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Bill in Senate expands tribal jurisdiction over non-Indian offenders

Thursday, April 14, 2016

Native women carry signs reading Project Our Penojek (Children) during a rally at the U.S. Supreme Court on December 7, 2015. Photo by Indianz.Com

A bill introduced in the Senate this week marks the first major proposal to expand tribal jurisdiction over non-Indians since a hard-fought victory three years ago.

In 2013, Congress enacted the Violence Against Women Act to recognize tribal authority over all offenders, regardless of race. Tribes and Native women lobbied for the landmark provision for decades in order to combat high rates of domestic violence in Indian Country.

Despite the win, tribal advocates quickly noted that VAWA does not protect children from domestic violence. And it also does not apply to tribal law enforcement officers whose resources are often drained by repeat offenders on reservations.

To address the loopholes, Sen. Jon Tester (D-Montana) and Sen. Al Franken (D-Minnesota) introduced the Tribal Youth and Community Protection Act. Like VAWA, the bill recognizes the "inherent authority" of tribes to arrest and prosecute any person -- regardless of race -- for domestic violence against children and crimes committed against tribal law enforcement officers.

But the measure goes further and recognizes tribal jurisdiction over anyone who commits drug related crimes. Lawmakers say the provision will help fight the "growing drug epidemic" in Indian Country.

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

“Tribal communities must have every tool they need to protect themselves from folks who traffic illegal drugs and harm children in Indian Country,” Tester, who serves as the vice chairman of the Senate Committee on Indian Affairs, said in a press release. “This bill gives tribes certainty and provides tribal law enforcement with the tools they need to police and prosecute every criminal in their community.”

“Communities in Indian Country need to be able to take action against every dangerous offender who brings in drugs, hurts children, or threatens tribal law officers,” added Franken, who also sits on the committee. “But right now, tribes don’t have the jurisdiction they need fight back against many of those very serious crimes. Our new legislation would restore the ability for tribal governments and law enforcement to protect their communities.”

The bill was quickly embraced by the National Congress of American Indians. The organization helped secure passage of VAWA in 2013 amid opposition from some conservative lawmakers.

"Restoration of tribal criminal jurisdiction is an essential governmental service that all tribes need to protect their communities and create social wellbeing throughout Indian Country," said Jackie Pata, NCAI's executive director.

Fighting substance abuse has been high on the political agenda this year. Congress, the White House and even Republican presidential candidates have been looking for ways to reduce drug related crimes and help people get treatment for their addictions. Opiods like painkillers and heroin are among the biggest concerns.

Indianz.Com SoundCloud: Senate Committee on Indian Affairs Hearing April 13, 2016. Listen to Sen. Jon Tester (D-Montana) talk about the need for the Tribal Youth and Community Protection Act in Track 2 of the playlist.

Connecting Indian Country to those efforts could help ensure a warmer reception for the Tribal Youth and Community Protection Act. Last summer, lawmakers heard harrowing testimony about the impacts of substance abuse from tribal leaders, one of whom described opiates as the "21st century version of smallpox blankets."

"More than 28 percent of the babies born addicted to opiates are Native American even though we are only about 2 percent of the population," Melanie Benjamin, the chief executive of the Mille Lacs Band of Ojibwe Indians in Minnesota, told the Senate Committee on Indian Affairs.

But expanding tribal jurisdiction remains controversial among Republicans, some of whom believe VAWA will not survive a constitutional challenge. Some also argue that tribal courts are inadequate.

So far, those concerns haven't played out. Three tribes that started prosecuting non-Indians under a pilot project at the Department of Justice have successfully resolved dozens of cases against non-Indians without incident.

Those tribes were among the first to point out the limits of VAWA. In one instance, the Tulalip Tribes of Washington were able to prosecute a non-Indian for crimes against his partner but her child, who was beaten with an electrical cord, was not protected by the law.

"He was a direct victim of violence, not simply endangered, but we have no recourse there," prosecutor Sharon Jones Hayden said at a DOJ forum last October.

The Attorney General's Task Force on American Indian and Alaska Native Children Exposed to Violence has called for tribal jurisdiction in such cases. The Indian Law and Order Commission, a panel that was created by Congress through the Tribal Law and Order Act of 2010 also recommended a greater recognition of tribal authority.

S.2785, the Tribal Youth and Community Protection Act, was introduced on Tuesday. It was referred to the Senate Committee on Indian Affairs but a hearing hasn't been scheduled.

Indian Law and Order Commission Report:
A Roadmap For Making Native America Safer (November 2013)