[Senate Hearing 114-347]
[From the U.S. Government Publishing Office]
S. Hrg. 114-347
S. 2785, A BILL TO PROTECT NATIVE CHILDREN AND PROMOTE PUBLIC SAFETY IN
INDIAN COUNTRY; S. 2916, A BILL TO PROVIDE THAT THE PUEBLO OF SANTA
CLARA MAY
LEASE FOR 99 YEARS CERTAIN RESTRICTED LAND AND FOR OTHER PURPOSES; AND
S. 2920, THE TRIBAL LAW AND ORDER
REAUTHORIZATION ACT OF 2016
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
MAY 18, 2016
__________
Printed for the use of the Committee on Indian Affairs
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COMMITTEE ON INDIAN AFFAIRS
JOHN BARRASSO, Wyoming, Chairman
JON TESTER, Montana, Vice Chairman
JOHN McCAIN, Arizona MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska TOM UDALL, New Mexico
JOHN HOEVEN, North Dakota AL FRANKEN, Minnesota
JAMES LANKFORD, Oklahoma BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana HEIDI HEITKAMP, North Dakota
MIKE CRAPO, Idaho
JERRY MORAN, Kansas
T. Michael Andrews, Majority Staff Director and Chief Counsel
Anthony Walters, Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on May 18, 2016..................................... 1
Statement of Senator Barrasso.................................... 1
Statement of Senator Daines...................................... 3
Statement of Senator Franken..................................... 4
Statement of Senator Heitkamp.................................... 49
Statement of Senator Hoeven...................................... 55
Statement of Senator Murkowski................................... 4
Statement of Senator Tester...................................... 2
Witnesses
Black, Michael S., Director, Bureau of Indian Affairs, U.S.
Department of the Interior..................................... 6
Prepared statement........................................... 7
Buckles, Hon. Dana, Councilman, Assiniboine and Sioux Tribes,
Fort Peck Reservation.......................................... 19
Prepared statement........................................... 21
Chavarria, Hon. J. Michael, Governor, Santa Clara Pueblo......... 17
Prepared statement........................................... 19
Toulou, Tracy, Director, Office of Tribal Justice, U.S.
Department of Justice.......................................... 11
Prepared statement........................................... 13
Urbina, Hon. Alfred, Attorney General, Pascua Yaqui Tribe........ 23
Prepared statement........................................... 25
Appendix
Central Council of Tlingit and Haida Indian Tribes of Alaska,
prepared statement............................................. 92
Gardner, Jerry, Executive Director, Tribal Law and Policy
Institute, prepared statement.................................. 96
National Congress of American Indians, prepared statement........ 59
Sheldon, Jr., Hon. Melvin R., Chairman, Tulalip Tribes of
Washington, prepared statement................................. 98
S. 2785, A BILL TO PROTECT NATIVE
CHILDREN AND PROMOTE PUBLIC SAFETY IN INDIAN COUNTRY; S. 2916, A BILL
TO PROVIDE THAT THE PUEBLO OF SANTA CLARA MAY LEASE FOR 99 YEARS
CERTAIN RESTRICTED LAND AND FOR OTHER
PURPOSES; AND S. 2920, THE TRIBAL LAW AND ORDER REAUTHORIZATION ACT OF
2016
----------
WEDNESDAY, MAY 18, 2016
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:15 p.m. in room
628, Dirksen Senate Office Building, Hon. John Barrasso,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
The Chairman. Good afternoon. I call this legislative
hearing to order.
Today the Committee will examine three bills: S. 2785, the
Tribal Youth and Community Protection Act of 2016; S. 2916, a
bill to provide that the Pueblo of Santa Clara may lease for 99
years certain restricted land, and for other purposes; and S.
2920, the Tribal Law and Order Reauthorization and Amendments
Act of 2016.
On April 12, 2016, Senators Tester and Franken introduced
S. 2785, the Tribal Youth and Community Protection Act of 2016.
This bill seeks to expand tribal criminal jurisdiction
over: crimes against children; drug-related crimes; and crimes
against law enforcement and court personnel during the exercise
of tribal criminal jurisdiction.
It would also provide funding for tribal substance abuse
prevention programs and for building tribal jurisdictional
capacity. I am going to turn to the bill's sponsors for their
comments in a moment.
On May 11, 2016, Senator Udall, along with Senator
Heinrich, introduced S. 2916, the Pueblo of Santa Clara 99 Year
Certain Restricted Land Lease.
This bill would amend the Long Term Leasing Act to clarify
that the Santa Clara and the Ohkay Owingeh Pueblos may lease
their restricted fee lands for up to 99 years. I will turn to
Senator Udall for comments at a time convenient for him.
On May 11, 2016, Senator McCain and I introduced S. 2920,
the Tribal Law and Order Reauthorization and Amendments Act of
2016. In 2010, Congress passed the Tribal Law and Order Act to
improve criminal justice and public safety in Indian
communities. This Committee held an oversight hearing on
December 2, 2015 and a roundtable on February 25, 2016
regarding next steps to improving public safety in Indian
communities.
Access to data, information sharing, public defense
support, juvenile justice, and substance abuse were among the
most significant challenges facing the tribes. This bill,
S.2920, reauthorizes many of the needed programs in the Tribal
Law and Order Act. It is intended to address some of the more
pressing issues that can be passed this Congress.
Before I turn to the Vice Chairman, let me say that I am
disappointed that the Department of Justice chose not to
provide comments on S. 2920. It is hard to believe that the
chief law enforcement agency of the Federal Government did not
provide any recommendations or provide comments to this bill.
I can certainly understand the short timing, we introduced
this bill last week, and the department probably wanted more
time but to provide nothing is unacceptable. I now have to
wonder about the commitment from the Department of Justice on
Indian programs. Let me remind everyone that it was just last
year that the Department of Justice failed to send a single
witness to our budget hearing and failed to produce the
required annual reports demanded by Congress.
Starting with this hearing, the members of this Committee
fully expect the Administration, the Department of Justice in
particular, to work diligently and expeditiously with this
Committee on this and other bills. The tribes and their people
deserve nothing less.
With that, I would like to turn to the Vice Chairman for
any opening statement. Senator Tester.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Thank you, Mr. Chairman.
Thanks for holding this legislative hearing to discuss the
bills we have before us today.
These bills talk about two important issues to tribes,
protection of tribal communities and management of public
tribal lands.
I also want to thank the witnesses for being here to
provide testimony. In particular, I welcome Councilman Dana
Buckles. It is good to have you here.
Dana traveled all the way from northeast Montana, Fort
Peck, I guess you call that God's country up there, to share
their experience as one of the first tribes to begin exercising
criminal jurisdiction restored by the Violence Against Women
Act of 2013.
Tribal law enforcement and tribal courts are the first and
sometimes the only line of defense for people living on Indian
reservations. This is especially true in rural areas. It is
vitally important to empower tribes to protect their
communities and to ensure they have the tools necessary to
investigate and prosecute criminal offenses.
Just this month, the National Institute of Justice released
a report on sexual and domestic violence against Native women
and men. We all know that Native Americans are victims of
violence way too often. The report found in some instances, 90
percent or more of these crimes are committed by non-Indians.
We cannot continue to sit back and fail to address these
issues. That is why Senator Franken and I, along with Senator
Udall, have introduced the Tribal Youth and Community
Protection Act.
This bill would allow tribes to better protect their
communities from folks who could cause harm, regardless of
whether they are Indian or non-Indian. This bill builds on
tribal provisions of the 2013 Violence Against Women Act by
restoring tribal criminal jurisdiction over violent crimes
committed against Native children and tribal law enforcement.
We are also starting to see that domestic violence in
Indian Country is related to the increased use of drugs on
Indian reservations. That is why my bill would also let tribes
prosecute drug offenses occurring in their communities.
In Montana over the last year alone, three reservation
communities have declared a state of emergency due to illegal
drug epidemic. Criminals, including cartels of organized crime,
know that gaps in police and prosecution make reservations easy
targets to push their drugs.
That is why we have to recognize the tribes' sovereign
authority to prosecute these crimes and ensure the safety of
their communities.
To assist tribal courts, the Tribal Youth and Community
Protection Act also reauthorizes several programs that address
drug crimes and substance abuse and expands the VAWA 2013 grant
program to help tribes build their criminal justice system.
Again, I want to thank you, Mr. Chairman, for elevating
these very important issues and for holding this hearing. I
look forward to the witness's testimony on each of these bills
before us today.
The Chairman. Thank you, Senator Tester.
Senator Daines.
STATEMENT OF HON. STEVE DAINES,
U.S. SENATOR FROM MONTANA
Senator Daines. Thank you, Mr. Chairman and Ranking Member
Tester.
I would also like to welcome Councilman Dana Buckles of the
Assiniboine & Sioux Tribes of the Fort Peck Reservation in
Montana who will be testifying today. Councilman, it is great
to have you here.
As our witnesses attest, when it comes to crime in Indian
Country, the statistics are devastating. Montana's Indian
reservations are no exception. I would like to share a story
that Councilman Buckles alludes to in his testimony. That is
the story of a four-year-old girl who lives on the Fort Peck
Reservation in Wolf Point.
In February, this little girl was playing on a playground
across the street from home when she was abducted. When she was
found four days later, she was miraculously alive but a victim
of sexual assault. Such a crime against anyone is unthinkable,
let against a four-year-old.
We get to hear from Councilman Buckles as he has served on
the council. Councilman Dana Buckles, thanks for being here.
The Chairman. Thank you.
Senator Franken?
STATEMENT OF HON. AL FRANKEN,
U.S. SENATOR FROM MINNESOTA
Senator Franken. Thank you Mr. Chairman and Vice Chairman
Tester for holding this hearing and thanks to all the witnesses
for testifying here today.
As a member of the Judiciary Committee and the Indian
Affairs Committee, I am committed to making sure that we
continue to update the Violence Against Women Act to more
effectively address the unique needs of women and children in
Indian Country which is why I co-sponsored Senator Tester's
Tribal Youth and Community Protection Act.
This legislation helps to remove the jurisdictional
obstacles that have prevented American Indian communities from
prosecuting acts of sexual and domestic violence that occur in
their territories.
I look forward to hearing from all of you on how we can
continue to improve the Violence Against Women Act as well as
the Tribal Law and Order Act in order to keep Native women and
children safe.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Franken.
Senator Murkowski?
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman. Thank you for
convening this very important hearing. Welcome to all of our
witnesses.
It seems that it was just last year, just yesterday, that
the Senate enacted the Tribal Law and Order Act and the 2013
reauthorization of VAWA.
I am tremendously invested in the success of both of these
significant legislative accomplishments. Even though the Tribal
Law and Order Act was signed into law in 2010, the heavy
lifting, if you will, of that legislation occurred when I was
Vice Chairman of the Committee and Senator Dorgan was Chair at
the time. We had some pretty exceptional staff work by David
Mullon and Allison Binney. Really the work that went into it
was considerable.
I was an early co-sponsor of the VAWA reauthorization,
working with Senator Leahy and Senator Crapo and consistently
supported that partial Oliphant fix which today we refer to as
the special domestic violence jurisdiction. That provision,
which became known as Section 904 of the VAWA amendments, was
very controversial in both Houses, but thanks to a lot of
persistence and hard work, and a little bit of courage, it
became law.
Today, Mr. Toulou and our witnesses will tell us how this
all worked out. I am anxious to hear about that. I understand
from the advance statement, it is working reasonably well.
Mr. Chairman, if I may, I would like to take just a minute
to talk about the situation in Alaska. As a consequence of the
U.S. Supreme Court's Venetie decision, most of the acreage of
indigenous lands in rural Alaska occupied predominantly, if not
overwhelmingly, by Alaska Natives is not Indian Country.
Thus, when we empower tribes to do more within the tribes'
Indian Country, we effectively exclude Alaska. There is no
consensus in Alaska that the Venetie decision should be
wholesale overturned but neither is there consensus in Alaska
that our tribes should be disempowered to maintain peace in the
rural communities or to protect our people.
This is especially important because the State of Alaska
maintains a very small State police force relative to the
millions of acres of land they have to patrol. Oftentimes
weather keeps our troopers from flying out into the communities
where they need to be.
Over the past several years, it has been my impression that
Alaskans are seeking a new paradigm for public safety
protection in the rural communities and believe that tribes
need to be empowered to be a part of that solution.
I have laid the foundation for these efforts in the Tribal
Law and Order Act which brought new cops funding to rural
Alaska. I have used my real estate on the Interior
Appropriations Subcommittee to focus BIA on the need to support
our tribal courts in the State, even though we are a P.L. 280
State.
It does not matter that we are a P.L. 280 State. Our tribal
courts have jurisdiction notwithstanding P.L. 280 and need
Federal support to exercise that jurisdiction. In VAWA, I asked
the Justice Department to take the lead in reconstituting a
major forum for Federal, State and tribal coordination on
public safety issues, the Alaska Rural Justice Commission.
Unfortunately, we have not seen any progress on this but I
am committed to pursuing new pathways for protection of our
Native people, especially our Native women and our children. I
have been impressed by the work of the Chairman and the Vice
Chairman on this Committee.
As we move to mark on both of these issues, I hope to
engage other Committee members on the specific challenges we
face within Alaska which require perhaps a little more creative
solutions going forward.
Again, Mr. Chairman and Vice Chairman, thank you. I thank
the witnesses for your testimony in advance.
The Chairman. Thank you, Senator Murkowski.
We have five witnesses here today. We have: Mr. Michael S.
Black, Director, Bureau of Indian Affairs, U.S. Department of
the Interior; Mr. Tracy Toulou, Director, Office of Tribal
Justice, U.S. Department of Justice; the Honorable J. Michael
Chavarria, Governor, Santa Clara Pueblo, Espanola, New Mexico;
the Honorable Dana Buckles, who has been introduced by our two
Senators from Montana; and the Honorable Alfred Urbina,
Attorney General, Pascua Yaqui Tribe of Tucson, Arizona. Thank
you all for being with us.
I want to remind the witnesses that your full written
testimony will be made a part of the official hearing record.
Please try to keep your statements to five minutes or less so
we may have more time for questioning.
I look forward to hearing your testimony beginning with Mr.
Black. Mr. Black, welcome back to the Committee. Please
proceed.
STATEMENT OF MICHAEL S. BLACK, DIRECTOR, BUREAU OF INDIAN
AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR
Mr. Black. Chairman Barrasso, Vice Chairman Tester and
members of the Committee, thank you for the opportunity to
provide testimony before this Committee on S. 2920, the Tribal
Law and Order Reauthorization Act of 2016; S. 2785, the Tribal
Youth and Community Protection Act of 2016; and S. 2916, a bill
to provide a bill to provide that the Pueblo of Santa Clara
Ohkay Owingeh Pueblos may lease for 99 years certain restricted
lands.
S. 2920, the Tribal Law and Order Reauthorization Act
brought about necessary and important changes in addressing
public safety in Indian Country. Our experiences in
implementing TLOA have highlighted additional areas that still
need to be addressed.
In the six years since TLOA was passed in 2010, the
Department of Interior still strongly supports the purposes of
TLOA. We believe there is no substitute for having enough
officers on the ground and will continue working to improve law
enforcement in Indian Country.
I am pleased to be before the Committee today to provide
the department's full support of and recommendations for S.
2920.
A major focus of TLOA was to address challenges related to
reporting and data collection. We want to continue this effort
to build robust data and provide the public with information it
needs. Section 103 provides for sharing Federal data with the
tribes. One gap we recognize is the lack of incorporation of
tribally-owned data into State and Federal data bases.
To foster respect and reciprocity for tribally-collected
data, the department would like to encourage the bills' authors
to consider extending the Department of Justice's new tribal
access program for national crime information which provides
tribes access to national crime information for both civil and
criminal purposes and to include a pilot program or other
mechanism to support tribes interested in sharing tribal court
criminal records with other law enforcement agencies.
In reviewing S. 2920, we note it does not address some of
the issues such as those related to resumption of concurrent
Federal jurisdiction in P.L. 280 States and extended sentences
provisions for tribes. We would appreciate the opportunity to
work with the authors to ensure the tribes can utilize our full
authority and jurisdiction to prosecute crimes in Indian
Country.
The department appreciates the inclusion of alternatives to
detention in the bill as many of our offenders are engaging in
criminal activity due to untreated mental health, alcohol and
substance abuse issues. We want to continue to look for ways to
get these individuals the help they need to break the cycle of
recidivism.
We also recommend the following number of technical changes
to TLOA in the areas of technical assistance and training, data
sharing, annual reporting requirements, background checks and
the Bureau of Prisons pilot program. We look forward to working
with the Committee on these recommendations.
Regarding S. 2785, the Tribal Youth and Community
Protection Act of 2016, the Administration has made it a
priority to improve the health, welfare and safety of tribal
communities. The department supports S. 2785.
S. 2785 would authorize Section 4206 and 4218(b) of the
Indian Alcohol and Substance Abuse Prevention and Treatment Act
of 1986 to authorize funding for tribal action plans and
training programs. The department supports this
reauthorization.
The department, however, does recommend changing the tribal
action plan to a tribal strategic plan based on feedback
received from tribes regarding current tribal practices. Such a
change would allow for plans driven by tribes rather than the
Federal Government.
S. 2785 would also amend 25 U.S.C. Section 1304, tribal
jurisdiction over crimes of domestic violence to include tribal
jurisdiction over crimes of tribal violence and drug offenses,
as well as amending the definitions for dating and domestic
violence to include felony and misdemeanor violations of the
tribe's criminal law within its own lands.
S. 2785 also amends the current authorized amount of
appropriations from $5 million to $10 million for fiscal years
2016-2020 pursuant to DOJ grant programs for tribes under
Subsection (f).
Since these amounts represent DOJ resources specifically
authorized to strengthen and support tribal criminal justice
systems, we are open to continued conversations about the
appropriate reporting mechanism.
Regarding S. 2916, to amend the Act of August 9, 1955 to
authorize the Pueblo of Santa Clara Ohkay Owingeh Pueblos 99
year lease authority for certain restricted lands.
The Administration strongly supports the principles of self
determination and self governance, recognizing that intrinsic
to these principles is tribal control over tribal resources,
especially over tribal homelands and the welfare of Native
people.
This concludes my testimony for today. I am happy to answer
any questions.
[The prepared statement of Mr. Black follows:]
Prepared Statement of Michael S. Black, Director, Bureau of Indian
Affairs, U.S. Department of the Interior
Chairman Barrasso, Vice-Chairman Tester, and members of the
Committee, my name is Mike Black and I am the Director for the Bureau
of Indian Affairs (BIA) at the Department of the Interior (Department).
Thank you for the opportunity to provide testimony before this
Committee on S. 2785, the Tribal Youth and Community Protection Act of
2016. The Department supports S. 2785.
The Obama Administration has made it a priority to improve the
health, welfare, and safety of Tribal communities. Two separate federal
taskforces, the Indian Law and Order Commission and the Attorney
General's Task Force on American Indian/Alaska Native Children Exposed
to Violence, concluded local control is the key for promoting public
safety in Indian Country. The tribal provisions in the Violence Against
Women Reauthorization of 2013 employed this principle and since its
enactment, a number of tribes are making strides in combatting domestic
violence. S. 2785 continues to move in this direction by strengthening
tribes' ability to protect their communities and prosecute non-Indian
offenders.
S. 2785
S. 2785 would reauthorize Section 4206 and 4218(b) of the Indian
Alcohol and Substance Abuse Prevention and Treatment Act of 1986 (25
U.S.C. Section 2412 and Section 2451(b) respectively) to authorize
funding for Tribal Action Plans (Section 4206) and Training Programs
(Section 4218(b) for fiscal years 2016 through 2020. The Department
supports this reauthorization.
S. 2785 would amend 25 U.S.C. Section 1304, Tribal jurisdiction
over crimes of domestic violence, to include Tribal jurisdiction over
crimes of child violence and drug offenses. S. 2785 amends 25 U.S.C.
Section 1304 definitions for dating violence and domestic violence to
include ``felony and misdemeanor violations'' of the Tribe's criminal
law within its own lands. S. 2785 also amends Section 1304 by including
definitions for ``caregiver,'' ``child violence,'' ``drug offense,''
and ``related conduct.''
The Department recommends changing the ``Tribal Action Plan'' (TAP)
to a ``Tribal Strategic Action Plan'' (TSAP) based on feedback received
from Tribes regarding current tribal practices. Such change would allow
for plans that are driven by tribes, rather than the Federal
Government.
The Department recommends adding language to 25 U.S.C. Section 2412
(c) provisions that provide more deference to the Tribal Strategic
Action Plan.
S. 2785 also amends the current authorized amount of appropriations
from $5 million to $10 million for fiscal years 2016 through 2020
pursuant to DOJ grant programs for tribes under subsection (f). Since
these amounts represent DOJ resources specifically authorized to
strengthen and support tribal criminal justice systems, we are open to
continuing conversations about the appropriate reporting mechanism.
Conclusion
Thank you for providing the Department the opportunity to prove
input into S. 2785. The Department supports S. 2785 and recommends a
few changes as noted above. I am available to answer any questions the
Committee may have.
S. 2916
I am here today to provide the Department's position on S. 2916, a
bill to provide that the Pueblo of Santa Clara and the Ohkay Owingeh
Pueblo may lease for 99 years certain restricted land.
The purpose of S. 2916 is to amend the Act of August 9, 1955, to
authorize the Pueblo of Santa Clara and the Ohkay Owingeh Pueblo a 99-
year lease authority for restricted land. The Administration strongly
supports the principles of self-determination and self-governance,
recognizing that intrinsic to these principles is tribal control over
tribal resources, especially over tribal homelands, and the welfare of
Native people. In line with these principles, the Administration
believes that tribal governments are in the best position to determine
the duration of tribal leases. Accordingly, the Department supports S.
2916.
Background
Since the enactment of the Act of June 30, 1834, 4 Stat. 730,
codified as 25 U.S.C. Sec. 177, and predecessor statutes, land
transactions with Indian tribes were prohibited unless specifically
authorized by Congress. This law is commonly known as the Non-
intercourse Act. Congress enacted the Act of August 9, 1955, codified
at 25 U.S.C. Sec. 415, commonly known as the Long-Term Leasing Act, to
overcome the prohibition of the Non-intercourse Act. The Long-Term
Leasing Act permitted some land transactions between Indian tribes and
nonfederal parties--specifically, the leasing of Indian lands. The Act
required that leases of Indian lands be approved by the Secretary of
the Interior and limited lease terms to 25 years.
As business opportunities and economic considerations changed over
time, leases longer than 25 years were desired. To facilitate economic
development on Indian lands, over the years, a number of tribes have
obtained amendments to the Long-Term Leasing Act so that they could
enter into leases for terms longer than 25 years. Approximately 50
tribes have obtained these amendments and all are listed in the Long-
Term Leasing Act as having authority to enter into leases for terms as
long as 99 years.
S. 2916 would further amend the Long-Term Leasing Act by amending
the Long-Term Leasing Act to add the Pueblo of Santa Clara and the
Ohkay Owingeh Pueblo to the list of tribes that may enter into 99-year
leases within the boundaries of their respective Pueblo lands. The
Pueblo of Santa Clara and the Ohkay Owingeh Pueblo are currently listed
in 25 U.S.C. Section 415(a), but the listing is restricted to ``lands
held in trust for the Pueblo of Santa Clara'' and ``lands held in trust
for the Ohkay Owingeh Pueblo.'' There exists, and in the future there
could exist, lands within the boundaries of either Pueblo's boundaries,
owned by either Pueblo, but not held in trust for the Pueblo of Santa
Clara or Ohkay Owingeh Pueblo. Thus, S. 2916 seeks to include all the
lands within the boundaries either Pueblo. The Department supports S.
2916.
S. 2920
Thank you for the opportunity to provide testimony before this
Committee on S. 2920 the Tribal Law and Order Reauthorization Act
(TLORA) of 2016.
The Tribal Law and Order Act (TLOA) brought about necessary and
important changes in addressing public safety in Indian Country. Our
experiences implementing TLOA have highlighted additional areas that
still need to be addressed. TLOA was passed to clarify the
responsibilities of Federal, state, tribal, and local governments with
respect to crimes committed in Indian country; to increase coordination
and communication among Federal, state, tribal, and local law
enforcement agencies; to empower tribal governments with the authority,
resources, and information necessary to provide public safety in Indian
country effectively; to reduce the prevalence of violent crime in
Indian country and to combat sexual and domestic violence; to prevent
drug trafficking and reduce rates of alcohol and drug addiction in
Indian country; and to increase and standardize the collection of
criminal data and the sharing of criminal history information among
Federal, state, and tribal officials responsible for responding to and
investigating crimes in Indian country.
In the six years since TLOA was passed in 2010, the Department of
the Interior still strongly supports the purposes of TLOA. We believe
there is no substitute for having enough officers on the ground, and we
will continue working to improve law enforcement in Indian country. The
Obama Administration has made it a priority to improve the health,
welfare, and safety of tribal communities, and I am pleased to be here
before this Committee today to provide the Department's full support of
and recommendations for S. 2920.
A major focus of TLOA was to address challenges related to
reporting and data collection. We want to continue this effort to build
robust data and provide the public with the information it needs.
Section 103 provides for sharing of federal data with tribes. One gap
we recognize is the lack of incorporation of tribally-owned data into
state and federal databases. For example, an individual may have prior
tribal arrests that are not reflected in state and federal databases.
To foster respect and reciprocity for tribally-collected data, the
Department would like to encourage the bill's authors to consider
extending the Department of Justice's new Tribal Access Program for
National Crime Information, which provides tribes access to national
crime information for both civil and criminal purposes, to include a
pilot program or other mechanism to support tribes interested in
sharing tribal court criminal records with other law enforcement
agencies. The Department recognizes many tribes are currently doing
this; however, we should encourage law enforcement agencies and courts
to adopt this practice across Indian Country.
Even with the information improvement efforts of TLOA, Indian
Country still lacks data on criminal justice, or, more accurately, the
ability to identify and analyze the information needed to paint an
accurate picture of law enforcement in Indian Country. This is a
challenge in multiple sectors, including health, child welfare, and
others, but it is particularly problematic in the context of criminal
justice, in which Federal, state, tribal, and local governments share
responsibilities.
Further, as the nation moves toward evidence-based policy making,
there has been increased focus on the quality of information the
Department and other agencies are required to collect in order to
report back to Congress. This bill has numerous reporting requirements,
but stops short of providing additional resources for us to effectively
meet this direction effectively and in a timely manner. We would
appreciate the opportunity to share more with the bill's sponsors about
our capacity to analyze complex data sets in a way that is meaningful
for Congress.
Tribal courts are an essential part of tribal governments, which
provide local delivery of justice in tribal communities. We support
Section 107, which reauthorizes tribal court training programs. Those
training programs are critical to assisting tribes with building
capacity.
We are encouraged by the tremendous progress some tribes are making
to build their courts up. Many more tribes continue to face challenges.
TLOA's Indian Law and Order Commission (ILOC) recognized that tribes in
Public Law 280 states, particularly those in California and Alaska,
have even greater hurdles to the development of their justice systems.
Additionally, TLOA allowed for re-assumption of concurrent federal
jurisdiction in Public Law 280 states and extended sentencing
provisions for tribes, followed by the Violence Against Women
Reauthorization Act of 2013, which contained special domestic violence
criminal jurisdiction provisions. Despite their strong desire,
relatively few tribes are able to take on these additional
responsibilities. In reviewing S. 2920, we note that it does not
address these issues and would appreciate the opportunity to work with
the authors to ensure that tribes can utilize their full authority and
jurisdiction to prosecute crimes in Indian Country.
The Department appreciates the inclusion of alternatives to
detention in the bill as many of our offenders are engaging in criminal
activity due to untreated mental health and alcohol and substance abuse
issues. We want to continue to look for ways to get these individuals
the help they need to break the cycle of recidivism.
One detention issue not addressed in the bill is the
disproportionately high costs of time and expense for transporting
prisoners within the current system of facilities. We believe issues
associated with transportation of prisoners contribute to the scarcity
of detention funding. Transporting a prisoner requires two officers,
and in remote areas this pulls officers off patrol and out of the
community for days at a time. This creates severe safety risks across
Indian County, where a tribe may have only two officers in its entire
police force. Transporting juveniles presents an additional challenge,
as it often requires traveling a longer distance in order for the
individual to be housed at one of a very limited number of juvenile
facilities. These high transportation costs soak up the already scarce
resources available for detention. We believe one method to solve this
problem may be to create incentives for intergovernmental cooperation
with regard to bed space in detention facilities to allow tribal
prisoners to be housed closer to home in local or county facilities.
TLOA's ILOC devoted an entire chapter to intergovernmental
cooperation, noting that some tribal governments have seen success
through partnerships with local counties and state agencies using
cross-deputization agreements and memoranda of understanding. We know
not every tribe, state, local, or county official will feel enough
groundwork has been laid to foster a strong working relationship today.
However, we believe encouraging them to pool their limited resources
makes good fiscal sense, and can lead to better cooperation in other
areas that face similar jurisdictional challenges, such as health care
delivery, natural resources management, or road maintenance.
Recognizing that all these entities have a role to play will ensure
communities as a whole, Indian and non-Indian, are safer. With this in
mind, we recommend additional bill language to create strong incentives
toward intergovernmental cooperation.
Collaboration is also important within the Federal family. Federal
interagency collaboration, breaking down silos within government,
remains a priority for this Administration as it seeks to create an
``all of government'' approach to Indian Affairs. S. 2920 recognizes
that public safety in Indian Country is an issue which needs attention
from multiple agencies. Section 102 asks us specifically to work with
Health and Human Services and the Department of Justice to integrate
and coordinate around our respective criminal justice programs. We
believe the fragmentation of programs across agencies is confusing for
tribes and impedes our ability to care for tribal members once they
enter into the criminal justice system. Interior stands ready to
collaborate with its counterparts.
We also recommend the following technical changes to TLOA in
addition to our views on TLORA:
Currently TLOA Section 211(c)(13) requires BIA to provide technical
assistance and training to tribes on the DOJ National Crime Information
Center (NCIC) databases. As this Committee is aware, the NCIC and other
national crime information databases are maintained by the DOJ. It
would be more appropriate if this responsibility were assigned to the
Department of Justice, with input from BIA Office of Justice Services
(OJS).
TLOA Section 211(c)(15) allows BIA to share with the Department of
Justice all relevant crime data delivered to BIA by tribes. The BIA
does share all relevant data including Uniform Crime Reports Data. To
maximize this opportunity, the Department recommends language that
allows FBI's Criminal Justice Information Services (CJIS) to work with
OJS to ensure each tribal jurisdiction is assigned an ORI number for
uniform crime reporting purposes.
Finally, Section 211 of TLOA provided for BIA-OJS to develop an
annual report of unmet staffing needs of the law enforcement,
corrections, and tribal court programs. The Department is concerned
with the proposal to withhold funding in the event the reports
currently required to Congress are delayed. All funding for law
enforcement within the BIA-OJS is essential and withholding such
funding would negatively impact the BIA's delivery of public safety
needs to tribes and Indian Country. The Department acknowledges the
delay in providing this report and is working to provide accurate and
relevant data to the Committee. We hope to have an opportunity to work
with the Committee to refine the annual reporting requirements.
Currently, Section 231(a)(4)(A) of TLOA states that if a request
for a background check is made by an Indian Tribe that has contracted
or entered into a compact for law enforcement or corrections services,
OJS must complete the check no later than 60 days after the date it
received the request. As the Office of Personnel Management (OPM) has
the responsibility for completing background checks for the Federal
Government, we recommend tribal background investigations be reassigned
to OPM. If not reassigned, the 60-day requirement should be changed to
120 days, which would allow more time for completion.
Section 234(c)(1) of TLOA established a four-year pilot program
under which the Federal Bureau of Prisons would accept up to 100
offenders convicted in tribal court. We agree that this program should
be continued, and that a working group should be established to assist
in streamlining a process in which tribal court judges can more easily
sentence individuals into the program.
Conclusion
Thank you for inviting the Department to testify. We look forward
to working with this Committee on S. 2920 Tribal Law and Order
Reauthorization Act. We want to take full advantage of making TLOA
stronger in order to make significant steps toward to the goals of
TLOA, which was and continues to aim at improving and addressing law
and order in Indian country.
This concludes my prepared statement. I will be happy to answer any
questions the Committee may have.
The Chairman. Thank you, Mr. Black.
Mr. Toulou.
STATEMENT OF TRACY TOULOU, DIRECTOR, OFFICE OF TRIBAL JUSTICE,
U.S. DEPARTMENT OF JUSTICE
Mr. Toulou. On behalf of the Department of Justice, I want
to thank Chairman Barrasso, Vice Chairman Tester and members of
the Committee for focusing attention on the critically
important issues of protecting Native American children and
promoting public safety in Indian Country.
My name is Tracy Toulou. I am the Director of the Justice
Department's Office of Tribal Justice.
Protecting Indian families from violence in their homes,
whether committed by an Indian or non-Indian, has been a
central concern of our department for years. Our conversations
and consultations with tribes after passage of the Tribal Law
and Order Act of 2010 and the 2013 VAWA reauthorization has
underscored the urgent public safety issues facing tribal
communities.
The department remains dedicated to working with tribes to
identify and implement tribally-driven solutions to these
problems.
I would like to focus on gaps in coverage that have been
identified by tribes such as Mr. Urbina at the end of the table
that have already begun exercising jurisdiction over non-
Indians under Section 1304 of Title 25 and gaps that S. 2785
seeks to address.
Tribal efforts to implement Section 1304 have been
impressive. Actual tribal experience prosecuting cases under
Section 1304 has revealed three significant gaps in the Federal
law. First, there has been some confusion about the scope of
conduct covered by Section 1304's definition of domestic
violence and dating violence. This confusion is compounded by
dicta in the 2014 U.S. Supreme Court case, United States v.
Castleman.
As a result, there is a need to clarify when a tribe can
prosecute a non-Indian. Because tribes have been cautious not
to exceed their authority under Section 1304, they have
hesitated to prosecute non-Indians who have attempted or
threatened to cause bodily injury without causing actual
physical injury.
In a real world example of this, a non-Indian boyfriend in
an intoxicated state attempted to punch his Indian girlfriend
but missed and fell to the ground. Concerned that a case with
no actual physical contact would not meet the definition of
dating violence in Section 1304, the tribe declined to
prosecute. That defendant later returned to assault his victim
again and was arrested again by the tribe. Language in S. 2785
would amend Section 1304(a) to address this serious problem.
The second gap in law addressed by S. 2785 involves Indian
children. Too often a child is victimized during an episode of
domestic violence, yet the current version of Section 1304
allows a tribe to prosecute only the crime committed against
the adult victim and not the equally serious crime committed
against the child.
In one example, a non-Indian boyfriend, after a
methamphetamine binge, forced both his Indian girlfriend and
her child to sit in a chair while he threw knives at them.
While this particular case was prosecuted federally, the tribe
should also have the ability to prosecute these crimes.
The third gap in the law is that the law does not clearly
recognize that tribes exercising this jurisdiction have
authority to protect tribal law enforcement officers,
prosecutors, judges and courtroom officials. For example, there
is uncertainty about a tribe's authority to charge an offender
for resisting arrest by a tribal police officer. This
uncertainty threatens the tribe's power and practical ability
to successfully prosecute domestic and dating violence crimes.
The department supports S. 2785's efforts to address these
problems.
The 2013 VAWA reauthorization that gave rise to Section
1304 was closely and carefully tied to problems caused by non-
Indian perpetrators of domestic violence. We support Congress'
efforts to empower tribal criminal justice systems to deal
strongly and appropriately with all persons already subject to
tribal jurisdiction under Section 1304.
While the department fully recognizes the terrible impact
of drugs on Native American communities, we recommend against
expanding the universe of potential tribal court criminal
defendants beyond domestic violence offenders in this
particular bill. We would be happy to work with Committee staff
to more effectively target these non-DV related offenders.
Finally, the department is still in the process of working
through the Tribal Law and Order Act reauthorization and
amendments of 2016. We will provide our comments as soon as
that process is finished.
That said, there are two important issues contained in the
bill upon which the department has already commented. The
department appreciates the support for the tribal access to
Federal law enforcement databases or TAP program. Initial
feedback from tribes using the program has been overwhelmingly
positive. We appreciate the support for expansion of this
program.
Second, as I mentioned in my December 2015 Tribal Law and
Order Act testimony, the department supports extension of the
Bureau of Prisons Pilot Project, another program which has
broad tribal support.
Senator Barrasso, I want to apologize for the fact that
these items did not make it to my written testimony but
obviously they are very important. I thank the Committee for
its willingness to address these important issues. I look
forward to answering any questions you might have.
[The prepared statement of Mr. Toulou follows:]
Prepared Statement of Tracy Toulou, Director, Office of Tribal Justice,
U.S. Department of Justice
On behalf of the United States Department of Justice, I want to
thank Chairman Barrasso, Vice Chairman Tester, and the members of this
Committee for focusing attention on the critically important issues of
protecting Native American children and promoting public safety in
Indian country. My name is Tracy Toulou, and I am the Director of the
Department of Justice's Office of Tribal Justice. I also want to thank
you for holding this hearing on pending legislation including S. 2785,
the Tribal Youth and Community Protection Act of 2016. Protecting
Indian families from violence in their homes, regardless of whether it
is committed by Indians or non-Indians, has been a central concern of
our Department for many years. Our conversations and consultations with
tribes after the passage of the Tribal Law and Order Act of 2010, or
TLOA, and the Violence Against Women Reauthorization Act of 2013, or
VAWA 2013, have only underscored the urgent public-safety issues facing
tribal communities. The Department remains dedicated to working with
tribes to identify and implement tribally driven solutions to these
problems. My testimony today will address S. 2785 and the specific
issues that gave rise to it, as the Department of Justice is still in
the process of formulating views on the other bills that are the
subject of today's hearing.
S. 2785 primarily would amend Section 1304 of Title 25 of the
United States Code, which is part of the Indian Civil Rights Act of
1968, as amended. Congress enacted Section 1304 as the tribal-criminal-
jurisdiction provision of VAWA 2013. We commend the entire Committee,
and Senators Tester and Franken in particular, for their willingness to
listen to Indian tribal leaders and to take action to improve and
strengthen VAWA 2013 and Section 1304.
Domestic Violence and the Jurisdictional Gap in Indian Country
Before describing in detail the Department's views on Section 1304,
some background may be helpful. Criminal jurisdiction in Indian country
generally is shared among the federal, state, and tribal governments,
according to an extraordinarily complex matrix that depends on the
nature of the crime, whether the crime has victims or is victimless,
whether the defendant is Indian or non-Indian, whether the victim is
Indian or non-Indian, and sometimes other factors as well. In 1978, in
Oliphant v. Suquamish Indian Tribe, the U.S. Supreme Court held that,
absent express Congressional authorization, tribes lack jurisdiction
over crimes committed by non-Indians. Prior to VAWA 2013, even violent
crimes committed by a non-Indian husband against his Indian wife, in
the presence of their Indian children, in their home on the Indian
reservation, could not be prosecuted by the tribe. Instead, these
crimes fell within the exclusive criminal jurisdiction of the United
States or, in some circumstances, of the state.
In the decades following Oliphant, too many cases of domestic
violence and dating violence committed by non-Indians against their
Indian spouses and dating partners went unprosecuted and unpunished.
This was particularly true for misdemeanor crimes of domestic violence,
which, absent a response from law enforcement, often escalated to
domestic-violence felonies within weeks or months.
As a result of this jurisdictional gap, as well as other factors,
Native American women have suffered some of the highest rates of
violence at the hands of intimate partners in the United States. A
recent National Institute of Justice analysis of 2010 survey data
collected by the Centers for Disease Control and Prevention found that
more than half (55.5 percent) of American Indian and Alaska Native
women have experienced physical violence by an intimate partner in
their lifetimes. Among these victims, 90 percent have experienced such
violence by a non-Indian intimate partner. Over their lifetimes,
American Indian and Alaska Native women are about five times as likely
as white women to have experienced physical violence at the hands of an
intimate partner who is of a different race.
The Department's 2011 Legislative Proposal
In 2011, the Justice Department took the unusual step of drafting
and proposing to Congress legislation responding to this crisis. The
Department's proposed legislation was designed to decrease domestic
violence in Indian country, to strengthen the capacity of Indian tribes
to exercise their inherent sovereign power to administer justice and
control crime, and to ensure that perpetrators of domestic violence are
held accountable for their criminal behavior. Part of the legislation
amended the Federal Criminal Code to provide a ten-year offense for
assaulting a spouse, intimate partner, or dating partner by strangling
or suffocating; a five-year offense for assaulting a spouse, intimate
partner, or dating partner resulting in substantial bodily injury; and
a one-year offense for assaulting a person by striking, beating, or
wounding.
