Criminal

SCIA Hearing on the Indian Law and Order Commission Report

Matthew L.M. Fletcher

Link to video here.

Witness list:

Panel 1

The Honorable Kevin Washburn
Assistant Secretary-Indian Affairs-U.S. Department of the Interior, Washington, DC
The Honorable Timothy Q. Purdon
U.S. Attorney-District of North Dakota, U.S. Department of Justice, Fargo, ND

Panel 2

Mr. Troy Eid
Chairman-Indian Law and Order Commission, Denver, CO
Ms. Affie Ellis
Commissioner-Indian Law and Order Commission, Cheyenne, WY

Ms. Tamra Truett Jerue
Director-of Social Services and Tribal Administrator, Anvik Tribal Council, Anvik, AK

Ninth Circuit Grants En banc Review of Zepeda Major Crimes Act Indian Status Case

Matthew L.M. Fletcher3 Comments

Here is the order.

Our last post, with links to briefs, is here.

Senate Committee on Indian Affairs Hearing on ILOC Report — Feb. 12, 2014

Matthew L.M. Fletcher1 Comment

Here. It starts at 2:30 eastern. The witness list is here:

February 12 SCIA Witness List

The report is here.

WaPo Article on VAWA Tribal Pilot Projects

Matthew L.M. Fletcher

Here.

Pascua Yaqui Press Release re: VAWA Pilot Program Selection

Matthew L.M. Fletcher2 Comments

Pascua Yaqui Tribe Asserts Authority to Prosecute All Persons, including Non-Indians

for Domestic Violence

Local Tribe Among First to Implement Violence Against Women Act Jurisdictional Provisions

(Tucson, AZ) – Today, the Pascua Yaqui Tribe announces implementation of a new tribal government law that enables tribal police and justice officials to investigate and prosecute certain domestic violence crimes committed by non-Indians in Indian country.    Non-Indians who live or work on the reservation or have a marriage or dating relationship with a Native person may now be subject to tribal jurisdiction for domestic and dating violence crimes and criminal violations of certain protection orders.  Individuals who commit these crimes in Indian country can be arrested by tribal police, prosecuted in tribal court, and sentenced to prison.  Individuals prosecuted under the new tribal law will have a right to an attorney. If the defendant cannot afford an attorney, one will be provided by the tribe.

This is part of the tribal council’s larger effort to take a stand against violence in the community—and domestic violence, in particular—because of the enormous toll it has taken on Native families and youth.

“Making the Pascua Yaqui Reservation safe and secure has been very important to the Pascua Yaqui Tribal Council. The Tribal Council has made stopping violence against Native American women a top priority issue. Our judicial system, like all other judicial systems, will now have the opportunity to address offenders for wrongs committed against our most vulnerable community members,” says Peter Yucupicio, Tribal Chairman.  “We no longer have to simply stand by and watch our Native women be victimized with no recourse.  I’m here to put the community on notice, perpetrators will be held accountable in the tribe’s own justice system,” adds Raymond Buelna, Councilmember and Chairman of the tribe’s Public Safety Committee.

The federal law that authorizes these recent actions by the Pascua Yaqui Tribe is the Violence Against Women Reauthorization Act of 2013 (VAWA 2013).  Signed into law on March 7, 2013, VAWA 2013 marked a victory for Native women, tribal leaders, women’s rights advocates, and survivors of domestic abuse everywhere.  For the first time since the U.S. Supreme Court stripped tribal governments of their criminal authority over non-Indians in Oliphant v. Suquamish Indian Tribe (1978), VAWA 2013 restored tribal inherent authority to investigate, prosecute, convict, and sentence non-Indians who assault their Indian spouses or dating partners in Indian country.  This aims to fill a longstanding jurisdictional gap on tribal lands that has for far too long put Native women at risk and kept the hands of tribal law enforcement tied.

For most tribes, the option to exercise this authority—termed special domestic violence criminal jurisdiction (SDVCJ) under the law—will not be available until March 2015 (two years after enactment).  However, the law also created a pilot project for tribes who request to start prosecuting non-Indian offenders sooner, provided the requesting tribe can adequately protect defendants’ rights under federal law and has received the necessary approvals from the U.S. Department of Justice.  The Pascua Yaqui Tribe is one of three pilot tribes that will begin exercising SDVCJ as of February 20, 2014.  Crimes committed outside of Indian country, between two strangers, between two non-Indians, or by a person without sufficient ties to the Pascua Yaqui Tribe are not covered by this new authority.

