Advertisement
News by VICE

Domestic Abusers Have Gone Unpunished in Native American Country — Until Now

The Violence Against Women Reauthorization Act has given tribal nations the authority to prosecute non-Native abusers in domestic violence cases, rather than leave it up to the Feds.

by Tristan Ahtone
Jun 21 2015, 1:05pm

Photo via Getty

There was nothing Michael Valenzuela could do about it. Nobody could, really. The victim was a tribal member living on the reservation and dating a non-Native man with an abusive streak as deep as it was vicious.

Back in the 1990s Valenzuela was a rookie cop on the Pascua Yaqui reservation, just outside Tucson, Arizona; today he serves as the tribe's chief of police. With short curly hair and a soft, even voice, Valenzuela prefers talking about some of his personal interests — Wakavaki (a traditional Pascua Yaqui soup) or Star Wars (his office is filled with memorabilia) — than about violence on the reservation. However, his first domestic violence case has stuck with him to this day.

In the 1990s, the law was working against him: The victim was a Pascua Yaqui tribal member; the abuser, a non-Native man. The crime occurred within Pascua Yaqui territory — a small reservation covering three and a half square miles with nearly 5,000 residents living in modest homes set against the tan-and-khaki-color palette of the Sonoran desert. Non-Native-on-Native abuse meant that if anyone was going to punish the offender it would be federal authorities, not Pascua Yaqui.

"I would arrest him and we knew right away to contact the US attorney's office," Valenzuela told VICE News. "Most of the time they would just decline the case right then and there."

That meant Valenzuela would put the guy in the back of his cruiser, drive him off the reservation, and let him go in the parking lot of a convenience store.

"We felt like we were letting her down because what do we do? Drive him further? He'd just walk longer and he'd still get here, or he'd get a ride," said Valenzuela. "The only protection we [wanted] was incarceration for repeat offenders, and it wasn't available to us."

In many cases, it still isn't.

"We just had a case two days ago where a juvenile non-Indian committed an aggravated assault on a parent and there was a seven-year-old kid present," said Valenzuela. In that situation, the parent and the seven-year-old were Pascua Yaqui, while the juvenile was a non-Native, repeat offender on the reservation with a rap sheet multiple pages long. With the arrest, Pascua Yaqui called the US attorney.

"The US attorney says, 'We're not taking this case'," said Valenzuela. "That evening [the juvenile] left the reservation, and we can't touch him now."

According to the Department of Justice, the rate of violent victimization among Native American women was more than double the rate of all women between 1992 and 2002 (the most recent figures available). During that same time period, nearly 60 percent of Native victims described their attacker as white.

But two years ago the Violence Against Women Reauthorization Act of 2013 (VAWA) took effect, creating a pilot project that gave three tribes the ability to exercise jurisdiction over non-Native offenders who committed domestic or dating violence, or who violated protection orders in tribal territories. Given its preliminary success, the program has been hailed as a baby step toward restoring tribal sovereignty; in March of this year, the program was opened up to all 566 tribes in the US.

Related: Police Say Indigenous Women Are Still Overrepresented in Canadian Murder Statistics

For thousands of years, tribes have been able to police their territories and communities. But for the last 130 years, the ability for tribes to self-govern has been hampered and undermined by the federal government, creating a safety crisis in Indian Country; this has been most easily demonstrated through the staggering rates of violence against women. VAWA restores tribes' ability to go after one specific, heinous crime, but it also raises questions about whether a small legal fix can create real change — or provides too little justice.

****

The Port Madison Reservation, Washington, in the 1970s: A high-speed chase with tribal police ends after Daniel B. Belgrade crashes into a tribal police car. He is charged with "recklessly endangering another person." In an unrelated incident, Mark David Oliphant went to a tribal festival, got drunk, and hit a cop. He was charged with assaulting an officer and resisting arrest. Both men were non-Native residents of the Port Madison Reservation, and both argued that the Suquamish Indian Tribe had no criminal jurisdiction over them because they were not Indian. They took their case to the Supreme Court.