Another part of the legislation focused on tribal, rather than
federal, prosecution. Specifically, it proposed to amend the Indian
Civil Rights Act by recognizing tribes' concurrent criminal
jurisdiction to investigate, prosecute, convict, and sentence both
Indians and non-Indians who assault Indian spouses, intimate partners,
or dating partners, or who violate certain protection orders, in Indian
country.
While the Department focused tightly on the problems of domestic
violence and dating violence in crafting this proposed legislation, the
broad principles undergirding the proposal were clear: The division of
labor between federal and tribal prosecutors should depend more on the
nature and seriousness of the crimes and less on the Indian or non-
Indian identity of the victim or of the defendant. U.S. Attorneys'
Offices and the FBI will have the greatest positive impact on public
safety in Indian country when they can concentrate on the most
dangerous crimes. And local tribal prosecutors can be most effective
when they focus on offenses that, if left unaddressed, can escalate to
more dangerous crimes.
VAWA 2013 and Special Domestic Violence Criminal Jurisdiction
Following the Department's 2011 legislative proposal, this
Committee held hearings and received extensive testimony on these
issues. Its members ultimately played key roles in enacting, as part of
VAWA 2013, the law that is now codified at 25 U.S.C. 1304. Section 1304
recognizes and affirms tribes' inherent power to exercise ``special
domestic violence criminal jurisdiction,'' or SDVCJ, over certain
defendants, regardless of their Indian or non-Indian status, who commit
acts of domestic violence or dating violence or violate certain
protection orders in Indian country. For the first time in decades,
tribes therefore could prosecute non-Indian perpetrators of domestic
violence and dating violence.
In broadening the set of persons who could potentially be
prosecuted by tribes, Congress also carefully delineated the scope of
tribal authority recognized by VAWA 2013. First, Congress included two
important exceptions to tribes' exercise of SDVCJ. Tribes may exercise
SDVCJ only if the defendant resides in the tribe's Indian country, is
employed in the tribe's Indian country, or is a spouse, intimate
partner, or dating partner of a member of the tribe or of an Indian who
resides in the tribe's Indian country. Tribes also may not exercise
SDVCJ over an offense with a non-Indian victim. These provisions ensure
that the defendant has adequate ties to the tribe and its reservation
and that this jurisdiction does not include cases involving only non-
Indians, which typically fall within a state's exclusive criminal
jurisdiction.
Second, Congress effectively ensured that the protections for a
defendant's federal rights and civil liberties would be as robust in
tribal court as they would be if the defendant were prosecuted in any
state court. Specifically, in any case in which a term of imprisonment
of any length may be imposed, the defendant is afforded all applicable
rights under the Indian Civil Rights Act of 1968, all rights applicable
to defendants charged with felony offenses under TLOA, and also the
right to trial by an impartial jury chosen from a jury pool that
reflects a fair crosssection of the community, including both Indians
and non-Indians.
Third, to give tribes time to prepare to meet the requirements of
the statute, Section 1304 generally did not take effect until March 7,
2015, two years after VAWA 2013 was signed into law by President Obama.
In the interim, VAWA 2013 established a voluntary Pilot Project
authorizing tribes to commence exercising SDVCJ on an accelerated
basis, but only if the tribe could establish to the Attorney General's
satisfaction that it would fully protect defendants' rights. Once the
two-year Pilot Project concluded, other tribes were authorized to
exercise SDVCJ without seeking the Attorney General's approval.
The Pilot Project for Tribal Jurisdiction over Crimes of Domestic
Violence
After enactment, the Department moved quickly to implement the
Pilot Project, which we recognized would lay the groundwork for the
success of SDVCJ in general. After consulting with tribal officials and
requesting public comment, on November 29, 2013, the Department
published a final notice establishing procedures for tribes to request
accelerated designation, establishing procedures for the Attorney
General to act on such requests, and soliciting such requests from
tribes. Two months later, on February 6, 2014, the Department of
Justice announced that the Pascua Yaqui Tribe of Arizona, the Tulalip
Tribes of Washington, and the Confederated Tribes of the Umatilla
Indian Reservation in Oregon were selected for the Pilot Project. On
March 6, 2015, the Department announced the designation of two
additional pilot tribes, the Sisseton Wahpeton Oyate of the Lake
Traverse Reservation in South Dakota and the Assiniboine and Sioux
Tribes of the Fort Peck Indian Reservation in Montana.
The three original Pilot Project tribes achieved notable success
implementing SDVCJ during the Pilot Project period from February 2014
through March 2015. In this first year of implementation, the three
pilot tribes had a total of 27 SDVCJ cases involving 23 separate
offenders. Of the 27 cases, 11 were ultimately dismissed for
jurisdictional or investigative reasons, 10 resulted in guilty pleas, 5
were referred for federal prosecution, and 1 offender was acquitted
after a jury trial in tribal court.
Although these tribes moved swiftly to implement SDVCJ, they also
acted with deliberation. They worked closely with their local United
States Attorneys' Offices to identify which cases were best prosecuted
by the tribes and which were more suitable for federal prosecution,
with the common goal of holding offenders accountable and keeping
tribal communities safe. And not one of their SDVCJ non-Indian
defendants petitioned for habeas corpus review in federal court, which
is a testament to the tribes' ability to safeguard the rights of all
defendants in their tribal courts.
Statistics from the individual Pilot Project tribes reveal that
many SDVCJ defendants have long histories with the police, underscoring
how VAWA 2013 has empowered tribes to respond to long-time abusers who
previously had evaded justice. The Pascua Yaqui Tribe reported that
their non-Indian defendants had at least 80 documented tribal-police
contacts, arrests, or reports attributed to them over the past four
years. Similarly, the Tulalip Tribes reported that their non- Indian
defendants had at least 88 documented tribal-police contacts, arrests,
or reports in the past.
Ongoing Implementation of VAWA 2013 by Tribes and the Department
During the course of consultation about how to structure the Pilot
Project, tribal officials and employees repeatedly highlighted the
usefulness of exchanging ideas with their counterparts in other tribes.
With these views in mind, in June 2013, the Department established the
Intertribal Technical-Assistance Working Group on Special Domestic
Violence Criminal Jurisdiction, or ITWG. Approximately 45 tribes have
voluntarily joined the ITWG, sharing their experiences implementing or
preparing to implement SDVCJ, attending six inperson meetings, and
participating in numerous webinars on subjects such as jury pools and
juror selection, defendants' rights, victims' rights, and prosecution
skills. The Department is supporting the ITWG with training and
technical assistance, including an award by its Office on Violence
Against Women to the National Congress of American Indians to support
the ITWG's ongoing work.
Since the end of the pilot period, we understand that five more
tribes have implemented SDVCJ, including two in the last two months. In
the ten communities that have now implemented SDVCJ, tribal governments
are working to end impunity for non-Indian abusers and to bring safety
and justice to Native American victims. Together, as of February 2016,
the implementing tribes reported having made a total of 51 SDVCJ
arrests (involving 41 separate offenders), resulting in 18 guilty
pleas, 5 referrals for federal prosecution, 1 acquittal by jury, and 12
dismissals, with 13 cases pending.
Just as the implementing tribes have been working to hold non-
Indian abusers accountable, the Department has stepped up prosecutions
of felony-level domestic-violence offenders in Indian country. Since
the passage of VAWA 2013, our United States Attorneys have been making
good use of their new ability to seek more robust federal sentences for
certain acts of domestic violence in Indian country, including the ten-
year offense for assaulting an intimate partner by strangling or
suffocating. Over the past three years, federal prosecutors have
indicted more than 100 defendants on strangulation or suffocation
charges.
Based on reports from tribal members of the ITWG, the Department
anticipates that many more tribes will choose to implement SDVCJ in the
coming year. We know, however, that tribes cannot be expected to
shoulder this responsibility without the support of the federal
government. To this end, United States Attorneys' Offices will continue
to collaborate with tribes that exercise this jurisdiction, and the
Department will continue to support peer-to-peer technical assistance
to tribes. In addition, by the end of this fiscal year, the Office on
Violence Against Women anticipates announcing awards under its new
Grants to Tribal Governments to Exercise Special Domestic Violence
Criminal Jurisdiction program.
Gaps in Coverage of Special Domestic Violence Criminal Jurisdiction
Although tribal efforts to implement Section 1304 have been
impressive, actual tribal experience prosecuting cases under Section
1304 has revealed three significant gaps in the federal law. Our
reading of S. 2785 is that it is intended principally to address these
gaps. While we applaud that effort, we believe it is important that any
legislation effectively and precisely target the areas of greatest
need. We would be happy to work with the Committee's members and staff
to refine some of the bill's language to achieve that goal.
First, there has been some unfortunate confusion in the field about
the scope of conduct covered by Section 1304's definitions of
``domestic violence'' and ``dating violence.'' This confusion was
exacerbated by dicta in footnotes in the majority and concurring
opinions in a 2014 U.S. Supreme Court case, United States v. Castleman.
As a result, there is a need to clarify whether a tribe can prosecute a
non-Indian whose acts against an Indian spouse or partner arguably
would fall short of constituting ``violence'' in a nondomestic context,
but nonetheless use a sufficient degree of force to support a common-
law battery conviction. Moreover, because tribes have been cautious not
to exceed their authority under Section 1304, implementing tribes'
prosecutors have hesitated to prosecute a non-Indian who attempts or
threatens to cause his Indian spouse or partner bodily injury, without
causing physical injury. In a real-world example of this, a non-Indian
boyfriend, in a highly intoxicated state, attempted to punch his Indian
girlfriend but missed and fell to the ground. Concerned that a case
with no actual physical contact would not meet the definition of
``domestic violence'' in Section 1304, the tribe declined to prosecute.
The defendant later returned to assault his victim again--and was
arrested again by the tribe.
Given this uncertainty, the Department recommends legislation
clarifying that Section 1304 covers the use, attempted use, or
threatened use of physical force against the person or property of the
victim, including any offensive touching of the victim (consistent with
the common-law crime of battery). It appears that the language S. 2785
proposes to add to Section 1304(a) was intended to achieve this result,
but it may inadvertently sweep in a far broader range of criminal
conduct, including acts that do not even involve physical force (or an
attempt or threat to use force). The Department would be glad to
provide technical drafting assistance to ensure that this provision is
properly tailored.
The second gap in the law involves Indian children. All too often,
a husband or boyfriend who assaults or batters his Indian wife or
girlfriend also assaults or abuses her children during the same
incident. Yet Section 1304 allows the tribe to prosecute only the
former crime (committed against the wife or girlfriend) and not the
latter crime (committed against the children). In these circumstances,
the only effective way to hold the perpetrator accountable for all his
misconduct, including his crimes against the children, is to prosecute
him federally, rather than tribally. In one example from a Pilot
Project tribe, a non-Indian boyfriend, after a prolonged
methamphetamine binge, forced both his Indian girlfriend and her child
to sit in a chair while he threw knives at them. Given the tribe's
inability to prosecute the defendant for crimes committed against the
child, as well as the severity of the conduct, the tribe referred the
case for federal prosecution.
The Department believes that Congress should close this gap in the
law as well. And the Department would welcome the opportunity to work
with the Committee to make sure that this fix is narrowly tailored to
the circumstances we have just described--where the crime against a
spouse, intimate partner, or dating partner goes hand-in-hand with a
crime against the victim's children.
The third gap in the law, exposed by practical experience, is that
it does not clearly recognize that tribes exercising SDVCJ have the
authority to protect the tribal law-enforcement officers, prosecutors,
judges, and courtroom officials who administer justice. For example,
there is uncertainty about a tribe's authority to charge an SDVCJ
offender for resisting arrest by a tribal police officer. In one case,
an SDVCJ defendant attempted to escape mandatory court appearances and
physically struck a tribe's bailiff in tribal court. Obviously, this
sort of misconduct is a direct affront to the tribe's power and
practical ability to successfully prosecute domestic- and dating-
violence crimes under Section 1304.
The Department therefore believes that Section 1304 should be
amended to protect tribal criminal-justice officers and employees from
crimes that directly frustrate the successful arrest, detention, and
prosecution of SDVCJ defendants and the adjudication of their criminal
cases. This appears to be the intended focus of S. 2785's proposal for
new Sections 1304(a)(12) and 1304(c)(3). The Department would be glad
to provide the Committee with technical drafting assistance to sharpen
the focus of these provisions, as well.
At this time, the Department would recommend against expanding the
universe of potential tribal-court criminal defendants, although we
fully recognize the terrible impact of drugs on Native American
communities. For now, we believe Congress's focus instead should be to
empower tribal criminal-justice systems to deal strongly and
appropriately with all persons who are already subject to tribal
criminal jurisdiction under Section 1304.
As federally recognized Indian tribes, usually with financial
support from Congress and the federal government, continue to build
their capacity to effectively enforce their own criminal laws, Congress
may well choose to expand the universe of potential criminal defendants
in tribal courts, and also to expand the sentencing authority of those
courts. Soon, it may make sense to vindicate the broad principles
underlying VAWA 2013 and Section 1304 by expanding tribal criminal
jurisdiction to cover additional non-Indian perpetrators, perhaps
starting with those offenders who abuse Indian children (regardless of
whether they also are abusing a spouse or intimate partner) and then
considering other offenders, such as perpetrators of sexual assault,
stalking, and sex trafficking, and criminals who bring illegal drugs
into tribal communities.
But today, less than 15 months after the effective date of VAWA
2013, the Department believes the most important and timely legislative
reforms should focus instead on clarifying and expanding tribal
prosecutors' tools for bringing to justice the defendants who are
already within the tribe's jurisdiction.
We thank the Committee for its willingness to undertake this
important project. And we look forward to working with you and your
staff as you shape properly targeted language to accomplish our common
objectives. I will be happy to answer any questions you may have.
The Chairman. Thank you, Mr. Toulou.
Mr. Chavarria.
STATEMENT OF HON. J. MICHAEL CHAVARRIA, GOVERNOR, SANTA CLARA
PUEBLO
Mr. Chavarria. [Greeting in Native Language.] Good
afternoon, Chairman Barrasso, Vice Chairman, and members of the
Committee.
My name is J. Michael Chavarria. I serve as Governor for
Santa Clara Pueblo in New Mexico. I appreciate the opportunity
to testify before this Committee regarding S. 2916, a bill
which would allow the Pueblo to lease all of our lands for up
to 99 years.
In 1992, Congress adopted an amendment to 25 U.S.C Section
415 that allowed 99-year leasing authority for lands held in
trust for the Pueblo Santa Clara. Unfortunately, those lands
consisted of forested lands, our spiritual sanctuary, which we
would never lease to outsiders for any type of economic
development ventures for such an amount of time.
The request in 1992 should have been inclusive of all our
lands which include not only lands held in trust but also lands
inclusive of what is known as the Santa Clara Pueblo grant.
This is a square piece of land comprising about 17,300 acres
that under Spanish colonial law dating back to the 1600s are
considered to be the minimum area of land to which New Mexico
Pueblo is entitled.
In 1851, Congress enacted legislation extending the terms
of the Indian Non-Intercourse Act over Pueblo Indians. The Act
prohibits any Indian tribe from disposing of its lands or any
interest therein, except for authority granted by Congress.
That made the Pueblo fee simple title to its lands restricted
fee because it was subject to Federal law restrictions on
alienation.
In 1858, Congress confirmed our title to the grant but it
was subject to Federal law restrictions on alienation. That
land is held in trust whether the term uses restricted fee or
ownership under Federal supervision.
These restrictive fee lands are extremely important for
current and proposed future economic development ventures as we
diversify our economic portfolio. Currently, 25 U.S.C. Section
415 generally restricts a lease of tribal land to a term of 25
years with the possibility of one renewal period for another 25
years. However, these terms are not economically feasible as
the terms of these lengths are too short to allow for the
amortization of substantial capital investments which means
that big businesses are deterred from locating on tribal lands.
I do have a map here that shows our trust lands and the
restrictive fee. The square in red is the 17,300 acres dating
back to the colonial law. These are the Santa Clara Pueblo
grant lands we want to utilize for commercial interests for
economic development. Senator Udall's bill fixes that problem
by allowing us to enter into long term leases with our
commercially valid lands.
Again, I appreciate the opportunity to come before this
Committee to testify to gain support not only from this
Committee but also from Congress. Chairman, members of the
Committee, I now stand for any questions.
[The prepared statement of Mr. Chavarria follows:]
Prepared Statement of Hon. J. Michael Chavarria, Governor, Santa Clara
Pueblo
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you so much for your testimony.
Mr. Buckles.
STATEMENT OF HON. DANA BUCKLES, COUNCILMAN, ASSINIBOINE AND
SIOUX TRIBES, FORT PECK RESERVATION
Mr. Buckles. Good afternoon, Mr. Chairman, Vice Chairman
and members of the Committee.
I am Dana Buckles, Councilman of the Assiniboine and Sioux
Tribes of the Fort Peck Reservation. I would like to thank the
Committee for the invitation to testify.
I am pleased to testify in strong support of the Tribal
Youth and Community Protection Act. This bill would recognize
the inherent tribal authority to protect our children and our
communities.
At Fort Peck, we have long believed that a strong tribal
government is the way that we can best keep our communities
safe. The Fort Peck Tribes have provided law enforcement and
correction services on our reservation since 1996 under an
Indian Self-Determination and Education Assistance Act
contract.
We are also one of the first Indian tribes in the Nation to
enter into a cross-deputization agreement with State, county
and city law enforcement agencies. Under this agreement, tribal
officers are deputized to enforce State and local law on the
reservation and State and local officers are authorized to
enforce tribal law.
For more than 40 years, the Fort Peck tribes have had an
independent judicial system, including an appellate court. It
is through this system that we provide justice to our victims
and our defendants. Currently, our judicial system includes
law-trained judges, law-trained prosecutors, and law-trained
public defenders.
Given the strong foundation of our court and the tribal
council's desire to combat domestic violence with every tool
possible, the tribes elected to pursue the opportunity
presented by the Violence Against Women Act and exercise our
inherent jurisdiction to prosecute non-Indian defendants who
commit domestic violence on our reservation.
We did this not because we lack good partners in our U.S.
attorney and local law enforcement, but because this is simply
another avenue to provide justice to the victims. We are
pleased to share that we are working with the U.S. Attorney to
designate our special prosecutor as a Special Assistant U.S.
Attorney, so he will be able to prosecute crimes not only in
tribal court, but also Federal court. In short, we think
providing justice to victims is an important step in providing
them a pathway to heal and move on with their lives.
Unfortunately, violent crime is all too common in our
community. A new study by the National Institute of Justice
confirmed that violence in our community is a constant reality.
According to this study, 84 percent of Indian women have
experienced violence in their lifetime and 49 percent
experienced violence in the past year. This violence is
impacting our children.
Since 2012, over half of the clients served by the tribe'
Family Violence Resource Center were children. This amounts to
approximately 1,000 children who were in need of family crisis
services as victims or witnesses to violence in their homes.
That is why we so strongly support the Tribal Youth and
Community Protection Act. We know that prosecuting crimes
against children is the highest priority for our U.S. Attorney.
The Fort Peck Tribes recently experienced two horrible crimes
against two little girls. We are thankful that our Federal
partners came forward quickly to bring justice to the victims.
However, our children are victims of crime every day. In
2015, our tribal court had 329 criminal cases involving crimes
against children. These cases included aggravated sexual
assault of a child, felony abuse of a child and endangering the
welfare of child.
These cases only reflect the cases where we had the
jurisdiction to prosecute. These do not reflect the cases where
the perpetrator was a non-Indian. Those cases must be addressed
by the U.S. Attorney.
Our U.S. Attorney is a good partner, but he does not have
the resources to prosecute all the crimes against children that
our community experiences. Moreover, as the Department of
Justice notes in its 2014 declination report, there are
structural barriers in the Federal system that make certain
prosecutions like child molestation cases difficult.
These challenges include the fact that the victims and
witnesses are reluctant to travel outside their communities to
testify and that Federal investigators do not have a rapport in
the community the same way local law enforcement officers do.
Our tribal law enforcement and our courts are the resources
that are working on the ground every day in our community. They
know the victims and they know the perpetrators. In order to
respond to this tide of violence, Congress must empower tribes
to recognize our inherent jurisdiction to prosecute non-Indians
who commit crimes against our children.
I want to thank you for the opportunity to testify on this
vitally important issue of making our communities and our
children safer.
[The prepared statement of Mr. Buckles follows:]
Prepared Statement of Hon. Dana Buckles, Councilman, Assiniboine and
Sioux Tribes, Fort Peck Reservation
I am Dana Buckles, Councilman of the Assiniboine and Sioux Tribes
of the Fort Peck Reservation. I would like to thank the Committee for
the invitation to testify on these two important bills.
The Fort Peck Reservation is in northeast Montana, forty miles west
of the North Dakota border, and fifty miles south of the Canadian
border, with the Missouri River defining its southern border. The
Reservation encompasses over two million acres of land. We have
approximately 12,000 enrolled tribal members, with approximately 7,000
tribal members living on the Reservation. We have a total Reservation
population of approximately 11,000 people.
I am pleased to testify in strong support of the Tribal Youth and
Community Protection Act. This bill would recognize the inherent tribal
authority to protect our children and our communities. Specifically,
this bill would extend the exercise of the special jurisdiction
recognized in the 2013 Violence Against Women Act, to include crimes
against Indian children, drug offenses, and for crimes committed
against our tribal officials that are connected to the exercise of this
jurisdiction.
At Fort Peck, we have long believed that a strong tribal government
is the way that we can best keep our communities safe. Furthermore, we
have taken action to maximize our authorities to protect everyone
living within our boundaries. In this regard, the Fort Peck Tribes have
provided law enforcement and correction services on our Reservation
since 1996 under an Indian Self-Determination and Education Assistance
Act contract. We are also one of the first Indian tribes in the nation
to enter into a cross-deputization agreement with state, county and
city law enforcement agencies. Under this agreement, first ratified
almost twenty years ago, tribal officers are deputized to enforce state
and local law on the Reservation and state and local officers are
authorized to enforce tribal law.
For more than forty years, the Fort Peck Tribes have had an
independent judicial system, including an appellate court. It is
through this system that we provide justice to our victims and our
defendants. Currently, our judicial system includes law-trained judges,
law-trained prosecutors, law-trained public defenders, probation
officers, a published tribal code, and experienced court clerks and
court reporters. Our court's opinions are published and available to
the public. Our tribal courts and our court services are largely
supported by tribal funds.
Given the strong foundation of our court and the Tribal Council's
desire to combat domestic violence with every tool possible, the Tribes
elected to pursue the opportunity presented by the Violence Against
Women Act (VAWA) and exercise our inherent jurisdiction to prosecute
non-Indian defendants who commit domestic violence on our Reservation.
We did this--not because we lack good partners in our U.S. Attorney and
local law enforcement--but because this is simply another avenue to
provide justice to the victims. We are pleased to share that we are
working with the U.S. Attorney to designate our special prosecutor as a
Special Assistant U.S. Attorney, so he will be able to prosecute crimes
not only in tribal court, but also federal court. In short, we think
providing justice to victims is an important step in providing them a
pathway to heal and move on with their lives. Thus, we are working hard
to ensure that we fully utilize all the tools available to do this.
Unfortunately, violent crime is all too common in our community. We
are all familiar with the statistics regarding domestic violence in
tribal communities. A new study by the National Institute of Justice
confirmed that violence in our community is a constant reality.
According to this study, 84 percent of Indian women have experienced
violence in their lifetime and 49 percent experienced violence in the
past year. And while we are right to focus on violence against women;
the men in our community experience violence as well. Eighty-one
percent of Indian men have experienced violence, including 27 percent
who experienced sexual violence. This violence impacts every aspect of
our Tribes from the mental and physical health of our people to our
economy. According to this study, 40 percent of the women and 9.7
percent of the men missed work because of the violence committed
against them. Even more startling is that while Indian women are only 7
percent of the population in Montana, they are 13 percent of the
intimate partner deaths in the State. During a one-year period, from
October 1, 2013 to September 30, 2014, the Roosevelt County/Fort Peck
Tribes' 911 Call Center received 718 reports of domestic violence. This
means that nearly twice a day, every day, our law enforcement officers
were responding to a domestic violence call. It is not known how many
more incidents were not reported, but nationwide it is estimated that
domestic violence is reported only 60 percent of the time.
Since 2012, over half of the clients served by the Tribes' Family
Violence Resource Center were children. This amounts to approximately
1000 children, who were in need of family crisis services as victims or
witnesses to violence in their homes. Every year brings new challenges
that our families are facing, including meth and other drug-related
violence. The latest challenge in this regard is Bath Salts. We have
all heard the stories in the news of people essentially having
psychotic breakdowns and committing horrendous acts of violence when
they are under the influence of these drugs. We are now experiencing
this on our Reservation.
According to the Indian Tribal Trauma Center, Indian children
nationally are 2.5 times more likely to suffer trauma than non-Indian
children, and violence accounts for 75 percent of the deaths of Indian
children between the ages of 12 and 20. This is leaving a devastating
legacy for our children. As stated in the November 2014 Report from the
Department of Justice Task Force on American Indian/Alaska Native
Children Exposed to Violence, Indian children experience Post Traumatic
Stress Disorder (PTSD) at a rate of 22 percent. This is the same level
as Iraq and Afghanistan war veterans. That means more than 1 in 5
Indian children in this country is suffering from battlefield PTSD.
That is why we so strongly support the Tribal Youth and Community
Protection Act. We know that prosecuting crimes against children is the
highest priority for our U.S. Attorney. The Fort Peck Tribes recently
experienced two horrible crimes against two little girls. We are
thankful that all of our federal partners came forward quickly to bring
justice to the victims. We cannot commend enough the work of our U.S.
attorney and all of our law enforcement partners in these two tragic
cases.
However, our children are victims of crime every day. In 2015, our
tribal court had 329 criminal cases involving crimes against children.
These cases included aggravated sexual assault of a child, felony abuse
of a child and endangering the welfare of child. These cases only
reflect the cases where we had the jurisdiction to prosecute. These do
not reflect the cases where the perpetrator was a non-Indian. Those
cases must be addressed by the U.S. Attorney.
Our U.S. Attorney is a good partner, but he does not have the
resources to prosecute all the crimes against children that our
community experiences. Moreover, as the Department of Justice notes in
its 2014 declination report, there are structural barriers in the
federal system that make certain prosecutions like child molestation
cases difficult. These challenges include the fact that the victims and
witnesses are reluctant to travel outside their communities to testify
and that federal investigators do not have a rapport in the community
the same way local law enforcement officers do.
Our tribal law enforcement and our courts are the resources that
are working on the ground every day in our community. They know the
victims and they know the perpetrators. They do not have the same
structural barriers to prosecuting these difficult cases encountered by
the U.S. Attorney. In order to respond to this tide of violence,
Congress must empower tribes by recognizing our inherent jurisdiction
to prosecute non-Indians who commit crimes against our children and
bring drugs into our communities.
It should be noted however, that none of this will be realized
without the proper funding from Congress. We appreciate that last year
Congress provided funding to assist tribes, like Fort Peck, as we
exercise our inherent jurisdiction to prosecute individuals who commit
domestic violence on our Reservation. If Congress expands this to
include violence against children, the funding will also have to
increase. On that point last year, we testified about the need to
expand tribal funding within the Victims of Crime Fund (VOCA). I want
to thank Senator Tester and Senator Daines for their work this year in
the Appropriations Committee to create a tribal set-aside for tribes in
VOCA with an amendment to the Commerce, State and Justice
Appropriations bill. This funding will go a long way to support the
work that we do at the Family Violence Resource Center to serve the
victims in our community.
Finally, we support the goals of S. 2920, a bill to reauthorize and
expand the services and programs under the Tribal Law and Order Act. We
are, in particular, supportive of the focus on tribal youth and
addressing the reality that Indian youth are over-represented in the
state and federal juvenile systems. We strongly support the provision
in the bill that would allow federal juvenile cases to be referred to
tribal courts, and the provision in the bill that would require states
to provide notice to tribes when a tribal member youth enters a state
or local justice system. We urge our two Senators from Montana to join
the Chairman and Senator McCain in sponsoring this bill.
Thank you for the opportunity to testify on the vitally important
issue of making our communities and our children safer. I would be
pleased to answer any questions and to provide any additional
information that may assist the Committee.
The Chairman. Thank you very much, Mr. Buckles, for your
testimony. I am very grateful.
Now we will turn to Mr. Urbina.
STATEMENT OF HON. ALFRED URBINA, ATTORNEY GENERAL, PASCUA YAQUI
TRIBE
Mr. Urbina. Good afternoon, Chairman Barrasso and
distinguished members of the Committee.
My name is Alfred Urbina and I currently serve as the
Attorney General of the Pascua Yaqui Tribe. It is an honor to
be here today to provide testimony to the Committee regarding
the need for public safety improvement and tribal law and order
in Indian Country.
On behalf of my tribal council and our membership, thank
you for this opportunity. I am pleased to offer support for the
Tribal Youth and Community Protection Act and the Tribal Law
and Order Reauthorization Act.
Both bills will go a long way to help tribes close
lingering jurisdictional gaps regarding violence against
families, help stop the spread of illegal drugs and provide
additional tools for cross jurisdiction cooperation.
Before expanding on the need for the new proposed
legislation, I will talk briefly about the current state of
VAWA and TLOA implementation on the Pascua Yaqui Reservation
because it provides relevant context to the bipartisan measures
brought forward today.
Domestic violence is considered a serious crime against the
tribe and our families. Recent tribal justice measures
presented Indian Nations with an opportunity to restore and
exercise additional authority and jurisdiction to protect their
citizens from crime and violence.
However, aside from VAWA and TLOA and the crime fighting
efforts of tribes, there still exists a super storm of
injustice that has darkened Indian Country for decades. Today
in 2016, a public safety and public health crisis is still
present on most Native American reservations.
The Pascua Yaqui Tribe sought to afford victims of crime
and domestic violence the maximum protection the law provides
when we enacted the provisions of TLOA and VAWA. On February
20, 2014, pursuant to VAWA 2013, the Pascua Yaqui Tribe began
exercising special domestic violence criminal jurisdiction over
non-Indian perpetrators of domestic violence.
On July 2, 2014, for the first time since 1978 when the
U.S. Supreme Court stripped tribal governments of their
criminal authority over non-Indians, the Pascua Yaqui Tribe
obtained the first conviction of a non-Indian, 26-year-old
Hispanic male for the crime of domestic violence and assault
committed on our reservation.
Since that time, the tribe has prosecuted a total of 22
non-Indian cases and 30 VAWA related criminal investigations.
That has resulted in 8 criminal convictions. To us it is clear
that the starting place to reverse historical jurisdictional
problems and injustice in Indian Country is by empowering
tribal justice systems.
Tribes are in the best position to close Indian Country
safe havens being exploited by lawbreakers. Local tribal
government is the best option to protect Indian Country
mothers, daughters, sisters and brothers.
Regarding S. 2920, the reauthorization of the Bureau of
Prisons pilot project is a critical part of any plan that will
address tribal law and order. The current regime is unworkable,
unreliable and jail conditions and programs are unacceptable.
Reauthorizing law enforcement and judicial training for the
investigation and prosecution of illegal narcotics is also
critical. Substance abuse problems brought on by illegal drug
sales, drug manufacturing and the explosion of the opioid
addiction epidemic is crippling Indian Country.
The implementation of VAWA 2013 confirms that tribes
require access to NCIC and Federal background-check information
both in the criminal and civil context. Data collection and
sharing and criminal information database access is critical in
a cross-jurisdiction environment.
Improving justice outcomes for Indian youth is long
overdue. Juvenile justice issues are very important to the
Pascua Yaqui tribe and the legislative provisions in S. 2920
provide the necessary starting points for understanding and
coordinating future juvenile justice matters.
Creating tribal liaisons and special assistant Federal
public defenders, similar to the U.S. attorney liaisons and
special assistant U.S attorneys will be an important tool.
However, tribes need direct funding to provide public defender
services.
Regarding S. 2785, it is clear to the tribe that after
exercising valid jurisdiction that several important provisions
are still needed. First, when responding to domestic violence,
there is a strong likelihood that children will be present as
well as other family members. In our VAWA cases, a total of 20
children, all under the age of 11, were exposed to violence,
were victims or reported crimes while they were in progress.
Without criminal jurisdiction to address this issue, the
tribe had to remove the children from their homes in order to
protect them. VAWA domestic violence jurisdiction must be
expanded to include children.
The tribe is also unable to charge a VAWA offender with
secondary crimes that were committed during the commission of a
VAWA offense. For example, this applies in instances where a
VAWA offender may be in possession of illegal drugs, assaults a
police or detention officer, destroys property or commits a
crime of child violence while being prosecuted for a VAWA
offense.
Federal definition of domestic violence as defined by
Federal case law stops tribes from properly addressing the full
range of domestic violence offenses. The tribe had to dismiss
VAWA cases and refrain from charging cases that did not meet
the requisite Federal definition of violence.
S. 2785 provides a workable solution to this problem by the
use of tribal code provisions that define domestic violence in
corresponding crimes according to the community.
The Pascua Yaqui Tribe also supports S. 710, the SURVIVE
Act, and the current efforts by Congress to set aside 5 percent
of VOCA funding for tribal government victim programs.
As we work to strengthen measures for tribes to protect
themselves and provide additional protections for defendants,
it is important that we balance those efforts with enhanced
rights and protections for victims and families who have
suffered loss and injury.
Finally, tribes need permanent and direct funding to
properly address crime and violence in a comprehensive and
sustainable manner. Periodic and short term grant funding does
not allow tribes to build the necessary capacity to operate
robust court systems.
Thank you very much. This concludes my statement. Thank
you, Mr. Chairman and members of the Committee. Thank you,
staff, for your hard work on these important issues.
[The prepared statement of Mr. Urbina follows:]
Prepared Statement of Hon. Alfred Urbina, Attorney General, Pascua
Yaqui Tribe
Chairman Barrasso and Distinguished Members of the Committee:
Good afternoon, my name is Alfred Urbina, and I currently serve as
the Attorney General of the Pascua Yaqui Tribe, a Federally Recognized
Tribe from the State of Arizona. On behalf of our Tribal Council and
membership, thank you for this opportunity. It is an honor to be here
today to provide testimony to the Committee regarding the need for
public safety improvement and tribal law and order in Indian Country. I
am pleased to offer support for the ``Tribal Youth and Community
Protection Act of 2016,'' and the ``Tribal Law and Order
Reauthorization Act of 2016.'' Both Bills will go a long way to help
tribes confront lingering jurisdictional gaps regarding violence
against tribal families, help stop the proliferation of illegal drugs,
and provide additional tools for cross-jurisdiction cooperation.
First, I would like to thank the Committee and staff for your
leadership on these matters. The drafting, passage, and implementation
of the ``Tribal Law & Order Act of 2010'' (TLOA) and the ``Violence
Against Women Reauthorization Act of 2013,'' (VAWA 2013) is having a
positive impact in Indian Country. Recent TLOA and VAWA authority
provided measured tools that foster longstanding policies of tribal
self-determination and tribal self-governance.
Before expanding on the need for the new proposed legislation, I
will talk briefly about the current state of VAWA and TLOA
implementation on the Pascua Yaqui Reservation because it provides
relevant context to the bipartisan measures brought forward today.
The Success of TLOA & VAWA Implementation
To begin, the strength of the Pascua Yaqui Tribe flows directly
from our people. Domestic violence is considered a serious crime
against the Tribe, and our families. In enacting the provisions of TLOA
and VAWA, the Tribe sought to afford the victims of domestic violence
the maximum protection that the law provides. The safety of victims of
domestic violence and drug related crimes, especially children, became
easier to address through the intervention of Tribal law enforcement,
Tribal Special Assistant U.S. Attorneys (SAUSA), and support from our
federal partners and Tribal Liaisons. \1\
On February 20, 2014, pursuant to VAWA 2013, the Pascua Yaqui Tribe
was one of three Tribes to begin exercising Special Domestic Violence
Criminal Jurisdiction (SDVCJ) over non-Indian perpetrators of domestic
violence. On July 2, 2014, for the first time since 1978 when the U.S.
Supreme Court stripped tribal governments of their criminal authority
over non-Indians, \2\ the Pascua Yaqui Tribe obtained the first
conviction of a non-Indian, a twenty-six year old Hispanic male, for
the crime of domestic violence assault committed on the Pascua Yaqui
Reservation.
Since that time, the Pascua Yaqui Tribe has prosecuted a total of
22 non-Indian cases involving 15 males and 1 non-Indian female involved
in 30 VAWA investigations that have thus far resulted in 8 criminal
convictions. VAWA cases include crimes of domestic violence and
violations of protection orders where 15 tribal females and 2 tribal
male were victims. Most of the VAWA perpetrators have extensive
criminal records in the State of Arizona.
Two offenders had active state warrants for their arrests,
one for armed robbery out of the State of Oklahoma.
Four of the cases were serious enough to warrant referrals
for federal prosecution.
On average, VAWA offenders were contacted by Tribal police
at least six times before VAWA authority existed on the Pascua
Yaqui Reservation and VAWA offenders have been involved in
close to 90 Pascua Yaqui police incidents, pre and post VAWA.
Eleven of the cases involved children in the home. A total
of 20 children, all under the age of eleven, were exposed to
violence, were victims, or actually reported the crime while it
was in progress.
Three of the VAWA offenders have already reoffended with the
same victim, demonstrating a pattern of abusive behavior that
we know can be a part of domestic violence relationship
dynamics.
Thirteen (13) of the offenders are of Hispanic descent, 2
are ``Legal Permanent Residents'' from Mexico. Two (2)
offenders are Caucasian males, 4 are African-American, 1 is of
Asian descent, and 1 offender is a lineal tribal descendant who
does not qualify for enrollment.
Thirteen (13) of the incidents involved alcohol or drugs.
Ten (10) of the offenders have been previously arrested for
cases involving drug use, possession, DUI, or alcohol related
offenses.
Most of the offenders appeared to be unemployed and only 2
offenders did not have a criminal record in the State of
Arizona. Seven of the offenders had previously been arrested
for violent crimes, weapons, or threats in the State of
Arizona. Two offenders are felons, both having been convicted
for Burglary in the State of Arizona.
Five cases remain open and in 2 cases, tribal warrants have
been issued, one post-conviction (probation absconder) and one
pre-trial for failure to appear. Seven (7) cases were declined
after review.
Seven (7) cases were dismissed for issues related to the
U.S. v. Castleman case. \3\
Problems Persist
Recent and important Tribal justice measures presented some Indian
Nations with an opportunity to restore and exercise selected authority
to protect their people from crime and violence. However,
notwithstanding VAWA, TLOA, and the crime fighting efforts of tribes,
there still exists a super storm of injustice that has darkened Indian
Country for decades. Today, in 2016, a public safety and public health
crisis is still present on most Native American reservations. The long-
term lack of security for women and children has brought on a ``crisis
of confidence'' in both tribal and federal justice systems. The
restoration of authority, new proposed legislation, and enhanced
coordination with federal authorities represents a new dawn. Not only
are we now able to address human rights abuses perpetuated for decades
upon women, but we are also able to do this while guaranteeing the
civil rights of the accused. On the other hand, just like when a major
storm passes, our community will have to take time to survey the
damage, reconcile with victims and families, and rebuild the trust that
has been lost. There are shattered homes across our Reservation and
across Indian Country. Many men, women, and children will continue to
suffer through this storm of injustice. The new legal and
jurisdictional framework, while slightly changed, will not work absent
the proper funding for tribal courts, victims, and support services.
The majority of tribes simply do not have the resources to provide
comprehensive changes to their systems or guarantee suitable services
for victims and their families.
Tribal Control Is the Key
The starting place to reverse historical jurisdictional problems
and injustices in Indian Country is with strong tribal justice systems.
Criminal investigations occur at the local level. Local government is
the best government to protect Indian Country's mothers, daughters,
sisters and brothers. Tribes are in the best position to close
jurisdictional gaps and safe havens for lawbreakers.
With a self-reported 500 non-Indian community members living on the
Pascua Yaqui Reservation and approximately 800 Non-Indians working or
attending school on the Pascua Yaqui Reservation, the probability that
additional VAWA cases will arise is foreseeable and likely.
Regarding S. 2920, the reauthorization of the Bureau of Prisons
pilot program is a critical part of any plan that will address tribal
law and order. The current regime is unworkable, disorganized, and jail
conditions are deplorable. Reentry programming will be unsuccessful
without a strong primary detention system and a humane corrections
option. Reauthorizing law enforcement and judicial training for
investigation and prosecution of illegal narcotics is critical.