This new law is necessary because violence against Native women has reached epidemic proportions[i], and the old system of forcing tribes to rely exclusively federal government officials to investigate and prosecute crimes of domestic violence committed by non-Indians against Native women is not working.  Prior to VAWA 2013, the Indian woman who was beaten by her non-Indian husband on tribal land had nowhere to turn for protection: tribal law enforcement had no authority to intervene because the perpetrator is a non-Indian; the State had no authority to intervene because the victim was an Indian; and the Federal Government—the body with exclusive jurisdiction—did not have the resources to intervene in misdemeanor level domestic violence cases.  VAWA 2013 is an attempt to remedy this broken system.

As President Obama said when he signed VAWA 2013 into law, “Tribal governments have an inherent right to protect their people, and all women deserve the right to live free from fear.”  The Pascua Yaqui Tribe agrees, and is doing its part to ensure that the safety of women and of everyone on the reservation. “Domestic Violence is the most pressing criminal justice challenge facing the Pascua Yaqui Tribe. Domestic Violence filings in tribal court account for a significant majority of all criminal filings,” says Chief Prosecutor Alfred Urbina, “The previous lack of tribal criminal jurisdiction over non-Indian spouses and intimate partners left a significant gap in the Pascua Yaqui criminal justice system. While we still may have many problems and this is certainly only a first step, the fact that we have implemented VAWA 2013 is momentous. When we reflect on the historical words and actions of our elders, especially those who have passed on, we are blessed to have the opportunity to do as they did: protect our people.”

 

About the Pascua Yaqui Tribe

 

The Pascua Yaqui Tribe is a federally recognized tribe with a reservation southwest of Tucson, Arizona. Historically, the Yoeme (Yaqui people) have always had some form of law enforcement and dispute resolution, most notably through our ceremonial and cultural societies. The first responsibility of any government, tribal or otherwise, is the safety and protection of its people.

 

As early as the 1690s, the Tumacácori area became the earliest known settlement of Yaquis in what later became Arizona. In 1960, Yaquis in Old Pascua (near Grant and I-10 in Tucson) initiated a request for land primarily to protect our culture and seek a permanent home.  In 1963, the Pascua Yaqui Association (PYA) was formed and elected a Board of Directors led by Anselmo Valencia.  In 1964, the U.S. Government deeded 202.76 acres to “Pascua Yaqui Association” (Lyndon B. Johnson).  In 1967 the first families moved into “New Pascua” southwest of Tucson. In 1975, the Pascua Yaqui Association from Tucson sought federal recognition from Congress. On September 18, 1978, the Pascua Yaqui Tribe was officially recognized by Congress, 25 U.S.C. 1300f-2. “New Pascua” is the tribe’s current reservation.

 

In 1982, the Tribe adopted a Criminal Code, and in 1988 adopted our Constitution, all of which helps spell out current Yaqui Law. In addition to our Constitution, our elders, in their wisdom, created a Tribal Court system as the arbitrator of Yaqui justice and our forum for the resolution of disputes.  Our official justice system has been operating, in one form or another, for approximately 30 years. Our law is organized into a Code that is maintained by the Attorney General’s Office and available publicly through the Tribe’s website at http://www.pascuayaqui-nsn.gov/_static_pages/tribalcodes/index.php

 

For more information contact:

Alfred Urbina, Chief Prosecutor (520) 879-6263

Amanda Lomayesva, Attorney General (520) 883- 5119

 

 

[i] Compared with other demographic groups, American Indian women have one of the highest rates of domestic violence victimization in the United States. See. e.g., Centers for Disease Control and Prevention (CDC), The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Preliminary Report at 3, 39 (Nov. 2011) (finding that 46% of Native American women have experienced rape, physical violence, and/or stalking by an intimate partner in their lifetime.)  A significant percentage of residents of Indian reservations are non-Indian.  See U.S. Census Bureau, 2010 Census Briefs, The American Indian and Alaska Native Population: 2010, at pages13- 14 and table 5 (Jan. 2012) (showing that 1.1 million American Indians and 3.5 million non-Indians reside in American Indian areas).  Many married Indian women have non- Indian husbands. See U.S. Census Bureau. Census 2010, special tabulation, Census 2010 PHC-T- 19, Hispanic Origin and Race of Coupled Households: 2010, Table 1, Hispanic Origin and Race of Wife and Husband in Married-Couple Households for the United States: 2010 (Apr. 25, 2012) (showing that more than 54% of Indian wives have non-Indian husbands).

