Pascua Yaqui was notified on February 6, 2014, that it would be one of the pilot project sites, and the pilot project was scheduled to begin February 20. Although the infrastructure was in place, the individuals who worked in that infrastructure still needed training on the changes in the law. VAWA 2013 restores to tribes the authority to prosecute non-Indians for three categories of crimes—domestic violence, dating violence, and violations of protection orders—provided the tribe satisfies the statutory prerequisites.
These prerequisites fall into two categories: (1) limitations on the category of potential defendants and (2) procedural requirements for the tribal criminal justice system. Both sets of prerequisites have their roots in the Oliphant decision.
In Oliphant, the Supreme Court declared that, absent some action by Congress, tribal governments had lost the ability to protect their lands and communities from non-Indian criminals. Oliphant was a stunning decision, not just for its poor reasoning (it relied, for example, on the legislative history of a bill that did not pass, a treaty with a different tribe, and a more-than-100-year-old decision from a territorial trial court), but also because it violated every understanding of the nature and purpose of criminal justice systems. Criminal cases are captioned “the people versus” or “the government versus” because they are cases in which the prosecutors, as representatives of the community, bring charges against individuals alleging a violation of the community norms and a breach of the community’s safety.
In its decision, the Supreme Court relied on the assertion that non-Indians were not members of the tribal community and could not be expected to know or follow its laws, and on the fact that the Indian Civil Rights Act (ICRA)3 did not carry the same procedural protections for criminal defendants as does the U.S. Constitution. In particular, the ICRA did not include a guarantee of indigent defense counsel, although it is important to note that ICRA did limit the punishment that tribes could impose to one year of imprisonment and/or a $5,000 fine. After Oliphant, only the federal government could prosecute crimes committed by a non-Indian against an Indian. As a practical matter, this gave non-Indians the equivalent of immunity from prosecution on many reservations.
Oliphant was one of the reasons that almost 30 years later, in 2007, Amnesty International issued its Maze of Injustice report declaring that the rates of sexual violence against Native women in the United States were so high, and the results so attributable to federal policy, that it amounted to a human rights violation.4
The news that it was responsible for an epidemic of violence against Native women may have caught Congress by surprise, but it was not news to the Pascua Yaqui Tribe, which is located on a two-square-mile reservation just outside Tucson, Arizona, 60 miles north of the border with Mexico. The Tribe has more than 19,000 enrolled members, approximately 4,000 of whom live on the reservation, along with approximately 500 people who are not of Pascua Yaqui descent.
Domestic violence is and has been the most pressing criminal justice challenge facing the Pascua Yaqui Tribe. Domestic violence charges account for a significant majority of all criminal filings; cases include aggravated assault, assault, disorderly conduct, and trespass cases in which domestic violence is a factor. Yet, due to Oliphant, if the perpetrator was non-Indian, the only thing that the tribal police could do was transport him off the reservation and drop him off at a convenience store.
Since taking control of its criminal justice system from the federal government in 1988, the Pascua Yaqui Tribe has devoted significant resources to its criminal justice infrastructure. Its 26 police officers are virtually all triple certified as tribal, state, and federal law enforcement. Three of the officers are criminal investigators. The Tribe has agreements with various state and federal agencies for access to criminal information databases, evidence processing, and emergency services communications. The Tribe also operates a victims’ services program, a prosecutors’ office, a public defenders’ office, a pretrial services office, and both a trial and an appellate court. In 2011, through the American Recovery and Reinvestment Act (ARRA),5 the Tribe constructed a $21 million, state-of-the-art multipurpose justice/court complex.
This infrastructure meant that when Congress enacted the VAWA 2013, the Pascua Yaqui Tribe was ready, willing, and able to meet the procedural requirements required for a tribe to resume prosecuting non-Indians under the Special Domestic Violence Criminal Jurisdiction (SDVCJ) restored to tribes by that statute. The first set of statutory prerequisites, the ones relating to the category of defendants, was fairly straightforward. VAWA 2013 requires that at least one of the parties in the case must be Indian and that the defendant must have some connection to the tribe, such as living or working in the Tribe’s Indian Country, or being involved in a relationship with a member of the Tribe or with an Indian who resides in the Tribe’s Indian Country.
