime wave in Benewah County.  In fact there have been no armed robberies or forcible rapes and only one murder in the 16 years I have lived here.  This issue is a fabrication.  It might have saved Mr. Oliveria and Ms. Wood some embarrassment if they had looked at the crime statistics in their own counties before pointing fingers.

    Sheriff Bob Kirts, much like Sgt. Bob Kirts 45 years ago, once again finds himself on the point of a conflict he did not start and cannot escape except by abandoning his duty.  I am confident that will not happen.

He has the overwhelming support of those who live here and know the issues created by the tribal government's systematic and well-funded attempts to expand its control over non-tribal persons who have no vote in tribal government.  Fully one-fourth of those voters affected signed a petition opposing tribal officer deputization last weekend alone! Rather than co-operate, the Tribe seeks to circumvent the people's elected law enforcement official with big money politics.

This is not a racial issue. It is an issue of social injustice of a new type.

The people of Benewah County are not crude.  Nor are they lawless, ignorant, backward or racist. They are just ordinary people trying to live and let live, faced with a relentless problem.  This problem is difficult enough neither Dave Oliveria nor Christie Wood dared wrestle with it, but instead chose to cheap shot good people's character; citizens who simply believe that having a vote in the government that exercises power over them is important enough to stand up for, even if the only stone in their sling is the truth.

Yours In The Public Service,

Douglas Paul Payne,

Benewah County Prosecuting Attorney