Tribes confront unique problems in battle against domestic violence

Tuesday, April 10, 2018  

Prosecuting non-Indians brings new challenges

Interpreters and immigrants are among concerns for two tribes
By Kevin Abourezk
@Kevin_Abourezk

Oscar Flores Jr. remembers a time, not so long ago, when tribal police on his southern Arizona reservation would have to drive non-tribal members who committed crimes to the reservation border.

The Pascua Yaqui Tribe, with its lands near Tucson and the U.S.-Mexico border, didn’t have the authority to prosecute non-Native offenders and could only remove them from its 2,200-acre reservation. So instead of addressing their offenses in court, tribal police would drive them either to a convenience store or a Walmart just outside the reservation’s borders and ask them not to return.

“Certainly that practice was not very effective in stopping the domestic violence abuse cycle,” said Flores, chief prosecutor for the tribe. “We certainly had some of those folks come through our system more than once.”

In 2013, federal lawmakers reauthorized the Violence Against Women Act, including provisions that expanded the criminal jurisdiction of tribes over non-Indians. Those new provisions gave tribes the ability to prosecute non-Indian perpetrators of domestic or dating violence against Indian victims on tribal lands.

The Senate Committee on the Judiciary is currently considering reauthorizing VAWA.

Tribes cite progress since passage of Violence Against Women Act — Non-Indian abusers are finally being prosecuted https://t.co/llF8DMmusz pic.twitter.com/jEn3jPJ76R

— indianz.com (@indianz) March 20, 2018

Prior to enactment of the law, tribes lacked recognition of their authority to prosecute non-Indians for nearly 35 years, since the U.S. Supreme Court’s decision in Oliphant v. Suquamish Tribe rescinded what authority tribes had over such crimes.

Since 2013, 18 tribes have arrested non-Indians using the expanded authority provided by VAWA 2013. Those tribes arrested 128 different non-Indian perpetrators 143 times. Those arrests led to 74 convictions and 5 acquittals, with some cases still pending.

The Pascua Yaqui Tribe and the Eastern Band of Cherokee Indians have had particularly interesting experiences employing the expanded authority provided by VAWA 2013 to prosecute non-Indians, though those tribes have certainly taken different approaches to the issue.

For the Pascua Yaqui, that expanded authority has allowed the tribe to better protect its families by giving its police and prosecutors the ability to take domestic violence offenders off the street, Flores said.

The Pascua Yaqui had more arrests of non-Indians using the expanded authority provided by VAWA 2013 than any other tribe. Those arrests accounted for nearly 25 percent of the tribe’s overall domestic violence caseload.

Flores said having to remove non-Indian domestic violence offenders from the tribe’s reservation prevented the tribe from being able to rehabilitate those offenders. Considering so many of those offenders are long-time residents of the Pascua Yaqui Reservation, the tribe would prefer to be able to rehabilitate them rather than attempt to banish them, he said.

“We look to provide as much rehabilitative efforts and services that we can, because these folks aren’t leaving anywhere, and we want our community to move away from these acts of violence,” he said.

Being just 60 miles north of the U.S.-Mexico border, the Pascua Yaqui have struggled to address prosecution of non-U.S. citizens, Flores said. However, the tribe has not had to attempt to prosecute any undocumented immigrants, he said.

However, among the documented immigrants it has prosecuted, the tribe has faced challenges, he said. Among those challenges is trying to find ways to minimize the impact of a non-U.S. citizen offender’s crime on his or her immigration status, Flores said.

The tribe can’t significantly alter the charge against a non-U.S. citizen perpetrator of domestic violence without quickly losing its jurisdiction to be able to handle that charge at all, he said. As a result, the tribe has almost always had to go forth with the charge, knowing doing so could lead to the offender’s deportation, Flores said.

“Unfortunately, because the law is structure in a way that it has to be an act of domestic violence, there isn’t a whole lot of wiggle room,” he said.

When a non-U.S. citizen is prosecuted in state or federal court, a prosecutor may decide to negotiate the kind of charge the offender is facing in order to elicit a plea agreement, he said.

Prosecuting non-English-speaking offenders also requires the Pascua Yaqui to have access to interpreter services 24 hours a day, 7 days a week.

But the VAWA 2013 provisions have given the Pascua Yaqui many more tools to deal with domestic violence perpetrators, especially those who are repeat offenders. He said two men arrested using the expanded authority have been prosecuted five times each.

Thank you to Pascua Yaqui Tribe's Chairman Robert Valencia and Council Member Herminia Frias for stopping by Indian Affairs for a productive discussion. pic.twitter.com/NXwl7Upnn2

— Indian Affairs (@USIndianAffairs) February 14, 2018

However, the tribe can only detain offenders for a maximum of 1 year per domestic violence offense, Flores said. The tribe is currently considering implementing provisions of the Tribal Law and Order Act of 2010 that would allow the tribe to incarcerate offenders for up to 3 years per offense for a total of 9 years maximum for 3 separate offenses, he said.

“We want to take advantage of that,” he said.

The tribe also has begun working with the U.S. Attorney's Office for the District of Arizona to charge habitual domestic violence perpetrators with federal crimes – an ability granted to tribes through VAWA 2005. That provision allows tribes to seek federal charges against offenders who have two prior convictions for violent acts.

Flores said the tribe has employed that provision on at least one occasion for a man who had been convicted five times in tribal court before committing a sixth violent crime.

While he’s appreciated the ability to prosecute non-Indian domestic violence offenders, Flores said he would like to see even greater authority to prosecute non-Indian offenders who commit other crimes during the course of committing an act of domestic violence.

He said he would like to be able to convict non-Indian domestic violence perpetrators who commit violent acts against children, something the Pascua Yaqui currently don’t have the authority to do.

