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Pioneering tribes share experiences with prosecuting non-Indians

Wednesday, October 7, 2015

President Barack Obama signed S.47, the Violence Against Women Reauthorization Act, into law at the Sidney R. Yates Auditorium at the U.S. Department of Interior in Washington, D.C., on March 7, 2013. Photo by Chuck Kennedy / White House

Three pioneering tribes that have been prosecuting non-Indians for domestic violence offenses have yet to see any challenges to their inherent authority.

The Violence Against Women Act of 2013 included landmark provisions that recognize tribal authority over certain non-Indian offenders. At the time, some conservative Republicans questioned whether the provision was constitutional.

But none of the three tribes that were the first to arrest, prosecute and sentence non-Indians as part of a pilot project at the Department of Justice have faced any lawsuits. The Tulalip Tribes of Washington, the Pascua Yaqui Tribe of Arizona and the Umatilla Tribes of Oregon have been bringing all offenders to justice for nearly two years.

"I know with our court systems, we are ready, we are here to finally start to protect our women and children," Deborah Parker, a former council member for the Tulalip Tribes, said at a DOJ event in Washington, D.C., on Tuesday.

Indianz.Com SoundCloud: Department of Justice Domestic Violence Awareness Month

Parker's advocacy on Capitol Hill was instrumental in securing passage of VAWA back in 2013. She shared her own accounts of witnessing and experiencing victimization in order to explain why tribes should be able to prosecute non-Indians.

"Your sustained and concerted efforts send a clear message that no individual is above the law and that no one should ever be denied the law’s protection – no matter who they are or where they live," Attorney General Loretta Lynch said at the event, held in recognition of Domestic Violence Awareness Month.

Since joining the VAWA pilot program in February 2014, the Tulalip Tribes have gone after nine non-Indian defendants representing a total of 28 charges in 11 cases, attorney Michelle Demmert said. Six have pleaded guilty, two are awaiting trial and only one case has been dismissed.

During the pilot period, the Pascua Yaqui Tribe filed a total of 18 cases involving 15 non-Indian perpetrators. So far, six defendants have been found guilty after trials involving juries of Indian and non-Indian citizens, said chief prosecutor Oscar Flores.

YouTube: Department of Justice Domestic Violence Awareness Month Program

Only one trial has resulted in an acquittal, Flores noted. The case was groundbreaking because it involved a same-sex relationship in which the defendant convinced the jury that he was not covered by VAWA.

The law only applies to non-Indians who are spouses, intimate partners or dating partners of Indian victims. Following the acquittal, jurors told Flores that his office didn't provide enough evidence that the pair were in a relationship.

"What that case highlighted for us was that the system works," Flores said.

Even though both tribes believe the law has been a success, they also noted significant loopholes. It does not apply to children who are victimized during domestic violence crimes, for example.

Deborah Parker of Tulalip Tribes of Washington at the NCAI winter session in Washington, D.C, on February 22, 2015. Seated is NCAI President Brian Cladoosby. Photo by Indianz.Com

Sharon Jones Hayden, a prosecutor for the Tulalip Tribes, shared a "heartbreaking" incident about a child who was beaten with an electrical power cord as his mother was abused by her partner.

"He was a direct victim of violence, not simply endangered, but we have no recourse there," Hayden said of the young victim. The Attorney General's Task Force on American Indian and Alaska Native Children Exposed to Violence has called for tribal jurisdiction in such cases.

Tribes cannot prosecute non-Indians for damaging property either. Hayden said there have been incidents of ceremonial regalia being destroyed during crimes of domestic violence on the Tulalip Reservation.

Both tribes also noted that most of the defendants they prosecuted were well-known to law enforcement on and off the reservation. The 15 non-Indians in the Pascua Yaqui system had 84 contacts with tribal law enforcement, Flores said. Six of them had previous arrests in the state of Arizona for violent crimes.

Tribal court and law enforcement staff on the Pascua Yaqui Reservation in Arizona in 2013. Photo from Pascua Yaqui Bar Association

"These men have just drained our tribal resources," observed Demmert, who said the nine non-Indian defendants at Tulalip were the subject of more than 100 police calls between 2008 and 2014.

On a policy level, representatives of both tribes noted that Congress has yet to appropriate $5 million in annual funds that were authorized by VAWA. The law was supposed to provide $25 million over five years to strengthen justice systems in Indian Country.

The money is more crucial now that VAWA, as of March of this year, is open to all tribes that want to prosecute non-Indians. The funds would help them make changes to their laws, police departments, courts and other institutions in order to ensure that the constitutional rights of all defendants are protected.

"There are some problems still with the law that we found out about that we are addressing with our federal partners, and we will be going back to Congress and asking them to help us out," said Alfred Urbina, the attorney general at Pascua Yaqui.