Two Native American women lead the Stop Violence Against Women walk in Arizona.
Two Native American women lead the Stop Violence Against Women walk in Arizona.

WASHINGTON (WOMENSENEWS)– Native American justice systems can now prosecute non-Native offenders who commit domestic violence, opening the prospect of more domestic violence prosecutions on Indian reservations in the United States.

The new law took effect March 7 and plugged a longstanding loophole in federal law that had allowed non-Native abusers to evade prosecution, in some cases, for decades.

It took Congress more than 30 years to institute the change, which supplants a 1978 Supreme Court ruling that said tribes, many of them with sophisticated legal systems, had no right to prosecute non-Native American offenders in domestic violence cases when one partner was a Native American.

Under the law, tribes can now investigate, prosecute, convict and sentence Indians and non-Indians who assault Indian spouses or dating partners, or violate a protection order in Indian country.

Some critics say it doesn’t go far enough to ensure the safety of Native Americans assaulted by non-Natives because it doesn’t include child abuse or sexual assault by non-Native Americans against Indian victims. On the other side of the issue, threat of a lawsuit by groups opposed to tribes having legal authority also looms.

Critics of the 1978 high court ruling say it created a judicial ecosystem of impunity for sexual violence against Native girls and women.

Thirty-nine percent of Native American women said they were victims of intimate partner violence, a rate higher than any other race or ethnicity surveyed, finds a 2008 study by the Atlanta-based Centers for Disease Control and Prevention.

Diane Millich‘s Story

Diane Millich put a face on the grim realities underlying that data at the 2013 White House signing ceremony to reauthorization of the federal Violence Against Women Act, the law which added the provision about prosecuting non-Native offenders by tribal court systems.

Millich, a Native American, recounted how even though her non-Native American husband beat her repeatedly tribal authorities couldn’t help her because they had no legal jurisdiction over her husband, according to published accounts of the ceremony. When she turned to the local sheriff, that office declined to get involved because it had no right to deal with crimes against Indians committed on Indian land.

The balance was finally tipped against Millich’s husband when he stormed into her office one day threatening to kill her. A co-worker pushed her out of the way and took a bullet to the shoulder.

After authorities arrested Millich’s husband they had to use a tape measure to ensure that the office wasn’t on the nearby reservation, according to published reports. Because Millich’s husband had never been charged for beating her for what she estimated was more than 100 times, he was treated as a first offender by Colorado authorities, eventually pleading guilty to driving with a revoked license.

Three tribes began a pilot project under Department of Justice auspices about a year ago to begin to prosecute these types of cases, which must involve people who know each other. Stranger-on-stranger crime still falls under federal prosecutors from the local U.S. attorney’s office.

So far, since the pilot project began a little more than a year ago, 30 cases against non-Native American defendants in domestic violence cases have been brought by the tribes, Tracy Toulou, head of the Department of Justice’s Office of Tribal Justice, said in a recent phone interview.

Most of the cases resulted in plea agreements or other out-of-court settlements. One went to trial and resulted in an acquittal, he said. “It’s been very robust,” he said.

40 Participating Tribes

Toulou said that about 40 tribes have said they want to participate, and are gearing up to ensure that the required legal safeguards are in place.

The initial participating tribes in this pilot project are the Pascua Yaqui Tribe of Arizona, the Tulalip Tribes of Washington and the Umatilla Tribes of Oregon. More recently, the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation in Montana and the Sisseton Wahpeton Oyate of the Lake Traverse Reservation in South Dakota joined the effort.

The tribes must provide certain guarantees for defendants, which mirror requirements in a local or a federal court. They are required to guarantee due process for defendants, including ensuring effective counsel and free assistance from lawyers if they can’t afford a lawyer. Tribes must ensure there are clear and public rules, laws and court procedures, recorded hearings and other features of criminal proceedings. They also must build a jury pool for prospective jurors that does not systematically exclude non-Indians.

Congress had authorized up to $25 million for the transition to tribal prosecutions of non-Native offenders program for four years, but so far hasn’t appropriated any funds, according to the Department of Justice. The agency, however, has encouraged applications from tribes through other funding sources within the Department of Justice.

The Department of Justice, at the urging of anti-domestic violence advocates, had pushed for the expanded jurisdiction for tribes during the 2013 reauthorization and expansion of the Violence Against Women Act.

There are some very pragmatic reasons for this, Toulou said. Because of the vast distances between tribal lands and more urban areas, Toulou said, federal authorities such as the U.S. attorney and the FBI, are often hours away and can’t respond quickly enough to domestic partner violence cases, even though they were the proper authorities under the previous law. Because domestic violence cases need quick and early intervention from authorities, it made sense to federal officials to try to give more authority to the tribes to manage these cases, he said.

The federal U.S. attorneys, who are criminal prosecutors, still retain jurisdiction over many other tribal legal affairs. Despite the change, they will continue to prosecute a range of crimes on the reservations, which are considered to be under federal jurisdiction as well as under tribal legal authority, not subject to the legal system of the state where they are situated.

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