Since the reauthorization of VAWA five years ago, the Pascua Yaqui have demonstrated their ability to fairly prosecute non-Indian perpetrators of domestic violence, Flores said.

As proof of that, he cited the first jury trial that his tribe prosecuted using the expanded authority of VAWA 2013 – which was the first jury trial for any tribe using that expanded authority.

Following the trial, the tribe’s former attorney general talked to jurors to get their perspectives about deciding the country’s first jury trial using the expanded VAWA 2013 authority.

“They didn’t know that they were in a different courtroom that was unique and that they were the first jury or the first jurors of a monumental type of jury trial,” Flores said. “I think that speaks volumes.”

In addition, he said, the fact that the first two jury trials handled by the Pascua Yaqui using the expanded VAWA 2013 authority ended in acquittals also demonstrated the tribe’s ability to fairly treat non-Indian defendants.

“What that shows is that our system afforded the accused an opportunity to put on a defense and hold the government, the tribal government, to the burden of beyond a reasonable doubt,” he said.

“There wasn’t a railroading of defendants that is maybe one of multiple misconceptions of tribal courts.”

Those cases also speak to the vast and varied experience of the tribe’s prosecutors, judges and public defenders, he said. He said the tribe’s entire justice system has been built to ensure accountability and to protect both defendants’ and victims’ rights.

The Eastern Band of Cherokee Indians stopped by Indian Affairs this afternoon. Thank you, Principal Chief Richard Sneed & Tribal Council Members, for the good discussion. It was a honor to meet Ms. Eastern Band of Cherokee Indians Faith Long. https://t.co/b3NiqIT6tM pic.twitter.com/fCygVKAP4f

— Indian Affairs (@USIndianAffairs) February 5, 2018

Not far from the Great Smoky Mountains in western North Carolina, another tribe has faced challenges prosecuting non-U.S. citizens who have committed crimes on its lands.

Nearly 23 percent of the Eastern Band of Cherokee Indians’ reservation is made up of non-Indians, and many of those residents are non-U.S. citizens, primarily Hispanic people.

To address this problem, the tribe’s Supreme Court took the unusual step in 2005 of granting itself authority over prosecution of non-U.S. citizens who commit crimes on the Eastern Band of Cherokees’ 57,000-acre reservation.

Justin Eason, the tribe’s chief prosecutor, said tribal court decision was based on the premise that Congress had never told tribes that they couldn’t prosecute non-U.S. citizens who commit crimes on their lands.

“It has not been forbidden so it is allowed,” he said. “It is still part of the inherent sovereignty of the tribe.”

He said the tribe doesn’t differentiate between documented and undocumented immigrants who commit crimes on the reservation.

“We just prosecute them like we would any other Indians,” he said. “It has come up frequently.”

He said Congress has had two different opportunities to address this issue and hasn’t done it.

As far as the expanded authority provided by VAWA 2013, the Eastern Band of Cherokee have made 25 arrests using that expanded authority, of which 12 resulted in convictions. The tribe has delivered the longest sentence of any tribe for a domestic violence conviction, a 3-year sentence for a repeat offender.

To ensure non-Indian offenders of domestic violence are treated fairly by the tribe’s court, the Eastern Band of Cherokee altered the way it draws its jury pools, allowing with a driver’s license that has an address within an Indian reservation to serve on its juries. In other words, even non-Indians can serve on juries within the tribe’s courts, he said.

That change should ensure the tribe doesn’t face as much criticism in future prosecutions of non-Indians over allegedly biased juries, Eason said.

“We just thought it would simpler just to change it for everything,” he said.

But while VAWA 2013 has been useful, it failed to give tribes the authority they need to prosecute other crimes committed by non-Indian offenders during the course of a domestic violence act, Eason said.

“If there are crimes against children, those don’t count,” he said. “If he assaults a law enforcement officer while the arrest is being made, that doesn’t count. If he assaults the jailer while he’s in jail, we can’t do anything about that. If there were drugs or firearms or other things present in the home that are not related to the domestic violence, like he didn’t use them, we can’t charge him with those.”

Having the ability to throw additional charges against a defendants also would give the tribe greater leverage in eliciting a plea agreement from a defendant, Eason said.

He said it is especially unfortunate that the tribe can’t prosecute non-Indian domestic violence perpetrators who also harm children.

“Children being such a precious resource to the tribe, they need to be protected with all tools available, and that is just one tool that is denied to us,” he said.

Building on VAWA

Legislation pending in the 115th Congress would expand on tribal authority. A sampling of the bills:
• S.2233, the Native Youth and Tribal Officer Protection Act. The bill recognizes tribal jurisdiction over non-Indians who commit crimes against youth and tribal law enforcement.
• S.1986, the Justice for Native Survivors of Sexual Violence Act. The bill recognizes tribal jurisdiction over crimes like sexual assault and human trafficking.
• S.1953, the Tribal Law and Order Reauthorization and Amendments Act. The bill expands on the Tribal Law and Order Act with provisions that require the collection of data on human trafficking of Native Americans.
• S.1942, Savanna's Act. The bill requires the federal government to report on the numbers of missing and murdered Native women.

There's already been one notable success in the 115th Congress for public safety in Indian Country. As part of the $1.3 trillion #Omnibus spending bill, Congress set aside about $133 million in grants to help Native victims of crime. The language grew out of S.1870, the Securing Urgent Resources Vital to Indian Victim Empowerment Act, or the SURVIVE Act.

Cronkite News: Tribes assert authority in domestic violence cases (March 30, 2018)
Tribes cite progress since passage of Violence Against Women Act (March 20, 2018)