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HomeLegalU.S. Attorney’s office declines to prosecute former Pawhuska Five-Man Board case

U.S. Attorney’s office declines to prosecute former Pawhuska Five-Man Board case

The U.S. Attorney’s Office is declining to prosecute and issue federal charges in the former Pawhuska Indian Village Five-Man Board case, according to Osage Nation Attorney General Jeff Jones.

Jones met with officials from the U.S. Attorney’s Office and Federal Bureau of Investigation in Tulsa recently and was told no federal charges will be coming. Jones informed the Osage Nation Congressional governmental operations committee of the development on Aug. 6.

“They informed me that they are not going to prosecute the Five-Man Board case,” Jones said. “They’ve chosen not to take that case so that puts it back into my lap. Just this morning, the FBI agent brought back all the evidence we had given them so I’ve got it back in my office, so I will be beginning to start prosecuting that.”

Jones later told the Osage News: “The U.S. Attorney’s Office did not give a reason (for dropping the case), they don’t have to answer to me, they can do what they want to.”

Last fall, the FBI launched its investigation of the former Pawhuska village Five-Man Board with an agent assigned to the case by the U.S. Attorney’s Office in Tulsa. The investigation focused on the activities and business of the former board after its then-chairman Joe Don Mashunkashey refused to participate in an audit by the ON Congressional Office of Fiscal Performance and Review.

The OFPR raised questions about $806,000 in village revenue it was unable to account for. The village generates its revenue through lease money it receives from the Pawhuska Osage Casino, housed inside the southeast corner of the village jurisdiction on land held in federal trust. According to the Sept. 7 OFPR audit report, the Pawhuska village received just over $857,000 from its rental lease with Osage Casino and its predecessor Osage Million Dollar Elm Casino for the period between November 2008 and July 2012.

Despite Mashunkashey’s refusal to participate in the OFPR audit, the OFPR reported that Mashunkashey was the sole board member responsible for the village’s bank account; that about $50,000 of village money was spent on residential electric bills (with over $12,244 for Mashunkashey’s residence) and board meetings were not held regularly. Mashunkashey resigned less than a week after the OFPR report was released and apologized to the community. Mashunkashey also told the Osage News shortly after he resigned that he repaid the money used for his electric bills back to the bank.

In conclusion, the OFPR issued a “disclaimer of opinion” in the Pawhuska Five-Man Board’s audit report due to the lack of records.

‘Disheartened’

Jones said he is “disheartened” with the U.S. Attorney’s Office’s decision because any arrested parties would have received the harshest penalties if found guilty in federal court. With no federal charges coming, Jones said he plans to go forward with prosecuting any arrests made in this case in tribal court.

Congressman RJ Walker asked Jones for more details regarding the July meeting amid the ongoing AG investigation.

Jones said he could not answer publicly because it would harm his office’s investigation, which now includes documents obtained through federal subpoena that the Nation was unable to previously obtain such as bank records from Pawhuska’s First National Bank where the village bank account is kept. Jones offered to speak more about the case in executive session, but the committee did not hold one since it wasn’t listed on the meeting agenda.

Congressman William “Kugee” Supernaw said “I think it’s going to be pretty big news to our constituents, is there anything you can tell us without revealing a weakness in the case?”

Jones paused for a moment to respond then noted the federal authorities “didn’t like the way the Five-Man Board constitution was set up and I agree that’s something we need to look at and all the boards need to draft new constitutions because they were (written) in the early 60s.”

According to the OFPR audit, the Pawhuska village constitution was penned in 1963 by the Five-Man Board serving at that time, as required per the Code of Federal Regulations. The village constitution was then approved by an Osage Tribal Council resolution in January 1964.

Jones also told the committee: “I think one of the problems with the case is bad record keeping on the part of the Five-Man Board, which – to me – shouldn’t hurt the case because that’s someone else’s lack of doing their job.”

Under the federal Department of Justice, the U.S. Attorney’s Office serves as the nation’s principal litigators under the direction of the U.S. Attorney General, according to its website.

In the 2012 fiscal year, the U.S. Attorney’s Office received 163,831 criminal matters from law enforcement agencies for consideration, according to an office statistical report. After review, the office declined a total of 23,424 criminal matters. The reasons most commonly reported for the declines include: weak or insufficient evidence, lack of criminal intent, and suspect(s) to be prosecuted by another authority or on other charges, agency request and minimal federal interest.

