Ever since the U.S. Supreme Court ruled in 1978 that tribal courts lack criminal jurisdiction over non-Indians, tribes have had to get creative in trying to hold that population accountable. They acknowledge, though, that those approaches aren't much of a deterrent, and say most crimes committed by non-Indians on tribal land go unpunished.
Tribal leaders are hoping that will change, at least in part, with a federal bill signed into law Thursday. The measure gives tribes the authority to prosecute non-Indians for a set of crimes limited to domestic violence and violations of protecting orders.
Implementation of the Violence Against Women Act will take time as tribes amend their legal codes and ensure defendants receive the same rights offered in state and federal courts. But proponents say it's a huge step forward in the face of high rates of domestic violence with no prosecution.
"For a tribal nation, it's just absurd that (authority) doesn't exist," said Sheri Freemont, director of the Family Advocacy Center on the Salt River Pima Maricopa reservation in Arizona. "People choose to either work, live or play in Indian Country. I think they should be subject to Indian Country rules."
Native American women suffer incidents of domestic violence at rates more than double national averages. But more than half of cases involving non-Indians go unprosecuted because Indian courts have lacked jurisdiction and because federal prosecutors often have too few resources to try cases on isolated reservations.
Still, the tribal courts provision was a major point of contention in Congress, with some Republicans arguing that subjecting non-Indians to Indian courts was unconstitutional.
Rep. Doc Hastings, R-Wash., said after its passage that the bill denies basic protections and will be tied up in court challenges for years.
"It violates constitutional rights of individuals and would, for the first time ever, proclaim Indian tribes' `inherent' authority to exercise criminal jurisdiction over non-Indian citizens," Hastings said. "The Supreme Court has ruled multiple times that tribes do not have this authority."
The U.S. Department of Justice met with tribal leaders Wednesday to discuss implementing the provisions, which will take effect two years after the law is enacted. A pilot project would allow any tribe that believes it has met the requirements to request an earlier start date.
To ease concerns that the new authority would violate the constitutional rights of a non-Indian or that jurors in tribal court would be unfair, the bill allows defendants to petition a federal court for review. A tribe would have jurisdiction over non-Indians when that person lives or works on the reservation, and is married to or in a partnership with a tribal member.
About 77 percent of people living in American Indian and Alaska Native areas are non-Indian, according to a recent Census report. Roughly half of Native American women are married to non-Indians, the Justice Department has said.
Although tribes have civil jurisdiction over non-Indians, they often are reluctant to go forward with a case when the penalty amounts to a fine and offenders have little incentive to pay it. The hope in taking on criminal cases is that incidents of domestic violence will be quelled before they lead to serious injury or death, and that victims won't be afraid to report them.
"Having the ability to do it local and have the prosecution start soon after the offense, that's just going to be great for our victims," said Fred Urbina, chief prosecutor for the Pascua Yaqui Tribe in southern Arizona.
Officers there are certified under state and federal law, which allows them to arrest non-Indians, but the cases aren't handled at the tribal level. The Pascua Yaqui Tribe also has banished some non-Indians from the reservation for criminal activity.
"It's almost like a patchwork of things we've been able to employ to fix that jurisdictional void," Urbina said. "It's not satisfactory in all cases."
Under the new law, a non-Indian defendant would have the right to a jury trial that is drawn from a cross-section of the community and doesn't systematically exclude non-Indians or other distinctive groups. The protections would equal those in state or federal court, including the right to a public defender, a judge who is licensed to practice law, a recording of the proceedings and published laws and rules of criminal procedure.
"This is not scary. It's not radical," said Troy Eid, former U.S. attorney in Colorado. "It's very much in keeping with what we have as local governments."
The safeguards are similar to those in the federal Tribal Law and Order Act, passed in 2010 to improve public safety on tribal lands.
About 30 tribes across the country are working toward a provision that allows them to increase sentencing from one year to three years, leaving them well-positioned to take authority over non-Indians in criminal matters, Eid said.
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