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Tribes to finally see funding to exercise jurisdiction over non-Indians

Monday, May 9, 2016

The flag of the Pascua Yaqui Tribe flies in Arizona. Photo from Facebook

For the first time since the Violence Against Women Act became law in 2013, tribes will be able to obtain federal funds to help them exercise jurisdiction over non-Indians.

The landmark law recognizes the "inherent" authority of tribes to arrest, prosecute and sentence certain non-Indian offenders for some domestic violence crimes. But Congress never funded a program that was designed to help tribes strengthen their justice systems.

That's finally changing now that Congress included a small pot of money in a fiscal year 2016 appropriations measure. The Department of Justice is now accepting applications for the new Grants to Tribal Governments to Exercise Special Domestic Violence Criminal Jurisdiction Program.

“VAWA 2013 closed jurisdictional gaps that had long compromised American Indian and Alaska Native women’s safety and access to justice,” Bea Hanson, the principal deputy director at the Office of Violence Against Women, said in a press release on Monday. “And this new grant program is another step in the department’s ongoing effort to help tribes across the country make full use of the SDVCJ authority.”

The lack of federal funding hasn't stopped tribes from writing new laws, improving their courts and making other changes that enable them to comply with VAWA. The law requires tribes to protect the constitutional rights of all defendants if they choose to participate in the special domestic violence criminal jurisdiction program.

But without federal support, tribes have had to redirect scarce resources to the effort.

"We have not received one dollar for our pilot program from the federal government or the Department of Justice," Deborah Parker, the former vie chairwoman of the Tulalip Tribes of Washington, said last year. “We keep asking when are going to receive our dollars. We keep getting referred back and forth."

The Tulalip Tribes were the first of three to exercise authority under VAWA. The Pascua Yaqui Tribe was another participant in the pilot program and a top official said costs for compliance could range widely in Indian Country.

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

“Each tribe is different and each tribe has a different justice system in different stages of development, so depending on the tribe it could cost as much as $100,000 or it could cost as much as half a million dollars to put a system in place,” attorney general Alfred Urbina told Cronkite News Service.

VAWA authorized a total of $25 million over five years for training, technical assistance, victim services and other programs. Since lawmakers waited three years to appropriate the first round of funds, they would need to take stronger actions to ensure tribes receive the full amount promised by the law before 2018.

H.R.2029, the fiscal year 2016 omnibus appropriations, in fact only authorized $2.5 million for the special domestic violence criminal jurisdiction program. That's only half of the $5 million that should be going to Indian Country every year under Section 904 of VAWA.

There are some small signs of progress, though. The Senate version of the fiscal year 2017 appropriations bill for the Department of Justice puts $4 million into the program.

The Senate Appropriations Committee approved S.2837 at a markup on April 21. It has not received a vote on the floor and there is no guarantee that those additional VAWA funds will make it to tribes due to the shaky nature of the appropriations process.

For this first round of the program, the department anticipates making between five to seven awards, according to a solicitation released on Monday. That's just a small percentage of the 500-plus tribes that could conceivably apply for funds. Each grants is anticipated to range between $300,000 to $450,000.

According to the department, the grants can be used to:

• strengthen tribal criminal justice systems to assist Indian tribes in exercising SDVCJ;
• provide indigent criminal defendants with the effective assistance of licensed defense counsel, at no cost to the defendant, in criminal proceedings in which a participating tribe prosecutes a crime of domestic violence or dating violence or a criminal violation of a protection order;
• ensure that, in criminal proceedings in which a participating tribe exercises SDVCJ, jurors are summoned, selected and instructed in a manner consistent with all applicable requirements; and
• accord victims of domestic violence, dating violence and violations of protection orders rights that are similar to the rights of a crime victim described the federal Crime Victims’ Rights Act, consistent with tribal law and custom.

The solicitation comes just days after the National Institute of Justice released a report that confirms that Native American women and men are more likely to experience sexual violence, physical violence, stalking and psychological aggression at the hands of someone of a different when compared to non-Hispanic White-only victims.

"While the results on interracial and intraracial victimizations in this report are not surprising, they provide strong support for Indian nations’ sovereign right to prosecute non-Indian offenders," researchers wrote in the report.

Applications for the Grants to Tribal Governments to Exercise Special Domestic Violence Criminal Jurisdiction Program are due June 20. A webinar will be held May 25 to assist tribes with the process.

National Institute of Justice Report:
Violence Against American Indian and Alaska Native Women and Men (May 2016)

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