The Pascua Yaqui Tribe recognizes that its strength is family, and that the safety of victims of domestic violence must be ensured by immediate intervention. The protection of victim and defendant rights and due process are also of paramount importance of the Pascua Yaqui Tribe’s justice system. The Tribe’s justice system was recognized as a progressive court system when the United States government selected it as one of three pilot tribes to implement Special Domestic Violence Criminal Jurisdiction in February 2014. Since then, the Pascua Yaqui Tribe has conducted three jury trials with non-Indian defendants, extradited two non-Indian defendants back to its tribal court from the State on tribal court warrants, and convicted 14 non-Indian defendants.
Concetta Tsosie de Haro has posted “Federal Restrictions on Tribal Customary Law: The Importance of Tribal Customary Law in Tribal Courts.” The paper was published in the Tribal Law Journal.
Here is the abstract:
This article examines the adverse effects of federal case law and legislation on tribal courts and tribal courts’ ability to incorporate tribal customary law. Tribal customary law is the law given to tribes by holy deities which governs tribal ways of life. It is important to maintain tribal customary law because it strengthens tribal communities’ identities and cultural foundations. While Supreme Court precedent has, at different times, both restricted and promoted tribes’ ability to use tribal customary law to adjudicate the cases of tribal members, federal legislation including the Major Crimes Act, the Indian Civil Rights Act, the Tribal Law and Order Act, and the Violence Against Women Act continues to restrict tribes’ ability to apply customary law in tribal courts. To illustrate one way in which current federal Indian policy limits tribes’ ability to use customary law, the author highlights the ways in which two-spirit tribal members are excluded and ignored by the protections established in the Violence against Women Act. As the use of tribal customary law is critical to the maintenance of tribal sovereignty, this article advocates for corrections to these legislative restrictions to promote tribal court’s use of tribal customary law.
Special domestic violence criminal jurisdiction for Indian tribes took effect nationally on March 7, 2015, and it was a historic moment for the tribes. Ever since the Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe, tribes had been powerless to exercise criminal jurisdiction over non‐Indian defendants. Because the Court held that “Indian tribes do not have inherent jurisdiction to try and punish non‐Indians,” an unfortunate gap in enforcement resulted: for crimes committed in Indian country, where states’ criminal jurisdiction is limited and where the federal government lacks the resources to prosecute crimes effectively, non‐Indian offenders regularly escaped prosecution. This problem was particularly disturbing in the context of domestic violence and related crimes. For example, sixty‐seven percent of the sexual abuse and related offenses committed in Indian country and charged in fiscal years 2005–2009 were left unprosecuted by the federal government.
Enter VAWA 2013 and special domestic violence criminal jurisdiction for Indian tribes. Recognizing that “much of the violence against Indian women is perpetrated by non‐Indian men” who “regularly go unpunished,” Congress intended special domestic violence criminal jurisdiction to fill the prosecutorial enforcement gap for domestic violence offenses. Codified at 13 U.S.C. § 1304, the new provisions recognize tribes’ “inherent power . . . to exercise special domestic violence criminal jurisdiction over all persons”—including non‐Indians.
Although tribes and their advocates have celebrated VAWA 2013’s partial override of the Oliphantdecision, special domestic violence criminal jurisdiction has yet to withstand constitutional scrutiny at the Supreme Court. In the debates before VAWA 2013’s passage, tribal jurisdiction over non‐Indians sparked controversy because legislators and commentators understood that non‐Indian defendants prosecuted and tried in tribal court would not receive the full protection of the federal Constitution. This constitutional question—whether the Constitution applies in full force in prosecutions brought under special domestic violence criminal jurisdiction—turns on whether the expanded tribal jurisdiction is an exercise of “inherent” tribal sovereignty or delegated federal authority. If the new jurisdiction is an exercise of inherent tribal sovereignty, then tribes are not obligated to provide non‐Indian defendants with the full protection of the federal Constitution. But if the new jurisdiction is delegated federal authority, then non‐Indian defendants would be entitled to the full panoply of rights under the federal Constitution—including, potentially, the right to an Article III judge appointed by the President and confirmed by the Senate under Article II of the Constitution. The bounds of inherent tribal sovereignty could thus determine whether special domestic violence criminal jurisdiction lives or dies.