Next: tribal, IRS investigations

Jones also told the Congressional committee he contacted the Internal Revenue Service shortly after speaking with the U.S. Attorney’s Office. Also at issue in the case are unpaid taxes, he said.

Jones said an IRS tribal liaison, Aletha Bolt, assigned the case to an Oklahoma City-based IRS investigator who will be in touch with Jones’s office.

A timetable on an IRS investigation is unknown but Jones said of Bolt: “She said they would get together a plan of action and (the investigator) would contact me back … She was very interested because of the amount of money involved.”

In the meantime Jones’s office will move forward with the tribal investigation, which includes examining the new documents sent by the FBI. With the new documents now being considered for evidence, Jones says he has records dating back to 2004.

If Jones finds arrest prosecutions are warranted in his investigation, the ON Trial Court will receive initial jurisdiction. He told the Congressional committee, “the only thing I can file in tribal court is a misdemeanor, I cannot file a felony, we don’t have the ability to prosecute felonies.”

According to the ON Criminal Code, the maximum penalty a person could receive if convicted of embezzlement is one year in jail and/or a fine of up to $1,000. If the value of the property embezzled exceeds $1,000, a sentence of banishment may be imposed for a period not exceeding 10 years – in addition to the fine and jail time. The same potential penalties also apply to those convicted of receiving stolen property.

Jones did not immediately have an estimate on how long his office’s investigation will take.


By

Benny Polacca


Original Publish Date: 2013-08-07 00:00:00

Author

  • Benny Polacca

    Title: Senior Reporter

    Email: bpolacca@osagenation-nsn.gov

    Instagram: @bpolacca

    Topic Expertise: Government, Tribal Government, Community

    Languages spoken: English, basic knowledge of Spanish and French

    Benny Polacca (Hopi/ Havasupai/ Pima/ Tohono O’odham) started working at the Osage News in 2009 as a reporter in Pawhuska, Okla., where he’s covered various stories and events that impact the Osage Nation and Osage people. Those newspaper contributions cover a broad spectrum of topics and issues from tribal government matters to features. As a result, Polacca has gained an immeasurable amount of experience in covering Native American affairs, government issues and features so the Osage readership can be better informed about the tribal current affairs the newspaper covers.

    Polacca is part of the Osage News team that was awarded the Native American Journalists Association's Elias Boudinet Free Press Award in 2014 and has won numerous NAJA media awards, as well as awards from the Oklahoma Press Association and SPJ Oklahoma Pro Chapter, for storytelling coverage and photography.

    Polacca earned his bachelor’s degree from Arizona State University and also participated in the former American Indian Journalism Institute at the University of South Dakota where he was introduced to the basics of journalism and worked with seasoned journalists there and later at The Forum daily newspaper covering the Fargo, N.D. area where he worked as the weeknight reporter.

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Benny Polacca
Benny Polaccahttps://osagenews.org

Title: Senior Reporter

Email: bpolacca@osagenation-nsn.gov

Instagram: @bpolacca

Topic Expertise: Government, Tribal Government, Community

Languages spoken: English, basic knowledge of Spanish and French

Benny Polacca (Hopi/ Havasupai/ Pima/ Tohono O’odham) started working at the Osage News in 2009 as a reporter in Pawhuska, Okla., where he’s covered various stories and events that impact the Osage Nation and Osage people. Those newspaper contributions cover a broad spectrum of topics and issues from tribal government matters to features. As a result, Polacca has gained an immeasurable amount of experience in covering Native American affairs, government issues and features so the Osage readership can be better informed about the tribal current affairs the newspaper covers.

Polacca is part of the Osage News team that was awarded the Native American Journalists Association's Elias Boudinet Free Press Award in 2014 and has won numerous NAJA media awards, as well as awards from the Oklahoma Press Association and SPJ Oklahoma Pro Chapter, for storytelling coverage and photography.

Polacca earned his bachelor’s degree from Arizona State University and also participated in the former American Indian Journalism Institute at the University of South Dakota where he was introduced to the basics of journalism and worked with seasoned journalists there and later at The Forum daily newspaper covering the Fargo, N.D. area where he worked as the weeknight reporter.

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