Jill Finken is blazing a trail for Native American justice as she embarks on her role as tribal special assistant U.S. attorney.
By Lorraine Boyd
New Tribal Prosecutor Hopes to Bring
Justice to Native American Victims
The Daily Record
“This pilot program is going to be a good thing,” Jill Finken said.
She is Nebraska’s new tribal special assistant U.S. attorney, charged with pursuing violence against women cases in both tribal and federal courts.
The appointment rose out of the Justice Department’s Office on Violence Against Women (OVW), which authorized the designation of four new tribal prosecutors in agreements with the Nebraska tribes and three other tribes in South Dakota, North Dakota, Montana and New Mexico.
The federal office will help cover salary, travel and training costs of the tribal special assistant U.S. attorneys.
The program enables the new tribal prosecutors to bring cases of violence against women in federal court and to serve as co-counsel with federal prosecutors on felony cases from within their tribal communities.
Finken is working with the Omaha, Santee Sioux and Winnebago tribes in Macy, Santee and Winnebago, in northeastern Nebraska.
It’s a challenging assignment, but then Finken is no stranger to challenges. A 14-year veteran of the Iowa National Guard, the Army captain was deployed in 2010 to a one-year combat tour to Afghanistan as a judge advocate. Her experience in the military “opened my eyes.”
The Tribal Special Assistant United States Attorneys (SAUSA) initiative is another step in the Justice Department’s on-going efforts to increase engagement, coordination and action on public safety in tribal communities, and represents a partnership between the OVW, the Executive Office of U.S. Attorneys and the U.S. Attorney’s Offices in Montana, Nebraska, New Mexico, North Dakota and South Dakota.
“We know that violence against Native women has reached epidemic proportions,” said OVW Director Bea Hanson. “Restoring safety for Native women requires the type of sustained cooperation between the federal and tribal justice systems that we see in the jurisdictions participating in our Tribal SAUSA project.”
Iowa native Jill Finken studied at the University of Northern Iowa, earned a summa cum laude degree in psychology in 2000, then graduated from Drake University Law School, with highest honors, in 2004.
After she clerked for Iowa Court of Appeals Judge Robert E. Mahan in Des Moines, and for U.S. District Court Judge Mark W. Bennett in Sioux City, Iowa, she joined Heidman Law Firm in Sioux City as an associate, where she established their criminal litigation section in the previously all-civil practice firm. During these seven years, she gained extensive federal litigation experience.
A captain, she has served in the U.S. Army National Guard since high school, most recently as a judge advocate for a 3,500-member brigade in Afghanistan. She was awarded the Bronze Star.
She said that when she returned from Afghanistan in 2011, even though they Skyped regularly, her two-year-old son Trevor “was a stranger to me. When I got back I was kind of a wreck; I was just tired.”
Wanting to stay close to home, she took a position as in-house counsel at Alliant Energy in Cedar Rapids, next door to her home in Marion, where she worked until being chosen for this new position.
Her boss, U.S. Attorney for Nebraska Deborah Gilg, said about the program, “This very innovative concept was designed totally to improve the domestic violence incident rate on reservations. We’re trying to get in there on the ground floor, to be eyes and ears. You can’t prosecute if you don’t know about it.”
Finken agreed. “It’s exciting. It’s a cool thing, but also a scary thing; this hasn’t been done before. There’s a vision for sure, but how that actually gets effectuated I think is going to be different depending on the Native American tribes you’re dealing with, and I’m dealing with three of them, so it could be different for each tribe.”
She said the Native American culture has always been fascinating to her. “My husband John and I are kind of outdoors people, and we would go up to South Dakota [they have a very large Native American presence there too, she noted] and would go to the Native American Heritage Museum, and I would be crying. It was just so powerful for me.
“They’re a very interesting people with a very emotionally turbulent history. And how that has played out to contribute to the problems that the reservations experience today … it’s all related.”
Finken said there are a number of contributory factors to the domestic violence problem. One is alcohol, poverty is another, and there’s also a kind of victim mentality.