Substance abuse problems brought on by illegal drug sales,
manufacturing, and the explosion of the opioid addiction epidemic is
crippling Indian Country. The implementation of VAWA 2013 SDVCJ
confirms that Tribes require access to federal background-check
information in the criminal and civil context. Data collection and
criminal information database access is critical in a cross-
jurisdiction environment. Also, given that access would allow for the
sharing of tribal criminal justice information, increased data sharing
would allow for the closure of criminal information gaps that now
stretch across the tribal-federal landscape. The Shadow Wolves drug-
trafficking-prevention program is an important tool for drug
interdiction and the prevention of terrorism in our homeland. The
Shadow Wolves are also an organization that operates in a traditional
manner that respects the culture of the indigenous people who have
inhabited the desert southwest for thousands of years. Improving
justice for Indian youth is long overdue. When Native youth are
prosecuted federally, there is a lack of programming and coordination.
When youth are held in the State juvenile system, there is an absence
of culturally relevant curriculum available. Creating tribal liaisons
and special assistant federal public defenders, similar to the liaisons
and special assistant U.S attorneys in the U.S. attorneys' offices is a
great idea, however, Tribes also need direct funding to provide these
critical services. A liaison will be helpful if Tribes have established
the Public Defense infrastructure to begin with.
Regarding S. 2785, ``A bill to protect Native children and promote
Public Safety in Indian Country,'' it is clear to the Pascua Yaqui
Tribe after exercising Special Domestic Violence Criminal Jurisdiction
under VAWA 2013, that several important provisions were omitted. First,
when addressing domestic violence, there is a strong likelihood that
children will be part of most relationships, as will other family
members who may live in the home. In our cases, we found that at least
13 of our incidents included children in the home. Some children were
victims of violence or were exposed to violence. In three cases, tribal
officials had to remove the children from the home and place them in a
foster home for their protection. Also, the Tribe found that we could
not charge a VAWA offender with ancillary crimes that were committed
during the commission of a VAWA offense or during the prosecution of
that offense. For example, in one case, a VAWA offender was brought in
for violating a court probation order. Since the infraction was not an
original DV VAWA offense, the Tribe could not proceed. This would apply
to instances where the offender was in possession of illegal drugs,
assaulted a police or detention officer, destroyed property, or
committed any other crime while they were being prosecuted for a VAWA
offense. Finally, in recent VAWA cases, criminal background checks of
VAWA offenders found that many had criminal convictions for drug or
alcohol offenses and many of our cases were alcohol related. If VAWA
offenders are on the Reservation and they are associated with drug use,
drug sales, or the facilitation of such conduct, Tribes require the
necessary authority to address this behavior.
background information
Pascua Yaqui VAWA Implementation
On March 7, 2013, VAWA 2013 was signed into law by President Obama.
On Jun 26, 2013, the U.S. Attorney for the District of Arizona, John
Leonardo, visited the Pascua Yaqui Tribe and toured our court facility.
The Tribe expressed an interest in the implementation of Special
Domestic Violence Criminal Jurisdiction. On July 09, 2013, the Tribal
Chairman submitted a letter to the Department of Justice's, Mr. Tracy
Toulou, as a preliminary expression of interest in exercising SDVCJ and
asked to be designated as a participating Tribe. On July 15, 2013, the
Pascua Yaqui Tribe was one of approximately 27 federally recognized
Indian tribes that timely sent ``preliminary expressions of interest''
in participating in the Pilot Project. By doing so, tribes expressed an
interest in participating in both Phase One and Phase Two of the Pilot
Project.
The Department of Justice launched the Intertribal Technical-
Assistance Working Group on Special Domestic Violence Criminal
Jurisdiction (ITWG), as part of Phase One of the Pilot Project. The
ITWG is a voluntary working group of designated tribal representatives
who exchange views, information, and advice, peer to peer, about how
tribes may best exercise SDVCJ, combat domestic violence, recognize
victims' rights and safety needs, and safeguard defendants' rights.
Between July, 2013 and December 2013, Tribal representatives
participated in a series of teleconferences, participated as panelists,
and participated in ITWG in-person meetings.
On December 30, 2013, the Tribe submitted an extensive application
to the DOJ to be designated a Pilot Tribe and to start exercising SDVCJ
(Phase II). \4\ On February 6, 2014, the Tribe received official notice
that the Tribe was designated a participating Pilot Tribe authorized to
exercise SDVCJ. \5\ The Pascua Yaqui Tribe SDVCJ Pilot status story was
picked up and released locally, statewide, and nationally, via press
release by the White House. \6\ On February 12, 2014, VAWA Pilot
information was posted for notice in the Federal Register by the
Department of Justice. \7\ Official Tribal notice was sent out via
global e-mail to all tribal government and casino enterprise employees,
as well as being posted on the official Pascua Yaqui Tribal Internet
site on February 6th, 2014. \8\ On February 10th, 2014, the Arizona
Daily Star ran a front page story that circulated to 238,000 readers in
Southern Arizona, including the City of Tucson. The story was also
posted on their online news site. The online AZSTARNET has a reach of 1
million independent views per month and has approximately 12 million
page views per month. \9\ The Pascua Yaqui press release was shared
online through a leading Internet Indian Country legal news blog called
``Turtle Talk,'' it was posted on February 7, 2014. \10\
The Tribe conducted interviews with several news outlets to
include, the Arizona Daily Star, the Seattle Times, the L.A. Times,
Washington Post, Tucson KVOA television news, Colorlines, Aljazeera,
NPR, 91.5 KJZZ, MintPress, the Arizona Daily Wildcat, and Cronkite
News. \11\ The Tucson area news story by KVOA ran on the nightly news
on February 23, 2014 and on the morning of February 24, 2014, and was
broadcast in the greater Southern Arizona area, to include the City of
Tucson and the Pascua Yaqui Reservation.
On February 20, 2014, pursuant to VAWA 2013, the Pascua Yaqui Tribe
was one of three Tribes to begin exercising Special Domestic Violence
Criminal Jurisdiction (SDVCJ) over non-Indian perpetrators of domestic
violence. On July 2, 2014, for the first time since 1978 when the U.S.
Supreme Court stripped tribal governments of their criminal authority
over non-Indians, \12\ the Pascua Yaqui Tribe obtained the first
conviction of a non-Indian, a twenty-six year old Hispanic male, for
the crime of domestic violence assault committed on the Pascua Yaqui
Reservation. The Tribe has had one jury trial where the jury found that
there was not sufficient evidence of a dating relationship between the
victim and defendant. The case, PYT v. Garris, ended in the acquittal
of the defendant. Although we would have preferred a guilty verdict,
this first full jury trial fleshed out many pre-trial arguments, and
proved our system works. A non-Indian was arrested and held by Pascua
Yaqui law enforcement, he was represented by two attorneys, and a
majority Yaqui jury, after hearing evidence presented by a tribal
prosecutor, in front of an Indian judge, determined that the Tribe did
not have jurisdiction in a fairly serious DV Assault case.
Recently, after the Tribe started to exercise VAWA SDVCJ, a survey
was administered by the Prosecutor's Office. 220 surveys were filled
out by community members about VAWA and the Tribe's implementation. Of
the 220 people surveyed, 130 respondents thought that DV/family
disputes were a big problem. Thirty-six people knew someone who was a
victim of domestic violence and the perpetrator was a non-Indian. An
additional twenty-seven were the victims of DV and the perpetrator was
Indian. An additional thirty-six knew someone who was a victim of DV
and the ethnicity of the perpetrator was unknown. Twenty-five had been
an actual victim of DV, of those, six were victims of non-Indian
perpetrators. 140 respondents had heard of VAWA and 155 had heard of
the tribe having VAWA jurisdiction.
Lessons Learned
Some offenders have had a long history of contact with Tribal
Police & generally have a State criminal history:
1. NCIC access is required to properly assess who the offender
is (DOJ TAP Program).
2. Offenders may have warrants or a history of harming the
victim in another jurisdiction.
3. Offenders are using Indian Country to exploit jurisdictional
gap and offenders are aware of jurisdictional gap.
4. Victims were reluctant to report DV incidents due to
jurisdictional gap and no safety option from Tribal, State, or
Federal system (no trust).
5. Difficult DV cases are increasingly difficult in VAWA SDVCJ
context.
Multi-jurisdictional environment makes prosecution difficult:
1. Offenders can flee Tribal jurisdiction and Tribal Court
process. Tribes may require a State/Tribal IGA/MOU to
extradite, ensure comity to tribal court order, and domesticate
& execute tribal warrants. Outreach between tribes and
surrounding jurisdictions need to occur.
2. Proximity to Mexico raises issues of prosecuting Legal
Permanent Residents, or undocumented aliens, must advise Border
Patrol upon arrest. There is heightened scrutiny as a
conviction can also trigger deportation. Tribes may be required
to provide Spanish language court interpreters.
3. The limited nature of jurisdiction & the Supreme Court
Castleman decision makes cross-deputization and jurisdictional
flexibility important. This allows officers to arrest into
surrounding State or Federal jurisdictions on ancillary charges
(trespassing, drugs, non-victim crimes, etc.).
4. Criminal investigations are more difficult and police
officers require additional training. Depending on the facts,
an SDVCJ case can have several different matters evolve from
one incident (Tribal criminal case, federal case, tribal
dependency case, or a state criminal case).
5. Offender can have a state felony or misdemeanor warrants.
Coordination, extradition and inter-jurisdictional movement of
offenders have to occur.
6. Ethical issues arise if a Defendant is not provided
effective assistance of counsel. Public Defenders must have a
working knowledge of Indian Law and how to operate in a cross-
jurisdictional environment.
Non-Indian offender issues:
1. There is no requirement from the VAWA law to collect
offender or victim data.
2. VAWA convictions are not being entered into NCIC, national
database (yet).
3. Preliminary profile of PYT VAWA offender is unemployed male
in long term relationship with Tribal member, who may have drug
or alcohol use history, previous criminal history and previous
tribal police contact.
4. Healthcare costs are an issue. Who covers when a non-Indian
is in Tribal custody? While in BIA custody? Jail costs &
transportation?
5. Indirect costs have increased: Healthcare, case related
investigative costs, expert witnesses, mental health
evaluations, child welfare matters, ancillary cases, post-
conviction costs, additional litigation.
6. Who funds Offender sanctioned classes and programming. There
will be a requirement to loop in state services or contract for
such services.
7. Equal protection and due process issues may arise, fairness
& equal treatment in sentencing, pre-trial release
determinations, and jury composition.
8. Composition of jury is difficult when attempting to hail
non-Indian jurors and not excluding non-Indian jurors.
9. Non-Indians can be lineal tribal descendants who don't meet
blood quantum requirements (1 case for Pascua Yaqui).
TLOA//VAWA authority maximized, gives tribes the flexibility to
control crime:
1. The purpose of VAWA Pilot Program was to develop best
practices.
2. Exercising integrated authority of TLOA and VAWA through
Tribal SAUSAs, Tribal Law enforcement with SLEC cards, NCIC
access, and State law enforcement & prosecution authority,
provides 360 degree jurisdictional management and complete
criminal data intelligence. This provides an opportunity for
planning, prevention, and crime control policy creation.
3. Hybrid systems allow for better coordination with DOJ, BIA,
and State authorities. The DOJ sponsored Inter-Tribal Working
Group (ITWG), SAUSA Program, SLEC Cards, Central Violations
Bureau (CVB) citations program, BIA Purpose Code X Program, and
the DOJ Tribal Access Program (TAP), provides maximum
jurisdictional flexibility for tribal justice systems.
4. The TLOA DOJ Bureau of Prisons (BOP) Pilot program must be
reauthorized by Congress and expanded to include VAWA
defendants and lower level crimes and convictions involving
multi-year sentences related to Domestic Violence.
Victim issues:
1. VAWA victim Profile: Single tribal female with children,
unemployed, living in Tribal housing as head of household or in
a multi-generational household, in long term relationships with
Non-Indian males. (Married, children in common, or residing in
same household).
2. VAWA does not include funding for prevention services.
3. Tribal Orders of Protection are not being entered into NCIC,
making it difficult to enforce off Reservation.
4. VAWA Offender Tribal Criminal history currently iscnot being
added to NCIC.
5. Women, children, and non-intimate partners living in the
household are not being fully protected by VAWA. (Grandparents,
elders, cousins, etc.)
6. Many Domestic Violence crimes can't be prosecuted due to
Castleman issues.
7. Sexual assault by a non-Indian ``stranger'' who is not in a
relationship with the victim is not covered by VAWA 2013.
Challenges
There have been challenges during Pascua Yaqui's VAWA SDVCJ
implementation. For example, on March 26, 2014, the Supreme Court
decided U.S. v. Castleman. \13\ Castleman had an immediate impact on
the Tribe's criminal charging decisions when evaluating arrests under
SDVCJ authority. In the Castleman case, James Castleman moved to
dismiss his 2008 federal indictment under 18 U. S. C. 922(g)(9),
which forbids the possession of firearms by anyone convicted of a
``misdemeanor crime of domestic violence.'' He argued that his 2001
conviction in Tennessee did not qualify as a ``misdemeanor crime of
domestic violence'' because it did not involve ``the use or attempted
use of physical force'' required by 18 U. S. C. 921(a)(33)(A)(ii).
The Court held that the use of physical force was ``satisfied by even
the slightest offensive touching.'' What is problematic for new SDVCJ
cases is that the VAWA defines the term domestic violence as
``violence'' committed by a current or former spouse or intimate
partner of the victim. . .'' 25 U.S. Code 1304 (a)(2). The federal
definition of a ``misdemeanor crime of domestic violence'' used to
determine Castleman, will likely be used by federal and tribal courts
to establish the charging boundaries under VAWA. The Tribe, like many
other jurisdictions commonly charge crimes that arise early in the
cycle of domestic violence relationships that may not include an
``offensive touching'' as an element to the crime, but nonetheless,
they are violent and dangerous. These crimes can include Trespassing,
Threatening and Intimidation, Tampering with Communications, Burglary,
Breaking & Entering, Stalking, Disorderly Conduct, Unlawful
Imprisonment, Harassment, Endangerment, Custodial Interference, and
Malicious Mischief.
The dynamics and cycle of intimate partner violence is that
offenders, in order to maintain power and control, will use escalating
abusive and violent behavior against their partner. Over the life of a
relationship, aggressive and hostile behavior increases in both
frequency and severity. The cycle may end in the eventual separation of
the couple, harm to the victim, or even the death of the victim. The
Tribe's ability to address and prevent violent encounters through the
limited authority of VAWA SDVCJ appears to be further restricted by the
holding in Castleman.
VAWA Funding
The Pascua Yaqui Tribe is requesting that Congress or the
Department of Justice, make sufficient funds directly available to
Tribes to properly implement and sustain into the future VAWA, SORNA,
and the Tribal Law and Order Act (TOLA), during and beyond the
implementation phase. Tribes require permanent funding and access to
resources and services that are available to state, county, and
municipal governments. Within VAWA 2013, there is authorization for
appropriations of up to $5,000,000 for each of fiscal years 2014
through 2018 for participating tribes that are exercising SDVCJ. The
Pascua Yaqui Tribe has officially requested a proportional share of the
funding for the 2015-2018 fiscal years, in order that we may carry out
all of the many responsibilities that we have as a VAWA Pilot Project
Tribe.
Section 904 of VAWA 2013, Public Law 113-4(2013) as codified in 25
U.S.C. 1304(f) allows the Attorney General to award grants to Indian
Tribes for the following purposes:
(f) Grants to tribal governments
The Attorney General may award grants to the governments of
Indian tribes (or to authorized designees of those
governments)-
(1) to strengthen tribal criminal justice systems to assist
Indian tribes in exercising special domestic violence criminal
jurisdiction, including-
(A) law enforcement (including the capacity of law
enforcement or court personnel to enter information into and
obtain information from national crime information databases);
(B) prosecution;
(C) trial and appellate courts;
(D) probation systems;
(E) detention and correctional facilities;
(F) alternative rehabilitation centers;
(G) culturally appropriate services and assistance for
victims and their families; and
(H) criminal codes and rules of criminal procedure,
appellate procedure, and evidence;
(2) to 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;
(3) to ensure that, in criminal proceedings in which a
participating tribe exercises special domestic violence
criminal jurisdiction, jurors are summoned, selected, and
instructed in a manner consistent with all applicable
requirements; and
(4) to accord victims of domestic violence, dating violence,
and violations of protection orders rights that are similar to
the rights of a crime victim described in section 3771(A) of
title 18, consistent with tribal law and custom.
The Pascua Yaqui Tribe currently expends considerable resources on
all of the above programs, through both federal grants as well as
significant sums of tribal dollars. The Tribe had two cases arise that
implicated SDVCJ within the first two weeks of implementation and have
had a total of 30 VAWA investigations and filed 22 into Tribal Court.
Significant resources have been dedicated to the cases. The Tribe would
be better able to fund these programs as well as additional programs
going forward if monies are appropriated under VAWA 2013, which are
intended, pursuant to 25 USC 1304(g) to ``supplement and not supplant
any other Federal, State, tribal, or local government amounts made
available to carry out activities described in this section.'' A
possible mechanism would be for the Department of Justice OVW Office to
develop a Tribal Funding Plan and distribute the funds as tribal set-
aside funding which could be added to existing Tribal 638 Contract as a
modification. This method would allow the funding to be easily
transferred to the Tribe. As such, we respectfully request that
Congress or the Department of Justice provide a mechanism for
disbursement of the funding provided for in VAWA 2013.
Costs: The implementation of some of the provisions of the Tribal
Law & Order Act, and the Violence Against Women Act, have raised costs
that have been fully covered by the Tribe, with virtually no additional
federal assistance. Through the Office of the Public Defender and
contracted defense attorneys, the Pascua Yaqui Tribe now provides free
legal representation to over 95 percent of all persons arrested on the
reservation. All VAWA defendants who have been prosecuted have had a
public defender or contracted defense attorney appointed at the Tribes
expense in their cases to assist them.
Pascua Yaqui Justice System
Historically, the Yaqui people have always had some form of law
enforcement and dispute resolution, most notably through our ceremonial
societies. In 1982, the Tribe adopted a Criminal Code, some parts of
our Civil Code, and adopted our Constitution in 1988, all of which
helps spell out current Yaqui Law. In addition to our Constitution, our
elders, chose to create a Tribal Court system as the arbiter of Yaqui
justice and our forum for the resolution of disputes. Our official
justice system has been operating in one form or another, for more than
25 years. Pursuant to its sovereign authority, our Tribal Council also
created a law enforcement department and a tribal prosecutor's office
as the representatives of the tribe in matters both criminal and civil
in nature. The various functions performed by the Office of the
Prosecutor, law enforcement, and the Tribal Court, are instrumental in
ensuring that the Tribal Council can help guarantee the safety and
protection of our people. A sustainable future for our government and
people is largely dependent on a robust judiciary and a strong
executive arm to enforce the mandates of our Constitution, ensure the
protection of the people, and defend individual rights guaranteed by
our laws.
In 1978, the Tribe was originally subject to Arizona State
jurisdiction under 25 U.S.C. 1300f(c) and PL280. In 1985, the State
of Arizona retroceded criminal & civil jurisdiction. \14\ Between 1985
and 1988, the Department of Interior operated the Pascua Yaqui tribal
court system through a ``Court of Indian Offenses,'' a ``CFR'' Court
operated by the Bureau of Indian Affairs, (B.I.A.). In 1988, the Tribe
took over the Tribal Court from the B.I.A. through a 638 contract. \15\
The Bureau of Indian Affairs police patrolled the Reservation
exclusively until 1991. In 1991, the Tribe hired three Tribal police
officers who served alongside the B.I.A. officers. In 1998, The Tribe
signed a 638 agreement with the B.I.A. to direct its own law
enforcement services. In 1997, the Tribe started the Pascua Yaqui
Victim Services program. Currently, the Tribe employs twenty-six
uniformed patrol officers who are certified by Arizona P.O.S.T as State
certified officers and most are federal Special Law Enforcement
Commissioned (SLEC) certified officers. Three of the officers are
Criminal Investigators. The Tribe also employs a number of Victim
advocates.
The Tribe is also served by the Federal Bureau of Investigation
(F.B.I.) (Phoenix Division), for assistance with major criminal
investigations. In 1993, the Tribe entered into a User Agreement with
the Arizona Department of Public Safety (DPS) for limited NCIC \16\ and
ACJIS \17\ criminal information access. In 2005, the Tribe entered into
an Intergovernmental Agreement with Pima County to participate in the
Pima County Regional Special Weapons and Tactics (SWAT) Team program
for police SWAT services. In 2006, the Tribe approved an
Intergovernmental Agreement with Arizona DPS for crime laboratory
services for the purpose of examining and processing evidence collected
during criminal investigations. In 2009, the Tribe entered into an
Intergovernmental Agreement (IGA) with the Pima County Sheriff's
Department for participation in the Spillman Records Management System
and Computer Aided Dispatch System for enhanced access to ACJIS, NCIC,
ALETS, NLETS, and MVD databases. In 2010, the Tribe entered into an IGA
with Pima County to take part in the Pima County Wireless Integrated
Network (PCWIN). PCWIN provides improved public emergency services and
regionally coordinated mutual aid.
In 2011, through the American Reinvestment Recovery Act (ARRA), the
Tribe constructed a $21 Million dollar, state-of-the-art multi-purpose
justice/court complex. In May of 2012, the Tribe began operating the
Pre-Trial Services (PTS) Division of the Tribal Court. Pre-Trial
Services has effectively reduced the number of Yaqui defendants being
held for pre-trial detention, kept some offenders employed, and
monitors offenders in the community who are released during the pre-
trial phase of their case. In 2011, the Tribe, in partnership with the
Department of Justice (DOJ) and the U.S. Attorney's Office, appointed
tribal prosecutors as federal Special Assistant United States Attorneys
(SAUSA). The Tribe was also certified by the DOJ as substantially
implementing the Sex Offender Registration and Notification Act
(SORNA).
Adult and Juvenile Detention Services are mostly handled by the
Bureau of Indian Affairs, (B.I.A.). Adult Tribal inmates, including
Non-Indian VAWA defendants, are transported to a private regional
B.I.A. contracted detention facility in San Luis, Arizona. On Dec 20,
2013, the BIA began delivering Tribal inmates to the B.I.A. detention
Pilot program at Emerald Corporation in San Luis, Arizona. The
contracted facility, while located far from the tribal Reservation, is
sensitive to tribal detainee needs. The Tribe employs detention
officers for short-term tribal detention, booking, transportation, and
pre-trial detention needs.
Due Process
In 1995, the Tribe opened the Pascua Yaqui Public Defenders Office
to provide public defense services to indigent tribal members. In 2010,
the Tribal Council amended the Pascua Yaqui Court Rules to implement
federal amendments to the Indian Civil Rights Act (ICRA), \18\ which
was modified by the 2010 Tribal Law & Order Act (TLOA). The 2010
amendment guaranteed tribal members, (including Indians from other
tribes) the right to defense counsel at the Tribe's expense if the
Tribe seeks any amount of jail time in their criminal cases. On Dec 18,
2013, the Tribal Council passed Ordinance 20-13, the Court Rules
Amendments of 2013 to comply with VAWA 2013 implementation
requirements. Ordinance 20-13 changed the Tribe's jurisdiction, ensured
defense counsel for indigent non-Indian defendants, and changed the
composition of the Tribe's jury pool to ensure that a fair cross-
section of the community is included in the jury selection process.
VAWA contains explicit language that requires tribes choosing to
exercising authority under the new provisions, draw people from jury
pools that reflect a fair cross-section of the community and do not
systematically exclude any distinct group of people, including non-
Indian community members.
The Pascua Yaqui tribal court provides all defendants with the same
rights in tribal court as they would have in state or federal court.
The original Pascua Yaqui Constitution expressly incorporated the
language of the Indian Civil Rights Act (ICRA) for the Tribe's own Bill
of Rights. The tribe funds a full-fledged Public Defenders Office with
four licensed defense attorneys who represent those accused of crimes.
The Tribe also funds four private contracted defense attorneys for
those cases where a conflict of interest exists. Defendants are
guaranteed all protections, including an indigent defendant's right to
appointed counsel at the expense of the tribe. Our Tribal Court
enforces the Indian Civil Rights Act (ICRA), fundamental due process,
Tribal common law, U.S. Supreme Court case law, and fundamental human
rights.
The right to counsel and due process that are products of American
jurisprudence are deeply rooted in Yaqui indigenous tradition and
practice. Our Tribal culture and history supports the right of having a
person speak on behalf of the accused. These concepts, teachings, and
traditions pre-date the U.S. Constitution and the Bill of Rights and
are rooted in beliefs that are arguably as old as English Common Law.
As early as 1918, in the United States, the Yaqui formed a quasi-
governmental body in charge of the ``Yaqui Nation'' within the United
States, presided over by a ``commandante-general'' (captain) which is
equated to a war chief, (wikoijaut) of a Yaqui Pueblo in present day
Sonora, Mexico (it can also be equated to the executive branch of
government). \19\
The Captain was responsible for maintaining order, recruiting a
police force, preside over trial courts, and administering punishments.
The Yaqui Nation also had a Kovanau, or, in Spanish, gobernador,
(governor). The `kovanau's duty was first, to administer the land of
the pueblo, and, second, to concern himself in all disputes and
difficulties that arose. The war chief presided over ``trials'' and the
`Kovanau gathered witnesses for defense and tried to uncover
extenuating circumstances. \20\ While courts generally enforce
individual responsibility for crime and enforce individual rights,
Pascua Yaqui historical cultural practices revolve around the principle
of collective responsibility arising from a foundational social kinship
system. Some concepts of traditional practices and norms included,
``Lutu'uria,'' which translates to ``truth.'' The phrase ``yo'ora
lutu'uria'' refers to ``elders truth'' and the notion of senu noka (one
word) was used to describe historical decisions (precedent). The
concern for not just majority but a collective decision beyond
individualism was prominent. \21\
Demographics & Statistics
Approximately 4-5000 people reside on the 2,200 acre Pascua Yaqui
Reservation, located in Pima County, Arizona, near the southwestern
edge of the City of Tucson. The Reservation is approximately 60 miles
north of the United States-Mexico International Border. \22\ The Tribe
is located near a major metropolitan city, while this is important for
business ventures, it can have a negative impact on crime that occurs
on the reservation. Crime does not respect borders and the influx of
illegal drugs, guns, and wrongdoers from surrounding communities is a
major issue that impacts the safety of our community and strains our
criminal justice system. Tribal members are exposed to drug smuggling,
drug cartels, human traffickers, and gang members. The most recent
murder of a tribal member to occur on the Pascua Yaqui Reservation was
a shooting that was committed by a non-Indian, Hispanic male.
According to U.S. Census data, Pascua Yaqui Reservation residents
include non-Indians and a small number of individuals who are members
of other tribes. Nearly 43 percent of all Pascua Yaqui households
consist of a mother and children with no father present, making single
mother households the most common type of household on the reservation.
Approximately 800 Non-Indians work for the Tribal government, work for
Tribal casino enterprises, or attend school on the Reservation. The
2010 U.S. Census, estimates that a large percentage of Tribal members
on the Reservation live in poverty. Per capita income on the
reservation is $9,039, a third of the per capita income in Pima County
($25,093) and the State of Arizona ($25,680). Pascua Yaqui households
are four times more likely to receive Food Stamps (49 percent) and
eight times more likely to receive public assistance than are residents
of the county or state. Nearly forty percent of Pascua Yaqui adults,
and forty-two percent of children, live at or below the federal poverty
level, more than twice the county and state rates.
The Pascua Yaqui Police responds to approximately 6000 calls for
service a year. A percentage of the criminal cases are referred to the
Pascua Yaqui Prosecutor's office, the U.S. Attorney, or the Pima County
Attorney for possible prosecution. The cases referred are evaluated and
the majority are independently charged into tribal court.
In FY 2011-2012, the Tribal Prosecutor's Office filed a
total of 684 cases. Of those, 650 were criminal and 267 were
domestic violence cases. 121 cases were declined.
In FY 2012-2013, the Tribal Prosecutor's Office filed a
total of 698 cases. Of those, 600 were criminal matters and 155
cases were declined. A large percentage of the cases involved
alcohol and domestic violence.
In FY 2013-2014, the Tribal Prosecutor's Office filed a
total of 934 cases. Of those, 610 were adult criminal matters
and 176 cases were declined, (including 3 potential VAWA
cases). A large percentage of the cases have been related to
alcohol and domestic violence. Our recent VAWA cases increased
the number of adult criminal cases filed by 5 percent.
The Pascua Yaqui Prosecutor's Office also routinely handles
criminal extradition cases. In the past few years, the office has
extradited murder suspects, sex offenders, burglary suspects,
witnesses, and people who were evading justice in other jurisdictions
by hiding on our reservation. The Tribe has conducted 30 criminal
extraditions in the past few years. Over all we have conducted a total
of 65 criminal extraditions, mostly to the State of Arizona through The
Pima County Prosecutor's Office, and the Tucson Police Department.
Criminal Jurisdiction
The Pascua Yaqui Pueblo's criminal jurisdiction is divided into
three separate prongs: tribal jurisdiction, federal jurisdiction, and
state jurisdiction. The court system where a person is prosecuted
depends on the accused person's citizenship status, status as an
``Indian,'' and the status of any victims. The determination can be
complex. Roughly speaking, the Tribe has jurisdiction over all Indians
who commit crimes within the reservation boundaries. The federal
government also has jurisdiction over major crimes committed by Indians
in our community. The federal government and the State of Arizona, by
and large retain jurisdiction over crimes committed by non-Indians on
the reservation. However, the Tribe now has criminal jurisdiction
pursuant to VAWA 2013 over non-Indians in crimes of domestic violence
committed on our Reservation. In the near future, the Pascua Yaqui
Tribe hopes to better coordinate all three prosecution prongs from the
reservation. This coordination will ensure that the Tribe can seek
better outcomes for victims and be more accountable to the members of
our community. For example, four Pascua Yaqui tribal prosecutors now
have the opportunity to prosecute reservation based crimes in federal
court as Special Assistant United States Attorneys, (SAUSAs). The
Tribal Council recently signed a historic agreement with the Arizona
U.S. Attorney's Office that allows this to occur.
Tribal Law and Order Act of 2010
On September 22, 2010, the Pascua Yaqui Tribal Council amended the
Pascua Yaqui Rules of Criminal Procedure and Criminal Court Rules to
implement the federal amendment to the Indian Civil Rights Act (ICRA),
to benefit from the changes to Indian Country criminal justice by the
Tribal Law & Order Act, (TLOA). \23\ Prior to the signing of the Act,
the Tribal Council and the Office of the Attorney General were actively
involved in shaping the federal language and urging our federal
representatives to pass the law. For years, the Pascua Yaqui Tribal
Council worked to change the status quo and informed Congress and
federal officials about our struggles with crime control, safety, and
security.
Beginning on October 1, 2010, any Indian accused of a crime,
including Indians from other tribes, have had the right to defense
counsel at the Tribe's expense, if the Tribe will seek any amount of
jail time in their criminal cases. Soon, the Tribe will also be able to
take advantage of additional authority to sentence criminals up to
three years of incarceration per offense, up to a maximum total of nine
years. At the time, TLOA was the most significant change in federal law
affecting Indian Country and the Pascua Yaqui Tribe in close to 40
years. However, in order to benefit from the additional sentencing
authority, the Pascua Yaqui Tribe had to amend our tribal Constitution.
The Pascua Yaqui Constitution of 1988 adopted the provisions of the
Indian Civil Rights Act, and incorporated the provisions as our ``Bill
of Rights.'' Pascua Yaqui Constitution, Art. 1, Section 1(g). Our
Constitution limited punishment to one (1) year per offense. On July
24, 2015, the Tribe held an election and removed the sentencing
restrictions. In a few months, the Tribal Council will vote to consider
changes to the criminal code that will adopt the enhanced sentencing
authority found in TLOA.
Tribal Law and Order Act 2010 Implementation
The Pascua Yaqui Tribal Prosecutor's Office and the Office of the
Attorney General took lead roles in providing input to federal
authorities as they revised the ICRA. The Prosecutor's office sent a
representative to Washington D.C. and Minneapolis, Minnesota, to speak
to lawmakers and the U.S. Attorney General to advocate for changes to
tribal criminal justice. The Prosecutor's office also worked closely
with the U.S. Attorney's Office for Arizona to help create an Indian
Country framework that was put into practice by the U.S. Attorney to
combat crime on Arizona reservations. The Tribe aggressively sought to
promote an enhanced coordinated response to crime on reservations. This
led directly to a sharp increase in tribal, federal, and state
prosecutions for crimes that occur on our reservation. This policy and
work will continue and it will hopefully increase the federal
prosecution and convictions of those who commit major crimes and prey
on our people.
1. Costs: The implementation of some of the provisions of the
Tribal Law & Order Act, namely, Title III, Section 304, has
cost the Tribe approximately $300,000-$400,000 a year in
additional attorney salaries and benefits by the hiring of 4
full time attorneys (2 prosecutors and 2 defense attorneys),
and 4 defense conflict (contract) attorneys.
2. Representation: Through the office of the Public Defender
and contracted defense attorneys, the Pascua Yaqui Tribe now
provides free legal representation to 95 percent of all Indians
and non-Indians arrested on the reservation. Approximately 2.5
percent of individuals arrested do not qualify for free legal
representation and approximately 2.5 percent waive
representation.
3. Resources and Complexity: The majority of Pascua Yaqui
criminal cases are appointed to the Pascua Yaqui Public
Defender's Office. Although the Tribe has hired additional
attorneys, there is still a deficiency in resources when
considering the resulting complexity of a full adversarial
system. For example, the process has spurned additional
appeals, evidentiary hearings, additional scientific
evidentiary analysis, expert testimony, competency evaluations,
and an increase in criminal trials.
Pascua Yaqui Tribal-Federal Sausa Program
Between October 31, 2011 and November 4, 2011, the United States
Attorney's Office for the District of Arizona held a week-long course
to train prosecutors from several of Arizona's tribal governments so
they could participate in the federal prosecution of offenders from
their communities. The training kicked off the U.S. Attorney's Office
Tribal Special Assistant United States Attorney (SAUSA) program. \24\
This cross-commissioning is encouraged by the Tribal Law and Order Act
and mandated by the District of Arizona's Operational Plan for Public
Safety in Indian Country. The goal of the Tribal SAUSA program is to
train eligible tribal prosecutors in federal law, procedure, and
investigative techniques to increase the likelihood that every viable
criminal offense is prosecuted in tribal court, federal court, or both
if necessary. The program also allows the tribal prosecutors to co-
counsel with federal prosecutors on felony investigations and
prosecutions of offenses arising out of their respective tribal
communities. After completing training, each tribal SAUSA is mentored
by an experienced federal prosecutor assigned to the District of
Arizona's Violent Crime Section.
SAUSA Program Implementation
The early phase of implementing the SAUSA program has focused on
coordination of cases through federal/tribal Multidisciplinary Team
Meetings (MDT), advancing the timeline for presentation of cases for
federal prosecution, and improving coordination and management of cases
between Tribal and Federal authorities. Special attention is given to
cases involving violent crimes, sex crimes, and habitual domestic
violence offenders, even in cases where the Defendant is a non-Indian.
The tribal program has been in operation since 2011. The U.S.
Attorney's Office has been diligent in working cooperatively with the
assigned tribal SAUSA and the Tribal Prosecutor's Office.
A primary challenge has become coordinating time and scheduling.
The Tribal SAUSA has a full criminal case load with the Pascua Yaqui
Prosecutor's Office in addition to the evaluation, follow-up, and
assisting with the prosecution of cases at the federal level. As the
program continues, it may be helpful for the SAUSAs to have dedicated
support staff to help with logistics, coordination of calendars, and
case management. Communication, coordination, and cooperation has been
enhanced with several different agencies responsible for law
enforcement on the Pascua Yaqui Reservation, to include, the U.S.
Attorney's Office (Tucson), the F.B.I., tribal Law Enforcement, and
federal victim services. Cases are being filed, reopened, and
appropriate cases are being declined after thorough review and
coordinated follow-up investigations. Tribal criminal investigators,
F.B.I. agents, and crime labs are working closely together to bring
strong tribal and federal investigations. Defendants are being
transferred and transported to tribal court and federal court via writ
and arrest warrants. The charging and prosecution of federal crimes
committed on the Pascua Yaqui Reservation has increased exponentially
due to the SAUSA program and enhanced local MDT meetings. Although
federal prosecution is not the ultimate answer to social problems in
our community, the Pascua Yaqui Tribe will continue to work with our
federal partners to develop a coordinated crime control policy for our
community.
Adam Walsh Sex Offender Registration and Notification (SORNA)
The Tribe has recently enacted the Adam Walsh Sex Offender
Registration and Notification Act (SORNA). \25\ The Prosecutor's Office
is working with the Tribal Council, Attorney General, and Law
Enforcement to completely implement the new law. SORNA provides a
comprehensive set of minimum standards for sex offender registration
and notification to the Tribal community. SORNA aims to close potential
gaps and loopholes that existed under prior law and strengthens the
nationwide network of sex offender registration and notification
programs. The Pascua Yaqui Tribe has substantially implemented SORNA
and is registering, monitoring, and informing the community about the
presence of twenty-four (24) registered sex offenders who are living on
the Reservation.
Office of the Prosecutor
The Prosecutor's Office performs several different functions for
the Pascua Yaqui Tribe. The Office is responsible for representing our
government in Tribal Court in all misdemeanor and felony type criminal
matters, including adult and juvenile crimes. The Pascua Yaqui Police
respond to approximately 6000 calls for service a year. A large
percentage of the criminal calls are referred to the Prosecutor's
office for possible prosecution. The cases are evaluated and many are
independently charged into tribal court. The Tribal Prosecutor also
represents the tribe in civil related matters, to include civil
forfeiture of property used in the transportation or sale of narcotics
and all civil Child Welfare/Child Dependency matters that originate on
the Reservation. The Prosecutor's office advises, coordinates, and
collaborates with Pascua Yaqui Law Enforcement, Pre-Trial Services,
Probation, Victim Services, Centered Spirit, Education, and Social
Services. The Tribal Prosecutor's Office also handles victim
notification in criminal cases. Victims are notified about the status
of their case, the release conditions involving the defendant, plea
agreements, provided transportation if needed, and advised of the terms
of any sentence imposed by the court.
Department of Justice Indian Country Legal Fellow
On Thursday, December 4, 2014, the Department of Justice selected
the First ever Indian Country Justice fellow Charisse Arce, of Bristol
Bay, Alaska, to serve in the District of Arizona. \26\ Arce will also
serve a portion of her appointment in the Pascua Yaqui tribal
prosecutor's office. This is the first Gaye L. Tenoso Indian Country
Fellowship within the Attorney General's Honors Program, and it is
awarded to an extraordinarily well-qualified new attorney with a deep
interest in and enthusiasm for improving public safety in tribal
communities.
``The Pascua Yaqui Tribe is pleased to have the opportunity to
partner with the District of Arizona U.S. Attorney's Office and the
Attorney General's Honors Program, through the Gaye L. Tenoso Indian
Country Fellowship,'' said Pascua Yaqui Tribal Chairman Peter
Yucupicio. ``We welcome the new Department of Justice fellow and look
forward to a productive partnership as we fight violent crime, work to
keep our community safe, and continue to implement the Violence Against
Women Act (VAWA), and Special Domestic Violence Criminal Jurisdiction
(SDVCJ).''
Access to National Criminal Information Databases
On November 5, 2015, the Department of Justice announced that the
Pascua Yaqui Tribe would participate in the initial User Feedback Phase
of the Tribal Access Program for National Crime Information (TAP), \27\
a program that provides federally recognized tribes the ability to
access and exchange data with national crime information databases for
both civil and criminal purposes. ``TAP will support tribes in
analyzing their needs for national crime information and help provide
appropriate solutions, including a state-of-the-art biometric/
biographic computer workstation with capabilities to process finger and
palm prints, take mugshots and submit records to national databases, as
well as the ability to access the FBI's Criminal Justice Information
Service (CJIS) systems for criminal and civil purposes through the
Department of Justice. TAP will also provide specialized training and
assistance for participating tribes.''
Currently, the Tribe has limited NCIC ``read only'' access through
an IGA with the Arizona Department of Public Safety (DPS). The TAP
program will help the Tribe upload outstanding tribal warrants, orders
of protection, and criminal conviction information.
Purpose Code X
The Pascua Yaqui Tribe has requested to formally participate in the
Bureau of Indian Affairs' Office of Justice Services (BIA-OJS) Purpose
Code X \28\ program that was created in 2015 to assist our tribal
Social Services Department when they are seeking to place children in
safe homes. ``The BIA-OJS Purpose Code X Program will provide tribal
social service agencies with the information they need [through name-
based checks] to protect the children they place into care in emergency
situations when parents are unable to provide for their welfare.''
