Southern Arizona’s Pascua Yaqui Tribe is one of the first native groups in the nation to earn legal standing to prosecute outsiders who attack women on tribal lands.
The Pascua Yaquis — along with the Tulalip Tribes of Washington and the Umatilla Tribes of Oregon — have been been awarded special domestic-violence criminal jurisdiction, included in the Violence Against Women Act of 2013. The measure allows tribes to prosecute non-Native Americans in tribal courts if they are accused of domestic violence on tribal lands.
The designation is fairly limited. It applies only in cases of domestic violence or dating violence, and only can be used to prosecute non-Native Americans who live on tribal lands, are employed within tribal boundaries, or have a spouse or intimate partner who is a tribal member.
But it represents a real and symbolic victory for tribes across the country, legal experts say.
“The main issue was basically protecting the women who have been assaulted on the reservation,” said Alfred Urbina, chief prosecutor for the Pascua Yaqui Tribe of Arizona. Violations of orders of protection issued in tribal courts would also fall under the expanded jurisdiction.
To be approved for the additional jurisdiction, tribes must meet specific requirements, including effective counsel for defendants, free lawyers for indigent defendants, and juries that include a cross-section of the community, including non-Native Americans.
Also, judges who preside over the cases must be licensed attorneys; the tribe’s criminal laws and rules must be available to the public; and its proceedings have to be recorded.
Urbina said the Pascua Yaqui Tribe plans to include in its possible jury pool the nearly 500 nonmembers living on tribal lands and the many non-Native Americans who work for tribal enterprises like casinos and hotels.
AN ONGOING PROBLEM
Domestic violence and other violent crimes against women are persistent problems in Native American communities, particularly on tribal lands.
A policy brief the National Congress of American Indians published last year in advance of the new law noted a demonstrably higher rate of violent crimes against Native American women than against other women.
Citing studies from the U.S. Department of Justice, National Institute of Justice and the U.S. Department of Health and Human Services, the report said American Indian and Alaska Native women experience violent crime at a rate more than double other races.
It notes that as many as 61 percent of Native American and Alaska Native women have been the victims of assault, compared with about half of women among other races.
The report also said about 34 percent of Native women are the victims of rape or sexual assault compared with about 19 percent of non-Native American women.
A Pascua Yaqui-commissioned report by the Center for Court Innovation, a New York-based think tank, identified domestic violence as the biggest challenge the Pascua Yaqui tribal court system faces.
Of the 503 nontraffic criminal charges filed in the Pascua Yaqui court in 2011, 267 were domestic violence charges.
SOME RECENT HISTORY
Native American tribes used to have authority to prosecute non-Indians, but that changed in 1978 when the U.S. Supreme Court upheld the appeal of a man arrested for assaulting a tribal police officer in Washington.
In that case, the court ruled tribes do not have the right to prosecute nonmembers. The court held that tribes had forfeited full sovereignty in exchange for protection from the United States.
Since then, non-Indian offenders have been prosecuted in federal district courts.
For proponents of the changes, the new law recognizes that tribes have the autonomy to protect their members.
“Tribal governments inherently have the right to protect these people,” said Dorma Sahneyah, National Indigenous Women’s Resource Center program specialist and a former prosecutor for the Hopi Tribe.
Sahneyah said it is imperative for tribes to prosecute domestic-violence cases no matter who the perpetrators are because of a gap in public safety that exists on many reservations, where people often live in remote areas far from the federal authorities that hold jurisdiction.
Some studies indicate that distance and other factors prompt federal prosecutors to decline prosecution of crimes committed on tribal lands at rates from 40 to 70 percent.
Sahneyah said allowing the tribes to prosecute nonmembers in domestic cases would force offenders to pay for their crimes.
“The people who would benefit are tribal people,” she said. “They need that protection.”
Critics of the new law argue the changes are unconstitutional.
“The tribal courts will quite clearly be exercising federal authority,” said Paul J. Larkin, an attorney and research fellow with the Washington, D.C.-based Heritage Foundation and former assistant to the U.S. solicitor general.
If the tribes are allowed to prosecute non-Indians, tribal judges would become officers of the United States exercising federal power, Larkin said, something for which no constitutional basis exists.
He said the law effectively bypasses the appointments clause of Article II in the Constitution because the president does not appoint tribal court judges.
A possible remedy, Larkin said, would be for Congress to grant federal or state courts jurisdiction over crimes the tribal courts would prosecute.
But that would still leave tribes without the prosecutorial jurisdiction they seek, he said.
Melissa L. Tatum, director of the Indigenous Peoples Law and Policy Center at the University of Arizona James E. Rogers College of Law, said that argument assumes Congress had granted authority to tribal courts rather than recognizing an existing authority of the tribes.
Tatum notes that a 2003 Supreme Court decision recognized Congress’ authority to relax restrictions on tribal sovereignty. In that case, the question was whether a tribe had the right to prosecute nontribal members who themselves were Native American.
The argument follows then, that if congressional action can relax some restrictions, it could ease others and allow tribal courts to prosecute non-Indians.
Department of Justice officials used a similar rationale in addressing questions about potential constitutional issues before a congressional committee last year.
takes effect this month
Even in the face of new legal challenges, as Larkin anticipates, the implications for tribes are significant.
“Anything we do is going to impact other tribes as well,” Urbina said.
The Pascua Yaqui Tribe will be allowed to exercise its new legal authority beginning Feb. 20.
The tribe, along with the two others allowed to prosecute some nonmembers, will conduct a pilot program in the lead-up to the law taking full effect in March 2015.
Urbina described the issue as an important civil-rights matter for Native Americans, and noted the Pascua Yaqui and a few other tribes stand at the forefront.
As he put it, “We’re the sharp end of the spear.”