In 1978 the Supreme Court agreed in Oliphant v. Suquamish Indian Tribe. Their reasons: Congress's actions during the 19th century made it clear that non-Indians were never intended to be under the jurisdiction of Indians and that tribes had submitted to the "overriding sovereignty of the United States" and could not try non-Natives without Congressional authorization.

The ruling effectively stripped tribes of their remaining ability to prosecute non-Natives who commit crimes in Indian Country, making the federal government the new sheriff in town, albeit a distant, mostly unavailable one.

****

Oliphant v. Suquamish was the final blow after 130 years of congressional acts aimed at eroding tribal authority: In the late 1800s, the federal government gave itself authority with the Major Crimes Act to prosecute Indians who commit felonies — rape, murder, larceny, for instance — on tribal lands, an ability the federal government does not possess with respect to states. In the 1950s, Public Law 280 transferred authority for certain tribes to six states, with others following, thereby expanding criminal jurisdiction to cover crimes committed on tribal lands. And in the 1960s, the Indian Civil Rights Act placed stiff limitations on the length of jail sentences and fine amounts that tribes could mete out. The interaction between the Indian Civil Rights Act and the Major Crimes Act had the practical effect of removing from tribes the ability to effectively prosecute Indians who commit felonies on tribal lands. With Oliphant, now a white man could come onto a reservation, beat up his Native girlfriend, and, if caught, wait to see if a US or county attorney would prosecute.

Of approximately 9,000 cases resolved by the US attorney's office between 2005 and 2009, 50 percent of those cases were resolved through declination. That means that over half the crimes referred to authorities by tribes for prosecution were declined for reasons ranging from the availability of evidence for investigators, to differences in agency protocols.

In 1994 the first Violence Against Women Act was passed, aimed at holding abusers accountable and treating domestic violence as a serious crime. While the law helped states tackle the problem, there was still a huge gap in Indian Country: Tribes could not prosecute if the defendant was non-Native. However two years ago, despite opposition from Republican lawmakers like Senator Charles Grassley of Iowa, who claimed that non-Indians couldn't get a fair trial on an Indian Reservation, VAWA 2013 became law. Through focused efforts by tribes, advocates, and lawmakers, Native people finally reaped the benefits the rest of the United States enjoys by restoring the ability of tribes to prosecute non-Natives — a partial Oliphant-fix.

"They basically gave tribes the ability to start to exercise this limited jurisdiction," Pascua Yaqui Attorney General Alfred Urbina told VICE News. "But in reality, it's only a sliver of that authority and it covers only relationship violence with an intimate partner or marital partner."

Crimes like threats and intimidation, destruction of property, sexual assault by strangers, the hurting of a pet, or even child abuse still require calls to the US attorney before an offender goes to jail or gets a ride off the reservation.

"We've had about four or five cases that we had to dismiss because they involved things like trespassing, disorderly conduct, and things that did not involve an actual assault," said Urbina. "The offenders in those cases ended up reoffending and physically assaulting the victim a few months later, after we had dismissed the case for that reason."

****

Though the Major Crimes Act, Public Law 280, the Indian Civil Rights Act, and Oliphant do not allow tribal police to prosecute crimes, they are usually the lead investigators. When you're on the reservation and you call the police, tribal or Bureau of Indian Affairs cops will likely be the first on the scene. Then there's a checklist: Is anyone involved in the incident non-Native? Is the incident actually occurring on Indian land? What's the nature of the incident? If you're in a Public Law 280 state, you might need to call the county sheriff and wait till he or she arrives. If it's domestic violence, maybe you take the guy to jail. If it's a child sex abuse case, maybe you call the FBI. The list goes on.

'It is a paternalistic and anachronistic, outdated view of how it is we should deal with law enforcement in Indian Country.'