Tulalip Press Release re: VAWA Pilot Program Selection

Matthew L.M. Fletcher1 Comment

TULALIP TRIBES ONE OF THREE TRIBES NATIONWIDE

TO IMPLEMENT SPECIAL DOMESTIC VIOLENCE CRIMINAL JURISDICTION UNDER VAWA 2013

Pilot Projects Allow Tribal Prosecution of Non-Indian Abusers

For the First Time in More Than Three Decades

Tulalip, WA—February 6, 2014–The Tulalip Tribes will be one of three American Indian tribes in the nation to exercise special criminal jurisdiction over certain crimes of domestic and dating violence, regardless of the defendant’s Indian or non-Indian status, under a pilot project authorized by the Violence Against Women Reauthorization Act of 2013 (VAWA 2013).  The two other tribes are the Umatilla in Oregon and the Pascua Yaqui Tribe of Arizona.

“The Tulalip Tribes is honored to be among those chosen for the Special Domestic Violence Criminal Jurisdiction (SDVCJ) pilot program.  Getting justice for our tribal members, where it concerns domestic and intimate partner violence, has been a long time coming,” said Tulalip Chairman Mel Sheldon.  “Together, with our fellow Tribal nations, we celebrate the fact that the reauthorized VAWA of 2013 has recognized our inherent legal jurisdiction to bring all perpetrators of domestic violence against our members, on our lands, to justice.  We lift our hands to all those who fought for the reauthorization of the Violence Against Women Act, including our own Tulalip Tribes councilwoman, Deborah Parker.”

“The Tulalip Tribes has shown great leadership with a robust and comprehensive justice system,” said U.S. Attorney Jenny A. Durkan.  “This special criminal jurisdiction will translate into better protection for members of the tribal community and their families, and ensure that all offenders are appropriately prosecuted and sanctioned in tribal court.  I am grateful for the strong leadership exercised by the Tulalips, particularly Chairman Mel Sheldon, Councilmember Deborah Parker and Judge Theresa Pouley.  We look forward to continuing our important work with the Tulalips.”

Deborah Parker, Vice Chairwoman of the Tulalip Tribes, worked alongside Senator Patty Murray, and many others, to advocate for the new tribal provisions included in VAWA 2013.  “It’s amazing to be at this time and place and to witness such a critical change in law.  Justice will now be served because we have the necessary legal tools to prosecute those who perpetrate against our tribal members on our reservation, regardless of race, religion or affiliation,“ she said.

Although the provisions authorizing the special jurisdiction take effect generally in March 2015, the law also gives the Attorney General discretion to grant a tribe’s request to exercise the jurisdiction earlier, through a voluntary pilot project.  The authority to approve such requests has been delegated to Associate Attorney General Tony West.  Associate Attorney General West today congratulated tribal leaders of the Tulalip Tribes of Washington, Pascua Yaqui Tribe of Arizona, and the Umatilla Tribes of Oregon, on this historic achievement in letters to the three tribes.

“This is just the latest step forward in this administration’s historic efforts to address the public safety crisis in Indian country.  Every day, we’re working hard to strengthen partnerships with tribal leaders and confront shared challenges – particularly when it comes to protecting Indian women and girls from the shocking and unacceptably high rates of violence they too often face,” said Attorney General Eric Holder.  “With the important new tools provided by the Violence Against Women Reauthorization Act of 2013, these critical pilot projects will facilitate the first tribal prosecutions of non-Indian perpetrators in recent times.  This represents a significant victory for public safety and the rule of law, and a momentous step forward for tribal sovereignty and self-determination.”

“The old jurisdictional scheme failed to adequately protect the public – particularly native women – with too many crimes going unprosecuted and unpunished amidst escalating violence in Indian Country,” stated Associate Attorney General West.  “Our actions today mark an historic turning point.  We believe that by certifying certain tribes to exercise jurisdiction over these crimes, we will help decrease domestic and dating violence in Indian Country, strengthen tribal capacity to administer justice and control crime, and ensure that perpetrators of sexual violence are held accountable for their criminal behavior.”

Since the Supreme Court’s 1978 opinion in Oliphant v. Suquamish Indian Tribe, tribes have been prohibited from exercising criminal jurisdiction over non-Indian defendants.  This included domestic violence and dating violence committed by non-Indian abusers against their Indian spouses, intimate partners and dating partners.  Even a violent crime committed by a non-Indian husband against his Indian wife, in the presence of her Indian children, in their home on the Indian reservation, could not be prosecuted by the tribe.  In granting the pilot project requests of the Tulalip, Pascua Yaqui, and Umatilla tribes today, the United States is recognizing and affirming the tribes’ inherent power to exercise “special domestic violence criminal jurisdiction” (SDVCJ) over all persons, regardless of their Indian or non-Indian status.