Currently, Pascua Yaqui social workers may be able to conduct a warrant
check or private research of potential placement options, but warrant
checks do not generally reveal criminal history. Also, the checks are
impractical at night and after regular work hours in emergency
situations.
Bureau of Indian Affairs Tiwahe (Family) Initiative
This year, the Pascua Yaqui Tribe was selected by the Bureau of
Indian Affairs to participate in the federal Tiwahe initiative. \29\
``The initiative promotes a comprehensive and integrated approach to
supporting family stability and strengthening tribal communities by
addressing interrelated issues associated with child welfare, domestic
violence, substance abuse, poverty, and incarceration. Tiwahe means
``family'' in the Lakota language. The Tiwahe initiative directly
supports the Generation Indigenous initiative, which is focused on
addressing barriers to success for Native youth, by leveraging BIA
programs in concert with other Federal programs that support family and
community stability and cultural awareness.''
The Pascua Yaqui Tribe will work with our federal partners to
implement the Tiwahe program this fiscal year, through a tribal
centered plan. The Tribe will attempt to address the interrelated
problems of poverty, violence, and substance abuse faced by our
community. The Tribe will do this through the coordination and
integration of social service programs with our Tribal Court. We will
work to strengthen and maintain family cohesiveness, prepare our family
wage earners for work opportunities, and provide rehabilitative
alternatives to incarceration for family members with substance abuse
issues.
Federal Court Sentencing, Prior Convictions, and Disparity
Violent crime in Indian Country has created a public safety and
public health crisis across the Nation. Although federal sentencing is
not the main issue, it is a contributing factor when violent crime is
not prosecuted, cases are declined, or when sentencing outcomes do not
fit the crime. In order to help address this problem, counseled Tribal
Court convictions should be recognized, considered, and applied to
federal sentencing determinations of persons who commit crimes in
Indian Country and additional data must be collected by all agencies
responsible for criminal investigations.
Federal prosecutions of offenders from Pascua Yaqui Indian Country
generally consist of dangerous felony level cases. \30\ In Arizona,
Tribal borders do not protect Reservations from crimes related to
gangs, drug sales, human smuggling, and major drug cartel enterprises.
We are on the front line. The majority of offenders prosecuted
federally have lengthy tribal criminal histories. Their criminal acts
and individual crime sprees have harmed tribal families, injured
vulnerable children, and have disrupted the peace of our tribal
community. Tribal criminal convictions are not included as part of the
criminal history determination of the federal sentencing guidelines in
our Indian Country cases, (particularly felony-level crimes) and
sentences only average approximately 32 months in length (when outliers
are removed). Our outcomes are certainly less than a Native or non-
Native offender would receive in Arizona State court for similar
serious and violent felony crimes. Thirty-two months is generally not a
long enough period to properly consider punishment, rehabilitation,
justice, job training, or other restorative practices and policies
prior to an offender returning home to our Tribal community.
Criminal jurisdiction in Indian Country is evolving and many tribal
Courts are as sophisticated as their state counterparts. Some of the
arguments against recognition and reliance of tribal sentencing
outcomes are outdated, paternalistic, do not afford comity and respect
for tribal decisionmaking, and do not account for present day reality.
There are now dozens of Tribes that are exercising either enhanced
Special Domestic Violence Criminal Jurisdiction (SDVCJ) under the
Violence Against Women Act, (VAWA) or that have implemented the Tribal
Law and Order Act (TLOA) provisions. The Pascua Yaqui Tribe is one of
those Tribes. The Tribe has investigated 30 different cases of domestic
violence committed by Non-Indians on our Reservation. The cases
involved incidents of strangulation, hair-dragging, physical assaults,
and conduct that repeatedly victimized whole families. Of those cases,
the offenders had close to 90 separate Tribal police contacts, pre and
post VAWA implementation. The majority of the offenders also had
lengthy state criminal histories that consisted of violent offenses,
drug and alcohol related offenses, and weapons related offenses. Three
of the offenders were felons. Three offenders had felony warrants, two
for burglary and one for armed robbery out of the State of Oklahoma.
Two of the offenders were Legal Permanent Residents (LPR) from Mexico.
The Tribe has convicted eight of the non-Indian offenders in Tribal
court for domestic violence related offenses. Tribal Court convictions
of Non-Indians and Indians should be recognized by federal courts. This
is the new reality and the future of Indian Country jurisdiction.
Jurisdiction is changing, tribes are fighting hard to protect their
community, crime is multi-jurisdictional in nature, and there is no
reason the federal court process should not properly account for this.
Moreover, every person arrested and charged in the Pascua Yaqui
Tribal Court is guaranteed legal representation if they face a day in
jail, that has been the case now for many years. Most of the offenders
that will be prosecuted in federal court will have a tribal criminal
history and possibly, a State criminal history. The majority of their
relevant Tribal court convictions will be counseled, unless they chose
to waive legal representation. The actions of major crime offenders are
not traditional, they are not cultural, and they are not the norm for
our tribal community.
Policymakers should also consider the unique nature of each tribe
and each federal district. The District of Arizona is different than
the District of South Dakota. Likewise, the Pascua Yaqui Tribe differs
from the Navajo Nation and any other Tribe. Although we may be faced
with some of the same realities, crime is different, laws are
different, and approaches to justice, punishment, restoration, and
sentencing are different. For example, in Arizona, federal priorities
and resources are largely spent on immigration related enforcement.
Federal courts in Arizona are clogged with immigration reentry cases,
drug smuggling matters, and criminal charges centered on the policies
of Operation Streamline. \31\ Although necessary, the result is that
there are less resources devoted to Indian Country crime in Arizona.
This means that less Indian Country cases are investigated, less cases
are referred, more cases are declined, and the cases that are referred
are more likely to be declined due to inadequate investigations and
delayed indictments. \32\ We should also consider jurisdictional
realities and how each Federal District policy impacts sentencing
outcomes.
In Arizona, generally, the U.S. Attorney's Office does not
prosecute Indian Country drug cases. It is hard to recall the last
federal drug case prosecuted from the Pascua Yaqui Reservation. Drug
use and sales, including marijuana, cocaine, crack, heroine, and
methamphetamine have reached epidemic levels on the Pascua Yaqui
Reservation. There have been drop houses, drug related shootings, gang
violence, drug related violence, and serious crimes related to the sale
of drugs. Many of the social ills in our community are directly related
to drug use. The reason given for the lack of federal prosecutions of
street level drug sales in Indian Country is that there is a threshold
issue concerning ``drug mules'' who smuggle large quantities of drugs
into the Country from Mexico.
Disparity in sentencing is not an issue in Southern Arizona when
comparing Indian defendants prosecuted for major violent felony crimes
with similarly situated defendants prosecuted in Arizona. Often,
federal ``crack'' conviction sentencing will be compared to sentences
of tribal defendants to indicate that disparity that exists in Indian
Country criminal outcomes. Because of the lack of federal drug
prosecutions and our actual major crimes sentencing results, the
analogy does not fit in the District of Arizona cases that flow from
the Pascua Yaqui Reservation. However, if there is a glaring disparity,
it may be in the justice received by victims and families. Victims may
face language barriers, cultural barriers, discrimination, and
inadequate federal jury representation. Largely, the Pascua Yaqui
community and our victims were dissatisfied with our federal court
outcomes, and our tribal court outcomes for that matter. Justice was
hampered and limited by our tribal Constitution, our code, scarce
resources, and decades enduring federal agencies who were not
investigating or prosecuting our major crimes. This history helped to
create a lawless atmosphere and a situation where the community simply
does not trust our justice systems. Tribal Court outcomes should be
respected and given as much weight as mitigating factors would have on
downward departures during federal sentencing determinations. Tribal
court criminal history should also play a factor when federal courts
are considering pre-trial release of tribal defendants, especially if a
court is contemplating release back into the Tribal community. Federal
policies, regional factors, and Reservation crime rates should be
considered when allocating prosecution, victim, and investigative
resources.
Federal Declinations
Any consideration of federal sentencing, federal prosecution, or
Indian Country jurisdiction should include an analysis of federal
declinations, as federal jurisdiction has been primary since the
passage of the Major Crimes Act of 1885. Federal prosecutions and
sentencing must be considered in light of federal declinations and
federal resources for law enforcement investigations. On the Pascua
Yaqui Reservation, the declination rate has actually risen
dramatically. The U.S. Attorney advised the Tribe in 2008 that there
was no crime on the Pascua Yaqui Reservation and no declinations.
Although that may have been true when reviewing federal referrals and
convictions, it was not an accurate representation of what was actually
occurring on the ground. As expected, once federal crimes started to
get prosecuted in earnest in 2009, the local declination rate
increased. However, the rate is not as high as other places in Indian
Country. Interrelated, less than half of the major crime incidents
reported since 2008 have been officially referred for federal
prosecution. However, in the major crime cases that have been
officially referred since 2009, a majority have been indicted by the
U.S. Attorney's Office. Most of the cases were investigated and
referred by tribal detectives who have their federal Special Law
Enforcement Commission (SLEC) and they were assisted by local F.B.I.
agents in complex cases. The prosecution process was facilitated by
tribal prosecutors who are tabbed as Special Assistant United States
Attorneys, (SAUSAs). Attached is a recent breakdown of most of the
Pascua Yaqui Tribe's Federal case outcomes from 2009-2014 (taken from
federal Sentencing Orders and press releases). The attached spreadsheet
notes thirty-two federal convictions and six revocations. When you
remove outliers, the average federal sentence involving Pascua Yaqui
defendants is between 32-36 months, with 36 months of federal
Supervision. That is fairly low when you compare a federal sentence to
a sentence from the State of Arizona for a comparable crime. The Tribe
has had approximately sixty cases officially referred over this time
span. Referred means that a Tribal investigator, tribal police officer,
or a federal agent sent an investigation to the U.S. Attorney for
prosecution. This is much higher than what was occurring prior to 2008.
Approximately fifteen cases have been officially declined, three cases
were dismissed, one person was found not guilty at trial, and one case
was prosecuted by the State. Five non-Indians were prosecuted federally
over this time span (two for domestic violence incidents). Twenty of
these cases were also prosecuted tribally, some were joint
prosecutions, and most outcomes were concurrent to each other. The
investigation, timing, (Statute of limitations) evidence, and
coordination issues impact when, how, and by who a case gets prosecuted
by.
There were many potential federal (felony) cases, (probably close
to 50 between 2008-2014) that were reported and investigated, but never
officially referred, indicted, or prosecuted because the investigation
did not yield the proper probable cause to support charges or there
were witness issues or a lack of cooperation.
The Tribe has been working well with the F.B.I. and the U.S.
Attorney's Office and the listed outcomes serve as evidence of overall
improved cooperation and good work by police, victim services, and
other support divisions in our criminal justice system. The Tribe
believes that recent federal arrests and convictions have helped to
lower the overall crime rate on the Reservation, increased the quality
of life, and also helped to provide a general deterrent, now and for
the foreseeable future.
Recommendations
The Pascua Yaqui Tribe strongly recommends that Congress
require that counseled tribal court convictions be considered
in federal sentencing determinations.
Federal Courts should also consider Tribal criminal history
during pretrial release determinations.
The Pascua Yaqui Tribe recommends that federal sentences,
release dates, and timely notification occur to Tribal
authorities and victims.
The Tribe strongly recommends other sentencing alternatives,
reentry programs, education, and or job related programming be
included as part of criminal sentences, especially if the
tribal defendant is going to return to the reservation.
The Pascua Yaqui Tribe recommends that federal declinations
by the U.S. Attorney's Office be broken out by Tribal
jurisdiction, annually.
The Pascua Yaqui Tribe recommends that all criminal
investigations with a potential federal nexus that are opened
by tribal law enforcement, B.I.A., and the F.B.I. be accounted
for separately, aggregated annually, broken out by crime, and
distinguished from investigations that are actually referred
for prosecution.
Previous & Relevant Pascua Yaqui Habeas Matter
On August 17, 2011, the United States Court of Appeals for the 9th
Circuit issued an Opinion in the case of Miranda v. Anchondo, \33\
supporting the Pascua Yaqui Tribe's argument that our Tribal Court has
the authority to sentence those convicted of multiple offenses to more
than one year in jail. The case had wide ranging implications because
it set precedent concerning the issue and affected tribes across the
United States.
The Pascua Yaqui Tribal Court convicted Miranda of eight criminal
violations. The Honorable Cornelia Cruz sentenced her to two
consecutive one-year terms, two consecutive ninety-day terms, and four
lesser concurrent terms, for a total term of 910 days imprisonment.
While serving her sentence, Miranda, through Chief Public Defender,
Nicholas Fontana, appealed her conviction and sentence to the Pascua
Yaqui Tribe Court of Appeals, arguing, inter alia, that her 910-day
sentence violated the Indian Civil Rights Act (ICRA), 25 U.S.C.
1302(7).The tribal appellate court rejected Petitioner's arguments and
affirmed her conviction on all counts.
Miranda then sought redress through the federal court system via a
writ of habeas corpus. On habeas review, by the U.S. District Court of
Arizona, the court concluded that the Indian Civil Rights Act, 25
U.S.C. 1302(7) prohibited the tribal court from imposing consecutive
sentences cumulatively exceeding one year for multiple criminal
violations arising from a single criminal transaction and ordered that
Miranda be released.'' The United States, through the U.S. Attorney's
Office, and the Pascua Yaqui Tribe, through the Office of the Attorney
General, appealed the Arizona District court's order granting Miranda's
petition for writ of habeas corpus. The 9th Circuit ultimately
disagreed with the district court and held that the Indian Civil Rights
Act 1302(7), unambiguously permits tribal courts to impose up to a
one-year term of imprisonment for each discrete criminal violation and
reversed the lower court's ruling. ``Because 1302(7) unambiguously
permits tribal courts to impose up to a one-year term of imprisonment
for each discrete criminal violation, and because it is undisputed that
Petitioner committed multiple criminal violations, we reverse the
district court's decision to grant Petitioner's amended habeas corpus
petition.''
Although the Miranda case never should have required federal court
intervention, it cleared up any lingering doubt that tribal courts and
our Tribal Council have the authority to impose punishments that are
consistent with the Indian Civil Rights Act (ICRA), due process, and
necessary to help keep our community members and visitors safe from
harm.
Conclusion
The first responsibility of any government, tribal or otherwise, is
the safety and protection of its people. For there can be no security
or peace where there is insecurity and fear. Pascua Yaqui tribal
officials no longer have to simply stand by and watch their people be
victimized with no recourse. Violent behavior against intimate partners
or vulnerable family members by tribal members or non-Indians is
conduct that is no longer tolerated. Protecting victims of violent
crime, domestic violence, and sexual assault is about justice and
safety, and it is also about fairness, and dignity.
Full restoration of criminal jurisdictional authority for Tribal
governments over all crimes and persons should be the next step.
Currently, SDVCJ under VAWA 2013 is limited to only crimes of domestic
violence, dating violence, or violations of an order of protection
committed in Indian country, where the defendant is a spouse or
intimate partner of a tribal member. VAWA does not permit tribal
prosecutions unless the defendant has ``sufficient ties to the Indian
tribe,'' meaning he/she must either reside in the Indian country of the
prosecuting tribe, be employed in the Indian country of the prosecuting
tribe, or be the spouse or intimate partner of a member of the
prosecuting tribe. The proposed ``Tribal Youth and Community Protection
Act of 2016'' will help address some of the gaps to cover children and
ancillary crimes a VAWA defendant may commit. However, more problems
exist, like the fact that the law does not cover sexual assaults or
stalking committed by strangers.
Full restoration would help ensure fairness, safeguard tribal
communities, and help clear up long standing jurisdictional problems.
When a resident of one State crosses the border to visit another, that
individual is subject to the criminal jurisdiction of the State he or
she is visiting, even though he or she cannot vote or serve on a jury
there, his external criminal history may also be considered.
Noncitizens visiting or residing in the United States are also subject
to federal and State criminal jurisdiction despite their exclusion from
the political process.
Additional Tribal Empowerment and Support Is Key
The starting place to reverse historical jurisdictional problems
and injustices in Indian Country is with strong tribal justice systems
that are supported with the required resources. Criminal investigations
occur at the local level. Along with strong and meaningful federal
prosecutions, our local government and court system is the best vehicle
to protect Yaqui victims, mothers, and children from violent
perpetrators. The recent Pascua Yaqui VAWA and TLOA implementation
process bear those beliefs out. However, without the resources to fund
robust court and victim services, the gains may only lead to the same
revolving door of repeat violence and ineffective criminal prosecutions
that we are all too familiar with. The Tribal Law & Order Act, the
amendments to the Indian Civil Rights Act, the Adam Walsh Act, VAWA,
and changes to the Pascua Yaqui code will enhance the safety and
security of our community as the laws are implemented, followed, and
properly enforced.
For several different reasons, the challenges facing law
enforcement and the justice system in our community are substantial.
However, a window of opportunity exists to revolutionize and strengthen
our court system and heal our community. The Pascua Yaqui Tribal
Council, law enforcement, the Tribal Court, the Prosecutor's office,
technical assistance providers, and our federal partners have
recognized our current needs and have taken the opportunity to work
together to effect change. In short, the Tribe has taken significant
steps to protect our people, dedicated significant resources, and spent
countless hours to see these changes through. However, it will take
additional hard work, federal legislation, resources, and dedication to
continue to fully and effectively protect and support our victims who
have been impacted by violence. We respectfully request additional
Congressional assistance to help address the persistent violence and
drug abuse that plagues our community. Additional support for Tribal
Court systems will also further the current federal strategy that
promotes the longstanding policies of Indian self-determination, tribal
self-governance, and tribal self-sufficiency.
In closing, we thank the United States Congress, the Obama
Administration, the Department of Justice (DOJ), our sister Tribes,
advocacy groups, the National Congress of American Indians (NCAI), the
Tribal Law & Policy Institute (TLPI), the National Indigenous Women's
Resource Center (NIWRC), the Center for Court Innovation (CCI), and the
National Council of Juvenile & Family Court Judges (NCJFCJ) \34\ for
the leadership, cooperation, and assistance during the past few years
as we worked to better protect our Reservation community.
endnotes
\1\ Senior Litigation Counsel and Tribal Liaison, John Joseph
Tuchi, 2009-2012 (now United States District Judge-District of
Arizona), Tribal Liaison Rui Wang, Assistant U.S. Attorney, District of
Arizona.
\2\ Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
\3\ The Supreme Court issued a decision in United States v.
Castleman, 134 S. Ct. 1405 (2014) during the Pilot Project for tribal
special domestic violence criminal jurisdiction. Both the majority
opinion and Justice Scalia's concurrence included footnotes referencing
the definition of the term ``domestic violence'' under the new federal
law, 25 U.S.C. 1304. The discussion of the VAWA statute by the
Justices in dicta raised questions about the scope and severity of
``violence'' required for crimes that can be charged by tribes who have
implemented special domestic violence criminal jurisdiction (SDVCJ)
under VAWA. Several of the tribes who have implemented SDVCJ report
that the Castleman decision had an immediate impact on their charging
decisions. There have been several cases where the tribes felt it could
not prosecute based on the dicta in Castleman and dismissed the cases
only to have the offenders subsequently reoffend with a more serious
crime.
\4\ https://www.justice.gov/sites/default/files/tribal/legacy/2014/
02/06/appl-questionnaire-pascua-yaqui.pdf
\5\ http://www.justice.gov/tribal/docs/letter-to-pascua-yaqui.pdf
\6\ (http://www.whitehouse.gov/blog/2014/02/06/moving-forward-
protect-native-american-women-justice-department-announces-vawa-2013-),
Department of Justice (Attorney General) (http://www.justice.gov/opa/
pr/2014/February/14-ag-126.html), the U.S. Attorney for the District of
Arizona, http://www.justice.gov/usao/az/press_releases/2014/
PR_02062014_Vawa.html), and a Pascua Yaqui press release, that was sent
to the following Southern Arizona news organizations: Television
Stations: KOLD, KVOA, FOX, and KGUN; Newspaper: AZ Daily Star, Explorer
News, Wick Publications, and the Tucson Weekly. http://www.pascuayaqui-
nsn.gov/index.php?option=com_content&view=article&id=144:pascua-yaqui-
tribe-asserts-authority-to-prosecute-all-persons-including-non-indians-
for-domestic-violence&catid=12:newa There was also some television
coverage in Phoenix via a news video segment available at http://
www.azcentral.com/news/free/20140206tribes-authority-non-indians.html
\7\ Fed. Reg. Volume 79, Number 29 (Wednesday, February 12,
2014)][Notices][Pages 8487-8488] Federal Register Online via the
Government Printing Office [www.gpo.gov] [FR Doc No: 2014-03023]http://
regulations.justia.com/regulations/fedreg/2014/02/12/2014-03023.html
See also 78 Fed. Reg. 71645 (Nov. 29, 2013)
\8\ (http://www.pascuayaqui-nsn.gov/).
\9\ See (http://azstarnet.com/news/local/pascua-yaqui-gain-added-
power-to-prosecute-some-non-indians/article_3417ac6e-c683-50d4-9a55-
cc386524c468.html)
\10\ (http://turtletalk.wordpress.com/2014/02/07/pascua-yaqui-
press-release-re-vawa-pilot-program-selection/)
\11\ http://www.kvoa.com/news/domestic-violence-not-tolerated-by-
pascua-yaqui-tribe/), (http://colorlines.com/archives/2014/02/
a_small_victory_for_native_women.html), http://america.aljazeera.com/
watch/shows/the-stream/the-stream-officialblog/2014/2/21/native-
american-tribesbeginpilotprogramtoprosecutedomesticviolen.html, http://
n.pr/Nei2Mx, http://www.nativeamericacalling.com/, http://kjzz.org/
content/24088/pascua-yaqui-begins-prosecuting-non-natives-under-vawa,
http://www.washingtonpost.com/national/arizona-tribe-set-to-prosecute-
first-non-indian-under-a-new-law/2014/04/18/127a202a-bf20-11e3-bcec-
b71ee10e9bc3_story.html, http://uanews.org/story/ua-alums-involved-in-
effort-to-legally-prosecute-non-indians-on-pascua-yaqui-tribe,http://
america.aljazeera.com/articles/2014/4/23/for-one-arizona-
tribeachanceforjusticeafterdecadesoflegallimbo.html, http://
www.wildcat.arizona.edu/article/2014/04/ua-alum-aides-american-indian-
tribe-in-suing-non-indians, http://cronkitenewsonline.com/2014/10/
pascua-yaqui-begin-prosecuting-non-tribal-members-for-domestic-
violence/
\12\ Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
\13\ United States v. Castleman, 134 S. Ct. 1405 (2014).
\14\ 50 Fed. Reg. 34,555 (Aug.26, 1985)
\15\ Indian Self-Determination and Education Assistance Act, Pub.
L. 93-638
\16\ https://www.fbi.gov/about-us/cjis/ncic
\17\ Arizona Criminal Justice Information System (ACJIS)
\18\ 25 U.S.C. 1301-1304
\19\ Spicer, Edward. Pascua: A Yaqui Village in Arizona, University
of Chicago Press, 1940. Reprint: University of Arizona Press, 1984.
\20\ Id.
\21\ Via email, Dr. David Delgado Shorter.
\22\ The Tribe has more than 19,000 members, many of whom have
relatives residing on both sides of the border. Both the Pascua Yaqui
Tribe and our Yaqui relatives in Mexico regularly visit each other for
religious, cultural, and tribal purposes.
\23\ https://www.justice.gov/sites/default/files/usao-az/legacy/
2010/10/14/Tribal%20Law%20%20Order%20Act%202010.pdf
\24\ https://www.justice.gov/opa/blog/tribal-community-prosecutors-
receive-federal-cross-commissioning
\25\ http://pascuayaqui.nsopw.gov/Home.aspx
\26\ https://www.justice.gov/legal-careers/attorney-generals-
indian-country-fellowship
\27\ https://www.justice.gov/opa/pr/department-justice-announces-
10-tribes-participate-initial-phase-tribal-access-program
\28\ http://www.bia.gov/cs/groups/public/documents/text/idc1-
031473.pdf
\29\ http://www.bia.gov/cs/groups/xasia/documents/document/idc1-
032110.pdf
\30\ Offenses like murder, manslaughter, aggravated assault, sexual
offenses, child abuse, child molestation, gang related crimes, gun
related offenses, burglary, home invasions, and arson make up a
majority of Pascua Yaqui cases referred for federal prosecution.
\31\ https://www.oig.dhs.gov/assets/Mgmt/2015/OIG_15-95_May15.pdf
\32\ https://www.justice.gov/tribal/file/796976/download
\33\ Miranda v. Anchondo, 684 F.3d 844 (9th Cir. 844), cert.
denied, 2012 WL 2396988 (U.S. Oct. 1, 2012); Bustamante v. Valenzuela,
715 F.Supp.2d 960 (D.Ariz.2010). Tribes are allowed to impose
consecutive one year terms for separate offenses charged in a single
criminal proceeding.
\34\ Humble thanks to the United States Congress for drafting and
passing TLOA & the Reauthorization of VAWA, thanks to the Department of
Justice, (DOJ) Deputy Associate Attorney General Sam Hirsch, Director
Tracy Toulou, Counsel to the Director, Marcia Hurd, National Indian
Country Training Coordinator Leslie Hagen, Native American Issues
Coordinator Jeremy Jehangiri. And the U.S. Attorney's Office, District
of Arizona. Thanks for the efforts of the Department of the Interior
(DOI), Kevin Washburn, Associate Solicitor Michael Berrigan, Attorney
Advisor Leta Hollon, Director of the office of Tribal Justice, Darren
Cruzan, Associate Director Tricia Tingle, and Deputy Associate Director
Steve Juneau. Thanks to Technical Assistance providers: The National
Congress of American Indians, (NCAI) Natasha Anderson, Virginia Davis,
and John Dossett. The Tribal Law & Policy Institute (TLPI), Chia
Halpern Beetso & Jerry Gardner and the National Council of Juvenile &
Family Court Judges (NCJFCJ), Jessica Singer and Steve Aycock. The
University Of Arizona School Of Law, and Professor Melissa Tatum,
Finally, thank you to all the members of the Intertribal Technical
Assistance Working Group on Special Domestic Violence Criminal
Jurisdiction (ITWG).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you very much for your testimony.
Senator Daines.
Senator Daines. Thank you, Chairman Barrasso.
In Montana, the Northern Cheyenne and Fort Belknap Tribes,
as well as the Fort Peck Tribes, recently declared states of
emergency due to the increase in drug-related crimes on the
reservations. This is how serious it is back home.
Clearly there is a strong need for additional measures to
help keep tribal communities safe and secure. In the last
Congress, I was proud to pass the Violence Against Women Act
which created a number of grant programs designed to prevent
violence, investigate crimes and prosecute offenders and
provide victim services.
This piece of legislation was especially important for our
tribes, as we know, which are disproportionately affected by
domestic violence. However, we still have a lot to do.
I want to thank the authors of the two safety-related bills
we are discussing today for their work on this legislation. In
particular, I am pleased to see the Tribal Law and Order
Reauthorization and Amendments Act include critical tools to
better equip law enforcement officials, reduce crime and
recidivism, increase the Federal Government's consultation with
tribes and improve juvenile delinquency programs.
Councilman Buckles, welcome again. It is good to have
another Montanan in Washington.
You shared in your testimony that while Indian women
comprise only seven percent of the population in Montana, they
represent 13 percent of the intimate partner deaths in the
State. As you see it, from your position, what is the root of
domestic violence against women in Indian Country?
Mr. Buckles. I think the main root of it is drugs. We see
it so evident and so much more noticeable. It comes from all
over and other communities. I think that is the root of what is
happening to our Native American women, not only them but also
our children.
Senator Daines. You mentioned the shared importance of a
strong tribal government in keeping our tribal communities
safe. As a tribal council member, could further explain the
link you see between a strong tribal government and also having
a safe community?
Mr. Buckles. As far as us being legislators, we are trying
to enhance our court system and help our court system. We are
looking at the findings, stiffer sentencing to help build a
stronger community.
Also, we are looking at avenues of hiring other help from
law enforcement by hiring drug enforcement officers to make our
communities better and to crack down on all the drugs on our
reservation.
Senator Daines. It is good to see that Fort Peck is seeing
some success there. I think we can all agree that we have a
long way to go to improve public safety in Indian Country. I am
glad we are visiting some much needed solutions today such as
Chairman Barrasso's Tribal Law and Order Act and the
reauthorization bill.
I would like to know from your view what provisions in that
bill are going to be most important to the Fort Peck Tribes?
Mr. Buckles. I guess the part to prosecute juveniles in
Federal court is part of it. Overall, the court systems and
hopefully we will see a lot of help from the Federal system.
Senator Daines. You mentioned the kidnapping of the little
girl and that she was rescued alive. Could you also share how
the tribe worked with their Federal law enforcement partners to
find her and bring her home? What can we learn from this
successful operation?
Mr. Buckles. It worked well with not only the State but
with the city officials, officers, along with the Federal
officers and all the communication, also with the Montana
Highway Patrol and game wardens too that really pushed the
issue.
I think the Federal officials really helped out a lot and
spent a lot of good time with the person that was arrested.
With the Federal agency's help, it moved faster. I am glad they
found the child alive.
With those agencies and our partnering together, we saw a
good and fast recovery even though it took three or four days.
I know the person did not really want to say but the Federal
agency's experience in finding someone really helped us a lot.
We are glad that child is safe. I am glad they found her.
Senator Daines. Thank you, Councilman Buckles.
The Chairman. Thank you, Senator Daines.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Director Toulou, as you know, the opioid crisis has
disproportionately affected American Indians in this country
and certainly in Minnesota. Last month over the course of three
days, the White Earth, a band of the Ojibwe in northwestern
Minnesota, reported eight overdoses. All the victims survived
but we need to do everything we can to prevent these.
Law enforcement agencies obviously have an important role
to play in working to combat the opioid epidemic.
In June 2013, White Earth became the first reservation and
still the only reservation to have the Department of Justice
assume concurrent criminal jurisdiction on their land under the
Tribal Law and Order Act.
This law is supposed to encourage development of more
effective prevention programs to fight alcohol and drug abuse
among at risk youth. Despite this goal, the White Earth has not
received any funding to support their designation, nor have
they been provided any FBI agents to patrol their land as
tribes without this designation have received.
Director, after three years, why has White Earth not
received funding under this designation? Why have FBI agents
not been provided to White Earth? Why has White Earth not
received funds from the Department of Justice to help address
the opioid epidemic on the reservation?
Mr. Toulou. I think one of the issues everyone at the table
recognizes is we could use more funding in Indian Country,
particularly around the opioid issue. I would say that I do
know White Earth. I was involved in their designation when they
applied for assumption of jurisdiction.
While there has not been the funding, you are absolutely
correct, and I am sure that would be helpful, but there have
been a number of things that have happened recently on the
reservation that were at least tangentially related to the
designation.
Within the last year, about a year ago, the FBI in
conjunction with tribal law enforcement, had a raid on White
Earth that took down 41 individuals involved in a heroin
conspiracy ring. I think that probably would have happened, but
the cooperation that the assumption of jurisdiction engendered
helped in that matter.
Just in March, ONDCP, BIA, HHS, SAMHSA, the FBI, and the
Department of Justice met with the tribe regarding a pilot
project to set up a tribal action plan for drug abuse. They are
the first tribe to get the kind of attention through ONDCP.
Again, that was not the direct result of the assumption of
jurisdiction but it was in recognition of the relationship we
have with the tribe and the problems they are having. There is
a lot more to be done but we are aware and are interested.
Senator Franken. Was some of that initiated by Erma
Vizenor, the chairwoman?
Mr. Toulou. She was a really strong partner as we went
through all this. We miss her.
Senator Franken. Thank you.
Attorney General Urbina, a one size fits all approach does
not always work in correction systems or interventions. The
interventions need to be targeted to the community.
Leech Lake Chief Judge Paul Day recently testified before
this Committee regarding the importance of tribal healing to
wellness courts which uses traditional healing practices and
other cultural activities to help people recover from drug and
alcohol addiction. The program incorporates the unique culture
and history of each tribe and promotes community involvement.
Can you describe how the use of cultural activities and
traditional healing methods have impacted recidivism rates and
drug recovery in Indian Country? Have these methods impacted
your work?
Mr. Urbina. Yes, sir, I think it has. I know of programs
currently operating across Indian Country. I am not exactly
sure of the outcomes. However, I think it is a good idea to
focus on those issues.
For us, as offenders come into our system, I think it is
important that we do an assessment of their needs. Trying to
address their substance abuse issues is part of a healing to
wellness court. We call it a drug court where we are in Pascua
Yaqui.
I think the incorporation of cultural and traditional
practices is important, along with the substance abuse
treatment and also job training and various things that would
help that person not come back into the system. Those are very
important issues that need to be addressed.
I think we are focused on correction and on jail but I
think the approach needs to be more holistic across the board.
Senator Franken. When you say drug treatment, my
understanding from the Minnesota tribes is that they try to do
their drug treatment in a culturally sensitive way or in a
culturally consonant way?
Mr. Urbina. I think you can do that. We have a BIA-funded
program that is culturally relevant, a program within the
system. They do what is called cognitive behavioral therapy but
it is also culturally relevant to the people there. There are a
number of tribes that filter into this jail system.
Senator Franken. Thank you. Sorry, Mr. Chairman, for going
over.
The Chairman. No, no, thank you, Senator Franken.
Senator Murkowski.
Senator Murkowski. Thank you, Senator Barrasso.
Mr. Toulou, I want to start with you. I appreciate your
testimony. Our staff had very complimentary words about the
statement you had placed in the record.
Your statement explains the concept of special domestic
violence jurisdiction that originated in the legislative
proposal the department submitted back in 2011. A tribe could
only exercise that jurisdiction with respect to an offense
which occurred within a tribe's Indian Country.
If a tribe does not have Indian Country under its
jurisdiction, it could not utilize that jurisdiction, is that
correct?
Mr. Toulou. I did speak with your staff, Mr. Bergerbest,
about this initially. I think that is correct. I would say
there have been a lot of discussions about this.
In Alaska, as you know, jurisdiction is very different. I
would appreciate the opportunity to talk further with your
staff and the experts that I have dealt with when we develop
the bill and get back to you. That seems consistent with my
understanding.
Senator Murkowski. I am trying to figure out where we were
so that we know where we need to move to so that with Alaska,
as we are talking about how we can make a difference within a
State, that because it is different, because of the Supreme
Court's decision in Venetie holding that these lands are not
Indian Country.
We have this special domestic violence jurisdiction that is
of very limited value to our Alaska tribes.
It would be helpful if you could let me know whether it is
correct in your understanding that the department, in its 2011
legislative proposal, had no suggestion this should be a
Venetie fix that would have made it more meaningful to the
special domestic violence jurisdiction?
Mr. Toulou. I think that is consistent with my
recollection. Again, I really would like to talk with staff.
Senator Murkowski. Know that I would like to work with you
and others about this. As we are trying to provide for a
process in a State that is different for a host of different
reasons, I think we need to be looking beyond the world as we
know it or as it is structured today.
If it means that we have to look to new jurisdictional
definitions, these are some of the paths we want to explore.
Mr. Black, I want to ask you basically the same question I
asked the Acting Assistant Secretary related to BIA law
enforcement resources in the State.
Some in the Alaska Native community are of the impression
that if the department would take land into trust for their
tribes that we would see substantially greater BIA law
enforcement resources that would follow with that.
When I asked the question, I was told, we are a P.L. 280
State and it might be somewhat overly optimistic to assume that
additional resources come. The more direct question to you
would be whether or not the BIA has any plans to put BIA police
or tribally-compacted officers in our Native villages in the
event that land encompassing that village would be taken into
trust?
Can you speak to this impression that there would be
resources that follow if, in fact, this land is taken into
trust?
Mr. Black. Speaking to the 280 State status of Alaska, that
would be something we would have to weigh into any decision we
would make related to that and also working with the State
under that 280 retrocession process or anything that
potentially could come, I think there are a lot of questions
around the jurisdictional authority that will come with any
land into trust in Alaska.
That is just one of the many factors I think we have to
consider if that were to happen and how we would apply that.
Right now, I do not know that we have any immediate plans or
available resources to put toward that right now.
Senator Murkowski. That is where the huge frustration is.
You have villages that simply lack any law enforcement
presence. Our State is facing some very, very difficult
financial pressures right now, so I think we are going to see a
currently bad situation unfortunately possibly get worse.
We are kind of talking hypothetically here but if Vinati
had come out differently and all of these ANCSA lands were
Indian Country, granted different Indian Country in a P.L. 280
State, but you would be sitting in a situation where
effectively you have to wonder if BIA would have been prepared
to ramp up its support for law enforcement in public safety
tribes and really at the cost of it.
When you think about the burden you have within BIA now or
the responsibility you have for the substantial costs related
to law enforcement, you have a situation in Alaska where
because the courts have determined no Indian Country, because
we are in this P.L. 280 State status, we do not see the level
of support from the Federal side when it comes to any level of
enforcement in our States, a State that has more than half the
tribes in the country.
I am kind of speaking again hypothetically but as we are
thinking about a new paradigm for public safety in our Native
villages, I think it may be time for us to explore with the BIA
and the Department of Justice some avenues as to how we
contribute to an on the ground public safety presence in rural
Alaska as well as how we empower our tribes to protect their
communities.
I think we know it does not come without cost. We recognize
that. I certainly do. As Chairman of the Interior
Appropriations Committee, believe me, I know the cost
associated with it but it is a conversation that I think we
need to be prepared to have in the future because we have a
situation that is not getting better.
My fear is that we are going in the wrong direction. I
would like to explore with both of you further how we work to
address this.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Murkowski.
Senator Heitkamp.
STATEMENT OF HON. HEIDI HEITKAMP,
U.S. SENATOR FROM NORTH DAKOTA
Senator Heitkamp. Thank you, Mr. Chairman.
Mr. Toulou, who is responsible for protecting children
against major crimes on the reservation in North Dakota?
Mr. Toulou. I would say we all have a duty to protect
children on any reservation but Major Crimes Act violations are
prosecuted by the U.S. Attorney's office.
Senator Heitkamp. And investigated?
Mr. Toulou. And investigated by the FBI.
Senator Heitkamp. I think the same is true on the Fort Peck
Reservation in Montana as well?
Mr. Toulou. That is absolutely correct.
Senator Heitkamp. Let me read something to you from a
recent Reuters' article, ``Drug users are selling their babies,
daughters and sisters for the potent stimulant that is ravaging
Native American communities such as the Assiniboine & Sioux
Tribes living in the desolate Plains,'' I dispute that, ``of
Fort Peck say community leaders. We are in crisis says the
tribal chairman. We have mothers giving their children away for
sexual favors for drugs. We have teenagers and young girls
giving away sexual favors for drugs.
''No number records specific rates of local sex trafficking
which can often be buried in crimes of sexual assault, abuse,
prostitution, abandonment or kidnapping but it is a crime
poorly documented in the field by drug abuse plaguing Indian
reservations. The rate of meth use among American Indians is
the highest of any ethnic group in our country and is more than
twice as high as any group according to the National Congress
of American Indians. The number of drug cases in Indian Country
has risen sevenfold from 2009 to 2014.''
It is a crisis and we somehow do not seem to get a crisis
response from the Department of Justice. I am beyond
frustrated. I asked the FBI Chairman in this room to come to
North Dakota to actually give us a plan.
We get, well, let's put an FBI agent in Bismarck and
hopefully they will get over to New Town sometime. In this
story, six children in two weeks were born affected by
methamphetamines. We do not know what the long term
consequences of that is.
I agree with you that this is a community problem but we
have to have a cop on the beat. I will tell you I do not think
we have a cop on the beat in Indian Country. The National
Congress of American Indians calls it the asterisk nation.
As I was just reminded at a hearing, Senator Kennedy once
said, ``Our first children have become our last children.''
They are last in peoples' minds and memories but they and their
families are suffering. We need law enforcement. We need to
have attention to this problem.
We cannot suffer another generation and sacrifice them to
methamphetamines. It is beyond frustrating for me that in spite
of our repeated requests, we do not seem to get the level of
attention to this problem that we need to give to this problem.
I hope you take back to the Department of Justice that our
Preamble to the Constitution says ``to provide justice.'' Where
is the justice in Indian Country for Native American children
and families who are terrified by this epidemic? Where is the
justice? Where is the accountability? Where is the law
enforcement?
This is a major crime. You are the cop on the beat and you
are absent. We have to get this fixed because we cannot begin
to solve the cultural issues or the public health problems
until we have a cop on the beat providing deterrence.
When you do not have a deterrence of any kind, you have
rampant abuse. That is what we are seeing. The people who are
suffering are children and families working very hard in very
difficult situations.