Former US Attorney for Arizona Paul Charlton would like to see law enforcement given back to communities.

"Turn sovereignty back to the sovereign nations," said Charlton. "Give them responsibility and ownership for not just the investigation, but for the prosecution of those offenses that take place. In their own reservation, on their own reservation."

The equivalent situation for the rest of America would be New York City handing over all criminal jurisdiction to Canadian authorities and expecting swift justice when a purse gets snatched in Brooklyn.

"It is a paternalistic and anachronistic, outdated view of how it is we should deal with law enforcement in Indian Country," Charlton told VICE News. "It's one that needs to change."

Related: Native American Tribe in California Announces Plan to Grow Medical Marijuana

Between 1992 and 2002 the Department of Justice reported that Native Americans experience rates of violence at two times the rest of the US population. According to the Indian Law and Order Commission, in Alaska, Native women make up 47 percent of reported rape victims but only 19 percent of the state's population, while in 2000 the National Criminal Justice Reference Service reported that over 34 percent of Native women had been raped in their lifetime while 61 percent experienced physical assault.

While Pascua Yaqui and a handful of other tribes are beginning to take steps to deal with violence against Native women under VAWA, it's a possibility that other tribes may not. In order to prosecute non-Natives, tribes must meet a few requirements like including non-Indians on juries and providing public defenders.

In a community such as Pascua Yaqui, which sits on the edge of Tucson, getting a non-Native to sit on a jury doesn't seem like a stretch, but for remote nations like the Havasupai Tribe, on the edge of the Grand Canyon, that task might be harder to complete.

And while many tribes already have public defender offices, not all do. With tribes struggling just to fund basic law enforcement, finding resources to pay a full-time public defender might be difficult.

With tribal justice systems in varying functional states due to inadequate funding, or in decay from decades of being made virtually obsolete, rolling out justice for Native women will take time, and concessions.

"Violence against women is a greater threat to tribal sovereignty than the concessions that tribes are going to have to make to exercise jurisdiction," said Sarah Deer, a professor of law at William Mitchell College of Law, in Minnesota, and a recipient of a 2014 MacArthur grant. "From a tribal sovereignty perspective, it's a restoration of jurisdiction over a specific kind of crime that had been taken away as of 1978 and has been damaging tribal nations ever since."

****

"You can trust tribes to do it right and you can trust the tribes to do it fair," said Melissa Tatum, a law professor at the University of Arizona and associate director, Indigenous Peoples Law & Policy Program. "The evidence of that is the first jury trial under VAWA 2013 [on Pascua Yaqui] ended in the acquittal of the non-Indian, and that was the right result."

In the two years since Pascua Yaqui has had jurisdiction to prosecute, tribal authorities have seen a total of 21 VAWA cases. But the big question is, how can tribes continue to expand jurisdiction to cover more crimes? Many say a legislative fix to Oliphant would restore tribes' ability to police their borders, but that's only if lawmakers take note and work to understand that Indian Country isn't that much different from the rest of the nation.

"The Oliphant decision as well as public opposition to [the VAWA Special Provisions] are at best about ignorance and at worst about racism," Deer told VICE News. "Because you're making assumptions that Indian people can't be fair, and that's racist or at least a very stereotypical view of Native people: that we lack the ability to be functional and fair."

However, without significant concessions by lawmakers to make radical fixes to rulings like Oliphant, or even minor steps to expanding the list of crimes tribes can prosecute, law and order in Indian Country will likely remain in a rut. Numbers and statistics will continue to accumulate and tribes will continue to wait to provide productive, functional, self-government for citizens in need of justice.

"I think the Congress and the Senate need to understand that we are very capable people," said Valenzuela, the Pascua Yaqui's police chief. "They need to just let us do our job and protect the community."

Tagged:
VICE News
domestic violence
Native American
crime & drugs
domestic abuse
oliphant v. suquamish indian tribe
pascua yaqui