The requirements for the criminal justice system were more complicated, but Pascua Yaqui had already implemented most of the required steps. VAWA 2013 requires that tribes wishing to exercise SDVCJ must provide the defendant with all the rights guaranteed in the ICRA, including indigent defense counsel, something that had been included with the passage of the Tribal Law and Order Act of 2010 (TLOA)6 and with the right to a trial by an impartial jury drawn from a fair cross section of the community.
As a result of Pascua Yaqui’s investment in its criminal justice system, virtually all these pieces were already in place. Trainings and workshops were quickly developed on the new powers, and when February 20 arrived, the police department, victims’ services, prosecutors, attorney general’s office, public defenders, and court personnel had all received the necessary training. Six days later, that training was put to use when the first non-Indian was arrested for violating the new laws.
The pilot project officially ended on March 7, 2015, when all tribes became eligible to exercise the new powers.
Snapshot of Pascua Yaqui’s Experiences Under the Pilot Project
On June 2, 2014, the Pascua Yaqui Tribe became the first tribe to convict (by guilty plea) a non-Indian defendant for domestic violence assault in nearly 40 years. Pascua Yaqui has now convicted seven non-Indian defendants. During the first year of the pilot period, Violence Against Women Act (VAWA)7 cases accounted for 25 percent of all domestic violence cases filed in Pascua Yaqui Tribe Court. Since the Tribe began exercising SDVCJ, it has seen 25 arrests and investigations involving 19 different defendants. These 19 defendants have had more than 90 separate contacts with Pascua Yaqui Law Enforcement both before and after VAWA implementation. Most of these defendants have lengthy state criminal histories involving convictions for drugs, weapons, and assaultive behavior. Four of the charged defendants have reoffended, and two of those defendants have amassed three VAWA arrests, each involving the same tribal victim. The majority of defendants have been Hispanic (10), but the Pascua Yaqui Tribe has also seen African American defendants (4), Caucasians (2), Mexican nationals (2), and an Asian (1).
The defendants’ median age is 30 years old, and they range in age from 19 to 50 years old. There have been 15 male defendants, one female defendant, and one case involving a same-sex couple. Three defendants have reoffended, and there have been 10 violent injuries to victims, including hair dragging, strangulation, bruising, and closed-fist strikes to the face.
There are currently four active tribal cases; three SDVCJ offenders are wanted on tribal warrants, and one offender is released on bail pending future proceedings. Two offenders had active felony 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.
Thirteen of the Pascua Yaqui SDVCJ cases involved children in the home. A total of 18 children were present during the incidents. All of the children were under the age of 11 years old. In four cases charged, the children’s legal parent was the non-Indian offender. In many of the cases, children were exposed to violence, were actual victims, or reported the crime while it was in progress. Three tribal dependency cases were opened, and eight children were removed from their parents’ care due to the violence surrounding the incidents. Because of restrictions imposed by VAWA, Pascua Yaqui could not prosecute and seek justice for the crimes committed against the children involved.
Four of the defendants have reoffended with the same victim in the short time since the Tribe started exercising jurisdiction. In cases dismissed for the absence of “violence,” the offenders eventually reoffended in incidents that involved actual physical violence. At least nine offenders were living on the reservation in tribal housing; the others were staying on the reservation for short periods of time. The majority of the incidents occurred in tribal low-income rental units. Twelve of the incidents involved single tribal female victims.
Only three offenders did not have a criminal record in the state of Arizona. Seven of the offenders have been previously arrested for violent crimes, weapons, or threats in the state of Arizona. Two offenders are felons; both were convicted for burglary in the state of Arizona. Ten of the offenders have been previously arrested for cases involving drug use, drug possession, driving under the influence (DUI), or alcohol. One of the cases involved the strangulation of a tribal female. Another non-Indian defendant, while being arrested, stated, “You can’t do anything to me anyway.”
All of the incidents occurred on the Pascua Yaqui Reservation. Due to the previous restrictions mentioned, the Tribe was not able to prosecute these cases pre-VAWA 2013. The federal government may have had authority to investigate and prosecute some of the cases but generally declined to pursue them. The VAWA 2013 pilot project has demonstrated how necessary tribal jurisdiction is over non-Indian perpetrators of domestic violence.