This Comment begins in Part I by outlining the history of tribal criminal jurisdiction in Indian country, with a focus on the law most relevant to analyzing the bounds of tribes’ inherent sovereignty to adjudicate crimes over non‐Indians. Part II explains VAWA 2013’s special domestic violence criminal jurisdiction in more detail and summarizes how it has been implemented since the statute’s enactment. Part III discusses the arguments for and against finding that tribes have inherent tribal sovereignty to exercise special domestic violence criminal jurisdiction, and why the outcome matters for both tribes and non‐Indian defendants. Part IV takes an aside to note the lurking influence of the congressional plenary power doctrine, which gives Congress broad authority to legislate in the realm of Indian affairs. And Part V outlines how courts’ ultimate rulings (and their underlying reasoning) would affect special domestic violence criminal jurisdiction’s future. The Conclusion addresses the underlying questions: What are the bounds of tribes’ inherent sovereignty? From what does that sovereignty derive? The answer will affect not just special domestic violence criminal jurisdiction under VAWA 2013, but also possible future expansions of tribal criminal jurisdiction by Congress.
Here is S. 1474.
Many thanks for Fred Urbina for sending this around.
And press release:
Begich Wants Parnell to Change Stance on Village Public Safety Issues, Violence Against Women Act
“We’ve suffered these problems long enough.”
In a letter sent yesterday, U.S. Senator Mark Begich urged Alaska Governor Sean Parnell to change his stance on tribal jurisdiction issues and to reconsider his support for a provision in the Violence Against Women Act (VAWA) that prevents Alaska tribes from using local authority to protect victims and prevent violent behavior.
“There is a long narrative in Alaska’s history that points to the lack of readily available state law enforcement and judicial systems as key contributors to the public safety problems plaguing rural villages, which is still true today,” Begich wrote. “We’ve suffered these problems long enough. How many national reports documenting horrific conditions in rural villages must we withstand before we choose to solve the local and tribal jurisdiction issues?”
Begich was referring to the recent report from the Indian Law and Order Commission, “A Roadmap for Making Native America Safer” which singled out Alaska’s rural communities and villages for their staggering rates of domestic violence, suicide and sexual assault. The reported pointed to more local and tribal control as a solution to improve the situation in rural communities while calling the State’s approach to criminal justice issues “fundamentally on the wrong track.”
In his letter, Begich noted the good work the Choose Respect campaign has done to raise awareness on the issue of domestic violence and sexual assault prevention. However, he encouraged a full court press for improving village public safety using all available resources. “…as statewide leaders, we must choose to solve rural public safety problems and make tough decisions about greater local control,” said Begich. “I believe the way to truly show respect to the people and families of rural Alaska, is by trusting them with the authority to take responsibility for public safety in their communities.”
In the letter Begich, who sits on the Senate Committee on Indian Affairs, informed Parnell that the committee will hold a legislative hearing on S. 1474, the Alaska Safe Families and Villages Act, on April 2. The bill seeks to improve the delivery of justice in Alaska Native villages by encouraging the State of Alaska and federally recognized tribes to enter into intergovernmental agreements relating to the enforcement and adjudication of State laws dealing with drug and alcohol offenses. The bill also includes the repeal of VAWA section 910, which has been a major point of contention since last spring for its singling out Alaska tribes from the expanded authorities offered to tribes in the Lower-48.
At the request of the Alaska Federation of Natives, the Bristol Bay Native Association, the Tanana Chiefs Conference (TCC) and other groups, Senator Begich has agreed to offer amendments to S. 1474 to strengthen the current bill to clarify tribal authority over matters critical to addressing village public safety.
“TCC appreciates Governor Parnell’s Choose Respect public awareness campaign to prevent domestic violence, but we need to do more to empower villages and tribes to combat these issues,” said Victor Joseph, president of TCC. “Safe Families and Villages would give tribes and tribal courts local control to make their communities safer and reverse these disturbing trends.”
“This is a good first step to address very serious circumstances which are long standing, pervasive, and crippling to our communities,” said Julie Kitka, president of AFN. “AFN looks forward to effective and timely action by the Obama Administration and the Congress.”
Begich has long been a supporter of strengthening local capacity, and introduced the first version of the bill in 2009. Begich introduced a revised version last fall. Sen. Lisa Murkowski (R-AK) is a co-sponsor.
Begich’s letter to Parnell is attached.