“If you look at the historical perspective of the Native American culture, there’s that thread that goes through there. There are also some theories out there, that the white man robbed them of their culture, which had protections in place. Women were sacred, you didn’t do these type of [crimes]. But when you start picking away at this culture you leave the door open for some of this to happen.”
She said the other large problem is that sex assaults and domestic violence cases are hard to prosecute, no matter what segment of society you’re in.
“The military has similar issues and what the military has done – and I applaud this – is to have special prosecutors who are trained in prosecution of sexual assaults because in a normal case you have a ‘he said, she said’ situation.
“We all carry with us certain ideas about how we think victims should act. For instance, you’ll often hear the comment, ‘She didn’t say anything. Why didn’t she do anything? All she had to do was tell him to stop, and he would have stopped.’ It’s so difficult for people not trained in victimology to understand that sometimes that is how a victim acts. Everybody has their own reaction to a trauma. And sometimes the body’s reaction is simply to be unable to do anything. It’s hard to say how a victim should act.
“In a normal criminal case, you think the evidence stinks. But that’s in normal crimes, when the trauma doesn’t involve such intimate issues.
“The military really opened my eyes, even to some of the ideas I carried around, such as ‘Why didn’t she report it?’ There are lots of reasons people don’t report it.
“I think that this pilot program is going to be a great thing. You need someone who is specifically trained in how to prosecute sexual assault and domestic violence cases, because in my mind it’s a very different type of crime.
“And there are hardly ever witnesses. It’s a very specialized area to prosecute. The military recognized that and hopefully this program will too. There has to be a different way of looking at these types of cases, because they truly are different than your typical kind of criminal activity.”
For instance, she noted that “scared stiff” is a biological and evolutionary phenomenon. There are times when the body cannot react.
“But can you convince a jury of that? How do you have to portray that case and do you need an expert to testify about that response to win these cases? It’s a difficult situation, because part of it is educating people on those responses and that these generalized notions that we carry around about how victims should behave [aren’t true].
“Tribal prosecutors are generalists, and I believe you need somebody who is trained in what to expect in these types of cases. You’re not going to have good evidence or eyewitness testimony … you have to be comfortable with that to prosecute these types of crimes. If you’re not comfortable with it, you will decline the case and it won’t go forward.”
Part of the problem, she explained, is that under federal law if you have two misdemeanor convictions for domestic violence, on your third one you can make it a felony.
“That works in our Western system – we’ve got computerized court records and case files, we can do a nationwide search. In the tribal system, most records aren’t computerized and there’s not necessarily the ability to communicate between tribes. So we have a harder time getting felony prosecutions because there’s no ‘cross-pollination’ of the records.
“Part of my vision is that when a domestic violence case comes in on the reservation, because I’m a federal employee, I can order NCIC searches from the FBI. Also, because I work on the three reservations, potentially I can call and find out about tribal court convictions too. And maybe we can get more felony charges.
“We need to get to the felony level and send the message that things are different now.”
She said I feel very strongly that “you need somebody who is particularly trained in prosecuting these cases.” Her goal is that all sex assaults and domestic violence cases would be handled by the person in her position. “I don’t know if I’ll have time, if not I need to train those prosecutors who are there in preparing the case, and be okay with the possibility of losing. Because at least you’ve given that [victim] their day in court.”
Under a new law, tribes may have felony jurisdiction under certain requirements (which these tribes have not met yet). This program is a starting point, to get them out of the misdemeanor realm and into the federal felony realm.
“These are small (700-900), tight-knit communities. Like the military, if you reported on someone, you were the one who was ostracized. It takes courage. The parallels between the military and tribal situations are just astounding to me. Everybody’s taught to circle the wagons. Change is slow. Cultural history is very important.”
Finken started her work October 1 and she plans to spend most of her time on the reservations.
Her husband and son are staying in Marion until he finishes up his degree in criminal justice there this month. He had to sell his small business to take care of Trevor when Jill was deployed in 2010. She hopes to relocate eventually to Omaha, but will probably commute for now.
Her experience in military justice and its unique culture should serve her well as she attempts to bring justice to those in the Native American culture.