Murder case at Miccosukee casino a test for tribal police, state prosecutors

Miccosukee police cars parked outside the tribal village in West Miami-Dade. The small police department investigated its first homicide on Dec. 25, 2016.
Miccosukee police cars parked outside the tribal village in West Miami-Dade. The small police department investigated its first homicide on Dec. 25, 2016. Miami Herald

From suicides to overdoses to accidental drownings, the Miccosukee Police Department has investigated more than two dozen deaths over the decades.

But the case of Fernando Duarte, a former U.S. Army Ranger shot to death on Christmas night in the parking lot of the tribe’s West Miami-Dade casino, is the first homicide on the agency’s books.

His death, and the arrest of two non-Indian men suspected of his murder, shapes up as a test case for a tribal police force that has historically had strained relations with state prosecutors. The case could revive thorny and unresolved questions over jurisdiction of the sovereign lands of a native American people — just who should be investigating violent crimes and enforcing the law?

Miami-Dade’s state attorney is satisfied, for now.

Miccosukee detectives recently met with prosecutors, turning over witness statements and surveillance video collected that night. Those are routine, but essential pieces of evidence that have proven difficult to obtain from tribal police in some past cases. Arraignment in the case is scheduled for Tuesday.

“Historically, we have not had a typical law-enforcement working partnership,” said State Attorney Katherine Fernandez Rundle. “I hope this is a turn in the right direction.”

So far, she said, there have been no issues working with tribal police. “The detectives and the lieutenant seemed very motivated to do the right thing,’’ she said. “We remain optimistic.”

Miccosukee’s police chief and tribal chairman Billy Cypress, did not return phone calls seeking comment from the Miami Herald.

One South Florida lawyer who specializes in Indian issues, Bruce Rogow, said he believes tribal police should get the benefit of the doubt. “I think Miccouskee police could handle anything really, in terms of addressing criminal activity,” said Rogow, who does not represent the tribe currently but has represented a tribal member in the past.

One important element distinguishes this murder case from previous criminal investigations that have created friction between the state and tribe. Neither the victim or suspects are Miccosukee.

Tribe defends legal authority

The tribe of over 600 members maintains a federally designated reservation deep in the heart of the Everglades off Tamiami Trail, more than 20 miles west of Krome Avenue. The casino land, at the corner of Krome and Tamiami some eight miles east of the reservation, was added to the tribal land in 1990, according to the federal government.

The tribe has long defended its rights to govern independently and have bristled at authority of outsiders, including the federal government.

The Miccosukee are embroiled in a years-long battle with the IRS, which says the tribe owes more than $262 million in unpaid taxes on gambling proceeds, and an additional $441 million in penalties and interest.

In the late 1990s, the tribe refused to honor subpoenas on the reservation after tribal member Kirk Billie was arrested on charges of drowning his two children in a canal just off reservation land. Tribal elders “forgave” Billie, but he was later convicted in Miami-Dade circuit court and sent to state prison.

The tribal police department, whose officers are recognized by both the state and federal government, has often been caught in the middle. The department was created in 1978 and given authority by Dade County to help patrol part of Tamiami Trail near isolated tribal homes.

Over the years, tribal police have expanded their reach, and now cuff plenty of non-Indians for relatively minor crimes, usually at the resort and casino, 500 SW 177th Ave.

In the first half of 2016, officers recorded 146 arrests, almost all for minor crimes such as assaults, drug possession and drunk driving, state records show. All of those cases involved non-Indians and were prosecuted in Miami-Dade’s county or state court.

But Miccosukees who run afoul of their own police department are generally referred to a private tribal court that is closed to non-Indians – something that has drawn public criticism from state authorities, non-Indian victims of traffic crashes involving tribal members and even ex-tribal officers.

In the early 2000s, the tribal department beefed up its detective bureau under then-Chief David Ward, creating a crime-scene unit and sending investigators to advanced training, sometimes with Miami-Dade, the FBI and state troopers.

During his tenure, Miccosukee police investigated over a dozen deaths at the casino, all of them accidents, suicides of natural deaths, some of them due to drugs or diseases. Only one death drew news coverage: the case of car thief Justo Padron, who while fleeing police jumped into a resort lake, drowning after being attacked by an alligator.

“I knew my police agency could handle everything internally and had a fantastic relationship with other law-enforcement agencies. We did not have any complications,” said Ward, who was pressured to resign in 2008 after he ordered the arrest of the tribal chairman charged in tribal court for a DUI crash that nearly killed two non-Indians on a state road.

But since then, the Miccosukee police department has been plagued by turmoil and turnover – the tribe has fired a slew of police chiefs, usually with no explanation.

Tensions between the tribe and the state attorney’s office hit a low when Miami-Dade prosecutors ripped the department’s handling of a January 2009 auto wreck on Tamiami Trial involving tribal members and a Kendall woman who died.

