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

Child porn found in forest treehouse and Mill Creek home

Daniel Wood, 56, has been charged with two counts of possession of child pornography.

The rules: You can’t put just anything on your vanity plate

The state keeps a “banned list” of character combinations that will automatically be denied.

Man arrested after robbery reported at Lynnwood Walgreens

He matched the description of a suspect in an earlier robbery reported about three miles away.

Driver killed in crash identified as Monroe man

Anthony Ray Vannelli Jr. died of blunt force injuries. He was 37.

Edmonds man gets nearly 14 years for murder of roommate

Derrick Crawford, 22, admitted that he shot and intended to kill 27-year-old Joshua Werner.

Motorcyclist seriously hurt in Everett hit-and-run

Police are searching for the driver and a gray Dodge Stratus with extensive front-end damage.

As expected, 92 to be laid off by Stanwood’s Twin City Foods

The frozen-vegetables processor announced last year it was moving all operations to Pasco.

Demolition begins on buildings acquired for courthouse remodel

The start date for major construction has been pushed back, but is still projected to wrap up in 2021.

Developer denied more time to submit plans for Woodway project

BSRE Point Wells wants to refine its plans for more than 3,000 units in towers of up to 17 stories.

Most Read