You just happened to be the guy in the line of fire today
but I hope you take that back to the Department of Justice
where I know there are many people working. I have directly
talked about this with the Attorney General. This is not a new
issue for us.
This is a committee that sees it every day and we have to
get some help. We have to have you treat it at the Department
of Justice like the crisis it is.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Heitkamp.
Senator Heitkamp, would you like the article you referenced
included in the record?
Senator Heitkamp. Yes, I would.
The Chairman. Without objection, so ordered.
Thank you, Senator Heitkamp.
Senator Tester.
Senator Tester. Thank you, Mr. Chairman.
Thank you, Senator Heitkamp for your question.
Unfortunately, I did not hear an answer. I do want to find out
what is going on.
Senator Heitkamp is right. You are in the line of fire
today but she is also right that quite frankly, we have huge
problems in Indian Country. There are a lot of reasons for them
but why isn't the Department of Justice stepping up in Indian
Country to meet the problems out there?
Mr. Toulou. I want to say to both of you, Senator Tester
and Senator Heitkamp, I appreciate the passion you bring to
this important issue. I was a prosecutor in the U.S. Attorney's
office in Montana and I worked on Fort Peck. I have a lot of
friends there. I understand how important this issue is.
I think we do take it seriously but clearly there is more
we need to do. I will take back those concerns and talk to the
FBI and our folks who specifically focus on drug trafficking.
Yes, it has gotten worse at least from what I am hearing from
tribal leaders.
That is not something I would have expected to happen
having seen methamphetamine abuse in Montana in the 1990s. We
hear the problem and with the resources we have, we will move
to address it as we can. I will take back that passion.
Senator Tester. Is the problem where it is located? If this
was going on in a place closer to an airport, would we be
dealing with it in a different way?
Mr. Toulou. I don't know that we would be dealing with it
in a different way but I think law enforcement resources have
something to do with this. Again, I am talking outside of my
depth. I know Indian Country. I did violent crime. I did not do
drug cases but when you see drugs coming into large cities, you
have major suppliers.
What we have seen and what I have been told by tribal
leaders is you have relatively small amounts diversely spread
across Indian Country. That is harder to handle from a law
enforcement perspective.
We all know that on the ground, first responders in Indian
Country are limited as compared to other communities. Those are
the guys who would initially deal with those crimes.
That is not an excuse. We need to figure out how to work
with the reality we have but I think those are some of the
explanations.
Senator Tester. Not only that but are the statistics in the
Reuters article right? Did you say six kids in the last two
weeks?
Senator Heitkamp. That is correct.
Senator Tester. Six kids in the last two weeks is not
insignificant.
Mr. Toulou. No.
Senator Tester. That is a huge problem.
We are not the committee that deals with your budget at
least in the Department of Justice. I know oftentimes we use
money as an excuse but it is also about prioritization quite
frankly. Prioritization is really important.
You said you would take it back to the department. I hope
you do. I would hope the department might give us, the Chairman
and me, some sort of information so we can distribute to the
Committee what we are doing proactively to stop this. I am
telling you, it ain't going to get better.
Mr. Toulou. No, and I will commit to getting the
information.
Senator Tester. We are talking about Fort Peck. I would
suggest the Salish and Kootenai in the western part of the
State have probably the least poverty. Still its poverty rate
is probably 50 percent or higher, the unemployment rate, I
mean. It is probably the least poverty stricken of any of the
reservations in Montana. Seventy to 80 percent of those kids
born on the reservation are born addicted to drugs. It is a
problem all over.
Mike Black, the Santa Clara bill would allow you to lease
up to 99 years on tribal lands. We have done this before for
individual tribes. My question is, why don't we do it for all
the tribes?
Mr. Black. I think on its face that sounds like probably a
pretty good idea. I just do not know for sure unless we hear
from all the other tribes whether or not they have issues or
why they would not want to do it. I testified on a number of
bills just like this.
Senator Tester. Is there a reason we would not want to do
it? From a Federal perspective, is there a problem with doing
it?
Mr. Black. Nothing that comes to my mind right now.
Senator Tester. It would be good to get your perspective on
that after you do your due diligence.
Mike Chavarria, tell what extending the lease for 99 years
does for you from a certainty standpoint for economic
development?
Mr. Chavarria. It gives us the option to go ahead and lease
these lands for larger businesses. Right now, you have 25 which
is an option of 25 years and that is 50 total. It is not good
for us to go to the larger businesses because of the
substantial capital investments. The bigger businesses are
deterred from partnering with us in Santa Clara. That is very
important.
That would allow us to do longer term leases. It is up to
the tribe to determine which business they want to venture
into. It is not going to be for all; it is going to be for
certain projects.
Senator Tester. Dana, thanks for being here. I really
appreciate your testimony and being available to answer a few
questions.
The Fort Peck tribal court was one of the first tribal
courts to implement VAWA jurisdiction. Your tribe needs to be
commended on that for being a leader.
Where do the resources come from for the tribe to have law-
trained judges, prosecutors and defense attorneys?
Mr. Buckles. The tribes largely support their tribal court
at the expense of other programs.
Senator Tester. It came out of the tribal conference?
Mr. Buckles. Yes
Senator Tester. What aspect of implementing VAWA has been
the most resource intensive? What have you had to spend the
most money on? If you do not know, that is fine. You can get
back to me on that.
Mr. Buckles. Can I get back to you on that?
Senator Tester. Absolutely you can.
If you had more dollars, if you had more resources, do you
have any idea where the tribe might focus those resources?
Mr. Buckles. If we had more dollars, as well as the court
system, but I think we would focus on law enforcement. Law
enforcement is a biggie for us. I just heard the discussion
here. That is what a lot of tribes are facing not only Fort
Peck. A lot of the tribes in general lack more officers. That
is what we need.
Senator Tester. I want to thank you all for being here and
for your testimony and I want to thank the Chairman for having
this hearing.
Going back to the first line of questioning, I just want to
say nobody expects the Department of Justice to do this alone.
I do think there is an expectation that you guys are leading
the charge. There are other support groups around who will help
you. I believe that to be the case.
We have someone I think is a very, very, very good U.S.
Attorney in the State of Montana. I think we have a history of
good U.S. Attorneys in the State of Montana.
I have to tell you, this has been going on for a while now.
We really do need to get on it. It is a big problem. It is not
made up; it is not imagined; and it is not someone trying to
bilk money from the Federal Government. It is a problem we need
to get fixed.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Tester.
Director Black, S. 2920 includes several provisions to
improve justice for Indian youth. One of the key provisions
would require State notice to tribes when one of their members
enters the State or local juvenile justice system. That would
also include a tribal representative on State advisory groups
for juvenile justice.
I am wondering how you think these provisions would help
Indian youth? Should the Office of Justice Services have a role
in State notification or advisory group requirements?
Mr. Black. I think all of that would probably be beneficial
to Indian Country and our ability to deal with the youth and
some of the issues that are out there. Increased collaboration
always leads to additional resources and additional data
sharing.
I think there would be some questions as to the logistics
of how that would work. Are we talking about communities
located right near Indian Country? Are we talking about
communities and Indian youth that are arrested in a large city,
far away from Indian Country?
I do think that does give us a better picture of exactly
what the issues are facing our Indian youth out there, whether
they are in a big or small city. Improved data sharing of that
kind of information would give us a lot better idea of those
issues and how we can better address them by coordinating with
all of our partners.
The Chairman. Violent crimes, we have heard, drug
trafficking, it seems they affect Indian communities much more
acutely than many other communities. Tribes have long sought
help with these problems.
To address the problems, in part, my legislation would
establish a new Federal crime of criminal trespass for
violating tribal exclusion orders which arise from convictions
of tribal violent crimes and drug trafficking.
Do you think this approach would help address the problem
or is there another alternative to perhaps tackling violent
crimes and drug trafficking?
Mr. Black. I would want to talk with my colleagues at the
department but I think anything we can do to assist tribes in
maintaining law and order on the reservation is important. It
seems like a good strategy to me if that includes addressing
crimes by people coming off the reservation or onto the
reservation.
The Chairman. One of the provisions, based on
circumstances, is a Federal referral to tribal court for
juvenile cases. Is that something you think would be helpful?
Mr. Black. I think we talk quite a bit with tribes when we
take Federal cases. There are not all that many juveniles who
are in the Indian Federal system. It runs between 25, 30 to 35
in a given year. It is important that we take care of each of
those children appropriately but it is a small number of very
troubled offenders.
Yes, I think any communication is a good idea. We do have
pretty extensive communication.
The Chairman. Mr. Urbina, the Pascua Yaqui Tribe is
surrounded by the City of Tucson, Pima County, and the Tohono
O'odham Nation. I am just looking at the map of the
surroundings.
Can you identify the jurisdictional issues that you have
encountered while trying to implement the Tribal Law and Order
Act?
Mr. Urbina. It has been difficult. For us, crime does not
respect borders. In addition to being outside of Tucson, we are
about 60 miles from the U.S. and Mexican border. We are located
on a major drug corridor. I think that impacts crime on our
reservation.
The last homicide on our reservation was committed by a
non-Indian male who shot a young tribal male. I went out to the
scene that night to help with the search warrant. I still
remember that night. I still see his mom. That is pretty much
what we are dealing with jurisdictionally.
For our VAWA offenders, for the most part, probably almost
90 percent of those folks have significant criminal histories,
have committed offenses on the reservation pre-VAWA, some of
them had warrants, and one who had a warrant from the State of
Oklahoma for armed robbery lived in tribal housing.
That is our biggest problem, encountering folks and not
having the tools to address these issues on the reservation
from both non-Indian offenders and tribal members who might
offend in the State of Arizona.
The Chairman. Can you talk a bit about how the Tribal Law
and Order Act helped the tribe work with Federal agencies to
keep your community safer?
Mr. Urbina. For us, it has been night and day. I think
shortly after 2010, we started our SAUSA program. We now have
four SAUSAs working out of our prosecutor's office who help
staff those cases with the U.S. Attorney's office.
The U.S. Attorney liaison is on the reservation quite
often. It is fairly close to their Tucson office but she also
has an office in our prosecutor's department. There is a lot of
communication and a lot of working together.
Our MDP process is not simply looking at child-related
crimes, but we look at all major crimes. We staff them as a
group. Our SAUSAs are helping bring those cases to Federal
court.
Along the same timeline, we also worked with the U.S.
Attorney's office to set up our Special Law Enforcement
Commission cards for our law enforcement. That gives them
Federal authority. They also have State authority and are State
certified. Our system has a lot of flexibility built into it.
When we encounter jurisdictional problems, we are able to
address them on the front end by law enforcement or by our
SAUSAs and our prosecutor's office. For us, the Tribal Law and
Order Act has been fairly successful. It has caused our Federal
cases to churn and be processed by the court system.
I personally believe it has reduced the crime on the
reservation over the past few years. Anecdotally, I know that
is true, so the whole process since 2010 until now, I think has
been successful.
There are things we need to work on and things in the bill
that will help. Certainly, the base has helped the Pascua Yaqui
Tribe address crime.
The Chairman. Thank you.
Senator Hoeven.
STATEMENT OF HON. JOHN HOEVEN,
U.S. SENATOR FROM NORTH DAKOTA
Senator Hoeven. Thank you, Mr. Chairman.
I would like to thank all of our witnesses for being here
today.
My question relates to not only the Tribal Law and Order
Reauthorization Act, which Chairman Barrasso has brought
forward, which would allow tribes access to certain databases
for criminal background checks which I think is a very good
thing.
It also relates to legislation I have put forward, the
Native American Children's Safety Act, which we passed through
the Senate. It is now in the House. Actually, the House has
passed their version which essentially is the same bill. I am
working to get the bill finalized.
Essentially, the Native American Children's Safety Act
would provide or require the tribal social service agencies
conduct background checks on any adults living in a foster home
before a foster child is placed in that foster home. I think
Director Black is familiar with it.
That is actually a requirement we put at the State level
when I was Governor in North Dakota. Many other States have
done the same. It is not something applied or required
consistently across reservations.
Starting with Director Black and then Director Toulou, I
would like you to talk for a minute about the importance of
being able to conduct these criminal background checks, first,
on a more broad scale as related to the Tribal Law and Order
Reauthorization Act of Chairman Barrasso and then also in
regard to foster care, both the ability of the BIA to implement
and support that, your willingness to support it and your
feelings in regard to its efficacy both in terms of reducing
crime and protecting children.
Mr. Black. I think this goes back to a lot of the
discussion we have had here today related to data sharing. I
think the more data we can make available, including criminal
background checks and the opportunity for tribes to participate
in all of that, will increase their ability to protect their
citizens in Indian Country, especially when we talk about the
kids.
We have implemented that in some areas on a pilot basis to
make sure we have the necessary tools to do background checks
on the foster families to ensure that when we are placing
children in those homes, we are placing them in a safe
environment.
I think we do support that because I think that is critical
to ensuring those kids have a good, safe place to be while we
are working through the other issues related to their family
and whatever we can to try and reunite the family but in the
meantime, we are providing a safe environment for those kids.
Senator Hoeven. Thank you, Director. I want to note and
express my appreciation for your help in this effort.
Mr. Toulou.
Mr. Toulou. Thank you, Senator.
We believe that access to databases is absolutely critical
on many different levels on the reservation. Clearly, it is a
public safety issue, both for its citizens and for police
officers responding to a crime on the macro level of calling in
on the radio and being able to find out the car you are pulling
over has somebody who just committed an armed robbery.
As we reached out to tribes about their data access issues,
we found there were a lot of other things that were important
that they did not have access to beyond pure criminal justice
issues, for instance, tribal courts having the ability to put
protection orders in databases to be recognized in nearby
towns.
The issues involved in child placement were critical. One
of the things we have done in conjunction with BIA is made BIA
a portal. They have agreed to be a portal for tribes who want
to use Program Category X which allows the placement officers
in social services to go through a portal at BIA to find out
whether the individual is on a name-based check system and have
the criminal record before you put that child in the home. This
could be in the middle of the night or at 2:00 a.m.
We also have the TAP Program, our tribal access program.
The kiosk we put in allows tribes to automatically enter
fingerprint information in order to quickly do a fingerprint
check.
There are a lot of important issues beyond those kind of
law enforcement issues we have talked about to make those
communities safer.
Senator Hoeven. Thank you.
Mr. Urbina, from the reservation side, do you see any
concerns in terms of embracing use of background checks? Is
this something the tribes are looking for, will embrace and
use?
Mr. Urbina. Yes, sir. We are looking forward to that. We
are part of the TAP Program being rolled out. We should have
implementation in place for the tribe in the next few months.
We are also looking to be a part of the Purpose Codex Program
through the BIA. It is necessary for us.
We also get calls from the State folks looking to place
tribal children on the reservation or in foster homes in the
State. They can do those checks stateside but it is important
for us to have that ability as well.
I can recall an incident where some children were placed in
the home of a sex offender because we did not have these things
in place. Right now, we have to wait a number of weeks before
we get a fingerprint background check to see about those folks
in the home. By that time they are already in the home for at
least a month.
Senator Hoeven. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Hoeven.
I want to thank all of the witnesses for being here today.
I am very grateful that you took the time to visit with us and
testify.
Members of the Committee may submit follow-up written
questions for the record. The hearing record will remain open
for two additional weeks.
I want to thank all of you for your time and your
testimony.
The hearing is adjourned.
[Whereupon, at 3:44 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of the National Congress of American Indians
Honorable Chairman and members of the Committee, thank you for the
opportunity to provide testimony on two very important legislative
efforts that will improve public safety in Indian Country. Nine years
ago, the National Congress of American Indians passed a resolution at
its Midyear conference in Anchorage, Alaska, and provided testimony to
this Committee calling for Congress to redirect the law enforcement
priorities of the Department of Justice on Indian reservations, and to
empower tribal government law enforcement. This was followed by several
years of hearings and legislative drafting in the Senate Committee on
Indian Affairs. From that resolution, as well as a great deal of effort
from many tribes and the leadership of this Committee, Congress enacted
the Tribal Law and Order Act of 2010 (TLOA) and set the stage for
expanded tribal jurisdiction under the Violence Against Women Act
Reauthorization of 2013 (VAWA 2013). We recognize your commitment in
introducing the legislation that is the subject of this hearing, and
greatly appreciate your continuing efforts to build on those laws and
improve public safety in tribal communities.
NCAI is the oldest and largest national organization representing
American Indian and Alaska Native tribal governments in the United
States. We are steadfastly dedicated to protecting the rights of tribal
governments to achieve self-determination and self-sufficiency, and to
the safety and security of all persons who reside or visit within
Indian Country.
S. 2785, The Tribal Youth & Community Protection Act
We appreciate Senator Tester and Senator Franken's leadership in
introducing the Tribal Youth and Community Protection Act, S. 2785.
This legislation would amend the domestic violence criminal
jurisdiction provision included as Section 904 of VAWA 2013, which
established a framework for tribal prosecution of certain non-Indian
domestic violence offenders . Since passage of VAWA 2013, NCAI has been
providing technical assistance to the tribes who are implementing the
law pursuant to a cooperative agreement with the DOJ. Through this
work, we have witnessed the ways in which expanded tribal jurisdiction
has transformed the criminal justice landscape in some tribal
communities and also the ways in which it falls short. The lessons
learned from implementation of VAWA 2013 are summarized in the attached
``Special Domestic Violence Criminal Jurisdiction Pilot Project
Report,'' which provides a comprehensive overview of the experience of
the tribes implementing the new law during the pilot project period.
While NCAI supports full reaffirmation of tribal authority on tribal
lands, we welcome introduction of this bill, which would address some
of the gaps in the existing law and make important strides toward
restoring public safety and justice on tribal lands. We are
particularly encouraged that this legislation recognizes that Native
children are equally in need of the protections that were extended to
Native women in VAWA 2013. We look forward to discussing this bill with
tribes in more depth at our upcoming Midyear conference, and are
pleased to share our preliminary thoughts about this important
legislation.
Tribal communities continue to be plagued by the highest crime
victimization rates in the country. A recent study by the National
Institute of Justice found that over 80 percent of Native Americans
will be a victim of violent crime in their lifetime. The study also
found that 90 percent of these victims were victimized by a non-Indian
perpetrator. \1\ Sadly, Native children are particularly affected by
this violence. Native children are 50 percent more likely to experience
child abuse and sexual abuse than white children. \2\ Rates of child
maltreatment in certain states are even more alarming. According to
data from the Department of Health & Human Services, Native children in
Alaska experience maltreatment at a rate more than six and a half times
the rate for white children. \3\ In North Dakota, the rate of
maltreatment for Native children is more than three times the rate for
white children. Native children also experience extremely high rates of
secondary victimization and exposure to violence. In 2013, Attorney
General Holder appointed an Advisory Committee on American Indian and
Alaska Native Children Exposed to Violence that held field hearings
across the nation. In their final report the Committee concluded that
service providers and policy makers should assume that all Native
children have been exposed to violence and ``the immediate and long
term effects of this exposure to violence includes increased rates of
altered neurological development, poor physical and mental health, poor
school performance, substance abuse, and overrepresentation in the
juvenile justice system. This chronic exposure to violence often leads
to toxic stress reactions and severe trauma; which is compounded by
historical trauma.'' \4\
---------------------------------------------------------------------------
\1\ Rosay, Andre, Ph.D., National Institute of Justice Research
Report: Violence Against Indian and Alaska Native Women and Men 2010
Findings from the National Intimate Partner and Sexual Violence Survey,
p. 2-3 (May 2016) U.S. Dept. of Justice, Office of Justice Programs,
available at: https://www.ncjrs.gov/pdffiles1/nij/249736.pdf.
\2\ Children's Bureau, U.S. Department of Health and Human
Services, Child Maltreatment 2011, 28 (2012).
\3\ http://www.acf.hhs.gov/sites/default/files/cb/cm2012.pdf, pg.
37.
\4\ Attorney General's Advisory Committee on American Indian/Alaska
Native Children Exposed to Violence: Ending Violence so Children Can
Thrive (2014), pg. 6.
---------------------------------------------------------------------------
Children who experience abuse and neglect are at higher risk for
depression, suicidal thoughts, and suicide attempts. As this Committee
knows, Indian youth have the highest rate of suicide among all ethnic
groups in the U.S., and suicide is the second-leading cause of death
(after accidental injury) for Native youth aged 15-24. \5\ Due to
exposure to violence, Native children experience post-traumatic stress
disorder at a rate of 22%--the same levels as Iraq and Afghanistan war
veterans and triple the rate of the rest of the population. \6\
---------------------------------------------------------------------------
\5\ SAMHSA, National Survey on Drug Use and Health, 2003.
\6\ AG Advisory Committee, supra, note 12, at 38.
---------------------------------------------------------------------------
One of the most important provisions of S. 2785 would reaffirm
tribal jurisdiction over certain non-Indians who commit crimes against
Native children in Indian Country. This is in line with one of the key
recommendations of the AG's Advisory Committee who noted that ``it is
troubling that tribes have no criminal jurisdiction over non-Indians
who commit heinous crimes of sexual and physical abuse of [American
Indian and Alaska Native] children in Indian country,'' and called on
Congress ``to restore the inherent authority of AI/AN tribes to assert
full criminal jurisdiction over all persons who commit crimes against
AI/AN children in Indian country including both child sexual abuse and
child physical abuse.'' \7\
---------------------------------------------------------------------------
\7\ Id.
---------------------------------------------------------------------------
Although there are no statistics available on the number of non-
Indians who abuse Native children on tribal lands, the Attorney
General's Advisory Committee looked at available data and concluded
that ``it is clear from what we do know that it is a very substantial
problem.'' \8\ In drawing this conclusion, the AG's Advisory Committee
relied on available statistics about the rates of non-Indian
perpetrated violence against Native people aged 12 and older and
national studies showing that men who batter their partners also abuse
their children in more than half of the cases. This is consistent with
the experience of the tribes who have implemented the criminal
jurisdiction provision of VAWA 2013. The implementing tribes report
that in most of their cases, Native children are present either as
additional victims or witnesses. S. 2785 would untie the hands of
tribal governments and allow them to protect Native children who are
abused on tribal lands, regardless of the race of the perpetrator.
---------------------------------------------------------------------------
\8\ Id.
---------------------------------------------------------------------------
We cannot think of a single principled reason why Native children
are less deserving of the protection that Congress extended to Native
domestic violence victims in VAWA 2013, and we strongly support this
provision of S. 2785. Those who suggest that Indian tribes are not
ready for this responsibility or need more time to develop the capacity
of their court systems leave Native children without the protection
they desperately need. As with the SDVCJ provision, we recognize that
not all tribes will chose to implement this expanded authority
immediately. The experience of SDVCJ implementation over the past three
years demonstrates that tribal governments take their responsibility to
administer justice fairly for all involved seriously and will act with
care and deliberation. Where tribes have the capacity and desire to
exercise criminal jurisdiction over those individuals who commit
violent crimes against Native children, federal law should not stand in
the way.
S. 2785 would also reaffirm tribal criminal jurisdiction over drug
offenses. The illegal manufacture, sale and use of illegal drugs on
American Indian reservations and in Alaska Native villages creates a
dangerous environment with enormous costs for tribal communities. Many
tribal communities are targeted by non-Indians as centers for
distribution because of their geographic isolation and persistent
poverty. This has a significant impact on overall health-care costs in
tribal communities, where recovery treatment is largely unavailable,
and access to primary care is limited. Drugs and alcohol abuse also are
a contributing factor in far too many cases of domestic violence,
sexual assault, and child abuse. As this legislation recognizes, Indian
tribes need authority to protect themselves from those who bring drugs
onto tribal lands.
S. 2785 would also address two a significant gaps in VAWA 2013.
First, since tribal SDVCJ jurisdiction is limited to domestic violence,
dating violence, and protection order violations, any other attendant
crimes that occur fall outside the scope of the tribe's jurisdiction.
The tribes that have implemented SDVCJ have reported cases, for
example, where a domestic violence offender also committed a drug or
alcohol offense or a property crime that the tribe was unable to
charge. Tribes also lack jurisdiction to charge an offender for crimes
that may occur within the context of the criminal justice process, like
resisting arrest, assaulting an officer, witness tampering, juror
intimidation, or obstruction of justice. This creates an obvious public
safety concern. S. 2785's inclusion of ``related crimes'' would address
this gap.
In addition, S. 2785 makes an important technical change to the
definition of ``domestic violence'' that would clarify current
confusion about the severity of violence that must occur for a tribe to
have jurisdiction in the wake of the Supreme Court's decision in U.S.
v. Castleman. \9\ When Castleman was decided in March of 2014, it had
an immediate impact on the tribal criminal charging decisions when
evaluating misdemeanor arrests under SDVCJ authority. The Justices
suggested in dicta in Castleman that the domestic violence crime in an
SDVCJ case must involve actual ``violence,'' which is not a defined
term. As a result, some tribes have declined to prosecute certain
offenses like emotional or financial abuse and harassment that would
otherwise constitute ``domestic violence'' under tribal law, but may
not be considered a ``violent crime.'' S. 2785 would make clear that
tribes who are exercising SDVCJ are able to reach the full range of
crimes that may occur within the domestic violence context.
---------------------------------------------------------------------------
\9\ U.S. v. Castleman, 134 S. Ct. 1405 (2014)
---------------------------------------------------------------------------
We appreciate Senator Franken and Senator Tester's effort to
advance legislation that will fill some of the gaps in jurisdiction
that continue to leave women and children without adequate protection
on tribal lands. As the Committee continues its work, we ask you to
also consider some of the other gaps in jurisdiction that
implementation of SDVCJ have brought to light:
Tribes have no criminal jurisdiction if a non-Indian commits
an otherwise qualifying crime on tribal lands against an Indian
woman from another tribe who is visiting the reservation. This
is true even if the crime involved the violation of a
protection order that was validly issued by the tribe.
Tribes have no criminal jurisdiction if an Indian person is
raped on tribal lands by a non- Indian, even if the offender
lives on tribal lands and is employed by the tribe.
Tribes have no criminal jurisdiction if an Indian person is
stalked on tribal lands by a non-Indian, even if the offender
lives on tribal lands and is employed by the tribe.
Tribes have no criminal jurisdiction if an Indian person is
trafficked on tribal lands by a non-Indian, even if the
offender lives on tribal lands and is employed by the tribe.
Tribes have no criminal jurisdiction if an Indian elder is
assaulted by their non-Indian family member on tribal lands,
even if the offender lives on tribal lands and is employed by
the tribe.
S. 2920, Tribal Law and Order Act Reauthorization
We also extend great appreciation to Senator Barrasso for his
leadership in introducing the reauthorization of the TLOA. Since 2010,
NCAI has been deeply involved in the implementation of this critically
important law. The TLOA is a comprehensive law designed to improve
numerous facets of the public safety system in Indian Country: to
increase coordination and communication among federal, state, tribal,
and local law enforcement agencies; empower tribal governments with the
authority, resources, and information necessary to safely and
effectively provide public safety in Indian Country; reduce the
prevalence of violent crime in Indian Country, combat sexual and
domestic violence; prevent drug trafficking and reduce rates of alcohol
and drug addiction in Indian Country; and increase and standardize the
collection of criminal data to and the sharing of criminal history
information among federal, state, tribal, and local officials
responsible for responding to and investigating crimes in Indian
Country. The TLOA authorizes expanded sentencing authority for tribal
justice systems, clarifies jurisdiction in P.L. 280 states, and
requires enhanced information sharing. In addition, the law authorizes
programs for alcohol and substance abuse and programs for at-risk
youth.
However, even when we began working on the law in 2007, tribal
leaders knew that it wouldn't resolve every issue. This is why we so
greatly appreciate a reauthorization that continues to address the
problems and concerns regarding public safety on tribal lands. The
introduced legislation includes a number of important provisions,
particularly for juvenile justice, and serves as a strong foundation
for continued work with tribal governments. All authorized funding
under the TLOA expired in 2015 and it is important that Congress
reauthorize this funding. Tribal justice systems also have more than
five years of experience with implementing the law, and that
implementation has led to proposals to continue to improve the law. In
the following two sections we include comments on the introduced bill,
as well as additional suggestions.
Section 101: Bureau of Indian Affairs Law Enforcement
Under this section, if the Director of the BIA Office of Justice
Services fails to submit two reports required by the original Act in
2010, administrative funds would be withheld so long as the withholding
does not adversely impact the capacity to provide law enforcement
services in Indian Communities. The two missing reports are (1) annual
reports to the appropriations committees on unmet tribal law
enforcement needs, and (2) annual reports summarizing technical
assistance and training provided to tribal law enforcement and
corrections agencies that operate pursuant to self-determination
contracts or self-governance compacts.
NCAI strongly supports the effort for completion of these vital
reports. In particular, we need the annual report on unmet law
enforcement needs in order to justify the deep need for increases in
public safety funding. We have some concerns about withholding funds
from the BIA as a mechanism to compel completion, because it seems
likely that this will result in diminution of services. We urge
communication with the Secretary of Interior, and that pressure be
placed on the overall administrative budget. We believe this will lead
more quickly to the desired result.
Section 102: Integration and Coordination of Programs
We appreciate the proposal to require consultation with tribes
regarding the integration of diverse funding for law enforcement,
public safety, and substance abuse and mental health programs. However,
the DOJ has been under a similar consultation requirement in the
Commerce, Justice, State appropriations reports for at least the last
four funding cycles, and no consultation has been initiated. Instead,
we encourage the Committee to move forward with legislation to
accomplish this goal of funding integration and coordination. At the
end of this testimony we attach a proposal for legislative language
that would accomplish this goal, and we encourage the Committee to
consult directly with tribal governments about it.
Currently, base funding for law enforcement is provided through the
BIA and is entirely inadequate. Additional funding is provided through
the Departments of Justice and Health and Human Services under a series
of grant programs that have the typical problems of competitive grant
programs. Within the DOJ these funds are further divided into dozens of
competitive grants for specific purposes. Moreover funding for
prevention, rehabilitation, and treatment programs, which are key
components of any community's approach to reducing crime, are located
at IHS, SAMHSA, and elsewhere withing the DHHS. In order to obtain this
funding, tribes often must compete against each other under the
priorities and guidelines set by the administering agency. These
proposals are then peer reviewed by individuals who may or may not have
experience with Indian tribes and tribal justice systems. In the end,
the tribes that have the financial and human resources to employ
experienced grant writers end up receiving funding, while the
underresourced tribes may be left without. Moreover, tribes cannot
count on funding continuing beyond the current grant period, and Indian
Country has countless stories of successful programs disappearing at
the end of a two- or three-year grant cycle.
This system requires a large grant writing capability and a good
bit of creativity in order to access the funds. Millions could easily
be spent providing the technical assistance tribes need just to
navigate this overly complex system. Under this ad hoc system, tribal
law enforcement will receive vehicles, but no maintenance. They will
get a detention facility, but no staff. They will receive radios, but
no central dispatch. The system doesn't make sense. We believe that
tribal public safety funding should be streamlined into a single
funding vehicle that would be negotiated on an annual basis and made
more flexible to meet local needs.
We hope to develop a streamlined and consistent funding mechanism
supported by tribes that would be acceptable to Congress. A proposal
for statutory text that could be the basis for a discussion among
tribal stakeholders and Congress is included as an appendix.
Section 103: Data Sharing with Indian Tribes
We strongly support these provisions to improve criminal database
information sharing with tribal governments. In addition, we urge that
the legislation address a specific problem with access to background
checks for non-law enforcement purposes.
28 USC 534(d) authorizes release of criminal history information to
tribal law enforcement agencies, but doesn't allow release of criminal
information to other tribal agencies for important purposes, like child
welfare background checks on foster parents, or teachers or childcare
workers. The DOJ interprets the appropriations rider language from P.L.
92-544 as a permanent statute that prevents sharing this information
with tribal governments. In their view, criminal history for licensing
of foster parents can only be shared `` if authorized by State statute
and approved by the Attorney General, to officials of State and local
governments for purposes of employment and licensing,'' We suggest to
add a subsection to 534(d): ``If authorized by tribal law and approved
by the Attorney General, the Attorney General shall also permit access
to officials of tribal governments for non-criminal justice, non-law
enforcement employment and licensing purposes.''
Section 104: Judicial Administration in Indian Country
This section extends the Bureau of Prisons Tribal Prisoner Program
for seven years. This pilot project has already been successful as a
temporary program, and then suddenly shut down. We urge the Committee
to go further, and permanently authorize the program.
Permanently extending the TLOA Federal Bureau of Prisons Pilot
Program is an essential part of overcoming the many challenges facing
tribal criminal justice agencies. The Pilot Program, which expired on
November 24, 2014, gives tribes the option to send highly violent
offenders to federal corrections facilities. Many tribes do not have
the resources or personnel to adequately and safely house these types
of offenders. The federal system also offers greater access to
treatment, rehabilitation, and reentry programs. The Bureau of Prisons
also strongly supports extending the program.
When the BOP Pilot Project was authorized under the TLOA, NCAI
believed that the program would be used sparingly for only the most
violent offenders. However, some in Congress were concerned about
costs, and imposed the limitations of only four years and up to 100
detainees. But in that short time the program had only begun to work.
Tribal governments must develop new criminal codes and procedures and
train staff to use the program, and generally take a steady approach to
implementing change. Two tribes transferred a total of four prisoners
to federal prisons, so it is clear that the floodgates are not a
problem.
We urge that the program is made permanent and tribes continue to
have the opportunity to exercise this option. Tribal governments are
increasingly seeking to enhance their sentencing authority under the
TLOA. Providing tribes this flexibility to house violent offenders will
allow tribal governments to concentrate their resources on other
pressing criminal justice and public safety needs. The Federal Bureau
of Prisons has echoed all of these recommendations in its report to
Congress required by the TLOA.
NCAI also supports the provision to require the Director of BIA,
Director of Bureau of Prisons, Director of IHS, and the Administrator
of the Substance Abuse and Mental Health Services Administration to
consult with Indian Tribes regarding juvenile justice and
incarceration. For decades tribal leaders have encouraged a more
proactive and humane approach to juvenile justice that is focused on
prevention and mentoring and rehabilitation rather than
criminalization. Tribal leaders strongly believe that we owe it to our
youth and future generations to focus resources on our young people
right at the beginning, rather than waiting for them to go astray and
then begin the cycle of institutionalization and incarceration that has
proven to be so ineffective.
Section 105: Federal Notice
This section requires the Office of the United States Attorney's
that convict any enrolled member of a federally recognized tribe shall
provide notice of that conviction to the appropriate tribe. NCAI
supports this provision, but also encourages that the Bureau of Prisons
be required to provide notice when any tribal member is released from
federal prison. This is the time when the community needs to be aware,
and services need to be provided to released inmates.
Section 106: Detention Facilities
Under these provisions, a tribe may request to use any available
detention funding from a contract or compact for appropriate
alternatives to detention. NCAI supports this provision but urges
removal of the requirement that the tribe, Secretary, and Director of
the Office Justice Services mutually agree. The requirement of
agreement will add significant costs and delay and will undermine the
intention. Tribal governments must be trusted to implement programs for
alternatives to incarceration, just as tribal courts are trusted to
make decisions regarding guilt or innocence.
Section 108: Amendments to the Indian Civil Rights Act
The right to a jury trial would be amended to include only those
crimes where there is a possibility of imprisonment of 180 days or
more. This would match the federal and state constitutional
requirements, and relieve tribal courts of the obligation to provide a
jury trial for misdemeanors. Tribal courts suffer from a significant
lack of resources. On some reservations, defendants have learned to act
collectively and request a jury trial for every misdemeanor, and have
succeeded in forcing the dismissal of many cases because the tribal
court cannot afford the time or money for a jury trial for every petty
crime. This provision would bring the Indian Civil Rights Act jury
requirements into line with the federal constitutional rule.
Section 109: Special Assistant Public Defender Liaisons
NCAI supports the purpose of this section to provide greater
coordination on indigent defense in Indian Country. However, the truly
great need is for funding for indigent defense services. As background,
the Indian Civil Rights Act of 1968 requires that defendants in tribal
courts have the right to counsel, but at their own expense. Our
testimony suggests a mechanism for Congress to finally provide funding
for indigent defense in Indian Country, which would come at no
additional costs to the federal budget.
First, tribes have strongly supported the provision of counsel to
indigent defendants in tribal courts for many years, but have generally
lacked adequate funding. Some tribes with greater resources provide
indigent defense from their own funds, and have done so for many years.
Tribes sought and welcomed the provision in the TLOA that although
Legal Services Corporation grantees generally are prohibited from using
federal funds to provide assistance in criminal proceedings, Congress
specifically exempted tribal court proceedings from that ban. See 42
U.S.C. 2996f(b)(2). As a result, indigent defendants often can obtain
counsel. In addition, tribes sought the provision in the Indian Tribal
Justice Act that seeks to enhance tribal courts' capacity to provide
indigent defense counsel. 25 U.S.C. 3613(b). Tribes have also
repeatedly urged Congress to appropriate the funds necessary to support
indigent defense throughout Indian Country, as one component of support
for tribal justice systems. See, NCAI Resolution #ABQ- 10-116, and NCAI
Resolution SD-02-015.
Second, under the TLOA and VAWA 2013, tribes can exercise greater
criminal authority and better protect their communities with extended
sentencing authority and jurisdiction over non- Indian domestic
violence offenders, but only if they provide indigent defense. Thus,
the lack of resources for indigent defense is a barrier to greater
public safety on tribal lands.
Third, at this moment the case of U.S. v. Bryant is pending before
the Supreme Court. Mr. Bryant is challenging his conviction under 18
USC 117, Domestic Assault by an Habitual Offender, because he was not
provided with indigent counsel in the tribal court convictions that
serve as the predicate crimes. In passing Section 117, Congress acted
with the goal of ``safeguarding the lives of Indian women.'' Violence
Against Women Reauthorization Act of 2005, Pub. L. No. 109-162, 901,
119 Stat. 2960, 3077-78 (2006). NCAI has urged the Supreme Court to
uphold Mr. Bryant's conviction, but this case once again sheds light on
the direct relationship between public safety and the provision of
indigent defense in tribal courts. We believe that this can be
accomplished, and suggest the authorization of a set-aside of 3 percent
of Defender Services program in the Financial Services and General
Government (FSGG) Appropriations bill. This account funds the
operations of the federal public defender and community defender
organizations, and compensation, reimbursements, and expenses of
private practice panel attorneys appointed by federal courts to serve
as defense counsel to indigent individuals. The FY2016 request is
$1,057.6 million, an increase of 4.0 percent over the FY2015 enacted
level. A 3 percent set-aside would result in approximately $30 million
annually for tribal court indigent defense. If combined with the 4
percent increase, the set-aside would result in no diminution of
funding for the Federal Public Defenders, and would establish a greatly
needed source of funding for indigent defense in tribal courts.
Section 110: Criminal Trespass on Indian Land
Under Section 1165 of Title 18, the misdemeanor offense of hunting,
trapping, or fishing would be expanded to include felony offenses for
violations of a tribal exclusion order. NCAI greatly appreciates this
section as it would address a great source of harm on tribal lands.
Indian reservations are experiencing increasing problems with serious
criminal trespass and a lack of deterrence. Tribes are unable to
address problems with sexual assault and stalking offenders who
continue to return to the reservation to harass victims. Drug dealers
are a perennial problem. Violating a tribal protection order or
exclusionary order should be subject to more serious federal penalties.
Tribes also have difficulties with former lease tenants who overstay
agricultural and residential leases for many years and refuse to leave
or pay rent. Tribes are also experiencing problems with timber theft,
repeated poaching, illegal mining and illegal marijuana operations,
serious crimes that are infrequently enforced because there is no
relevant criminal statute. There are also repeat offenders who dump
hazardous waste and serious property crimes and are warned again and
again but refuse to respect tribal property rights.
Because of this, we would urge two amendments to this section to
set an appropriate scale of criminal penalties for increasingly severe
criminal trespass crimes. First, we suggest that an offense should be
added for persons who commit serious property crimes on tribal lands
with fines and penalties of up to $15,000 and three years imprisonment
or both. We suggest consultation with the U.S. Attorneys to determine
an appropriate range of penalties that will create deterrence for those
who cause serious threats to persons or damage to property.
