Monday, January 19, 2004

Spokane

BIA agent says he's a victim of retaliation
After investigating reports of police corruption on Spokane reservation, he faces tribal charges

Bill Morlin
Staff writer

photo
Jed Conklin - The Spokesman-Review
BIA agent Duane Garvais' case could have huge repercussions.

A federal Bureau of Indian Affairs agent who says he was uncovering suspected police corruption on the Spokane Indian Reservation now is defending himself against legal challenges.

The case of special agent Duane Garvais has reached Washington's congressional delegation and the highest levels of the troubled Bureau of Indian Affairs.

It also is ripe with potential legal precedent -- pitting an Indian tribe's claim of legal jurisdiction against a federal agent's right to criminal and civil immunity for job-related actions.

Garvais was placed on paid administrative leave 17 months ago as he was investigating reports that police officers were involved in tape deck thefts and drug trafficking on the Spokane reservation. No charges resulted from those investigations.

The Spokane Tribe is pressing its own criminal charges against Garvais, accusing him of mishandling undercover drug funds. The U.S. Department of Justice refused last year to prosecute him on those s
ame charges, saying there is insufficient proof he did anything illegal.

Garvais claims he is a victim of retaliation and has done nothing illegal.

At a hearing Friday on the Spokane reservation, Garvais' attorneys will attempt to have the tribal charges dismissed. They claim the tribe has no jurisdiction over him because he is a federal agent and not an enrolled tribal member.

"I'm not aware of any other case like this -- anywhere," said one of Garvais' attorneys, Leslie Weatherhead, of Spokane.

Robert Ecoffey, director of BIA law enforcement, and Ed Naranajo, regional BIA law enforcement chief, both refused to discuss the case.

"I have no comment," Ecoffey said Friday from BIA headquarters in Albuquerque, N.M.

"It's a personnel issue, and I have no comment," Naranajo said from the BIA regional office in Billings.

Robert Flett, chief of police on the Spokane reservation, refused to discuss the matter last week.

Flett, a BIA employee, referred questions to Naranajo, who placed Garvais on leave.

The tribal charges against Garvais were developed in part by the same BIA officers he investigated in 2001 on suspicion of criminal misconduct, court documents show.

While on paid leave, the federal law enforcement agent was arrested last August at the Omak Stampede on the Colville Indian Reservation.

Colville tribal police Officers Mike Kessler and Kevin Anderson used a Spokane tribal warrant to make the arrest. Garvais challenged the legality of their acts.

He was held in tribal jails for five days before his Spokane attorney could file a writ of habeas corpus in federal court, challenging the Spokane Tribe's arrest of a federal officer.

Besides ricocheting through BIA ranks, the case is getting the attention of the Federal Law Enforcement Officers Association.

It also has been brought to the attention of Washington Democratic Sens. Patty Murray and Maria Cantwell, and Rep. George Nethercutt, R-Wash.

The matter is now being reviewed by the Office of Personnel Management, which does background and security clearances on federal employees, sources said.

It also has resulted in a lawsuit filed by Garvais in U.S. District Court against the Spokane Tribe and three of its officers. In the suit, Garvais claims he was targeted for retaliation and his civil rights were violated.

At a court hearing Friday, Senior U.S. District Court Judge Justin Quackenbush set the civil rights suit for trial on Aug. 1, 2005. The federal judge also didn't dismiss Garvais' habeas petition action.

In the pending tribal court case, the U.S. Attorney's Office filed a legal brief, agreeing that the Spokane Tribe has no jurisdiction over a federal agent.

The tribe counters that it does have jurisdiction. Garvais is a descendant of the Colville Confederated Tribes, but not an enrolled member of any tribe.

Those opposing views set the stage for what could become a case with legal precedent, according to Weatherhead and other legal experts familiar with the case.

The U.S. Attorney's brief says there is a complex legal formula, based upon prior court rulings, that must be used to determine whether someone is an American Indian.

Garvais, who now lives in Stevens County, has been on paid leave since September 2002. The 37-year-old federal agent said he couldn't talk publicly about his case, but agreed to release a brief prepared statement.

"As a veteran of the United States Marine Corps and having taken an oath as a special agent, I am duty-bound to expose immoral, unethical and illegal conduct and to report these matters to my supervisors," Garvais wrote. "The situation of the Spokane Indian Reservation is simply a matter of upholding these principles and doing what is right.

"Federal officers of the Department of Interior, who confess to criminal activities, should not be allowed or authorized to be law enforcement officers," he said in the statement.

