Law was meant to let American Indians prosecute violence; is it working?

March 25, 2017 | Brittney Bennett, USA Today

When you hear about violence against women, the commonly used statistics are 1 in 2 have experienced physical violence in their lifetime while 1 in 6 have experienced rape or attempted rape, according to the Department of Justice and Centers for Disease Control and Prevention. For indigenous women, the numbers are even more staggering. More than 60% of American Indian and Alaska Native women have been physically assaulted and 1 in 3 have experienced rape or attempted rape in their lifetime. Nearly all (97%) of these women have experienced at least one act of violence committed by a non-Indian, according to the DoJ's National Institute of Justice.

Yet for decades, tribes did not have jurisdiction to punish non-Indians due to the 1978 Supreme Court case Oliphant v. Suquamish Indian Tribe.

“You had this void where women were victims of rape and violence by non-Indian men,” said Chrissi Nimmo, assistant attorney general for the Cherokee Nation. “No one was willing or able to prosecute them, leading to very high crime rates."

In an attempt to fight this, the Special Domestic Violence Criminal Jurisdiction Statute was added to the Violence Against Women Act (VAWA) when it was renewed in 2013. The statute grants tribes jurisdiction over non-Indians in instances of domestic violence, dating violence or violations of protection orders that occur within Indian Country if the victim identifies as American Indian and the non-Indian perpetrator works, lives or has an intimate relationship on tribal lands.

The U.S. Department of Justice, which oversees VAWA, said the tribal provisions addressed "significant legal gaps." But it hasn't been a silver bullet for justice.

The statute went into effect two years ago this month, yet only 13 of the 562 federally recognized tribes in the U.S. have become voluntarily compliant with its federal regulations, according to the National Congress of American Indians (NCAI).

The slow adoption rate can be attributed in part to regulations, such as providing court appointed council to defendants who cannot afford it at the tribe’s expense, a challenge for tribes with little money. The VAWA reauthorization appropriated $5 million annually to be distributed to assist tribes from 2014 to 2018; in fiscal year 2016, $2.5 million was appropriated.

Tribes must also have juries that are selected from a "fair cross-section" of the public, meaning they cannot exclude non-Indians. While this was practiced by some tribes even prior to the VAWA reauthorization, for others it means changing tribal law. The latter is the case for Cherokee Nation, which has otherwise met the regulations.

“We still have to pass legislation to include non-Indians on our jury,” Nimmo said. “How do we, as an Indian tribe, want to open up our court system to non-Indians? It’s always been Cherokees. How do we carve out this special seating? I don’t have a timeline but to say that we are working on it.”

Many in the tribal community cite the federal government’s concern over whether non-Indians will receive a fair trial in Indian Country as a barrier to full jurisdiction, though legal professionals like Nimmo believe the statute could ease those concerns before it again comes up for reauthorization in 2018.

“If tribes can show through VAWA that they do have a fair court system and non-Indian defendants can get fair trials in tribal court, the hope is that one day tribes can prosecute any non-Indian defendant that commits any crime on Indian Country.”

Though the statute gives participating tribes more jurisdictional authority, that power remains limited in cases of sexual assault against an Indian woman by a non-Indian that occurs outside of an intimate partner relationship.

According to The Confederated Tribes of the Umatilla Indian Reservation tribal attorney Brent Leonhard, the statute also does not allow tribes to prosecute some crimes seen in conjunction with domestic violence, including when children are victimized.

“Governments have a moral obligation to ensure the safety of their citizens and residents,” Leonhard said. “Tribal nations are no different. However, a government cannot ensure public safety if it is forced to be dependent on foreign governments to prosecute crimes.”

These major crimes would be handled predominantly by the FBI and U.S. Attorney's offices.

"The law was tailored specifically to address issues of domestic violence involving spouses or intimate partners, giving the ability to local tribal law enforcement to address acts violence before they escalate to more serious crimes," said DoJ spokesman Wyn Hornbuckle. "Under the Major Crimes Act and other federal statutes, rape, sexual assault, child molestation, and human trafficking involving non-Indians and Indians alike are prosecutable in federal court."

“U.S. Attorney’s offices often work in partnership with tribal prosecutors and investigators to determine the best path for prosecuting and deterring crime on reservations,” he said.

According to a 2010 report by the U.S. Government Accountability Office, tribal governments referred 2,594 sexual abuse related cases to U.S. Attorneys’ offices between 2005 and 2009. Approximately 67% were declined for prosecution. Tribes also referred 2,922 assault-related cases, in which 46% were declined for prosecution. The report states that this may be the result of “weak or insufficient admissible evidence, no federal offense evidence and witness problems.”

Some tribal members point to these numbers as evidence that greater justice is needed for American Indian victims.

“The federal government doesn’t have to take cases,” said Sharon Jones Hayden, a tribal prosecutor that has worked closely with the Tulalip Tribes, one of those that has complied with the statute's regulations since its initial pilot testing. “It’s up to their discretion. The choice may not be between tribal court, state court or federal court. The choice may be between tribal court and no court at all.”

For Umatilla member Taryn Minthorn, it was tribal court that brought her a sense of closure.

After months of verbal abuse, things turned physical at the hands of her former boyfriend in September 2016. Minthorn said that tribal police responded  and the case was referred to the federal government, which ultimately declined it.

“I felt like I was seriously let down,” Minthorn said. “I felt like he could do all the crime in the world, and it was just a slap on the hand. I just wanted to give up.”

She chose to pursue the case in tribal court.

Earlier this month, her former boyfriend pleaded guilty. His sentence includes two years of incarceration, three years of probation, abstaining from drugs and alcohol, submitting to "anger management/batterers intervention" treatment and obeying a no contact order, according to court documents.

Though Minthorn and her children, who were witnesses, still suffer from anxiety and attend counseling, they are moving on.

"To hear him saying that he was pleading to these charges, I literally felt the load come off of me, off my shoulders, off my mind, off my heart," Minthorn said. "It’s important for future generations to know that eventually there is justice."