Secondly, we urge that the provision should include violation of
tribal protection orders as well as exclusionary orders. Protection
orders are often issued against persons who commit crimes of domestic
violence, sexual assault or stalking. There is an existing crime at 18
U.S. Code 2262--Interstate violation of protection order. However,
this crime is rarely enforced because it requires proof beyond a
reasonable doubt of intent: that the person traveled into Indian
country for the specific purpose of violating a protection order. This
is very difficult to prove, so even if a perpetrator traveled into
Indian country and beat up his former girlfriend in violation of a
protection order, it is difficult to show that he had this specific
intent when he set out on his journey. Instead, we propose that the
provisions for exclusionary orders would also include protection
orders. We also suggest consultation with the U.S. Attorneys to
determine an appropriate range of penalties that will create
deterrence. The following is a proposal for statutory text:
18 U.S. Code 1165--Hunting, trapping, or fishing on Indian land
(to be retitled ``Criminal Trespass on Indian Lands,'' the first
section retained, and renumbered subsection (a) with additional
subsections for escalating penalties for severe offenses).
b) Repeated trespassing offenses and persons who commit crimes
against persons or property on tribal lands shall be subject to
fines and penalties of up to $15,000 and three years
imprisonment or both.
c) VIOLATION OF TRIBAL PROTECTION ORDER OR TRIBAL EXCLUSION
ORDER--
(1) IN GENERAL.-It shall be unlawful for any person to
knowingly violate the terms of a tribal protection order or
exclusion order that was issued by a court or other tribunal of
an Indian tribe in accordance with the requirements of
paragraph (4).
(2) PENALTY.-Any person who violates paragraph (1) shall be
guilty of a crime and fined up to $10,000, imprisoned for up to
5 years, or both.
(3) DEFINED TERMS.-For the purposes of this subsection, the
term-
(A) ``protection order'' includes any order which
(i) satisfies the definitions set forth in 18 USC 2266(5);
(ii) satisfies the jurisdiction and notice provisions set
forth in 18 USC 2265(b); and
(B) ``exclusion order'' means an order issued in a
proceeding by a court or other tribunal of an Indian tribe
which temporarily or permanently excludes a person from tribal
land for violation of the criminal laws of the tribal
government.
(4) REQUIREMENTS FOR ORDERS.-
(A) PROTECTION ORDERS--A violation of a protection order
shall constitute an offense under paragraph (1) if the order
includes a statement that violation of the order will result in
criminal prosecution under Federal law and the imposition of a
fine, imprisonment, or both; and
(B) EXCLUSION ORDERS--A violation of an exclusion order
shall constitute an offense under paragraph (1) if the
respondent was served with or had actual notice of--
(i) a complaint setting forth a plain statement of facts
which, if true, would provide the basis for the issuance of an
exclusion order against the respondent;
(ii) the date, time and place for a hearing on the
complaint; and
(iii) a statement informing the respondent that if he or
she fails to appear at the hearing a order may issue, the
violation of which may result in criminal prosecution under
Federal law and the imposition of a fine, imprisonment, or
both;
(iv) a hearing on the complaint was held on the record at
which the respondent was provided an opportunity to be heard
and present testimony of witnesses and other evidence as to why
the order should not issue;
(v) the order temporarily or permanently excludes the
respondent from Indian land under the jurisdiction of that
Indian tribe;
(viii) the order includes a statement that a violation of
the order may result in criminal prosecution under Federal law
and the imposition of a fine, imprisonment, or both; and
(ix) the respondent was served with or had actual notice
of the order.
(5) NO LIMITATION ON TRIBAL AUTHORITY; EFFECT OF
SUBSECTION.--Nothing in this subsection limits or otherwise
affects the application of the Violence Against Women Act, (18
U.S.C. 2261-2266).
Section 201: Federal Jurisdiction Over Indian Juveniles
The words ``Indian Tribe'' and ``tribal'' are added to Section 5032
of Title 18 of the U.S. Code, so that federal offenses could be
referred to tribal court. NCAI supports this provision, but also
recognizes that there are a relatively small number of serious felonies
committed by youth that could result in referral for federal
prosecution.
Section 203: Justice for Indian Youth
This section improves justice for Indian youth under the Juvenile
Justice and Delinquency Prevention Act (JJDPA) by requiring notice to
tribes when a member youth enters a state or local justice system,
requiring tribal participation on advisory groups, coordinating
services for tribal youth, and including tribal traditional or cultural
programs which reduce recidivism as authorized activities for federal
funding.
NCAI strongly supports these provisions, and particularly notice to
tribes when a youth enters state or local justice system. In many
cases, Indian tribes have developed programs and services for Native
youth that are more culturally appropriate, and will be welcomed by
county court judges as alternatives to incarceration. However, these
programs and remedies cannot work unless the tribal government has
notice and is able to communicate with the local court system.
Although the above amendments and additions to the Reauthorization
of TLOA set a strong foundation towards improving public safety in
Indian Country, we would still like to request consideration that the
following provisions be added to the reauthorization.
1) Annual declination reporting. The TLOA was passed by Congress
against a backdrop of criticism that far too many Indian Country crimes
were never adequately investigated, and prosecution was too frequently
declined. For many years, tribal leaders had raised the concern that
the U.S. Attorneys did not consider Indian Country crimes a priority
and declined to prosecute an extraordinary percentage of cases. A
Denver Post investigative reporting series from November of 2007 raised
these concerns:
Between 1997 and 2006, federal prosecutors rejected nearly
two-thirds of the reservation cases brought to them by FBI and
Bureau of Indian Affairs investigators, more than twice the
rejection rate for all federally prosecuted crime.
Investigative resources spread so thin that federal agents
are forced to focus only on the highest-priority felonies while
letting the investigation of some serious crime languish for
years. Long delays in investigations without arrest leave
sexual assault victims vulnerable and suspects free to commit
other crimes.
Many low-priority felonies never make it to federal
prosecutors in the first place. Of the nearly 5,900 aggravated
assaults reported on reservations in fiscal year 2006, only 558
were referred to federal prosecutors, who declined to prosecute
320 of them. Of more than 1,000 arson complaints reported last
year on Indian reservations, 24 were referred to U.S.
Attorneys, who declined to prosecute 18 of them.
From top to bottom, the Department of Justice's commitment
to crime in Indian Country was questionable. Former United
States Attorney for the Western District of Michigan Margaret
Chiara was quoted saying, ``I've had (assistant U.S. attorneys)
look right at me and say, 'I did not sign up for this'. . .
.They want to do big drug cases, white-collar crime and
conspiracy.'' Comments from former United States Attorney for
Arizona, Paul Charlton indicate that this attitude came from
the top. Charlton has related a story where a high-level
Department of Justice official asked him why he was prosecuting
a doublemurder in Indian Country in the first place. \10\
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\10\ Mike Riley, ``Principles and Politics Collide: Some U.S.
Attorneys who emphasize fighting crime on Indian lands have seen
themselves fall out of favor in D.C.,'' DENVER POST, Nov. 14, 2007.
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This dire and long-term institutional dysfunction required a
response. Therefore a key feature of the TLOA requires both the
FBI and the U.S. Attorneys to submit annual reports to Congress
compiling information regarding decisions not to refer
investigated cases, and all declinations to prosecute in Indian
Country, including the types of crimes alleged and the reasons
for declination. The law also requires coordination with tribal
law enforcement if a federal law enforcement official
terminates an investigation or declines to prosecute an alleged
violation of Federal criminal law in Indian country. The annual
reports to Congress are to be organized in the aggregate; and
for the FBI, by Field Division; and for U.S. Attorneys, by
judicial district; and including any relevant explanatory
statements.
In general, we believe that the annual reports have led to an
increased awareness of responding to Indian Country crime
within the DOJ. However, there are a number of aspects of the
reporting system that should be improved. The first is
straightforward. The TLOA requires annual declination reporting
on a calendar year, but the existing reporting system at the
DOJ is on a fiscal year basis. Our understanding is that this
creates unnecessary difficulty. We recommend consultation with
the U.S. Attorneys and the EOUSA and resolve this difference to
improve reporting.
Secondly, and more importantly, we recommend additional
consultation with tribal leaders and prosecutors regarding
specific improvements to the declination reporting system. For
example, tribal prosecutors routinely request more case-
specific and tribe-specific sharing of information between
federal and tribal prosecutors so that they can use the data to
allocate resources and prosecution efforts. In addition, the
annual reports showed prosecution being declined in 50 to 60
percent of reported crimes due to ``insufficient evidence.''
Although Congress has required the ``reasons'' for a
declination, ``insufficient evidence'' is so broad as to
provide little analytic value. Tribal leaders frequently
describe cases with little or no investigation, or that occur
many months after the crime. It is impossible to tell from the
declination reports whether more robust investigations would
have resulted in additional prosecutions.
Another example is that many referred crimes are declined
because they ``are not a federal crime.'' It is impossible to
tell from the declination reports how often this designation is
used for crimes such as theft, destruction of property;
domestic violence and low-level gang activity that commonly
involves both Indian and non-Indian defendants. We have also
heard reports that many of these crimes are never compiled into
the reports. In fact, these are federal crimes in Indian
country under the Assimilative Crimes Act, 18 U.S.C. 13,
which makes state laws applicable to conduct occurring in
federal territory. Despite this, the ``no federal offense
evident'' category is used in a discretionary and informal
manner. However, the absence of tribal jurisdiction to deal
effectively with non-Indians in these cases creates a
perception that the likelihood of being caught and punished is
low, and encourages a disregard for tribal law enforcement.
Third, we urge greater engagement with the Federal Bureau of
Investigations on its role in investigating Indian Country
crimes. On May 30, 2013 the first report of statistics gathered
under the Act was released by the DOJ. It covered 2011 and 2012
and showed a 54 percent increase in prosecutions in 2012 as
compared to 2008. However substantial problems remained with
prosecution being declined in 60 percent of reported crimes due
to ``insufficient evidence,'' which tribal leaders attribute,
at least in substantial part, to inadequate and slow
investigations.
Prior to the 1980's, the Bureau of Indian Affairs law
enforcement had a significant budget for investigations, and
they had their own investigators. In the late 1980's
responsibility for investigations in Indian country was
transferred to the FBI, as well as the financial appropriations
for that responsibility. We recall that approximately 90
million was transferred out of the Interior appropriations and
into the FBI appropriations. At that time promises were made
that the FBI would do far more professional work with
investigations and it would result in greater public safety on
Indian reservations.
However, over time the FBI leadership has lost sight of this
commitment, diminishing its Indian country responsibilities and
staffing, while keeping all the funding. In 1993, the FBI
entered a Memorandum of Understanding with the BIA, stating
that investigations were a ``shared'' responsibility, and that
``determining which law enforcement agency, federal or tribal,
has primary responsibility for investigation of a particular
crime may depend on the nature of the crime committed and any
applicable local guidelines, which vary across jurisdictions.''
A significant amount of resources were reprogrammed after 9/11,
and smaller numbers of FBI agents have trickled away from
Indian country on a continuous basis in almost every year. In
May of 2008, FBI Director Mueller testified at a hearing of the
House Judiciary Committee. In response to a question regarding
the FBI's role in and commitment to fighting crime in Indian
Country, he stated his hope was that other agencies would grow
to fill that need and that the FBI would no longer have to
provide services in Indian country.
More recently, in the FY2011 budget, 20 million was
transferred from the BIA law enforcement budget to the FBI to
improve resources for investigations. Then, in the most recent
President's budget, it initially included a proposed cut of
seventeen FBI agents in Indian country. NCAI protested and it
was quickly corrected, but the proposal demonstrates the lack
of awareness among FBI leadership about their commitment to
Indian country law enforcement. Meanwhile the declination data
shows most federal declinations to prosecute are from
insufficient evidence. While FBI agents are in short supply in
Indian Country, the funds reprogrammed out of the BIA remain
steadily in the FBI budget.
2) Tribal Criminal Code Development Program, with focus on
Juvenile Justice. NCAI encourages the authorization of $10 million
annually for a program to update tribal criminal codes and justice
systems. The Department of Interior recently published a new model
tribal juvenile justice code. The Model Indian Juvenile Code 2015
Revision reflects a core commitment to providing tribes with juvenile
statutes assuring the fundamental rights of children and their parents,
guardians and custodians, and allowing opportunities for restorative
diversions at each stage of the juvenile justice process. Too many
juvenile codes are nearly indistinguishable from adult criminal codes
and provide too few diversions to rehabilitative services, and rely too
heavily on detention. Many judges have voiced frustration with the lack
of a comprehensive and flexible code which encourages the development
of alternatives to standard juvenile delinquency, truancy, and child
in-need-ofservices systems.
However, in general tribal governments lack the funding to go
through the process of updating criminal codes. Most tribal
criminal codes were developed by the BIA in the 1960's and
70's, and are growing painfully outdated. Tribal criminal codes
need to be updated in many other areas, including domestic
violence, sexual assault, protection of children, and a raft of
procedural improvements needed to protect victims, improve
rehabilitation and reduce recidivism. There have been many
advances in criminal justice that need to be integrated into
tribal codes, and that will not happen without some level of
funding for code update projects.
3) Access to Firearms for Tribal Police--NCAI Resolution ABQ-10-
029--NCAI supports legislation to amend the National Firearms Act of
1934 and the Gun Control Act of 1968 so that Tribal Police Departments
are recognized as governmental entities similar to agencies of the
United States government, or of a state government, or a political
subdivision thereof without the requirement of special law enforcement
commissions so that Tribal Police Departments are exempt from payment
of the transfer tax for NFA firearms, are eligible to receive firearms
interstate, and can possess a machine gun manufactured after May 18,
1986.
4) Alaska Native Villages--The legislation in its current form
does not address the unique law enforcement issues in Alaska Native
communities. Alaskan tribal lands are not considered ``Indian country''
after the Supreme Court's decision in Alaska v. Native Village of
Venetie. Tribal communities in Alaska experience high rates of domestic
violence and sexual assault and significant problems with substance
abuse. Most of the native communities are only accessible by plane or
boat, and are completely dependent on state law enforcement. The
Village Public Safety Officer program has had its budget slashed by the
state, and many tribal communities in Alaska are terribly underserved
by state police and other services. We know that the Committee is aware
of these problems and would urge the Committee to reach out to Alaska
tribal leaders to develop ways to improve law enforcement in Alaska.
Our primary recommendations are that the federal government provide
direct funding for rural law enforcement in Alaska, to strengthen
victims services, to support the land to trust process in Alaska, to
strengthen tribal courts, and that tribal communities in Alaska be
given greater control over alcohol and substance abuse policies.
5) Eliminate Requirement of ``Indian'' Status for Purpose of Major
Crimes Act--In cases such as U.S. v. Zepeda, defendants have repeatedly
challenged their status as an ``Indian'' under the Major Crimes Act.
However, given that 1152 covers non-Indian crimes, and 1153 covers
Indian crimes, the provisions could be amended in a manner so that
Indian status would be irrelevant for most crimes. Major crimes on
tribal land are subject to essentially identical federal criminal
prohibitions no matter the status of the defendant. The endless
litigation over these common law definitions of Indian also pose a
continuing threat to the political status of tribal citizens and
threaten precedent such as Morton v. Mancari and U.S. v. Antelope. The
following is an initial proposal for replacement language for 1153 that
would eliminate the requirement of Indian status.
18 U.S. Code 1153--Major offenses committed within Indian
country
(a) Any person who commits against the person or property of
another person any of the following offenses, namely, murder,
manslaughter, kidnapping, maiming, a felony under chapter 109A,
incest, a felony assault under section 113, an assault against
an individual who has not attained the age of 16 years, felony
child abuse or neglect, arson, burglary, robbery, and a felony
under section 661 of this title within the Indian country,
shall be subject to federal law and penalties within the
jurisdiction of the United States.
(b) Any offense referred to in subsection (a) of this section
that is not defined and punished by Federal law in force within
the exclusive jurisdiction of the United States shall be
defined and punished in accordance with the laws of the State
in which such offense was committed as are in force at the time
of such offense.
Conclusion
NCAI greatly appreciates the work of the Senators and the Committee
on this important legislation. This is the stage in the process where
we must listen to tribal leaders and other public safety professionals
and take advantage of the insights they can provide. The proposed
legislation was introduced recently so we will need time for response.
In particular, we have found that the best information often comes from
people who work in the criminal justice system--tribal police officers,
tribal prosecutors, tribal judges and the like. I would encourage the
Committee to make a special effort to reach out for their views on how
the legislation can be strengthened. We urge continuing dialogue with
tribal leaders on the proposals in this testimony, and those received
from all tribal governments.
Proposal to Integrate and Coordinate Public Safety and Justice System
Funding Intended for the purpose of providing concepts for
consultation with tribal governments
Section 1. DEFINITIONS.
The following definitions apply:
(1) Indian tribe. The terms ``Indian tribe'' and ``tribe'' shall
have the meaning given the term ``Indian tribe'' in section 4(e) of the
Indian Self-Determination and Education Assistance Act.
(2) Indian. The term ``Indian'' shall have the meaning given such
term in section 4(d) of the Indian Self-Determination and Education
Assistance Act.
(3) Secretary. Except where otherwise provided, the term
``Secretary'' means the Secretary of the Interior.
Section 2. INTEGRATION OF SERVICES AUTHORIZED.
The Secretary of the Interior, in cooperation with the Attorney
General and the Secretary of Health and Human Services shall, upon the
receipt of a plan acceptable to the Secretary of the Interior submitted
by an Indian tribal government, authorize the tribal government to
coordinate, in accordance with such plan, its federally funded law
enforcement, public safety, justice systems, and substance abuse and
mental health programs in a manner that integrates the program services
involved into a single, coordinated, comprehensive program and reduces
administrative costs by consolidating administrative functions.
Section 3. PROGRAMS AFFECTED.
The programs that may be integrated in a demonstration project
under any such plan shall include any program under which an Indian
tribe is eligible for receipt of funds under a statutory or
administrative formula for the purposes of funded law enforcement,
public safety, justice systems and substance abuse and mental health
programs.
Section 4. PLAN REQUIREMENTS.
For a plan to be acceptable pursuant to section 4, it shall -
(1) identify the programs to be integrated;
(2) be consistent with the purposes of this Act authorizing the
services to be integrated in a demonstration project;
(3) describe a comprehensive strategy which identifies the full
range of law enforcement, public safety, justice systems and substance
abuse and mental health program needs;
(4) describe the way in which services are to be integrated and
delivered and the results expected from the plan;
(5) identify the projected expenditures under the plan in a single
budget;
(6) identify the agency or agencies of the tribal government to be
involved in the delivery of the services integrated under the plan;
(7) identify any statutory provisions, regulations, policies, or
procedures that the tribal government believes need to be waived in
order to implement its plan; and
(8) be approved by the governing body of the affected tribe.
Section 5. PLAN REVIEW.
Upon receipt of the plan from a tribal government, the Secretary of
the Interior shall consult with the Secretary of each Federal
department providing funds to be used to implement the plan, and with
the tribal government submitting the plan. The parties so consulting
shall identify any waivers of statutory requirements or of Federal
departmental regulations, policies, or procedures necessary to enable
the tribal government to implement its plan. Notwithstanding any other
provision of law, the Secretary of the affected department shall have
the authority to waive any regulation, policy, or procedure promulgated
by that department that has been so identified by such tribal
government or department, unless the Secretary of the affected
department determines that such a waiver is inconsistent with the
purposes of this Act or those provisions of the statute from which the
program involved derives its authority which are specifically
applicable to Indian programs.
SEC. 6. PLAN APPROVAL.
Within 90 days after the receipt of a tribal government's plan by
the Secretary, the Secretary shall inform the tribal government, in
writing, of the Secretary's approval or disapproval of the plan. If the
plan is disapproved, the tribal government shall be informed, in
writing, of the reasons for the disapproval and shall be given an
opportunity to amend its plan or to petition the Secretary to
reconsider such disapproval.
SEC. 7. FEDERAL RESPONSIBILITIES.
(a) Responsibilities of the Department of the Interior. Within 180
days following the date of enactment of this Act, the Secretary of the
Interior, Attorney General, and the Secretary of Health and Human
Services and the Secretary of Education shall enter into an
interdepartmental memorandum of agreement providing for the
implementation of the demonstration projects authorized under this Act.
The lead agency for a demonstration program under this Act shall be the
Bureau of Indian Affairs, Department of the Interior. The
responsibilities of the lead agency shall include--
(1) the use of a single report format related to the plan for the
individual project which shall be used by a tribal government to report
on the activities undertaken under the project;
(2) the use of a single report format related to the projected
expenditures for the individual project which shall be used by a tribal
government to report on all project expenditures;
(3) the development of a single system of Federal oversight for the
project, which shall be implemented by the lead agency; and
(4) the provision of technical assistance to a tribal government
appropriate to the project, except that a tribal government shall have
the authority to accept or reject the plan for providing such technical
assistance and the technical assistance provider.
(b) Report Requirements. The single report format shall be
developed by the Secretary, consistent with the requirements of this
Act. Such report format, together with records maintained on the
consolidated program at the tribal level shall contain such information
as will allow a determination that the tribe has complied with the
requirements incorporated in its approved plan and will provide
assurances to each Secretary that the tribe has complied with all
directly applicable statutory requirements and with those directly
applicable regulatory requirements which have not been waived.
SEC. 8. NO REDUCTION IN AMOUNTS.
In no case shall the amount of Federal funds available to a tribal
government involved in any demonstration project be reduced as a result
of the enactment of this Act.
SEC. 9. INTERAGENCY FUND TRANSFERS AUTHORIZED.
The Secretary of the Interior, Attorney General, and Secretary of
Health and Human Services, as appropriate, are authorized to take such
action as may be necessary to provide for an interagency transfer of
funds otherwise available to a tribal government in order to further
the purposes of this Act.
SEC. 10. ADMINISTRATION OF FUNDS AND OVERAGE.
(a) Administration of Funds.--
(1) In general. Program funds shall be administered in such a
manner as to allow for a determination that funds from specific
programs (or an amount equal to the amount attracted from each program)
are spent on allowable activities authorized under such program.
(2) Separate records not required. Nothing in this section shall be
construed as requiring thetribe to maintain separate records tracing
any services or activities conducted under its approved plan to the
individual programs under which funds were authorized, nor shall the
tribe be required to allocate expenditures among such individual
programs.
(b) Overage. All administrative costs may be commingled and
participating Indian tribes shall be entitled to the full amount of
such costs (under each program or department's regulations), and no
overage shall be counted for Federal audit purposes, provided that the
overage is used for the purposes provided for under this Act.
SEC. 11. FISCAL ACCOUNTABILITY.
Nothing in this Act shall be construed so as to interfere with the
ability of the Secretary or the lead agency to fulfill the
responsibilities for the safeguarding of Federal funds pursuant to the
Single Audit Act of 1984.
SEC. 12. REPORT ON STATUTORY OBSTACLES TO PROGRAM INTEGRATION.
(a) Preliminary Report. Not later than two years after the date of
the enactment of this Act, the Secretary shall submit a preliminary
report to the Select Committee on Indian Affairs of the Senate and the
Committee on Interior and Insular Affairs of the House of
Representatives on the status of the implementation of the
demonstration program authorized under this Act.
(b) Final Report. Not later than five years after the date of the
enactment of this Act, the Secretary shall submit a report to the
Committee on Indian Affairs of the Senate and the Committee on Natural
Resources on the results of the implementation of the demonstration
program authorized under this Act. Such report shall identify statutory
barriers to the ability of tribal governments to integrate more
effectively their services in a manner consistent with the purposes of
this Act.
Special Domestic Violence Criminal Jurisdiction Pilot Project Report--
October 29, 2015
``The first responsibility of any government, tribal or
otherwise, is the safety and protection of its people, for
there can be no security or freedom for all, if there is
insecurity and fear for any of us. Pascua Yaqui tribal
officials no longer have to simply stand by and watch their
women be victimized with no recourse.''
-- The Honorable Peter Yucupicio Chairman, Pascua Yaqui Tribe
of Arizona
This project was supported by Grant # 2013-TA-AX-K011 awarded
by the Office on Violence Against Women. The opinions,
findings, and conclusions or recommendations expressed in this
publication are those of the author and do not necessarily
reflect the view of the Department of Justice.
Introduction
On March 7, 2013, President Obama signed the Violence Against Women
Reauthorization Act of 2013 (VAWA 2013) into law. \1\ For the first
time since the U.S. Supreme Court stripped tribal governments of their
criminal authority over non-Indians in Oliphant v. Suquamish Tribe
(1978), \2\ VAWA 2013 recognized and reaffirmed the inherent sovereign
authority of Indian tribes to exercise criminal jurisdiction over
certain non-Indians who violate protection orders or commit dating
violence or domestic violence against Indian victims on tribal lands.
\3\ Known as Special Domestic Violence Criminal Jurisdiction (SDVCJ),
this limited tribal criminal jurisdiction over non-Indians has
fundamentally changed the landscape of tribal criminal jurisdiction in
the modern era. Communities currently exercising SDVCJ have increased
safety and justice for victims who had too often slipped through the
cracks.
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\1\ Pub. L. No. 113-4, 127 Stat. 54 (2013).
\2\ Oliphant v. Suquamish, 435 U.S. 191 (1978).
\3\ 25 U.S.C. 1304.
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Although the law did not take general effect until March 7, 2015,
VAWA 2013 created a ``Pilot Project'' that enabled Indian tribes who
received prior approval from the United States Department of Justice
(DOJ) to exercise SDVCJ on an accelerated basis. \4\ After consultation
with tribal governments, DOJ established a process for interested
tribes to submit applications demonstrating that the tribe was in
compliance with the federal law and afforded adequate due process to
non-Indian defendants. \5\ DOJ approved three tribes--the Confederated
Tribes of the Umatilla Indian Reservation (CTUIR) in Oregon, the Pascua
Yaqui Tribe in Arizona, and the Tulalip Tribes of Washington--to
implement SDVCJ in February 2014. Two additional tribes--the
Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation in
Montana and the Sisseton-Wahpeton Oyate of the Lake Traverse
Reservation in North and South Dakota--were approved to exercise SDVCJ
on March 6, 2015, the last day of the pilot project period.
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\4\ Pub L. No. 113-4, 127 Stat. 54 (2013), Sec. 908(b).
\5\ 78 Fed. Reg. 35,961 (June 14, 2013); 78 Fed. Reg. 71,645 (Nov.
29, 2013).
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All five of the pilot project tribes participated along with 40
other tribes in an Inter-Tribal Technical- Assistance Working Group on
SDVCJ Intertribal Working Group (ITWG), which is composed of tribes who
expressed preliminary interest in exploring implementation of SDVCJ to
DOJ and agreed to work peer-to-peer to answer questions about
implementation of SDVCJ and develop best practices.
Tribes currently exercising SDVCJ have increased safety and
justice for victims who have too often slipped through the
cracks.
This report provides a brief report on activities during the Pilot
Project period (February, 2014 through March 6, 2015) and shares
recommendations for next steps.
Overview of Special Domestic Violence Criminal Jurisdiction
As of March 7, 2015, two years after Violence Against Women
Reauthorization Act of 2013 (VAWA 2013) was enacted, Indian tribes
across the country can exercise criminal jurisdiction over non-Indians
for certain acts of domestic violence or dating violence and protection
order violations so long as the statutory requirements of VAWA 2013 are
met. \6\ The full text of the statute is included as Appendix A to this
report. In summary, for a tribe to exercise jurisdiction over a non-
Indian offender:
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\6\ 25 U.S.C. 1304; see also id. at 1304 note.
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the victim must be Indian;
the crime must take place in the Indian country of the
participating tribe; and
the non-Indian defendant must have ``ties to the Indian
tribe,'' which means the defendant:
--resides in the Indian country of the participating tribe;
--is employed in the Indian country of the participating tribe;
or
--is a current or former spouse, intimate partner, or dating
partner of a member of the participating tribe, or an Indian
who resides in the Indian country of the participating tribe.
\7\
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\7\ 25 U.S.C. 1304(b)(4).
VAWA 2013 requires that any tribe exercising SDVCJ must provide
certain due process protections to defendants. Specifically, the tribe
must provide all of the protections that have long been guaranteed by
the Indian Civil Rights Act, many of which mirror the U.S. Bill of
Rights. \8\ In addition, VAWA 2013 requires implementing tribes, in any
SDVCJ case where a term of imprisonment may be imposed, to provide a
number of additional rights. Many of these rights are the same as those
that were required of tribes in order to exercise felony jurisdiction
under the Tribal Law and Order Act of 2010:
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\8\ 25 U.S.C. 1304(a)'s protections include: freedom of speech and
religion; freedom from illegal or warrantless search or seizure; a
prohibition on double jeopardy; the right not to be compelled to be a
witness against oneself; the right to a speedy trial and to confront
witnesses; the right to a jury trial; and the right not to be subjected
to cruel or unusual punishment, excessive fines, or excessive bail.
``provide to the defendant the right to effective assistance
of counsel at least equal to that guaranteed by the United
States Constitution''; \9\
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\9\ 25 U.S.C. 1302(c)(1).
``at the expense of the tribal government, provide an
indigent defendant the assistance of a defense attorney
licensed to practice law by any jurisdiction in the United
States that applies appropriate professional licensing
standards and effectively ensures the competence and
professional responsibility of its licensed attorneys''; \10\
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\10\ 25 U.S.C. 1302(c)(2).
``require that the judge presiding over the criminal
proceeding has sufficient legal training to preside over the
criminal proceedings and is licensed to practice law in any
jurisdiction in the United States''; \11\
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\11\ 25 U.S.C. 1302(c)(3).
make publicly available the tribe's ``criminal laws
(including regulations and interpretative documents), rules of
evidence, and rules of criminal procedure (including rules
governing the recusal of judges in appropriate
circumstances)''; \12\ and
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\12\ 25 U.S.C. 1302(c)(4).
``maintain a record of the criminal proceeding, including an
audio or other recording of the trial proceeding.'' \13\
---------------------------------------------------------------------------
\13\ 25 U.S.C. 1302(c)(5).
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VAWA 2013 also guarantees a defendant in a SDVCJ case:
``the right to a trial by an impartial jury that is drawn
from sources that reflect a fair cross section of the community
and do not systematically exclude any distinctive group in the
community, including non-Indians''; \14\ and
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\14\ 25 U.S.C. 1304(d)(3).
``all other rights whose protection is necessary under the
Constitution of the United States in order for Congress to
recognize and affirm the inherent power of the participating
tribe to exercise SDVCJ over the defendant.'' \15\
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\15\ 25 U.S.C. 1304(d)(4).
Overview of the Pilot Project
Although the tribal criminal jurisdiction provision of VAWA 2013
was generally not effective until March 7, 2015, \16\ tribes could
implement SDVCJ on an accelerated basis before that date with approval
from the Attorney General during a ``Pilot Project'' period. \17\ The
DOJ developed a Pilot Project Application Questionnaire, which
interested tribes used to request that the Attorney General designate
them as ``participating tribes'' and approve their accelerated
implementation of SDVCJ. \18\ This Application Questionnaire was DOJ's
final notice and solicitation of applications for the pilot project,
which was published in the Federal Register on November 29, 2013. \19\
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\16\ Pub. L. No. 113-4, 127 Stat. 54 (2013), Sec. 908(b)(1).
\17\ Pub. L. No. 113-4, 127 Stat. 54 (2013), Sec. 908(b)(2).
\18\ Although completing the Application Questionnaire is no longer
required for a tribe who wants to implement SDVCJ, it is a useful guide
for a tribe to conduct a self-assessment prior to implementing SDVCJ.
In addition, the completed Application Questionnaires from the Pilot
Project tribes provide helpful information about options for meeting
the requirements of the statute. The completed questionnaires can be
found at www.ncai.org/tribalvawa.
\19\ Fed. Reg., vol. 78, no. 230, p. 71645, Nov. 29, 2013.
Five tribes received approval to implement SDVCJ during the
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Pilot Project Period
Three tribes received approval to implement SDVCJ in February
2014--the CTUIR in Oregon, the Pascua Yaqui Tribe in Arizona, and the
Tulalip Tribes in Washington. These tribes exercised SDVCJ for a little
more than a year during the Pilot Project period before the law took
general effect on March 7, 2015. Two additional tribes' applications
were approved during the Pilot Project period on March 6, 2015--the
Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, and
the Sisseton-Wahpeton Oyate of the Lake Traverse Reservation. Since
these tribes received approval the day before VAWA 2013 took general
effect nationwide, these tribes did not have any SDVCJ cases during the
Pilot Project period.
Exercise of Special Domestic Violence Criminal Jurisdiction during
Pilot Period
While ultimately five tribes were approved to exercise SDVCJ during
the pilot period, only the first three tribes were approved early
enough to have any SDVCJ cases before the conclusion of the Pilot
Project on March 7, 2015. During the first year of SDVCJ
implementation, the three original pilot tribes had a total of 27 SDVCJ
cases involving 23 separate offenders. Of the 27 cases, 11 were
ultimately dismissed for jurisdictional or investigative reasons, 10
resulted in guilty pleas, 5 were referred for federal prosecution and 1
offender was acquitted by a jury. None of the SDVCJ non-Indian
defendants have petitioned for habeas corpus review in federal court.
All of the Pilot Project tribes have had additional cases since the
conclusion of the Pilot Project period. This report, however, only
discusses those cases that occurred between February 20, 2014 and March
7, 2015.
Pilot Project Statistics:
28 arrests of 24 offenders
13 guilty pleas
2 referrals for federal prosecution
1 acquittal
11 dismissals
1 outstanding warrant
No habeas corpus appeals
Pascua Yaqui Tribe
The Pascua Yaqui Tribe submitted its final Pilot Project
Application Questionnaire to DOJ on December 30, 2013. The Tribe
received approval to begin exercising SDVCJ on February 6, 2014, and
jurisdiction went into effect on February 20, 2014. The Tribe
immediately issued a press release and formal notice to the community
regarding implementation of the new law. After the Pilot Project
concluded, the Tribe released an Implementation Timeline and
comprehensive Pilot Project Summary of SDVCJ implementation at Pascua
Yaqui. All of these materials are available online at www.ncai.org/
tribal-vawa.
The Pascua Yaqui Tribe is located on a 2,200-acre reservation in
southwest Arizona near Tucson, Arizona, approximately 60 miles north of
the United States-Mexico border. The Tribe has approximately 19,000
members, with 4-5,000 members living on the reservation. Approximately
90 percent of the reservation population is American Indian and the
most common household demographic on the reservation is single-mother
households, which account for nearly 43 percent of all Pascua Yaqui
households. The vast majority of criminal cases filed in the Pascua
Yaqui Tribal Court are domestic-violence related offenses. Several of
the Pascua Yaqui prosecutors are designated as Special Assistant United
States Attorneys (SAUSAs), which allow them to also serve as
prosecutors in federal court. The Tribe funds a full-fledged Public
Defenders Office (originally opened in 1995) with four licensed defense
attorneys who represent those accused of crimes. The Tribe also funds
four private contracted defense attorneys for those cases where a
conflict of interest exists. The Tribe has employed law-trained judges
and recorded its court proceedings since long before VAWA 2013.
Of the three original Pilot Project tribes, Pascua Yaqui has had
the highest number of SDVCJ cases. Between February 20, 2014 and March
6, 2015, the Tribe handled 18 SDVCJ cases, involving 15 separate
offenders. Four of these cases resulted in guilty pleas, four were
referred for federal prosecution due to the seriousness of the
violence, 10 cases were declined for jurisdictional, investigative, or
evidentiary problems, and one resulted in an acquittal. Significantly,
the 18 cases at Pascua Yaqui involved 18 children as either witnesses
or victims. In the four-year period prior to their arrest, the 15 non-
Indian defendants charged under SDVCJ had more than 80 documented
tribal police contacts, arrests, or reports attributed to them.
In the four-year period prior to the implementation of the VAWA
Pilot Project and during the Pilot Project period, the 15 non-
Indian defendants charged under SDVCJ had more than 80
documented tribal police contacts, arrests, or reports
attributed to them.
Because of jurisdictional limitations in place at the time under
federal law, the tribal court could not prosecute any of these prior
incidents that involved criminal violations.
Pascua Yaqui is the only tribe to have had a jury trial for a SDVCJ
case during the Pilot Project period. \20\ The case was a domestic
violence assault involving two men allegedly in a same-sex
relationship. The defendant was acquitted by the jury. Interviews with
the jurors suggest that the jury was not convinced that the two
individuals had a relationship that would meet the requirements for
tribal jurisdiction under VAWA 2013, which limits tribal jurisdiction
to ``domestic violence'' defined as ``violence committed by a current
or former spouse, or intimate partner of the victim, by a person with
who the victim shares a child in common, by a person who is
cohabitating or has cohabitated with the victim as a spouse or intimate
partner, or by a person similarly situated to a spouse of the victim
under the domestic or family violence laws of an Indian tribe that has
jurisdiction over the Indian country where the violation occurs.'' \21\
There was no question that the assault occurred. In fact, if the
defendant had been an Indian, the prosecutor would not have had to
prove any particular relationship between the offender and the victim.
But because SDVCJ is limited to the specific crimes of domestic or
dating violence, both of which require a particular relationship, that
was not an option in this case. The non-Indian defendant was
subsequently extradited to the State of Oklahoma on an outstanding
felony warrant.
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\20\ As of the date of this report, the Pascua Yaqui case discussed
here is still the only jury trial in a SDVCJ case.
\21\ 25 U.S.C. 1304(a)(2).
Pascua Yaqui: Pilot Project Stats-at-a-Glance
18 SDVCJ cases, involving 15 separate offenders.
-- 1 jury trial resulted in an acquittal and subsequent
extradition to Oklahoma
--5 guilty pleas
--1 referral for federal prosecution
--10 dismissals
--1 defendant on warrant status
The 15 non-Indian defendants had over 80 documented tribal
police contacts, arrests, or reports attributed to them over
the past 4 years.
11 defendants had criminal records in Arizona.
2 of the defendants had outstanding felony arrest warrants.
18 children involved as witnesses and/or victims.
pascua yaqui: case study
Defendant, a non-Indian, Hispanic male, was charged with Domestic
Violence Assault and Domestic Violence Threatening and Intimidating. On
March 4, 2015, Defendant was arrested for threatening to harm his live-
in girlfriend and mother of his six children. This was Defendant's
third VAWA arrest. In this instance, a relative of the victim witnessed
the Defendant dragging the victim by her hair across the street back
towards their house. Defendant pled guilty to Domestic Violence Assault
and was sentenced to over two months of detention followed by
supervised probation and domestic violence counseling.
Defendant had at least 7 prior contacts with Pascua Yaqui Law
Enforcement and 3 felony convictions out of Pima County, Arizona. This
was the defendant's second domestic violence conviction, and the first
on the Pascua Yaqui Reservation. Because of the tribal conviction, if
the defendant reoffends, he will now be eligible for federal domestic
violence prosecution as a habitual offender.
Tulalip Tribes
The Tulalip Tribes submitted their final Pilot Project Application
Questionnaire to the DOJ on December 19, 2013. The Tribes received
approval to implement SDVCJ on February 6, 2014, and jurisdiction took
effect on February 20, 2014. The Tribes issued a press release
regarding implementation of the new law on February 6, 2014. All of
these materials are available online at www.ncai.org/tribal-vawa.
The Tulalip Tribes are located on a 22,000-acre reservation in
western Washington State, approximately 30 miles north of Seattle. The
Tribes have 4,533 members, about 2,500 of whom live on the reservation.
The Tulalip Tribal Court operates a separate Domestic Violence Court
docket and SDVCJ cases are handled there. The Tribe also employs a
specialized domestic violence and sexual assault prosecutor, who was
approved as a Special Assistant United States Attorney (SAUSA) at the
beginning of the Pilot Project. The Tribes obtained retrocession in
2001 and created a police department and criminal court shortly
thereafter.
The Tribes implemented the Tribal Law and Order Act enhanced
sentencing provisions prior to the passage of VAWA 2013 and have
provided indigent defense, included non-Indians in the jury pool,
recorded court proceedings, and employed law-trained judges in the
criminal court since 2002.
Between February 20, 2014 and March 6, 2015, the Tulalip Tribes had
a total of six SDVCJ cases. Four cases resulted in guilty pleas, one
was dismissed for insufficient evidence, and one was transferred for
federal prosecution because the injuries were so severe and children
were also involved as victims. All of the SDVCJ offenders are ordered
to undergo tribally-certified batterer's intervention programs.
Tulalip Tribes: Pilot Project Statistics At-A-Glance
6 SDVCJ cases
-- 4 cases resulted in guilty pleas.
-- 1 referral for federal prosecution because the injuries were
so severe and children were involved as victims
-- 1 dismissal
Those who have been convicted are subject to tribal
probation, including the requirement to undergo batterer
intervention programming.
The 6 non-Indian defendants had over 88 documented tribal
police contacts, arrests, or reports attributed to them in the
past.
4 defendants had criminal records in Washington.