"The Department of Interior's BIA law enforcement program has the same ethical and moral responsibility to fairly and honestly investigate allegations, regardless of political pressure."

Garvais claims the thievery he uncovered is symptomatic of what he believes is more widespread police corruption on the Spokane Indian Reservation.

The Spokane Tribe, which used to have its own tribal police force, elected about five years ago to hand its law enforcement duties to the Bureau of Indian Affairs.

Most of the eight BIA officers currently assigned to the Spokane reservation either are members of the Spokane Tribe or are related to tribal members.

Garvais was commissioned as a BIA special agent in 1999 and assigned to do investigative work on the Spokane reservation.

He earlier worked as a detective for the Colville Tribal Police and was commended for his work in an extensive cocaine trafficking case in 1995 that resulted in 17 convictions in U.S. District Court, public records show.

A former Marine, Garvais graduated with honors from the Federal Law Enforcement Training Center in Georgia.

Documents reveal Garvais learned from informants in 2000 that BIA police officers were involved in the theft of car stereos on the Spokane reservation.

Garvais forwarded that information to Naranajo, the agency's regional law enforcement commander in Billings, the documents show.

Garvais also was investigating reports from citizens that BIA employees, who have relatives and friends on the Spokane reservation, were tipping off drug dealers about undercover drug buys and raids, the documents disclose.

In addition, he was investigating reports that some BIA officers were periodically stealing items from a reservation equipment warehouse, announcing over their police radios that the "store was open," according to the documents.

The case is detailed in documents filed in tribal court, others filed in U.S. District Court and taped interviews with three tribal police officers.

Naranajo sent deputy commander Glen Melville from Billings to the Spokane reservation to investigate reports of tape deck thefts. Melville, who transferred to another federal agency, couldn't be reached for comment.

An internal affairs investigation was ordered, but criminal charges were never filed.

In tape-recorded interviews, BIA Officers William Matt Jr. and Ted Wynecoop confessed to stealing a tape deck while on duty on the Spokane reservation. Flett said he and his officers couldn't talk about the matter, and the officers couldn't be reached.

The tape deck was stolen by the police officers in 2001 from a government car assigned to tribal court probation Officer Andrew Matherly, according to taped confessions obtained by The Spokesman-Review.

Matherly filed a formal complaint with Garvais, and wanted something done about the theft.

His car was parked across the street from the police station in Wellpinit when the on-duty officers used "slim jims" to break into the vehicle and steal the tape deck, according to the taped confessions.

The officers later said they took the deck as a "prank."

"I am aware that what I did is wrong," Wynecoop said in a tape-recorded confession. "It was lack of better judgment on my part."

The two officers and a third officer each were given a few days off without pay, but criminal charges weren't filed.

Garvais' effort pursuing the theft case and other allegations of corruption triggered a political firestorm on the Spokane reservation.

Naranajo traveled from Montana and met privately with the Spokane Tribal Council before it passed a resolution in November 2001 asking that Garvais be removed as a special agent on the reservation.

Naranajo temporarily transferred Garvais to the Northern Cheyenne Reservation in Montana and later to the Wind River Reservation in Wyoming, where he worked as acting chief.

Garvais applied for the chief's job at Wind River, but returned to the Spokane area when he didn't get the appointment. He was put on paid leave in September 2002.

Upon his return, Garvais learned that the BIA officers involved in the tape deck theft and the Spokane Tribe were accusing him of wrongdoing.

The accusation resulted in another internal affairs investigation by the BIA, this time of Garvais.

The BIA investigated Garvais for alleged irregularities involving informants and undercover drug-buy money.

Garvais claims that he gave Flett, the Spokane tribal police chief, a complete written inventory of the funds and equipment before being placed on leave and that no irregularities were found.

After reviewing the BIA investigation of Garvais, Assistant U.S. Attorney Jim Shively declined last July to file charges, saying there was insufficient evidence of wrongdoing.

The senior Justice Department official, however, did sharply criticize the Bureau of Indian Affairs for "fundamental investigative shortcomings" in supervising Garvais.

That criticism made its way to Naranajo and Ecoffey, who oversees BIA law enforcement from his Albuquerque office.

Three months later, Naranajo notified Garvais he was going to be removed from his position as a special agent because, according to the BIA, he didn't meet "Indian descendant preference" requirements when he was hired.

Garvais is legally challenging that decision.

•Bill Morlin can be reached at (509) 459-5444 or

by e-mail at billm@spokesman.com.


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