On November 14, 2014, the Pascua Yaqui Tribe became the first tribe to bring a non-Indian defendant to trial in front of a jury since Oliphant. The case was a same-sex domestic violence assault. Although the jury found that there was not sufficient evidence of a dating relationship, the jury trial highlighted the Tribe’s ability to arrest, charge, and try a non-Indian defendant without any distinction from any other modern criminal justice system.
Advice for Tribes Considering Exercising Special Domestic Violence Criminal Jurisdiction
Although Pascua Yaqui has had a positive experience with the restored jurisdiction, it has encountered some obstacles and learned some valuable lessons. Perhaps the most valuable lesson is that complying with VAWA 2013 is complex and requires a robust (and expensive) criminal justice system. Tribes should think very carefully before opting to exercise SDVCJ and should conduct a detailed assessment to determine whether the benefits of exercising these powers outweigh the expense. The three most important questions for tribes to ask are
- Would these powers address a problem that exists in your territory?
- Do you have the funds and infrastructure to comply with the prerequisites? If not, what would you need to do to satisfy those requirements?
- Are there effective alternatives?
VAWA 2013 restores to tribes criminal jurisdiction over non-Indians who commit domestic violence or dating violence, or who violate a protection order within the tribe’s territory. Is there enough interracial domestic violence on your reservation to warrant the substantial investment of resources required by VAWA 2013? What changes would need to be made and what would they cost?
If interracial domestic violence is a problem, can you use civil rather than criminal sanctions to address them? Can you make use of some of the provisions of TLOA, such as the special assistant U.S. Attorney provisions? These methods do not have to be exclusive. For example, three Pascua Yaqui tribal prosecutors now have the opportunity to prosecute reservation-based crimes in federal court as Special Assistant U.S. Attorneys (SAUSAs). The Tribal Council recently signed a historic agreement with the Arizona U.S. Attorney’s Office that allows this to occur.
The most important thing to remember is that both VAWA 2013 and TLOA create mechanisms whereby tribes can resume exercising sovereign authority to either prosecute or sentence certain defendants. Nothing in either statute requires tribes to use these powers; there is no deadline for making a decision, and it is not a one-time-only option. Tribes can make a decision and change that decision at any time (so long as it does not adversely impact rights guaranteed to defendants). Tribes should also keep in mind that the decision not to use these restored powers is just as much of an exercise of sovereignty as the decision to exercise the restored powers.
Recent and important tribal justice measures provided some Indian tribal nations with an opportunity to restore and exercise limited authority to protect their people from crime and violence. However—notwithstanding VAWA 2013, recent federal legislation, and efforts by tribes and their federal partners—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 and communities, especially in the villages of our Alaskan Native relatives. 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 and the coordination with federal authorities represents a new dawn on the Pascua Yaqui Reservation. Not only is the Pascua Yaqui Tribe able to address human rights abuses perpetuated for decades upon women, but it is also able to do this while guaranteeing the civil rights of the accused. On the other hand, just like when a major storm passes, its community is still taking time to survey the damage, reconcile with victims and families, and rebuild the trust that has been lost. There are many shattered homes across the Pascua Yaqui 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 changed, will not work properly absent proper funding for tribal systems, victims, and support services. The majority of tribes simply do not have the resources to provide comprehensive changes in their system and guarantee suitable services for victims and their families.
With a self-reported 500 non-Indians living on the Pascua Yaqui Reservation (U.S. Census) and approximately 800 non-Indians working on the reservation, the probability that additional VAWA cases will arise in the future is highly likely. The Pascua Yaqui Tribe will not sit idly by while its women and children are victimized. The bottom line is that VAWA SDVCJ must be sustained and expanded to cover additional crimes and child victims. For Pascua Yaqui, the newly restored authority has finally allowed the tribal criminal justice system to fulfill its designated role and protect its community.
1. 435 U.S. 191 (1978).
2. Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, 127 Stat. 54.
3. Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1301–1304.
4. Amnesty Int’l, Maze of Injustice (2007), available at http://www.amnestyusa.org/pdfs/MazeOfInjustice.pdf.
5. American Recovery and Reinvestment Act of 2009, Publ. L. No. 111-5, 123 Stat. 115.
6. Tribal Law and Order Act of 2010, Pub. L. No. 111-211, 124 Stat. 2258.
7. Violence Against Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1902.