6 children involved as witnesses and/or victims
tulalip tribes: case study
Defendant was charged with Assault in the First Degree Domestic
Violence and Rape Domestic Violence, but was not immediately
apprehended. Based on the conduct alleged, victim/wife petitioned for a
civil Order for Protection, which was granted. Prior to defendant's
arraignment on the violent crimes, he was served with, and twice
violated, the Order for Protection. At the scene of these violations,
the defendant was taken into custody. Defendant had nineteen contacts
with Tulalip Police prior to these incidents, however, after the
implementation of VAWA 2013 SDVCJ the defendant was held accountable
for his crimes. Defendant served a significant jail sentence, and is
now supervised by Tulalip Probation. He is getting the treatment
intervention he needs. The victim and her children were finally able to
make a life for themselves away from the violence and abuse.
Confederated Tribes of the Umatilla Indian Reservation
The Confederated Tribes of the Umatilla Indian Reservation (CTUIR)
submitted their final Pilot Project Application Questionnaire to the
DOJ on December 19, 2013. The Tribes received approval to implement
SDVCJ on February 6, 2014, and jurisdiction went into effect on
February 20, 2014. In conjunction with the U.S. Attorney's Office for
the District of Oregon, the Tribes issued a press release regarding
implementation of the new jurisdiction on February 6, 2014. All of
these materials are available online at www.ncai.org/tribal-vawa.
The CTUIR are located on a land base of 173,470 acres in southeast
Oregon with a population of approximately 3,280 people, 46 percent of
whom are non-Indian. The Confederated Tribes have exercised expansive
criminal jurisdiction since the State of Oregon retroceded Public Law
280 criminal jurisdiction in 1981. The CTUIR implemented felony
sentencing under Tribal Law and Order Act (TLOA) in 2011, and the
tribal prosecutor serves as a SAUSA. CTUIR has provided indigent
counsel, recorded tribal judicial proceedings, employed law-trained
judges, and included non-Indians on tribal juries since long before
VAWA 2013 was enacted. The Tribes report that in 2011, over 60 percent
of the cases seen by the Umatilla Family Violence Program involved non-
Indian.
Between February 20, 2014 and March 6, 2015, there were four SDVCJ
cases involving 3 defendants filed in the CTUIR court. The Tribes
report that this is double the amount ever prosecuted by the U.S.
Attorney's Office. All four cases resulted in guilty pleas. Those who
have been convicted are subject to tribal probation, including the
requirement to undergo batterer intervention treatment, which the CTUIR
provide free of charge. The CTUIR Court issues an automatic protection
order in every pending domestic violence criminal case.
Confederated Tribes of Umatilla Indian Reservation: Pilot Project
Statistics At-A-Glance
4 SDVCJ cases involving 3 offenders
--4 guilty pleas
--Those who have been convicted are subject to tribal
probation, including the requirement to undergo batterer
intervention treatment provided by the Tribes.
--At least 3 children involved as witnesses.
confederated tribes of umatilla indian reservation: case study
On October 21, 2014, during an argument with his girlfriend, a male
non-Indian defendant ripped her clothes off, pushed her to the bed, and
strangled her while a comforter was over her face, all while repeatedly
delivering death threats. All of this occurred in front of their infant
child. The police found the victim with scratch marks on her neck and
in such fear that she was only partially dressed, hyperventilating, and
unable to maintain balance. The defendant is an Iraq war veteran who
suffers from PTSD, and he reportedly missed taking his medication
immediately preceding the assault. He wished to take responsibility at
arraignment; however, the Tribe suggested that they appoint him an
attorney. After being appointed an attorney, the defendant ultimately
pled guilty to felony DV assault with terms consistent to what he would
see if prosecuted in the State. Specific terms include compliance with
his VA treatment recommendations and completion of a tribally funded
12-month batterer's intervention program. He is currently on track to
graduate from the batterer's program in February and will be the first
tribal VAWA defendant to graduate, while otherwise remaining under
tribal supervision for another 2 years.
Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation
The Assiniboine and Sioux Tribes of the Fort Peck Indian
Reservation submitted their initial Pilot Project Application
Questionnaire to the DOJ on December 26, 2013. After amending their
application, the Fort Peck Tribes received approval to implement SDVCJ
on March 6, 2015. Jurisdiction took effect on March 7, 2015. Articles
have appeared in tribal and county newspapers explaining the
jurisdiction. All of these materials are available online at
www.ncai.org/tribal-vawa.
The Fort Peck Indian Reservation is home to the Assiniboine and
Sioux Tribes, which are two separate Nations comprised of numerous
bands and divisions. Located in northeast Montana, the Reservation
extends over four counties and is the 9th largest Indian reservation in
the United States. The Assiniboine and Sioux Tribes of Fort Peck have
an estimated 10,000 enrolled members with approximately 6,000 members
living on the Reservation. The population on the reservation is 60
percent Indian and 40 percent non-Indian. The Fort Peck Tribal Court
operates a domestic violence docket. The Tribes implemented felony
sentencing under TLOA in 2012. The Tribes did not have any SDVCJ cases
prior to the end of the Pilot Project period on March 7, 2015.
Sisseton-Wahpeton Oyate of the Lake Traverse Reservation
The Sisseton-Wahpeton Oyate of the Lake Traverse Reservation
submitted its final Pilot Project Application Questionnaire to DOJ on
March 4, 2015. The Tribe received approval to implement SDVCJ on March
6, 2015. All of these materials are available online at www.ncai.org/
tribal-vawa.
The Sisseton-Wahpeton Oyate is comprised of two subdivisions of
Dakotah Indians that reside on the Lake Traverse Reservation,
established by treaty in 1867. This reservation extends into five
counties in northeast South Dakota and two counties in southeast North
Dakota. The Tribe has 13,177 enrolled members with approximately 9,894
members living on the Reservation. According to the 2010 Census, more
than 6,000 non-Indians also reside on the Lake Traverse Reservation.
The Tribe has implemented felony sentencing under TLOA. The Tribe did
not have any SDVCJ cases prior to the end of the Pilot Project on March
7, 2015.
Comparing the Implementing Codes of the Five Pilot Tribes
Each of the five Pilot Project tribes submitted an application to
the DOJ demonstrating how they met the statutory requirements of VAWA
2013 and subsequently received approval from the Attorney General to
implement SDVCJ. Because the tribal codes, policies, and procedures
from the Pilot Project tribes had the benefit of review by DOJ, they
provide particularly instructive examples of how other Indian tribes
can implement the statutory requirements in VAWA 2013. This section
analyzes the codes and procedures of the five Pilot Project tribes and
highlights areas of major difference. Two primary areas of difference
that emerge are how each tribe has approached the jury pool and
indigent defense requirements of VAWA 2013.
JURY POOLS
In order to exercise SDVCJ, a tribe must ensure that non-Indian
defendants have the right to a trial by an impartial jury that is drawn
from sources that--
1. reflect a fair cross section of the community; and
2. do not systematically exclude any distinctive group in the
community, including non-Indians. \22\
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\22\ 25 U.S.C. 1304(d)(3).
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Both the Tulalip Tribes and CTUIR included non-Indians in their
jury pools for a number of years prior to the passage of VAWA 2013. For
the other Pilot Project tribes, implementation of VAWA 2013 required
them to change their tribal codes and procedures to include non-Indians
in their jury pools. Pascua Yaqui chose to include non-Indians in their
jury pool for all cases. The Fort Peck Tribes and Sisseton Wahpeton, in
contrast, include non-Indians in the jury pool only for SDVCJ cases.
Although VAWA 2013 requires the jury pool to reflect a ``fair cross
section of the community,'' it is left to the tribe to define their
``community'' for these purposes. There are slight variations in the
approaches taken by the Pilot Project tribes. All of the Pilot Project
tribes include non-Indian residents on the reservation in the jury
pool. Some also include, non-Indians employed by the tribe, non-Indian
spouses of tribal members, or non-Indian leaseholders. These
differences are discussed below.
Fort Peck Tribes: The Fort Peck Tribes have devised two separate
jury pools, utilizing a process that incorporates non-member residents
of the reservation for SDVCJ cases only. \23\ The Tribes' Jury
Management Plan for SDVCJ cases states that the jury pool will be drawn
from a master juror list utilizing the list of enrolled members of the
Tribes and a jury source list prepared by the clerk of the 15th
Judicial District of Montana, which comprises 98 percent of the
Reservation. In order to avoid underrepresentation of non-Indians, who
make up 40 percent of the reservation population, the Tribes will
select 50 non-Indian residents for the jury pool and 50 enrolled
members. The Tribes will randomly summon 21 people from each list for
each jury trial, and then choose six persons to serve on each jury. The
tribal code requires unanimous verdicts for six person juries.
---------------------------------------------------------------------------
\23\ This process is set out in the Fort Peck Tribes' Comprehensive
Code of Justice (CCOJ) at Title 6, Section 507, available at http://
www.fptc.org/ccoj/title_6/title_6.html.
---------------------------------------------------------------------------
The tribal code sets out a process to issue subpoenas for jurors in
order to compel non-member resident attendance. Jurors will be
compensated at the rate paid by Roosevelt County, which overlays a
significant portion of the reservation. The presiding judge has
discretion to compensate jurors for mileage.
Sisseton-Wahpeton Oyate: The Sisseton-Wahpeton Oyate Codes of Laws
also creates two separate jury pools. For cases outside of SDVCJ,
jurors must be an adult resident member of the Tribe. For SDCVJ cases,
potential jurors may be selected from a variety of sources including
but not limited to enrolled members of the Sisseton-Wahpeton Oyate,
residents within the jurisdiction of the Lake Traverse Reservation,
full-time employees of the Tribe or its entities, and persons leasing
lands from the Tribe. A list of at least 21 potential jurors is
prepared and maintained by the Clerk. Each voting district on the
Reservation is to be represented on the list. Defendants have the right
to a trial by a jury made up of at least six persons. \24\
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\24\ SWO Codes of Law, Chapter 23, Sections 23-10-01 through 23-10-
10, available at http://www.swonsn.gov/departments/justice-department/
legal-department/.
---------------------------------------------------------------------------
Pascua Yaqui: Pascua Yaqui uses the same jury pool for all crimes,
and empanels its juries using enrolled members, spouses of tribal
members, employees of the Tribe, and permanent residents of the
reservation. In order to qualify for jury duty, enrolled members must
be residents of Arizona, with preference given to those living in
nearby counties. The Tribe draws its jury pools from the Tribal Census
Roll, Housing Department records, and Human Resources records of the
Tribe. Failure to appear for jury duty constitutes contempt of court
and every jury summons includes a warning to this effect. The Tribe
also incorporates a ``severe hardship'' exception for jury duty and
jurors may be excused from service for limited reasons, including
having to travel more than 150 miles one-way. \25\
---------------------------------------------------------------------------
\25\ Pascua Yaqui Tribe, SDVCJ Application Questionnaire, available
at http://www.justice.gov/sites/default/files/tribal/legacy/2014/02/06/
appl-questionnaire-pascua-yaqui.pdf.
---------------------------------------------------------------------------
Tulalip Tribes: The Tulalip Tribes use the same jury pool for all
crimes. The Tribes include tribal members living on or near the
reservation, residents within the boundaries of the reservation, and
employees of the Tulalip Tribes. The Tribes devise the juror list from
the tribal Enrollment Department and the Human Resources departments of
the Tulalip Resort Casino and Quil Ceda Village. The Tribes then
compare these numbers with census data to ensure the jury pool reflects
a fair cross section of the community. The Tribes randomly select 25
names from the jury pool and issue a jury summons by mail or personal
service. Those who fail to appear for jury duty are held in contempt of
court. \26\
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\26\ Tulalip Tribal Code, Title 2, Sec. 2.05.110 available at
http://www.codepublishing.com/wa/tulalip/.
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Confederated Tribes of the Umatilla Indian Reservation (CTUIR): The
CTUIR Court uses the same jury pool for all crimes. Even before SDVCJ
implementation, CTUIR had incorporated non-Indians in tribal jury pools
by including residents within the boundaries of the reservation. The
Court empanels all tribal juries from a voter registration list
provided by the local county, which represents a rough overlay of the
reservation boundaries. The judge chooses 50 names per year to serve as
prospective jurors and 18 names are summoned per trial. \27\
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\27\ CTUIR, SDVCJ Application Questionnaire, available at http://
www.justice.gov/sites/default/files/tribal/legacy/2014/02/06/appl-
questionnaire-vawa.pdf.
Jury Pools
------------------------------------------------------------------------
Non-Indians Included Only In
Same Jury Pool For All Crimes Special Domestic Violence
Criminal Jurisdiction Cases
------------------------------------------------------------------------
Confederated Tribes of Umatilla Fort Peck Tribes
Indian Reservation
Pascua Yaqui Tribe Sisseton-Wahpeton Oyate
Tulalip Tribe
------------------------------------------------------------------------
Indigent and Effective Assistance of Counsel
Under VAWA 2013, tribes must afford non-Indian offenders with
effective assistance of counsel and pay for defense counsel for
indigent offenders whenever a term of imprisonment may be imposed. \28\
Such counsel must be ``licensed to practice law by any jurisdiction in
the United States that applies appropriate professional licensing
standards and effectively ensures the competence and professional
responsibility of its licensed attorneys.'' \29\ All of the Pilot
Project tribes were providing indigent counsel before VAWA 2013 was
enacted. In the case of Ft. Peck, the tribal public defender office was
staffed by experienced lay advocates and a licensed attorney was hired
to comply with VAWA 2013's requirements.
---------------------------------------------------------------------------
\28\ 25 U.S.C. 1302(c)(1) and (2).
\29\ 25 U.S.C. 1302(c)(2).
---------------------------------------------------------------------------
Fort Peck Tribes: The Fort Peck Tribes guarantee indigent counsel
for any person charged with the following three separate offenses:
special domestic violence criminal offense, severe physical domestic
abuse, and domestic abuse. \30\ The Tribes screen for indigence, with a
presumption of indigence if the defendant's household income is less
than 125 percent of the federal poverty guidelines. The Tribal Public
Defender Office is staffed both by a licensed attorney and by
experienced lay advocates. If the Public Defender is not available, a
licensed attorney will be hired on contract. All SDVCJ defendants will
be represented by a licensed attorney. \31\
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\30\ Ft. Peck Tribes, SDVCJ Application Questionnaire, submitted
Dec. 26, 2013, available at http://www.justice.gov/sites/default/files/
tribal/pages/attachments/2015/03/13/fortpeckapp322015.pdf.
\31\ Ft. Peck Tribes, SDVCJ Application Questionnaire, submitted
Dec. 26, 2013, available at http://www.justice.gov/sites/default/files/
tribal/pages/attachments/2015/03/13/fortpeckapp322015.pdf.
---------------------------------------------------------------------------
Pascua Yaqui: The Tribe affords state-licensed indigent defense in
all SDVCJ cases, as well as to indigent Indian offenders in ``any
criminal proceeding in which the Tribe is seeking punishment by loss of
liberty.'' \32\ Representation is generally provided by the Pascua
Yaqui Public Defender Office. The Tribe also provides for contract
attorneys in cases where a conflict of interest arises. All such
attorneys must also be barred in the Pascua Yaqui Tribal Court. The
Tribe screens for indigence, with a presumption of indigence if the
defendant's household income is less than 125 percent of the federal
poverty guidelines.
---------------------------------------------------------------------------
\32\ Pascua Yaqui Tribal Code, Title 3, Part II, Ch. 2-2, Sec. 310
available at http://www.pascuayaquinsn.gov/--static_pages/tribalcodes/.
---------------------------------------------------------------------------
Confederated Tribes of the Umatilla Indian Reservation(CTUIR): The
Tribes appoint state-licensed public defenders to any criminal
defendant that requests one, including on appeal. Although the Tribes'
indigence standard is set at 150 percent of the federal poverty
guidelines, as a matter of practice the Tribes provide indigent counsel
regardless of income to anyone who requests it. \33\
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\33\ CTUIR, SDVCJ Application Questionnaire, available at http://
www.justice.gov/sites/default/files/tribal/legacy/2014/02/06/appl-
questionnaire-vawa.pdf.
---------------------------------------------------------------------------
Sisseton-Wahpeton Oyate: The Tribe does not distinguish between
Indians and non-Indians, or between those who are indigent or not, for
purposes of representation by the Tribal Public Defender's Office,
which was first established in 2000. The tribal code states that all
defendants will be provided ``with assistance of counsel if requested
and if available.'' \34\
---------------------------------------------------------------------------
\34\ SWO Codes of Law, Chapter 23, Section 23-08-02, available at
http://www.swo-nsn.gov/wpcontent/uploads/2015/03/law3.pdf
---------------------------------------------------------------------------
Tulalip Tribes: The Tribes provide indigent defense to all criminal
defendants, regardless of race. Defense services are primarily provided
by the Tribal Court Public Defense Clinic at the University of
Washington Native American Law Center. The clinic has handled over 2000
cases in Tulalip Tribal Court since 2002. All clinic advocates must
pass the Tulalip Court Bar Exam and be admitted to practice by the
Tribal Court. The Tribes also hire attorneys on contract when the
clinic is not available because of a conflict. Such attorneys must also
be barred in the Tulalip Tribal Court. The Tribes screen for indigence,
with a presumption of indigence if the defendant's household income is
less than 200 percent of the federal poverty guideline. \35\
---------------------------------------------------------------------------
\35\ Tulalip Tribal Court, Rule 6.
Right to Counsel
------------------------------------------------------------------------
------------------------------------------------------------------------
Indigent Counsel For All Confederated Tribes of the
Umatilla Indian Reservation;
Pascua Yaqui Tribe; Tulalip Tribe
Counsel Guaranteed for SDVCJ and Fort Peck Tribes
Domestic Abuse
Indigent Counsel for all ``If Sisseton-Wahpeton Oyate
Available'' but Guaranteed for
SDVCJ
------------------------------------------------------------------------
Court Processes & Reforms
VAWA 2013 requires that a tribal judge overseeing a SDVCJ case has:
1. ``sufficient legal training to preside over criminal
proceedings''; and be
2. ``licensed to practice law by any jurisdiction in the United
States.'' \36\
---------------------------------------------------------------------------
\36\ 25 USC 1302(c)(3).
---------------------------------------------------------------------------
All five of the Pilot Project tribes have at least one state-barred
judge. Although the Fort Peck Tribes hired a state-barred judge to meet
this requirement, the long-time chief judge of the Fort Peck Tribal
Court is not state-barred. Instead, this judge has an undergraduate
degree, is licensed in tribal court, and has two certificates from
judicial college for ``Tribal Judicial Skills'' and ``Special Court
Trial Skills.'' This judge also completes 40 hours of annual training
and presides over criminal trials on a weekly basis.
Victim's Rights & Safety
The Pascua Yaqui, Confederated Tribes of the Umatilla Indian
Reservation (CTUIR), and Tulalip Tribes have comprehensive codes that
account for victims' rights and promote victims' safety. The CTUIR
Court issues automatic protection orders in all pending criminal
domestic violence cases. The Tulalip and Fort Peck Tribes have
instituted a domestic violence docket to handle all cases involving
domestic violence, dating violence, or violation of protection orders.
This domestic violence docket is separate from the existing criminal
docket and allows the court to have an increased focus on victim safety
and offender accountability.
The five Pilot Project tribes also have a host of other programs
aimed at ensuring the rights and safety of victims. For example, the
Umatilla Family Violence Program provides community-based advocacy to
domestic violence victims. The Fort Peck Tribes also have a well-
established Family Violence Resource Center that provides comprehensive
services to domestic violence and sexual assault victims. This program
offers a court advocate, housing, counseling and other support services
for any victim. The Fort Peck Tribal Court issues a ``Hope Card'' in
conjunction with any orders of protection it grants. This card is
wallet-sized and allows the person who has been granted an order of
protection to easily prove this in other jurisdictions.
Definition of Offenses
The Pilot Project tribes have chosen slightly different ways to
define VAWA 2013's covered offenses.
Fort Peck Tribes: The Tribes incorporate the VAWA 2013 statutory
definitions of domestic violence and dating violence, but the tribal
code also includes two other offenses of ``severe physical domestic
abuse'' and ``domestic abuse'' as domestic violence. \37\
---------------------------------------------------------------------------
\37\ Ft. Peck Tribal Code, Title 7, Sec. 249(c), available at
http://www.fptc.org/ccoj/title_7/title_7.html.
---------------------------------------------------------------------------
Pascua Yaqui: The Tribe does not use VAWA 2013's definitions of
domestic and dating violence in its tribal code. These offenses are
defined by language devised by the Tribe. The tribal code includes a
maximum statement of jurisdiction that it has authority over ``all
subject matters which, now and in the future, are permitted to be
within the jurisdiction of any Tribal Court of any Indian tribe
recognized by the United States of America.'' \38\
---------------------------------------------------------------------------
\38\ Pascua Yaqui Tribal Code, Title III, Part I, Ch. 1-1, Sec. 20
available at http://www.pascuayaquinsn.gov/_static_pages/tribalcodes/.
---------------------------------------------------------------------------
Confederated Tribes of the Umatilla Indian Reservation (CTUIR): The
Tribes incorporate the VAWA 2013 statutory definitions to define
offenses of domestic violence, dating violence and violations of
protection orders. \39\
---------------------------------------------------------------------------
\39\ CTUIR Criminal Code, Sec. 1.01, available at http://ctuir.org/
criminal-code.
---------------------------------------------------------------------------
Sisseton-Wahpeton Oyate: The Tribe does not use VAWA 2013's
definitions of domestic and dating violence or protection order
violations in its tribal code. These offenses are defined by language
devised by the Tribe. \40\
---------------------------------------------------------------------------
\40\ SWO Codes of Law, Chapter 52, Section 52-01-04, available at
http://www.swo-nsn.gov/wpcontent/uploads/2015/03/law3.pdf.
---------------------------------------------------------------------------
Tulalip: The Tribes largely track the federal statutory definitions
of domestic and dating violence. However, the tribal code provides
illustrative examples of behaviors that constitute domestic violence
under tribal law. \41\
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\41\ Tulalip Tribal Code, Title 4, Sec. 4.25.050 available at
http://www.codepublishing.com/wa/tulalip/.
---------------------------------------------------------------------------
Intertribal Technical-Assistance Working Group
All five of the tribes that were approved to exercise SDVCJ during
the Pilot Project period participated in the ITWG on SDVCJ. In its June
14, 2013 Federal Register Notice, the DOJ asked tribes to indicate
interest in joining the ITWG, which is a voluntary working group of
designated tribal representatives intended to help exchange views,
information, and advice, peer-to-peer, about how tribes may best
implement SDVCJ, combat domestic violence, recognize victims' rights
and safety needs, and safeguard defendants' rights. \42\
---------------------------------------------------------------------------
\42\ 78 Fed. Reg. 35,961 (June 14, 2013).
---------------------------------------------------------------------------
This peer-to-peer technical assistance covers a broad set of
issues, from drafting stronger domestic violence codes and victim-
centered protocols and policies, to improving public defender systems,
to analyzing detention and correctional options for non-Indians, to
designing more broadly representative jury pools and strategies for
increasing juror compliance with a jury summons. The objective of the
ITWG is to develop not a single, one-size-fits-all ``best practice''
for each of these issues, but rather multiple successful examples that
can be tailored to each tribe's particular needs, preferences, and
traditions.
Tribes participating in the ITWG have also had opportunities to
engage with DOJ and the Department of Interior (DOI), both of whom have
made key staff available to provide technical advice to the working
group as a whole and work with individual tribes to address specific
issues or concerns as needed.
itwg tribes:
1. Cherokee Nation
2. Cheyenne River Sioux Tribe
3. Chickasaw Nation
4. Colorado River Indian Tribes of the Colorado River Indian
Reservation
5. Confederated Tribes of the Umatilla Indian Reservation
6. Eastern Band of Cherokee Indians
7. Eastern Shawnee Tribe of Oklahoma
8. Fort Peck Assiniboine & Sioux Tribes
9. Gila River Indian Community
10. Hopi Tribe of Arizona
11. Iipay Nation of Santa Ysabel
12. Kickapoo Tribe of Oklahoma
13. Little Traverse Bay Band of Odawa Indians
14. Menominee Indian Tribe of Wisconsin
15. Mississippi Band of Choctaw Indians
16. Muscogee (Creek) Nation
17. Nez Perce Tribe
18. Nottawaseppi Huron Band of Potawatomi
19. Oneida Tribe of Indians of Wisconsin
20. Pascua Yaqui Tribe of Arizona
21. Passamaquoddy Tribe
22. Pauma Band of Mission Indians
23. Pawnee Nation of Oklahoma
24. Penobscot Nation
25. Pokagon Band of Potawatomi Indians
26. Port Gamble S'Klallam Tribe
27. Prairie Band Potawatomi Nation
28. Pueblo of Isleta
29. Pueblo of Laguna
30. Pueblo of Santa Clara
31. Quapaw Tribe of Oklahoma
32. Quinault Indian Nation
33. Sac and Fox Nation
34. Salt River Pima-Maricopa Indian Community
35. Sault Ste. Marie Tribe of Chippewa Indians
36. Seminole Nation of Oklahoma
37. Sisseton-Wahpeton Oyate
38. Spokane Tribe of Indians
39. Standing Rock Sioux Tribe
40. Suquamish Indian Tribe
41. Swinomish Indian Tribal Community
42. Three Affiliated Tribes of the Fort Berthold Reservation
43. Tulalip Tribes of Washington
44. White Earth Nation
45. Winnebago Tribe of Nebraska
The ITWG has met in-person four times \43\ and has also
participated in a series of teleconferences and webinars and produced
white papers and other resources on a range of topics. As of August
2015, 45 tribes participate in the ITWG (see column).
---------------------------------------------------------------------------
\43\ A 5th in-person meeting will be held November 2-3, 2015 at
the Squaxin Island reservation in Washington.
---------------------------------------------------------------------------
The first formal in-person meeting of the ITWG was hosted at DOJ's
National Advocacy Center in Columbia, South Carolina on August 20-21,
2013. The ITWG divided into topical breakouts on: code development and
publication; jury selection, judicial requirements, and recording
proceedings; and victims' rights, law enforcement training and
detention. Defender issues and defendants' rights were focused into a
``Tribal Defender Advisory Group.'' The ITWG also divided into tracks
based on readiness: getting started; ramping up; and final stages.
Tribal participants from justice systems that were already equipped to
implement SDVCJ readily shared information with others who were in more
preliminary stages of planning.
The second formal in-person meeting of the ITWG was held on October
29-30, 2013, in Bismarck, North Dakota. The Bismarck meeting included a
round-robin from ITWG tribes of their implementation updates; a habeas
corpus response panel; a panel on improving communication and
coordination with U.S. Attorneys; discussion of arrest authority and
detention issues; and a discussion on access to the federal criminal
information databases.
The third formal in-person meeting of the ITWG was held on May 28-
29, 2014, on the Pascua Yaqui reservation in Arizona. The meeting
included a panel discussion from the three approved Pilot Project
tribes as well as updates from ITWG tribes on their implementation
efforts; a discussion of jurisdictional requirements and habeas
responses; a session on prosecution best practices in domestic violence
cases; a discussion of access to federal criminal information
databases; and a mock first appearance at the Pascua Yaqui Justice
Center.
The fourth in-person meeting of the ITWG was held on December 9-10,
2014 on the Agua Caliente reservation in California. The meeting
included an update from the two tribes with pending applications for
Pilot Project approval; an update from the three Pilot Project tribes;
an update from the Bureau of Indian Affairs on law enforcement arrest
authority and detention guidance; an update and discussion on access to
the National Crime Information Center; and a presentation on risk
assessment and lethality in domestic violence cases. The meeting also
included in-depth discussion sessions on complaint drafting and jury
instructions; jury selection and composition; pleas agreements; data
collection; and code development.
Intertribal Technical-Assistance Working Group Resources
In conjunction with a team of technical assistance providers, the
ITWG has produced a number of resources to aid tribes seeking to
implement SDVCJ. Many of these resources are maintained on the National
Congress of American Indians (NCAI) VAWA Implementation website. \44\
Additional implementation resources can also be found on the Tribal Law
and Policy Institute's (TLPI) VAWA website. \45\ The ITWG has produced
a ``Code Development Checklist,'' which is designed as a tool to assist
tribal governments seeking to develop tribal codes that comply with
VAWA 2013's statutory requirements. It includes citations to existing
tribal codes implementing the new law. The ITWG has also produced a
sample tribal code, sample complaints, sample jury instructions, a
sample law enforcement pocket card, a sample press release for
community notification, training materials, and papers on the following
topics:
---------------------------------------------------------------------------
\44\ www.ncai.org/tribal-vawa.
\45\ http://www.tribal-institute.org/lists/vawa_2013.htm
---------------------------------------------------------------------------
Jury Issues
--Fair Cross Section Requirement
--Jury size & unanimity
--Constitutionality of maintaining two jury systems
--Practical Considerations for Jury Selection in SDVCJ
*Creating a master jury list
*Selecting the Jury Pool
*Summoning Jurors/Venire
*Terms of Service & Paying for Juries
Tribal Court Exhaustion
Habeas Corpus
Ideas for implementing SDVCJ cost efficiently
The ITWG has also facilitated an ongoing webinar series on key
areas of SDVCJ implementation, including defendants' rights issues;
VAWA 2013's fair cross-section requirement and jury pool selection; and
victims' rights. The full webinar series includes the following topics:
Jury Pools & Selection
--Part I--Developing an Effective and Defensible Jury Plan for
Tribal Courts
--Part II--Jury Selection Plans
Defendants' Rights
--Part I--Competency of Defenders & Timing of Appointment
--Part II--Use of Contract Attorneys for Primary and Conflict
Counsel
--Part III--Indigency
Victims' Rights
--Part I--Victims' Rights Overview
--Part II--Confidentiality and Privilege
Protection Orders
--Crafting, Serving, and Enforcing Protection Orders
Prosecution Skills
--Jury Instructions
--Improving Victim Participation While Preparing for Non-
Participation
Pilot Project Application Questionnaire
--Application Questionnaire Overview (VAWA Pilot Project)
Lessons Learned
--Lessons Learned from the VAWA Pilot Period
Code Revision and Drafting
--VAWA Code Drafting
--Law School Clinical Assistance: Tribal Violence Against Women
Act
TLPI, one of the technical assistance providers supporting the work
of the ITWG, has also developed an in-depth guide for implementation of
Tribal Law and Order Act and VAWA 2013. \46\ In addition,
representatives of the Pilot Project tribes and the technical
assistance team have presented at numerous conferences and meeting
across Indian country with the goal of educating other tribes about
implementation of VAWA 2013.
---------------------------------------------------------------------------
\46\ Tribal Law and Policy Institute, ``Tribal Legal Code Resource:
Tribal Laws Implementing TLOA Enhanced Sentencing and VAWA Enhanced
Jurisdiction,'' (2015), available at http://www.tribalinstitute.org/
download/codes/TLOA_VAWA_3-9-15.pdf.
---------------------------------------------------------------------------
Lessons Learned from the Pilot Project & Recommendations
The Pilot Project proved incredibly successful in allowing the
participating tribes to prosecute many long-time repeat offenders who
had threatened the tribal community. At the same time, however, the
Pilot Project revealed a number of inherent limitations in SDVCJ, as
well as unforeseen obstacles in implementation. These issues are
discussed in more detail below.
1. Non-Indian domestic violence is a significant problem in tribal
communities
When VAWA 2013 was pending before Congress, many policy-makers and
commentators questioned whether the tribal jurisdiction provision was
needed and whether a significant number of non-Indians were committing
domestic violence crimes in Indian country. The experience of the three
original Pilot Project tribes provides an unequivocal answer to that
question. Since beginning to exercise SDVCJ, Pascua Yaqui has found
that 25 percent of its domestic violence caseload involves non-Indians.
The statistics collected by Pascua Yaqui and Tulalip about the prior
police contacts of their SDVCJ offenders demonstrate that the non-
Indian offenders menaced the tribal community for years and had been a
drain on the tribes' law enforcement resources. Where SDVCJ was
implemented during the Pilot Period, impunity has ended for non-Indian
domestic abusers.
2. Most Special Domestic Violence Criminal Jurisdiction defendants have
significant ties to the tribal communities
Most SDVCJ offenders had established themselves in the tribal
community. For example, Pascua Yaqui reports that at least 9 of the
SDVCJ offenders were living on the reservation in tribal subsidized
housing; two of the incidents involved married couples who lived on the
reservation; four incidents involved children who belonged to the non-
Indian offender. At least two of the SDVCJ arrests involved unenrolled
Indians from either the U.S. or Canada.
3. Children are impacted by non-Indian domestic violence at high rates
All three of the Pilot Project tribes report that children are
usually involved as victims or witnesses in SDVCJ cases. A
majority of SDVCJ incidents involved children who were at home
during the domestic violence that occurred. These children have
been assaulted or have faced physical intimidation and threats,
are living in fear, and are at risk for developing school
related problems, medical illnesses, post-traumatic stress
disorder (PTSD), and other impairments. \47\ Although children
are frequently witnesses to domestic violence or victims
themselves, SDVCJ currently only applies to crimes committed
against romantic or intimate partners or persons covered by a
qualifying protection order. The implementing tribes are unable
to prosecute non-Indians for many of the crimes against
children that co-occur with domestic violence. Instead, they
are left to refer these cases to state or federal authorities,
who may not pursue them.
---------------------------------------------------------------------------
\47\ See Attorney General's Advisory Committee on American Indian
and Alaska Native Children Exposed to Violence, U.S. Department of
Justice, Report of the Advisory Committee on American Indian and Alaska
Native Children Exposed to Violence: Ending Violence so Children Can
Thrive (November 2014).
Case Study: A non-Indian boyfriend, engaged in a 3-day
methamphetamine bender, refused to let his Indian girlfriend
and her children leave the home. The non-Indian forced both the
woman and her child to sit in a chair while he threw knives at
them. Because of the severity of the violence, and because
SDVCJ does not provide accountability for the crimes committed
against the child, the case was referred to the U.S. Attorney
---------------------------------------------------------------------------
for prosecution.
4. Training is critical for success
While much of the work as tribes prepare to implement SDVCJ focuses
on revising tribal codes, policies, and procedures, the Pilot Project
tribes all devoted considerable resources to training for tribal law
enforcement officers, prosecutors, judges, and other key stakeholders.
Oftentimes the need for training became evident as the tribes
encountered an unexpected obstacle of one kind or another. For example,
the day after SDVCJ was enacted on one reservation, a non-Indian
offender was arrested and delivered to the county authorities where he
was promptly released.
That incident served as a reminder that tribal and Bureau of Indian
Affairs (BIA) officers needed to be fully trained about the scope of
the tribe's authority. Similarly, Pascua Yaqui's experience with its
jury trial demonstrated the importance of training law enforcement
about how to properly investigate whether there is a qualifying
relationship sufficient to trigger SDVCJ in a particular case.
5. Federal partners have an important role
The implementing tribes have worked closely with Bureau of Indian
Affairs (BIA) and DOJ officials to address challenges that have come up
as a result of the complicated and fragmented criminal justice system
at work in Indian Country. It has been important, for example, to
clarify that BIA detention facilities are permitted to house non-Indian
SDVCJ offenders and that tribes can use their 638 contract funds to pay
for costs associated with housing non-Indian SDVCJ offenders. Likewise,
the Pilot Project tribes have all worked closely with their local U.S.
Attorney's Offices to make decisions about which jurisdiction is most
appropriate to prosecute a particular case.
6. Peer-to-Peer learning is important
The ITWG has proven to be an incredibly productive and useful
mechanism for tribes to share information and best practices among
themselves, to discuss challenges, and to jointly strategize about how
to overcome obstacles. With the logistical support and substantive
expertise of a group of DOJ funded technical assistance providers, \48\
the tribes participating in ITWG have tackled many difficult questions
and have developed a collection of resources that will make it easier
for tribes who wish to implement SDVCJ in the future. The ITWG
continues to serve as an important resource for the implementing tribes
as they encounter new questions and challenges.
---------------------------------------------------------------------------
\48\ The National Congress of American Indians and the National
Center for Juvenile and Family Court Judges have been supporting the
work of the ITWG and providing technical assistance to implementing
tribes through grants from the Office on Violence Against Women. The
Tribal Law and Policy Institute has also partnered in this effort with
support from the Bureau of Justice Assistance
---------------------------------------------------------------------------
The success of the ITWG has been driven by the engagement of
dedicated and knowledgeable attorneys and tribal representatives from
across Indian country. This engagement has been possible because of the
travel support provided by DOJ, which allowed many of the members to
participate in productive in-person meetings. The engagement and
expertise of the technical assistance team has provided important
coordination and leadership to the ITWG, while also helping the ITWG to
track issues as they arise and to connect with necessary resources.
7. Special Domestic Violence Criminal Jurisdiction is too narrow
One area of major concern among the Pilot Project tribes is the
narrow class of crimes covered under SDVCJ. \49\ The limitations with
regard to children who are victimized by domestic abusers was discussed
above. Additionally, since tribal jurisdiction is limited to domestic
violence, dating violence, and protection order violations, any other
attendant crimes that occur also fall outside the scope of the tribe's
jurisdiction. The Pilot Project tribes reported, for example, cases
where the offender also committed a drug or alcohol offense or a
property crime that the tribe was unable to charge. There is also
uncertainty about a tribe's authority to charge an offender for crimes
that may occur within the context of the criminal justice process, like
resisting arrest, assaulting an officer, witness tampering, juror
intimidation, or obstruction of justice. Because tribal prosecutors are
unable to charge the full range of criminal conduct that may occur in a
domestic violence incident, they may be more dependent on victim
cooperation and the offenders' criminal history may not accurately
reflect the severity of his actions.
---------------------------------------------------------------------------
\49\ We note that there are many crimes, in addition to the ones
discussed in this section, that also fall outside the scope of SDVCJ
and leave tribal victims without access to justice in too many cases.
Sexual assault committed by a stranger or acquaintance and elder abuse,
for example, are also not covered by SDVCJ.
Case Study: At 2:00 am, the tribal police were called to a
domestic violence incident involving a non-Indian man.
Methamphetamines were found on the premises, and tribal police
requested an oral search warrant from the tribal judge to
perform a urine analysis on the non-Indian. While being under
the influence could be relevant to a DV investigation, the
tribal judge ruled against issuing the search warrant. Some
state case law has held that tribal police lack the authority
to investigate crimes where they do not have jurisdiction, and
the judge did not want to compromise a potential state case for
---------------------------------------------------------------------------
drug possession.
8. There is confusion about the statutory definition of ``domestic
violence"
Tribal prosecutors from the Pilot Project tribes also report
uncertainty regarding the definition of ``domestic violence'' \50\ in
the wake of the Supreme Court's decision in United States. v.
Castleman. \51\ When Castleman was decided in March of 2014, it had an
immediate impact on the three original Pilot Project tribes' criminal
charging decisions when evaluating misdemeanor arrests under SDVCJ
authority.
---------------------------------------------------------------------------
\50\ For purposes of SDVCJ, VAWA defines domestic violence as
``violence committed by a current or former spouse or intimate partner
of the victim, by a person who is cohabitating with or has cohabitated
with the victim as a spouse or intimate partner, or by a person
similarly situated to a spouse of the victim under the domestic- or
family- violence laws of an Indian tribe that has jurisdiction over the
Indian Country where the violence occurs.'' 25 U.S.C. 1304 (a)(2).
\51\ United States v. Castleman, 134 S. Ct. 1405 (2014)
---------------------------------------------------------------------------
The Justices suggested in dicta in Castleman that the domestic
violence crime in an SDVCJ case must involve actual ``violence,'' which
is not a defined term. As a result, the original Pilot Project tribes
have declined to prosecute certain offenses like offensive touching,
harassment, or interference with domestic violence reporting that would
otherwise constitute ``domestic violence'' under tribal law, but do not
include an element of ``offensive touching'' or may not be considered a
``violent crime.'' DOJ and the technical assistance team have provided
guidance to the ITWG about what type of conduct likely constitutes
``violence'' for SDVCJ purposes, but confusion persists.
The prosecutors for the Pilot Project tribes report that SDVCJ will
be more effective if it is amended to (1) clarify that Indian tribes
possess the authority to prosecute a non-Indian for the types of
offenses that often occur in the cycle of domestic abuse that might not
qualify as ``violence'' in isolation; (2) reaffirm tribal jurisdiction
over crimes that frequently co-occur with domestic violence; (3)
reaffirm tribal jurisdiction over all crimes of violence against women
or that occur within the family, including child abuse.
Case Study: A woman called the police to remove her highly
intoxicated partner from her home. The defendant returned an hour
later. He was so intoxicated that when he swung to punch the victim, he
missed and fell to the ground. The tribal prosecutor declined to
prosecute because there was no actual physical contact, and they were
concerned the incident did not meet the definition of domestic violence
in the federal law. The defendant subsequently assaulted the victim
again and was arrested.
