Justice Long Denied Comes to Indian Country; First Post-VAWA Trial Set

Tanya Lee, Indian Country Today

The Pascua Yaqui Tribe in Arizona is making history. Nearly 40 years after the U.S. Supreme Court ruled in Oliphant v. Suquamish Indian Tribe (1978) that American Indian tribes did not have jurisdiction over non-Indians who committed crimes on reservations, the Pascua Yaqui are preparing to try as many as 10 non-Indians alleged to have committed domestic violence crimes on their reservation.

The stats for crimes against women in Indian country are appalling. A Department of Justice report states that American Indian/Alaska Native women are significantly more likely to be raped, physically assaulted and stalked than are white women. If, on an Indian reservation, that abuse was committed by a non-Indian, tribal law enforcement was not authorized to arrest the perpetrator and tribal courts did not have the jurisdiction to try him. Both arrest and prosecution were the responsibility of the federal government. But these are such challenging crimes to successfully bring to justice, federal resources are seldom deployed to deal with them.

The Tribal Law and Order Act of 2010 and the Violence Against Women Reauthorization of 2013 radically changed that. Under VAWA Indian tribes will have jurisdiction over non-Indians who commit domestic violence crimes on reservations. The law will go into effect for all tribes in March 2015, but the Justice Department in February designated three tribes – the Pascua Yaqui Tribe, the Confederated Tribes of the Umatilla Indian Reservation and the Tulalip Tribes of Washington – for a pilot program that allows them to exercise the authority immediately.

Troy Eid, chairman of the Indian Law and Order Commission mandated by TLOA, says, “The Pascua Yaqui Tribe has put a lot of energy into being ready for this day. My impression is they really tried to err on the side of caution so there would be no justification for overturning a tribal court verdict on federal review.”

Listening to Pascua Yaqui Tribe Chief Prosecutor Alfred Urbina describe what has gone into this moment makes “a lot of energy” seem like an understatement. Urbina detailed some of the issues the tribe has had to deal with and what has been learned in an effort to help other tribes put their justice systems in order to begin prosecuting these cases. “The ability to prosecute non-Indians for domestic violence brings up a lot of questions for the tribe,” he says.

Urbina explains that there have been 11 recent incidents on the reservation with American Indian victims and non-Indian suspects; some are still in investigation or waiting for warrants to be served, while some are in the process of being prosecuted. The first trial is scheduled to begin August 19, but some cases could be resolved through plea agreements before that.

One thing that has been surprising is the number of cases. “We thought we’d have 5 to 10 cases for the whole calendar year,” Urbina says. “But in just the first two months since the tribe has had the authority to arrest non-Indians, there have been more than 10 arrests.”

Demographics are critical to predicting how many cases tribes will need to prepare for. So is location – whether or not the reservation is near an urban center or a major highway. Among the questions tribes will have to address is: Who is actually living in tribal housing? The perception is that tribal members live in tribal housing, but there are probably other people as well, especially if there are a lot of single mothers, says Urbina.

Other questions shed light on matters such as – What is the composition of law enforcement on the reservation? Do people trust law enforcement? Urbina explains that if people have seen non-prosecution of DV cases for many years by both tribal and federal authorities, distrust may have built up and this will affect the success of the cases the tribe brings to trial. How does the tribe get a warrant served off-reservation and the suspect extradited back to the reservation for trial? What if a suspect does not speak English—will an interpreter be available for court proceedings and for conferring with an attorney?

Then there is the question of public defenders. “Some tribes are saying we just need to hire a lawyer, but that person would need to have a background in Indian law, Indian sovereignty issues, different ways of doing things in Indian country and tribal court history. If the lawyer doesn’t have that kind of information it will impact the case.”

One compromise that had to be made to get the law passed was that the attorneys and judges in cases where whites are being tried have to be state-licensed. This brings up the question of access. How will public defenders hired by the tribe have access to their clients on rural reservations?

And that in turn brings up the question of costs—of public defenders, judges, travel, housing of both legal personnel and of those being held for trial and medical care for prisoners. These are issues that if not handled correctly could lead to federal appeals on constitutional grounds, Urbina explains.

Urbina estimates it could cost up to $500,000 for a tribe to get their justice system set up to meet the prerequisites to prosecute non-Indians for domestic violence crimes. “The process will be out of reach for some tribal governments without significant assistance from the federal government, but in order to get this law passed, no money was appropriated for that purpose,” says Urbina.

Nonetheless, the Pascua Yaqui are in a financial position to bring justice long delayed to women on their reservation and they are wasting no time in getting started. Says Eid, “Nothing could be more important for a tribal government to do. This has been an area where law and order breaks down. It’s important that this works.” Urbina puts it this way: “There is nothing more basic than the right to live in peace. Everything else flows from that.”