As described in the Department of Justice’s Final Notice on the pilot project, today’s decisions are based on a diligent, detailed review of application questionnaires submitted by the tribes in December 2013, along with excerpts of tribal laws, rules, and policies, and other relevant information.  That review, conducted in close coordination with the Department of the Interior and after formal consultation with affected Indian tribes, led the Justice Department to determine that the criminal justice system in the Tulalip, Pascua Yaqui, and Umatilla tribes have adequate safeguards in place to fully protect defendants’ rights under the Indian Civil Rights Act of 1968, as amended by VAWA 2013.

The Department of Justice is posting notices of the pilot project designation on the Tribal Justice and Safety Web site (www.justice.gov/tribal/) and in the Federal Register.  In addition, each tribe’s application questionnaire and related tribal laws, rules, and policies will be posted on the Web site.  These materials will serve as a resource for those tribes that may also wish to participate in the pilot project or to commence exercising SDVCJ in March 2015 or later, after the pilot project has concluded.

For more information on VAWA 2013, please visit www.justice.gov/tribal/vawa-tribal.html.  Media inquires contact Francesca Hillery, Office of Public Affairs Tulalip Tribes, (360) 913.2646.

 

About the Tulalip Tribes

The Tulalip Tribes are the successors in interest to the Snohomish, Snoqualmie, Skykomish and other tribes and bands signatory to the 1855 Treaty of Point Elliott.  The 22,000-acre Tulalip Indian Reservation is located north of Seattle in Snohomish County, Washington.  Tribal government provides membership with health and dental clinics, family and senior housing, human services, utilities, police and courts, childcare, and higher education assistance.  The Tribe maintains extensive environmental preservation and restoration programs to protect the Snohomish region’s rich natural resources, which includes marine waters, tidelands, fresh water rivers and lakes, wetlands and forests both on and off the reservation.  Developable land and an economic development zone along the I-5 corridor provide revenue for tribal services.  This economic development is managed through Quil Ceda Village, the first tribally chartered city in the United States, providing significant contributions and benefits tribal members and the surrounding communities.  The Tribes have approximately 4,400 members.  For more information, visit www.tulaliptribes-nsn.gov.

Three Tribes Approved for VAWA Jurisdictional Pilot Project

Kate Fort1 Comment

Press release here (pdf) and here.

Details here.

WASHINGTON – Three American Indian tribes – the Pascua Yaqui Tribe of Arizona, the Tulalip Tribes of Washington, and the Umatilla Tribes of Oregon – will be the first in the nation to exercise special criminal jurisdiction over certain crimes of domestic and dating violence, regardless of the defendant’s Indian or non-Indian status, under a pilot project authorized by the Violence Against Women Reauthorization Act of 2013 (VAWA 2013).

N.C. SCT Cert Petition in State v. Nobles — State Criminal Jurisdiction over Cherokee Descendant

Matthew L.M. Fletcher

Here:

nobles cert without appendix

Lower court materials here.

ILOC Chair Troy Eid Op/Ed in Denver Post

Matthew L.M. Fletcher

Here. An excerpt:

Yet there’s another massive PTSD tragedy in Colorado and across our country. It generates virtually zero public attention because it concerns what may be the most vulnerable group of our citizens: Native Americans and Alaska Natives. Because they’re exposed so frequently to violent crime, an astonishing one in four Native American juveniles currently suffers from PTSD.

That’s the same PTSD rate as returning veterans from Afghanistan and Iraq.

Federal Court Denies Duane Big Eagle’s Section 2255 Motion

Matthew L.M. Fletcher

Here are the materials in Big Eagle v. United States (D. S.D.):

2 Motion to Vacate Conviction

17 US Response

24 DCT Order

An excerpt:

Big Eagle now has filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 in this case. CIV Doc. 1. Big Eagle in his motion raised five grounds, all of which contended that his trial counsel provided ineffective assistance to him. CIV Doc. 1 at 5-6. Big Eagle filed a Memorandum of Law supporting the § 2255 motion. CIV Doc. 2. This Court screened the case and ordered the Government to file a response. CIV Doc. 7. The Government resisted the motion, CIV Doc. 17, and filed an affidavit signed by Big Eagle’s trial counsel disputing Big Eagle’s contentions. CIV Doc. 17-2. Big Eagle filed a reply thereafter. CIV Doc. 20. For the reasons explained herein, this Court denies Big Eagle’s § 2255 motion.

Earlier, related materials here.