9. Tribes need resources for SDVCJ implementation
VAWA 2013 authorized $5,000,000 for each of fiscal years 2014
through 2018 for SDVCJ implementation. \52\ Unfortunately, Congress has
not appropriated these funds and no resources have been made available
specifically for tribal implementation of SDVCJ. While 45 tribes have
been actively participating in the ITWG, as of the date of this report,
only 8 tribes have implemented the law. The primary reason tribes
report for why SDVCJ has not been more broadly implemented is lack of
resources. During and beyond the implementation phase, Tribes need
funding and access to resources and services to support implementation.
---------------------------------------------------------------------------
\52\ 25 U.S.C. 1304(h)
---------------------------------------------------------------------------
summary of 9 lessons learned
1. Non-Indian domestic violence is a significant problem in tribal
communities
2. Most Special Domestic Violence Criminal Jurisdiction defendants
have significant ties to the tribal communities
3. Children are impacted by non-Indian domestic violence at high
rates
4. Training is critical for success
5. Federal partners have an important role
6. Peer-to-peer learning is important
7. Special Domestic Violence Criminal Jurisdiction is too narrow
8. There is confusion about the statutory definition of ``domestic
violence"
9. Tribes need resources for Special Domestic Violence Criminal
Jurisdiction implementation
Appendix A
Indian Civil Rights Act, 25 U.S.C. 1301-1304, as amended by VAWA
2013:
1301. Definitions: For purposes of this subchapter, the term
1. ``Indian tribe'' means any tribe, band, or other group of
Indians subject to the jurisdiction of the United States and
recognized as possessing powers of self-government.
2. ``powers of self-government'' means and includes all
governmental powers possessed by an Indian tribe, executive,
legislative, and judicial, and all offices, bodies, and
tribunals by and through which they are executed, including
courts of Indian offenses; and means the inherent power of
Indian tribes, hereby recognized and affirmed, to exercise
criminal jurisdiction over all Indians;
3. ``Indian court'' means any Indian tribal court or court of
Indian offense, and
4. ``Indian'' means any person who would be subject to the
jurisdiction of the United States as an Indian under section
1153, title 19, United States Code, if that person were to
commit an offense listed in that section in Indian country to
which that section applies.
1302. Constitutional Rights: No Indian tribe in exercising powers
of self-government shall:
(a) In general
No Indian tribe in exercising powers of self-government shall--
1. make or enforce any law prohibiting the free exercise of
religion, or abridging the freedom of speech, or of the press,
or the right of the people peaceably to assemble and to
petition for a redress of grievances;
2. violate the right of the people to be secure in their
persons, houses, papers, and effects against unreasonable
search and seizures, nor issue warrants, but upon probable
cause, supported by oath or affirmation, and particularly
describing the place to be searched and the person or thing to
be seized;
3. subject any person for the same offense to be twice put in
jeopardy;
4. compel any person in any criminal case to be a witness
against himself;
5. take any property for a public use without just
compensation;
6. deny to any person in a criminal proceeding the right to a
speedy and public trial, to be informed of the nature and cause
of the accusation, to be confronted with the witnesses against
him, to have compulsory process for obtaining witnesses in his
favor, and at his own expense to have the assistance of counsel
for his defense;
7.
(A) require excessive bail, impose excessive fines, or
inflict cruel and unusual punishments;
(B) except as provided in subparagraph (C), impose for
conviction of any 1 offense any penalty or punishment greater
than imprisonment for a term of 1 year or a fine of $5,000, or
both;
(C) subject to subsection (b), impose for conviction of any
1 offense any penalty or punishment greater than imprisonment
for a term of 3 years or a fine of $15,000, or both; or
(D) impose on a person in a criminal proceeding a total
penalty or punishment greater than imprisonment for a term of 9
years;
8. deny to any person within its jurisdiction the equal
protection of its laws or deprive any person of liberty or
property without due process of law;
9. pass any bill of attainder or ex post facto law; or
10. deny to any person accused of an offense punishable by
imprisonment the right, upon request, to a trial by jury of not
less than six persons.
(b) Offenses subject to greater than 1-year imprisonment or a fine
greater than $5,000
A tribal court may subject a defendant to a term of imprisonment
greater than 1 year but not to exceed 3 years for any 1 offense, or a
fine greater than $5,000 but not to exceed $15,000, or both, if the
defendant is a person accused of a criminal offense who--
1. Has been previously convicted of the same or a comparable
offense by any jurisdiction in the United States; or
2. Is being prosecuted for any offense comparable to an
offense that would be punishable by more than 1 year of
imprisonment if prosecuted by the United States or any of the
States.
(c) Rights of defendants
In a criminal proceeding in which an Indian tribe, in exercising
powers of self-government, imposes a total term of imprisonment of more
than 1 year on a defendant, the Indian tribe shall--
1. provide to the defendant the right to effective assistance
of counsel at least equal to that guaranteed by the United
States Constitution; and
1. at the expense of the tribal government, provide an
indigent defendant the assistance of a defense attorney
licensed to practice law by any jurisdiction in the United
States that applies appropriate professional licensing
standards and effectively ensures the competence and
professional responsibility of its licensed attorneys;
3. require that the judge presiding over the criminal
proceeding--
(A) has sufficient legal training to preside over criminal
proceedings; and
(B) is licensed to practice law by any jurisdiction in the
United States;
4. prior to charging the defendant, make publicly available
the criminal laws (including regulations and interpretative
documents), rules of evidence, and rules of criminal procedure
(including rules governing the recusal of judges in appropriate
circumstances) of the tribal government; and
5. maintain a record of the criminal proceeding, including an
audio or other recording of the trial proceeding.
(d) Sentences
In the case of a defendant sentenced in accordance with subsections
(b) and (c), a tribal court may require the defendant--
1. to serve the sentence--
(A) in a tribal correctional center that has been approved
by the Bureau of Indian Affairs for long-term incarceration, in
accordance with guidelines to be developed by the Bureau of
Indian Affairs (in consultation with Indian tribes) not later
than 180 days after July 29, 2010;
(B) in the nearest appropriate Federal facility, at the
expense of the United States pursuant to the Bureau of Prisons
tribal prisoner pilot program described in section 304(c)[1] of
the Tribal Law and Order Act of 2010
(C) in a State or local government-approved detention or
correctional center pursuant to an agreement between the Indian
tribe and the State or local government; or
(D) in an alternative rehabilitation center of an Indian
tribe; or
2. to serve another alternative form of punishment, as
determined by the tribal court judge pursuant to tribal law.
(e) Definition of offense
In this section, the term ``offense'' means a violation of a
criminal law.
(f) Effect of section
Nothing in this section affects the obligation of the United
States, or any State government that has been delegated authority by
the United States, to investigate and prosecute any criminal violation
in Indian country.
1303. Habeas corpus
The privilege of the writ of habeas corpus shall be available to
any person, in a court of the United States, to test the legality of
his detention by order of an Indian tribe.
1304. Tribal Jurisdiction over Crimes of Domestic Violence
(a) Definitions.--In this section:
1. Dating Violence.--The term `dating violence' means violence
committed by a person who is or has been in a social
relationship of a romantic or intimate nature with the victim,
as determined by the length of the relationship, the type of
relationship, and the frequency of interaction between the
persons involved in the relationship.
2. Domestic Violence.--The term `domestic violence' means
violence committed by a current or former spouse or intimate
partner of the victim, by a person with whom the victim shares
a child in common, by a person who is cohabitating with or has
cohabitated with the victim as a spouse or intimate partner, or
by a person similarly situated to a spouse of the victim under
the domestic- or family-violence laws of an Indian tribe that
has jurisdiction over the Indian country where the violence
occurs.
3. Indian country.--The term `Indian country' has the meaning
given the term in section 1151 of title 18, United States Code.
4. Participating tribe.--The term ``participating tribe' means
an Indian tribe that elects to exercise special domestic
violence criminal jurisdiction over the Indian country of that
Indian tribe.
5. Protection order.--The term `protection order'--
(A) means any injunction, restraining order, or other order
issued by a civil or criminal court for the purpose of
preventing violent or threatening acts or harassment against,
sexual violence against, contact or communication with, or
physical proximity to, another person; and
(B) includes any temporary or final order issued by a civil
or criminal court, whether obtained by filing an independent
action or as a Pendente lite order in another proceeding, if
the civil or criminal order was issued in response to a
complaint, petition, or motion filed by or on behalf of the
person seeking protection.
6. Special domestic violence criminal jurisdiction.--The term
`special domestic violence criminal jurisdiction' means the
criminal jurisdiction that a participating tribe may exercise
under this section but could not otherwise exercise.
7. Spouse or intimate partner.--The term `spouse or intimate
partner' has the meaning given the term in section 226 of title
18, United States Code.
(b) Nature of Criminal Jurisdiction.--
1. In general.--Notwithstanding any other provision of law, in
addition to all powers of self-government recognized and
affirmed by sections 201 and 203 [25 USC 1301 and 1303,
respectively], the powers of self-government of a participating
tribe include the inherent power of that tribe, which is hereby
recognized and affirmed, to exercise special domestic violence
criminal jurisdiction over all persons.
2. Concurrent jurisdiction.--The exercise of special domestic
violence criminal jurisdiction by a participating tribe shall
be concurrent with the jurisdiction of the United States, of a
State, or of both.
3. Applicability.--Nothing in this section--
(A) creates or eliminates any Federal or State criminal
jurisdiction over Indian country; or
(B) affects the authority of the United States or any State
government that has been delegated authority by the United
States to investigate and prosecute a criminal violation in
Indian country.
4. Exceptions.--
(A) Victim and defendant are both non-Indians.--
i. In general.--A participating tribe may not exercise
special domestic violence criminal jurisdiction over an alleged
offense if neither the defendant nor the alleged victim is an
Indian.
ii. Definition of victim.--In this subparagraph and with
respect to a criminal proceeding in which a participating tribe
exercises special domestic violence criminal jurisdiction based
on a violation of a protection order, the term `victim' means a
person specifically protected by a protection order that the
defendant allegedly violated.
(B) Defendant lacks ties to the Indian tribe.--A
participating tribe may exercise special domestic violence
criminal jurisdiction over a defendant only if the defendant--
i. resides in the Indian country of the participating
tribe;
ii. is employed in the Indian country of the participating
tribe; or
iii. is a spouse, intimate partner, or dating partner of--
1. a member of the participating tribe; or
2. an Indian who resides in the Indian country of the
participating tribe.
(c) Criminal Conduct.--A participating tribe may exercise special
domestic violence criminal jurisdiction over a defendant for criminal
conduct that falls into one or more of the following categories:
1. Domestic violence and dating violence.--An act of domestic
violence or dating violence that occurs in the Indian country
of the participating tribe.
2. Violations of protection orders.--An act that--
(A) occurs in the Indian country of the participating tribe;
and
(B) violates the portion of a protection order that--
i. prohibits or provides protection against violent or
threatening acts or harassment against, sexual violence
against, contact or communication with, or physical proximity
to, another person;
ii. was issued against the defendant;
iii. is enforceable by the participating tribe; and
iv. is consistent with section 2265(b) of title 18, United
States Code.
d) Rights of Defendants.--In a criminal proceeding in which a
participating tribe exercises special domestic violence criminal
jurisdiction, the participating tribe shall provide to the defendant--
1. all applicable rights under this Act;
2. if a term of imprisonment of any length may be imposed, all
rights described in section 202(c) [25 USC 1302(c)];
3. the right to a trial by an impartial jury that is drawn
from sources that--
(A) reflect a fair cross section of the community; and
(B) do not systematically exclude any distinctive group in
the community, including non-Indians; and
4. all other rights whose protection is necessary under the
Constitution of the United States in order for Congress to
recognize and affirm the inherent power of the participating
tribe to exercise special domestic violence criminal
jurisdiction over the defendant.
(e) Petitions to Stay Detention.--
1. In general.--A person who has filed a petition for a writ
of habeas corpus in a court of the United States under section
203 [25 USC 1303] may petition that court to stay further
detention of that person by the participating tribe.
2. Grant of stay.--A court shall grant a stay described in
paragraph (1) if the court--
(A) finds that there is a substantial likelihood that the
habeas corpus petition will be granted; and
(B) after giving each alleged victim in the matter an
opportunity to be heard, finds by clear and convincing evidence
that under conditions imposed by the court, the petitioner is
not likely to flee or pose a danger to any person or the
community if released.
3. Notice.--An Indian tribe that has ordered the detention of
any person has a duty to timely notify such person of his
rights and privileges under this subsection and under section
203 [25 USC 1303].
Appendix B
Helpful Resources
Resource Center for Implementing Tribal Provisions of VAWA 2013 was
developed and is maintained by the National Congress of American
Indians (NCAI) to provide information, news, resources, notice of
events, and funding opportunities on the implementation of tribal
provisions of VAWA 2013. It also contains information on the
Intertribal Technical-Assistance Working Group (ITWG), a group of
tribal representatives that met to discuss issues and best practices
relative to tribal VAWA 2013 implementation. See: www.ncai.org/tribal-
vawa
Tribal VAWA Resource Page is housed on the Tribal Court
Clearinghouse website. This page contains the language of VAWA, videos
from the VAWA signing ceremony, publications, reports, articles and
other important resources on VAWA's SDVCJ, as well as relevant upcoming
and past events focusing on SDVCJ. See: http://www.tribal-
institute.org/lists/vawa_2013.htm
Tribal Protection Order website was developed and is maintained by
TLPI. It is a clearinghouse of information and resources on tribal
protection orders and tribal enforcement. See:
www.TribalProtectionOrder.org
Federal Register, vol. 78, no. 115, p. 35961, June 14, 2013 This
notice proposes procedures for an Indian tribe to request designation
as a participating tribe under section 204 of the Indian Civil Rights
Act of 1968, as amended, on an accelerated basis, pursuant to the
voluntary pilot project described in section 908(b)(2) of the Violence
Against Women Reauthorization Act of 2013 (``the Pilot Project''), and
also proposes procedures for the Attorney General to act on such a
request. This notice also invites public comment on the proposed
procedures and solicits preliminary expressions of interest from tribes
that may wish to participate in the Pilot Project.
Federal Register, vol. 78, no. 230, p. 71645, Nov. 29, 2013 This
final notice establishes procedures for Indian tribes to request
designation as participating tribes under section 204 of the Indian
Civil Rights Act of 1968, as amended, on an accelerated basis, under
the voluntary pilot project described in the Violence Against Women
Reauthorization Act; establishes procedures for the Attorney General to
act on such requests; and solicits such requests from Indian tribes.
The U.S. Supreme Court in Oliphant v. Suquamish Indian Tribe, 435
U.S. 191 (1978), held that tribal sovereignty does not extend to the
exercise of criminal jurisdiction over a non- Indian for crimes
committed in Indian country.
Public Law 113-4, 127 Stat. 54 (2013) The Violence Against Women
Reauthorization Act of 2013 (VAWA 2013), recognized and reaffirmed the
inherent sovereign authority of Indian tribes to exercise criminal
jurisdiction over certain non-Indians who violate protection orders or
commit dating violence or domestic violence against Indian victims on
tribal lands.
25 U.S.C. 1304 Tribal jurisdiction over crimes of domestic
violence.
The Tribal Law and Order Act (Public Law 111-211, Congress passed
the legislation as part of another bill regarding Indian Arts and
Crafts. See Title II.) enhanced tribal authority to prosecute and
punish criminals. However, tribes are required to provide certain due
process requirements. The requirements are listed in the amended Indian
Civil Rights Act (25 U.S.C. 1301-1304).
Tribal Law and Order Act Resource Center is a website specifically
developed by NCAI to share information and resources relative to TLOA.
It contains many of the resources described in this resource sections
and many more, as well as news, events, webinars, and other helpful
information. See: tloa.ncai.org
The five tribes' applications to participate in the pilot project
permitting early use of jurisdiction over non-Indians may also be
helpful, as the applications look for compliance with the VAWA 2013
requirements and provide the tribes examples of their compliance. The
applications are publically available: Confederated Tribes of the
Umatilla Indian Reservation application, Pascua Yaqui Tribe
application, Tulalip Tribes application, Assiniboine and Sioux Tribes
of the Fort Peck Indian Reservation application and Sisseton-Wahpeton
Oyate of the Lake Traverse Reservation application. See:
www.justice.gov/tribal/vawa-2013-pilot-project
''Considerations in Implementing V AWA's Special Domestic Violence
Criminal Jurisdiction and TLOA 's Enhanced Sentencing Authority--A Look
at the Experience of the Pascua Yaqui Tribe,'' compiled by Alfred
Urbina, Attorney General, Pascua Yaqui Tribe and Melissa Tatum,
Research Professor of Law, The University of Arizona James E. Rogers
College of Law. See: indianlaw.org/safewomen/resources
28 U.S.C. 543(a) Special Assistant United States Attorneys
(SAUSAs), appointed by the Attorney General, who assist in prosecuting
Federal offenses committed in Indian country.
The five pilot project codes: http://ctuir.org/criminal-code
Two articles by M. Brent Leonhard, Attorney in the Office of Legal
Counsel for the Confederated Tribes of the Umatilla Indian Reservation,
on implementing VAWA 2013. The Federal Lawyer, October/November 2015
and ABA Human Rights Magazine Volume 40 Number 4.
Tulalip Tribal Court Rules including rules regarding indigency
standards and rights afforded under VAWA special domestic violence
criminal jurisdiction. See: www.codepublishing.com/wa/Tulalip/ITWG Code
Development Checklist for implementing VAWA 2013. This checklist is
designed as a tool to assist tribal governments seeking to develop
tribal codes that comply with VAWA 2013's statutory requirements. It
includes citations to existing tribal codes implementing the new law.
See: www.ncai.org/tribal-vawa
Simple checklist for Law Enforcement Officers. Implementation of
VAWA 2013 may require changes in law enforcement policies and
procedures. Training for law enforcement officers will be an important
part of implementation. See: www.ncai.org/tribal-vawa requirement and
jury pool selection; and victims' rights. The full webinar series can
be found on the NCAI website Resource Center for Implementing Tribal
Provisions of VAWA 2013. See www.ncai.org/tribal-vawa.
TLPI, one of the technical assistance providers supporting the work
of the ITWG, has also developed an in-depth guide for implementation of
Tribal Law and Order Act and VAWA 2013, which includes a model code
that the ITWG tribes developed. See: www.tlpi.org and
www.Home.TLPI.org.
The final report of the Attorney General's Task Force on American
Indian and Alaska Native Children Exposed to Violence--''Ending
Violence So Children Can Thrive,'' US Senator Byron Dorgan et al. The
task force is part of Attorney General's Defending Childhood
Initiative, a project that addresses the epidemic levels of exposure to
violence faced by our nation's children. The task force was created in
response to a recommendation in the Attorney General's National Task
Force on Children Exposed to Violence December 2012 final report. The
report noted that American Indian and Alaska Native children have an
exceptional degree of unmet needs for services and support to prevent
and respond to the extreme levels of violence they experience. See:
www.justice.gov/defendingchildhood
______
Prepared Statement of the Central Council of Tlingit and Haida Indian
Tribes of Alaska
Dear Senate Select Committee on Indian Affairs:
The Central Council of Tlingit and Haida Indian Tribes of Alaska
(``Central Council'') offers written comments to supplement the hearing
held on May 18, 2016 on Senate Bills 2920 and 2785. We are appreciative
that the Senate Select Committee on Indian Affairs is proactively
looking at reauthorization of Tribal Law and Order Act (TLOA) and also
to close jurisdictional gaps of 25 USC 1304, the Special Domestic
Violence Court Jurisdiction over non-Indians section.
This letter will begin with a brief overview of our Tribe, followed
by general comments about the unique legal issues to Alaska, and
specific recommendations about the proposed bills. It is worth stating
upfront that the Supreme Court case in the Native Village of Venetie,
along with the Alaska Native Claims Settlement Act (ANCSA) have created
a challenging situation for Alaska Native Villages and Tribes to
address village safety issues, especially as it relates to
accountability of criminal defendants and domestic violence
perpetrators. We ask that the Senate consider a legislative fix to
these jurisdictional issues.
Who We Are
Central Council is a federally recognized Tribal government for
Alaska's Tlingit and Haida population, with more than 30,000 tribal
citizens worldwide. Central Council is one of approximately 229
federally recognized tribes in the State of Alaska. Alaska tribes
comprise nearly 40 percent of all federally recognized tribes in the
United States.
On September 4, 2007, Central Council began operating a formal,
regional tribal court, located in Juneau, Alaska, to provide child
support services to 20 villages and communities that are spread over
43,000 square miles within the Alaska Panhandle. The region encompasses
a 525-mile strip of coastline and interior waterways, bordered by
Canada on the north, south, and east, with the Gulf of Alaska on the
west. There is no road system linking Southeast Alaska communities;
therefore, communities can only be reached by airplane, boat or ferry.
Prior to 2007, the tribal court had elected judges but no budget
for staffing or operation of tribal court. This all changed when the
Tribe applied for and received Title IV-D funding to open a tribal
child support agency. This funding source allowed the tribe to hire one
judge and one court clerk to hear paternity, child support order
establishment and enforcement for cases involving children enrolled or
eligible for enrollment with the tribe. Since that time, despite
continued limited grant funding, the tribe has expanded its services to
include domestic violence, child custody, divorce, guardianship,
adoption and is currently in the process of expanding services to
include juvenile justice and child welfare cases.
Central Council's tribal court is located in Juneau, as part of a
tribal government office building. Juneau has the highest concentration
of tribal citizens in Alaska, but Central Council has citizens all
across Southeast, and out of state. Central Council compacts with a few
Southeast Tribes for social services, such as Indian Child Welfare Act
(ICWA).
Unique Status of Alaska Tribes
Historically, Alaska tribes, for various reasons, have been treated
differently than lower 48 tribes, often making fundamentals of tribal
court jurisdiction difficult to understand or ascertain. In a rather
remarkable turn of events, the federal government settled its land
claims with the aboriginal people of Alaska not by compensating the
tribal governments of the aboriginal people, but rather by establishing
corporations whose shareholders would be the aboriginal people and
bestowing on those corporations the goal of leveraging the land and
money received in compensation to operate for-profit businesses. With
the passage of the ANCSA in 1971. the only remaining reservation in the
state is the Annette Island Reserve in Southeast Alaska. Rather than
recognize sovereign tribal lands, ANCSA tasked the for-profit
corporations to manage more than 40 million acres of fee land. ANCSA
divided the state into 12 regional corporations and over 200 village
corporations that would identify with their regional corporation. Many
of these villages had corresponding tribal village governments. but
with the passage of ANCSA. no meaningful land base. As a result, unlike
most court systems that have defined territorial jurisdiction and
personal jurisdiction. Alaska Tribal courts generally exercise
jurisdiction through tribal citizenship. and not through a geographic
space defined as ``Indian Country'' because of ANCSA and in part due to
a United States Supreme Court case.
As a result of the United States Supreme Court's unfavorable
decision in Alaska v. Native Village of Venetie Tribal Government, 522
U.S. 520 (1998), most of the Tribe's traditional territory is not
considered ``Indian Country''. Without the ability to tax. without
Indian gaming, and without consistent and predictable tribal court
appropriations. Alaska Tribes lack the revenue typically available to
other tribal governments to fund and sustain essential governmental
programs. All Alaska Tribes are in a similar position. and must find
innovative ways to raise governmental revenue and to leverage other
resources to sustain their Tribal Courts and public safety programs. As
a result of this resource dilemma, available grants for developing and
sustaining programs are incredibly important for Alaska Tribes.
As mentioned, Alaskan tribal governments are not positioned to take
advantage of the traditional tools local governments use to generate
revenue. Except for Metlakatla, Alaskan tribal governments have no
taxable land base and subsistence economies--also known as non-cash
economies--are unable to generate strong steady revenues in the form of
a sales tax. property tax, or other taxes.
Making matters worse, in 2003, Alaska's own Senator Ted Stevens
singled out Alaska Tribes for exceptionally harsh financial
restrictions through legislative riders to the FY 04 Consolidated
Spending Bill (Sec. 1 12 of HR 2673). The riders eliminated funds to
tribal courts and tribal law enforcement programs in Alaska Native
Villages, and specifically excluded certain Southeast Alaska
communities from receiving any Department of Justice funding. Although
Congress recently eliminated these restrictions, they set back Alaska
Tribes even further while they were in place. Without adequate
resources, tribal court jurisdiction and law enforcement floundered.
All told, these funding restrictions have severely hindered the
approximately 78 tribal justice systems in Alaska from developing. The
vast majority of Alaska tribal courts are not able to operate on a
full-time basis or hire full-time employees. Central Councirs tribal
court staff are funded by a delicate balance BIA compact funds and
temporary grants.
Against the backdrop of this funding desert, Alaskan tribal
citizens are suffering. The absence of an effective justice system has
disproportionately harmed Alaska Native women who are continually
targeted for all forms of violence. Alaska Natives comprise only 15.2
percent of the state's population, but make up 47 percent of victims of
domestic violence and 61 percent of victims of sexual assault are
Alaska Native. And among other Indian Tribes, Alaska Native women
suffer the highest rates of domestic and sexual violence in the
country.
Although, in a PL 280 state, Alaska tribal communities should have
access to state justice services, those services are centered in a
handful of Alaskan urban areas, making them often more theoretical than
real. Many communities have no law enforcement, no 91 1, no state
official they could conceive of raising a complaint to, given the
separation of geography, language, and culture. Also, because Alaska is
a mandatory PL 280 state and because of other factors identified below,
jurisdictional issues in Alaska create extremely dangerous conditions
for our small, remote communities. The TLOA of 2010 created the Indian
Law and Order Commission and authorized the Commission to conduct an
extensive study of jurisdictional issues in Alaska. The Commission
devoted an entire chapter to Alaska and found that:
``The strongly centralized law enforcement and justice systems
of the State of Alaska . . do not serve local and Native
communities adequately, if at all. The Commission believes that
devolving authority to Alaska Native communities is essential
for addressing local crime. Their governments are best
positioned to effectively arrest, prosecute, and punish, and
they should have the authority to do so-or to work out
voluntary agreements with each other, and with local
governments and the State on mutually beneficial terms.'' \1\
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\1\ A Roadmap for Making Native America Safer: Report to the
President and Congress of the United States (November 2013), available
at http://www.aisc.ucla.edu/iloc/report/.
While there have been recent gains that benefited Alaska, we still
have laws and policies that make support for strong Alaska Native
Judicial systems erratic. if not impossible. For example, the U.S.
Department of Justice's support for repeal of the Special Rule for the
State of Alaska included in section 910 of VAWA 2013 was applauded in
Alaska. but the issue of Indian Country, described further below,
remains. The Obama administration has supported our tribal governments
in ways not seen for years. In a July 28, 2014, letter from Associate
Attorney General Tony West to the Alaska state Attorney General, West
reminded him of the State's obligation to give full faith and credit to
tribal court orders of protection. Prior to this time, enforcement and
recognition of Alaska tribal court orders was essentially non-existent.
Basically, Alaska law required orders of protection issued by tribal
courts to be registered with the state before enforcement would be
available. As a result of Associate Attorney General West's assistance,
the State of Alaska has recently evaluated its role in supporting
Alaska Native protection orders. While still encouraging registration
of tribal and foreign protection orders, in 2015, the State recognized
that it must enforce unregistered Alaska tribal orders.
Senate Bill 2920
We greatly appreciate the introduction of this bill. We ask that
the Senate look to recent studies such as the newly released, National
Institute of Justice. Research Report on the Violence Against American
Indian and Native Women and Men, that document the dire safety
circumstances that Alaska native villages are in as a result of their
unique geographic situation, the 229 tribes state wide and the
inability for the state to address the public safety state of emergency
for Alaska Tribes.
Solutions to Solve the Jurisdictional Quagmire
The repeal of section 910 of VAWA 2013 was a victory as it was a
necessary step towards removing a discriminatory provision in the law
that excluded all but one Alaska tribe from ever being able to enhance
their response to violence against Native women in ways afforded all
other federally recognized tribes. Nevertheless, because of the Venetie
decision, additional reforms are needed before Alaska tribes will be
able to increase safety for Alaska Native women and hold all offenders
accountable. This is because section 904 of VAWA 2013 limits the
exercise of the special domestic violence criminal jurisdiction
restored to tribes to certain crimes committed in ``Indian Country.''
Yet, at the same time, the State does not have the resources to provide
the level of justice needed in our communities. A legislative fix is
necessary to address this injustice. Such a fix could be inserted in
the Tribal Law and Order Act, or the next reauthorization of VAWA, or
as an amendment to ANCSA, which recognizes a tribe's territorial
jurisdiction equivalent to the corresponding Village Corporation's land
base and traditional territory, or to other federal laws such as the
statute defining Indian Country, \2\ or accomplished through other
changes in federal policy allowing the Department of the Interior to
accept land into trust for all federally recognized Alaska tribes. \3\
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\2\ 18 U.S.C. 1 151. Section 1151 provides in pertinent part
that: ``Except as otherwise provided in sections 1154 and 1156 of this
title, the term `Indian country', as used in this chapter, means (a)
all land within the limits of any Indian reservation under the
jurisdiction of the United States Government. notwithstanding the
issuance of any patent. and, including rights-of-way running through
the reservation, (b) all dependent Indian communities within the
borders of the United States whether within the original or
subsequently acquired territory thereof, and whether within or without
the limits of a state, and (c) all Indian allotments, the Indian titles
to which have not been extinguished, including rights-of-way running
through the same.''
\3\ A federal regulation was developed after the U.S. District
Court for the District of the Columbia held that exclusion of Alaska
tribes from the land-into-process was not lawful. See Akiachak Native
Community v. Salazar, 935 F. Supp. 2d 195 (D.D.C. 2013). The State of
Alaska has appealed the decision and its motion to stay was granted to
prevent the Interior Department from considering specific applications
or taking lands into trust in Alaska until resolution of the appeal. On
December 18, 2014, the Interior Department published its final rule
rescinding the ``Alaska Exception,'' which became effective on January
22, 2015. 79 Fed. Reg. 76888. This regulatory change could help some
Alaska tribes exercise local governance to address violence against
Native women.
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We fully support the recommendations of the Tribal Law and Order
Act Commission and ask that they all be priorities for inclusion in the
reauthorization of TLOA. Specifically, we ask that the Senate Select
Committee on Indian Affairs:
Craft a legislative fix for the U.S. Supreme Court's Venelle
decision.
Amend the definitions of Indian Country- to include Alaska
native allotments and native owned town sites.
Support land into trust applications by Alaska Native
Tribes.
Channel more resources directly to Alaska Native Tribal
governments for the provision of governmental services.
Support Alaska Native Tribes and Villages with the exercise
of criminal jurisdiction within their communities.
As described by the TLOA Commission:
``problems in Alaska are so severe and the number of Alaska
Native communities affected, so large, that continuing to
exempt the State from national policy change is wrong.''
We ask that the Commission's specific recommendation to the federal
government ``to channel more resources directly to Alaska Native Tribal
governments for the provision of governmental services in those
communities'' be supported in legislation and through appropriations.
We further ask that S. 2920 include specific findings by the Law and
Order Commission that demonstrates the vast uniqueness of our
communities as well as the dire circumstances we find ourselves in. We
ask for specific findings within the Bill unique to Alaska's public
safety crisis.
Indian Country in Alaska
Sprinkled throughout the TLOA Reauthorization, is the reference to
``Indian Country.'' As mentioned with the Native Village of Venetie
case, there is virtually no ``Indian Country'' in Alaska to be afforded
the advantages intended within this bill. We need a legislative fix to
this issue.
``Alaska's approach to providing criminal justice services is
unfair. Alaska Natives, especially those living in rural areas
of the State, have not had access to the level and quality of
public safety services available to other State residents or
that they should rightly expect as U.S. citizens. Given the
higher rates of crime that prevail in Alaska Native
communities, the inequities are even greater in relative terms.
The State of Alaska's overarching lack of respect for Tribal
authority further magnifies fairness concerns.''
But yet without a meaningful and identifiable land base,
jurisdictional boundaries will prevent a meaningful solution to
solving the public safety crisis in our villages.
The TLOA commission's first recommendation is:
2.1: Congress should overturn the U.S. Supreme Court's decision in
Alaska v. Native Village of Venetie Tribal Government, by amending
ANCSA to provide that former reservation lands acquired in fee by
Alaska Native villages and other lands transferred in fee to Native
villages pursuant to ANCSA are Indian country.
We need to begin a dialogue that gets at the heart of community
safety issues and concerns. We ask that a commission or task force be
created to develop a solution to the jurisdictional issues found in
Alaska.
Data Sharing With Indian Tribes
We need a legislative fix that addresses the concerns of the
Criminal Justice Information System (CJIS) about tribal access to
federal databases for governmental purposes. Currently access is
piecemeal, with federal statutes providing some access to tribes and
then deferring to state law to define and provide access. Such
checkerboard access places some of our most vulnerable citizens in
jeopardy.
28 USC 534(d) authorizes release of criminal history information to
tribal law enforcement agencies, but doesn't allow release of criminal
information to other tribal agencies for important purposes, Emergency
Placement of Children, or ``Purpose Code X,'' employees that work with
elders and vulnerable adults, etc.
CJIS interprets the appropriations rider language from 92-544 (and
in the notes of 28 USC 534) as a permanent statute that prevents
sharing this information with tribal governments. In their view,
criminal history for licensing of foster parents can only be shared
``if authorized by State statute and approved by the Attorney General,
to officials of State and local governments for purposes of employment
and licensing,''
We need to amend federal law to authorize the sharing of this
information with tribal governments for any legitimate purpose.
One solution is to renumber 534(d) and add a new subsection: ``If
authorized by tribal law and approved by the Attorney General, the
Attorney General shall also permit access to officials of tribal
governments for non-criminal justice, non-law enforcement employment,
licensing purposes or any other legitimate government purpose
identified in tribal legislation.''
We ask that Civil authority be included to so that once and for all
the piecemeal inefficient barriers to full legitimate access is
resolved.
Senate Bill 2785
While we appreciate that the Senate recognizes the gaps in the
Special Domestic Violence Court Jurisdiction (SDVCJ) of VAWA 2013. in
that crimes against children and drug crimes attendant to the SDVCJ
crimes remained unpunishable, until the issues of ``Indian Country'' in
Alaska are addressed, we are largely left without inclusion in this
important legislation that recognizes the inherent authority of a tribe
to prosecute violent crimes against women. Again, we ask that a
Commission or Task Force be created to provide a meaningful solution.
This situation is especially dire with the economic strain the state of
Alaska is currently in. As Senator Murkowski noted during the hearing,
we need to look at ``new jurisdictional definitions'' or some other
remedy to include Alaska villages. The state lacks resources to address
the concerns of the village. The federal government needs to step in
through the trust relationship to address these catastrophic issues
that leave our communities unsafe. Again as Senator Murkowski noted,
it's time to explore different avenues to address the public safety
issues and empower tribes to protect their communities.
Summary
Alaska tribal governments are unique among indigenous American
tribes in their lack of access to the same type of government revenues
available to nearly every other sovereign entity in the country. We ask
that the Senate Select Committee on Indian Affairs take this
disadvantage into account to get Alaskan Tribes on an equal playing
field, and to make a truly meaningful investment in tribal justice by
including the jurisdictional challenges that have plagued meaningful
justice to Alaska Native communities.
______
Prepared Statement of Jerry Gardner, Executive Director, Tribal Law and
Policy Institute
I write on behalf of the Tribal Law and Policy Institute to support
the two Senate bills, S. 2785, The Tribal Youth and Community
Protection Act; and S. 2920, The Tribal Law and Order Reauthorization
Act of 2016.
S. 2785, The Tribal Youth and Community Protection Act
The extension of tribal criminal jurisdiction to prosecute all
persons for crimes committed in Indian country is a much needed fix to
the jurisdictional maze, and was called for by the Indian Law and Order
Commission. \1\ S. 2785 is a welcome step in the right direction. Since
tribal criminal jurisdiction was abruptly curtailed in 1978 in the U.S.
v. Oliphant decision, tribes have been without the means to hold non-
Indians accountable for their criminal behavior on Indian lands. VAWA
2013 was the first partial-Oliphant fix, finally acknowledges the
devastating realities of violence being committed against Native women
by non-Indians. S. 2785 is the natural extension, acknowledging tribal
sovereignty, the horrific nature of crime in Indian country and its
under-prosecution, and the plain-sense approach of enabling local
criminal justice systems to respond to their communities.
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\1\ INDIAN LAW AND ORDER COMMISSION, A ROADMAP FOR MAKING NATIVE
AMERICA SAFER: REPORT TO THE PRESIDENT & CONGRESS OF THE UNITED STATES,
RECOMMENDATION 1.1 (2013).
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S. 2785 most notable affirms tribal criminal jurisdiction to
include crimes committed against Native children. As the Attorney
General's Advisory Committee on American Indian and Alaska Native (AI/
AN) Children Exposed to Violence noted, ``it is troubling that tribes
have no criminal jurisdiction over non-Indians who commit heinous
crimes of sexual and physical abuse of [AI/AN] children in Indian
country.'' \2\ After enacting the special domestic violence criminal
jurisdiction (SDVCJ) of VAWA 2013, the pilot project tribes experienced
first-hand the cruel absurdity of prosecuting offenders for their
crimes against their domestic partners, but not for the crimes
committed against children. \3\ Like Native women, Native children are
deserving of protection and the reliability that their offenders will
be held accountable.
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\2\ ATTORNEY GENERAL'S ADVISORY COMMITTEE ON AMERICAN INDIAN AND
ALASKA NATIVE CHILDREN EXPOSED TO VIOLENCE, U.S. DEP'T OF JUSTICE,
REPORT OF THE ADVISORY COMMITTEE ON AMERICAN INDIAN AND ALASKA NATIVE
CHILDREN EXPOSED TO VIOLENCE: ENDING VIOLENCE SO CHILDREN CAN THRIVE 38
(November 2014).
\3\ National Congress of American Indians, ``Special Domestic
Violence Criminal Jurisdiction Pilot Project Report,'' 28 (Oct. 29,
2015).
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S. 2785 additional reaffirms tribal criminal jurisdiction over drug
offenses and over crimes that may occur within the context of the
criminal justice process. VAWA 2013 has been a unique lesson in limited
jurisdiction, such that lesser included crimes and attendant crimes are
not included. Jurisdiction over such attendant crimes, including
resisting arrest, assaulting an officer, witness tampering, and
obstruction of justice are necessary components of the criminal justice
and will greatly empower tribes to effectively hold offenders
accountable.
However, through our lessons learned since VAWA 2013, there are
other significant gaps in jurisdiction for which S. 2785 is primed to
fill. Most significantly, tribes still lack jurisdiction over all
persons for the crime of sexual assault. SDVCJ was originally conceived
to include sexual assault. The disturbing Congressional findings within
the Tribal Law and Order Act of 2010, including that 34 percent of AI/
AN women will be raped in their lifetimes and 39 percent of AI/AN women
will be subject to domestic violence, \4\ stem from the Amnesty
International report, Maze of Injustice. \5\ In analyzing the
devastating nature of sexual violence committed against AI/AN women,
the report specifically identified sexual assault, including its
finding that 86 percent of reported cases of rape or sexual assault
against AI/AN women were perpetrated by non-Native men. \6\ The report
called for a full Oliphant fix. \7\ SDVCJ has proven to be an effective
tool against offenders. It is critical, however, that tribes are
empowered to respond to all sexual violence, and not just violence
perpetrated by offenders in a domestic or dating relationship with
their victim. Reaffirming jurisdiction over sexual assault will provide
a much needed tool, and end a bizarrely cruel distinction between
offenders that sexually assault their victims.
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\4\ Tribal Law and Order Act of 2010, H. R. 725, Sec. 202(5)(B)-
(C).
\5\ Amnesty International USA, Maze of Injustice: The Failure to
Protect Indigenous Women From Sexual Violence in the USA (2007).
\6\ Id. at 4.
\7\ Id. at 90.
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S. 2920, The Tribal Law and Order Reauthorization Act of 2016
The Tribal Law and Order Act (TLOA) of 2010 was a paramount,
comprehensive law designed to improve numerous facets of the public
safety system in Indian country, including by expanding sentencing
authority for tribal justice systems, clarifying jurisdiction in P.L.
280 states, and requiring enhanced information sharing across
jurisdictions. The Tribal Law and Policy Institute thanks Senator
Barrasso for his leadership in introducing this reauthorization, and
strongly support its passage. The National Congress of American Indians
has developed extensive comments regarding the TLOA reauthorization,
including recommendations for amendments and expansions based on
experience with tribes. We strongly support their comments, including
their recommendations, and urge Congress to implement their suggested
changes.
Thank you for your consideration of TLPI's views.
______
Prepared Statement of Hon. Melvin R. Sheldon, Jr., Chairman, Tulalip
Tribes of Washington
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