July 20, 2002
If the White Mountain Apache tribe decides to press a legal case against the woman who started the "Chediski" fire last month, prosecutors will have to settle for civil complaints, much like traffic tickets, rather than criminal charges.
Tribal attorneys and Indian legal experts contacted by The Arizona Republic agreed that federal law prohibits the criminal prosecution of Valinda Jo Elliott, or any other non-Indian, in Native American courts. "The tribe cannot impose a jail sentence or a criminal fine," said David Osterfield, an attorney for the White Mountain Apaches.On Thursday, U.S. Attorney for Arizona Paul Charlton announced he would not charge Elliott with arson in federal court because she acted to save her own life, with no criminal intent. The decision outraged many Apaches because tribe member Leonard Gregg already faces an arson charge for setting the "Rodeo" fire near Cibecue.
Gov. Jane Hull on Friday also criticized the decision to not prosecute Elliott, saying it "did nothing to heal the hurting hearts.""Carelessness and disregarding basic trespass laws cannot be overlooked," Hull said in a statement. She added that the fire left "emotion and scars" that would last for years.
Tribal Chairman Dallas Massey Sr. answered Charlton by vowing to issue an arrest warrant for Elliott: "We have a number of violations here," he added. "Arson, trespassing, not respecting a closed area."
Massey, who was not available for comment on Friday, issued a news release declaring that his tribe "governs all activities and conduct within its lands through tribal law and regulation."
But Osterfield and tribal prosecutor George Hess confirmed that Indian courts may issue felony warrants only for Native Americans.
That leaves the White Mountain Apaches in much the same position as the U.S. Forest Service and hundreds of Mogollon Rim residents who lost homes, trees and views to the largest fire in Arizona history: They can go after Elliott for damages but with little hope of collecting from a 31-year-old Phoenix woman who is unemployed and lives with her parents.
Hess said no decision has been made on whether to file a civil action against Elliott in tribal court.Those complaints are typically issued by game rangers and proceed much like a lawsuit in Superior Court. The maximum fine is $500, a permanent ban from the reservation and restitution.
Elliott, who appeared on a nationwide morning news show on Friday, was not available for comment. Her attorney, David Michael Cantor, said she was distraught by the angry public sentiment.
Elliott has admitted starting the fire on Chediski Peak to signal a helicopter crew after she had spent three days lost with friend Ransford Olmsted.
It merged with the Rodeo fire to consume almost 469,000 acres and 491 structures.
Hess said the White Mountain Apaches have suffered "hundreds of millions of dollars" in lost timber, destroyed resources and forest rehabilitation costs.
Even if Elliott is ordered to pay restitution, he said, "I don't know that she would have -- that anyone would have -- the money to cover it."
Residents of Heber and nearby White Mountain communities, some of whom have vowed to sue in state courts, face a similar dilemma. So does the U.S. Attorney's Office, which has yet to announce whether it will sue in federal court on behalf of the Forest Service, which also suffered enormous resource losses.
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