When President Obama signed the Violence Against Women Reauthorization Act (VAWA) in 2013, he enacted legislation that allows Native American tribes to use their own courts to prosecute non-Natives accused of committing dating and domestic violence against Natives on tribal land. The jurisdictional changes take effect in March 2015 but a pilot program, coordinated by the Department of Justice (DOJ), has authorized three tribes to exercise the prosecutions starting this week.
Tribal authority over non-Natives is not new but was completely halted in 1978. Five years previously, a non-Native named Mark David Oliphant was arrested for assaulting a Suquamish tribal policeman on the Port Madison Indian Reservation in Washington state. Oliphant argued that the tribe didn't hold criminal jurisdiction in the matter. The Suquamish tribe held that its inherent tribal sovereignty allowed it to maintain law and order on its land, up to and including arresting and prosecuting non-Native suspects.
The Supreme Court sided with Oliphant, however, gutting tribal jurisdiction over non-Natives for crimes committed on tribal land. It did so not just for the Suquamish, but for all federally recognized tribes. And because local and state agencies don't hold criminal jurisdiction on tribal lands, all non-Natives suspected of committing crimes on those lands for the last 40 years or so have been held accountable only by federal prosecutors. U.S. Attorneys are few in comparison to the number of cases that pile up so only the most serious of charges are ever investigated and prosecuted.
The Supreme Court's decision in Oliphant v. Suquamish Tribe, however, did rule that Congress could authorize criminal jurisdiction for Native tribes. It would take Congress 35 years to pass such legislation, through VAWA. By 2015 all 566 federally recognized Native tribes and nations will be eligible to exercise criminal jurisdiction over non-Natives for dating and domestic violence.
But the Department of Justice designed a pilot project to allow some tribes to begin exercising non-Native criminal jurisdiction this month. Three tribes have been approved so far: The Pascua Yaqui in Arizona, the Umatilla in Oregon, and the Tulalip in Washington. Many more are expected to apply for approval on a rolling basis until 2015.
But it's unlikely that all 566 tribes will participate by 2015, because under VAWA, specific protections for defendants' rights must be in place. "[The law] requires that tribes that are exercising that jurisdiction to have safeguards in place," says DOJ spokesperson Wyn Hornbuckle. Those requirements include the right to due process as well as free and effective representation for defendants who cannot otherwise afford counsel--essentially the same rights that are afforded to defendants outside of Indian Country in the United States. Not all tribes have the money to afford police forces or venues to try suspects.
Nevertheless, the pilot project is providing a unique option to deal with the prevalent problem of dating and domestic abuse for those tribes that are equipped to try non-Native defendants. One of those is the Pascua Yaqui, whose tribal land is just about two square miles near Tucson, Arizona. Because the territory is so small, and because it is so close to an urban center, Native and non-Native relationships are common--but when they lead to abuse, there are few legal possibilities for dealing with the perpetrator. Pascua Yaqui Attorney General Amanda Lomayesva says that up until now, the tribe has had few options for dealing with abusers.
"If it's a domestic violence call, the [tribal] police go out there, and if they identify the offender as non-Indian, and there's really nothing they can do," says Lomayesva. "They can remove them from the house and take them off the reservation." But once the offender is removed, nothing stops them from returning the site of the crime. Under the pilot project, the Pascua Yaqui will be able to arrest, prosecute and sentence non-Natives for these crimes.
The list of offenses eligible for prosecution under VAWA is limited to criminal violations of protection orders, as well as dating violence and domestic violence that occurs on tribal land. Child and elder abuse aren't covered; neither are sexual assaults that happen between two strangers. Those and other offenses are still only prosecutable by the federal government.
The pilot project, and subsequently criminal jurisdiction by all tribes under VAWA also opens up questions about the criminal justice system and the private prison industry. While the Pascua Yaqui Tribe has its own short-term detention facility, the Bureau of Indian Affairs (BIA) will coordinate prison time with a federal or private facility. Once VAWA is in place by 2015, those tribes that do sentence non-Natives but do not have their own prison facilities will hand people over to the BIA.
But the pilot project--and VAWA itself--is a big acknowledgement of tribal sovereignty. The Pascua Yaqui Tribe, which Attorney General Lomayesva says regularly prosecuted non-Natives before 1978, is now reacquainting its police officers and its court with prosecuting non-Natives once again. And, because non-Native attacks on Natives on the reservation are so prevalent, it's expected that its first case under the pilot project will emerge soon.