Citing the tribe’s status as a sovereign nation, the department at first refused to turn over to prosecutors reports and photos from the crash scene, even though it happened four miles west of Krome Avenue on a state road, well away from the tribe’s federally protected reservation.

Dispute over jurisdiction

Those questions of jurisdiction – exactly where tribal police can assert their power – have always been mungy.

Generally, the federal government has jurisdiction over major crimes that happen on Indian reservations, and that could mean they are investigated by the FBI or officers with the U.S. Bureau of Indian Affairs. Indians accused of major crimes on Indian lands are supposed to be charged under federal law.

But there a Florida law also exists that says the state has jurisdiction over “criminal offenses committed by or against Indians or other persons within Indian reservations.”

According to the U.S. Bureau of Indian Affairs, tribal police can only “detain” non-Indian offenders “unless a deputation agreement of other authority grants the officer jurisdiction.”

Cops with the Seminole tribe, which operates the Hard Rock Resort and Casino in Hollywood, have long maintained cooperative relationships with local authorities. Seminole Police regularly assists nearby police agencies, and uses the Broward Sheriff Office’s crime-scene unit if needed at its Hollywood and Coconut Creek casinos.

Unlike many smaller police departments in cities such as Homestead, Miami Shores or Coral Gables, the Miccosukees don’t have any formal agreements with Miami-Dade police for investigations of major violent crimes.

The tribe frowns upon any other police agencies even showing up on their property, said Bobby Richardson, a former Miccosukee police chief who was fired in 2013.

“The Miccosukees have burned so many bridges that most agencies kind of refuse to work with them,” Richardson said.

He believes that Miami-Dade’s homicide bureau should be the lead agency on deaths. “I think in these violent cases, the county should be at the forefront, seeing as how they have a crime lab and have experience,” Richardson said.

Ward, the other former chief, believes the tribe should have called the feds because of their overarching supervision of Indian lands.

“In my opinion, at the very least, the FBI should have been contacted, as the tribe is a federal law enforcement agency in addition to being state law enforcement, and had agents overseeing what the department was doing,” Ward said.

Miami-Dade Police Juan J. Perez declined a request to be interviewed about the issue.

Rundle: agreement needed

Rundle, the state attorney, said that all the law-enforcement agencies need to meet to iron out an agreement on which law-enforcement agency takes the lead on homicide cases – one aimed at establishing the high standards needed to secure convictions in serious crimes.

“Once we get this case behinds us, we need to meet and get clarity – because clarity may be the difference between life and death when it comes responding to a death,” Fernandez-Rundle said.

Authorities might also need to deal with the most sensitive issue — handling cases where tribal members are involved.

“Would tribal police investigate a murder at the casino the same way if the suspect is a tribal member? Is there a precedent? Would they notify outside agencies?” said Matthew Baldwin, a former Miami-Dade homicide prosecutor. “These are all legitimate questions that need to be answered.”

Rogow doubts the tribe will want to hand over any power. “On a case-by-case basis, they’re open to cooperation,’’ he said. “But to have a contractual arrangement with the state would surprise me.”

The Christmas day shooting at the resort was not a long, drawn-out investigation. The gunman turned himself in to security guards immediately.

The victim in the case was Duarte, a former U.S. Army Ranger who had been gambling at the casino on Christmas night. In another twist, and unknown to anyone that night, Duarte was also under federal investigation on suspicions of dealing drugs, according to a law-enforcement source.

Duarte was asked to leave the gambling hall after he got into an argument with Kenin Sherrod Bailey and Mikey Lenard at the poker table, according to Miccosukee police. In the parking lot, the burly, bearded ex-soldier approached Bailey and Lenard, who were in their car.

“The victim approaches the defendant’s car, the doors close and the car is put into reverse and there’s gunshots fired from the passenger side of the vehicle, as the vehicle drives in reverse,” Miccosukee Police Detective Flavio Rivera told a bond-court judge the day after the arrest.

Bailey, a 25-year-old security guard, fired at least 13 times. “I shot someone, I shot someone in self-defense,’” Bailey told a security guard, according to the detective.

Bailey believed that Duarte was reaching for a weapon when he fired out of fear, said his defense lawyer Peter Heller.

The tribe’s sovereign status may also prove challenging for the defense as the case unfolds in criminal court. Heller said he sent a letter to the tribe asking they preserve all video surveillance tapes – the casino still uses VHS –and that includes footage that captured the spat at the poker table.

But the tribe replied that all evidence would be given to prosecutors. Heller cautioned that he “can’t rely on the tribe to turn everything over.”

“It’s really difficult to get stuff out of the Miccosukee because they don’t honor subpoenas,” Heller said. “If this happened at any other random hotel, I could subpoena the videos. Why this this be any different?