Law gives tribes authority over non-Indians

American Indian tribes have tried everything from banishment to charging criminal acts as civil offenses to deal with non-Indians who commit crimes on reservations.

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.

More in Local News

Car crashes near Everett after State Patrol pursuit

The driver and a second person in the car suffered injuries.

They chose the longshot candidate to fill a vacant seat

Sultan Mayor Carolyn Eslick will serve as representative for the 39th legislative district.

Definitely not Christmas in July for parched young trees

“I live in Washington. I should not have to water a Christmas tree,” says one grower. But they did.

Marysville babysitter faces jail time in infant’s death

Medical experts differed over whether it was head trauma or illness that caused the baby to die.

Whether cheers or jeers, DeVos appearance will rouse spirits

Trump’s secretary of education is coming to Bellevue to raise money for a pro-business think tank.

Superior Court judge admits DUI on freeway

Prosecutors recommend a “standard” penalty for Marybeth Dingledy, who “is terribly sorry.”

Self-defense or murder? Trial begins in shooting death

Explanations as to why a man was shot in the back on a Bothell cul-de-sac are starkly different.

A customer walks away after buying a hot dog from a vendor on 33rd St and Smith Street near the Everett Station on Friday. The Everett Station District Alliance pictures the area east of Broadway and south of Hewitt Avenue as a future neighborhood and transit hub that could absorb expected population growth. (Andy Bronson / The Herald)
Alliance plans meeting to discuss future of the Everett Station

Key themes are economic development, parking, green space, safety, and transportation connections

Front Porch

EVENTS Chicken dinner time Seniors serve up a family-style chicken dinner from… Continue reading

Most Read