Prosecuting non–Native Americans

Three Western tribes begin pilot programs to try to stem tide of sexual violence from perpetrators off the reservation

Lisa Brunner, a Native American, has twice been the victim of domestic violence on the White Earth Indian Reservation in Mahnomen, Minn.
Linda Davidson/Washington Post/Getty Images

Deborah Parker said it happened one night not far from the reservation.

A white man coaxed a Tulalip Indian woman into his vehicle. He drove until he thought he had entered tribal land. And then he beat her. He raped her. He left her for dead. While he assaulted her, the victim later told Parker how he blustered about how he’d get away with his crimes. He knew tribal police couldn’t legally arrest him, she said. And so he drove away thinking he was a free man. 

It was sometime in the late 1990’s when Parker first heard this story. She was a domestic violence counselor for the Tulalip Tribe in northern Washington State. Raised on the reservation, an early victim of abuse herself, she said listening to the often-daily survival stories of other tribal members led to a moment of awareness. “There was a sense of lawlessness,” Parker said. “We had no way of handling justice.”

For more than three decades, the Tulalip, along with other tribes, had lost the legal authority to try non-Natives accused of committing major crimes on tribal lands. In 1978, the Supreme Court denied tribal courts the inherent right to prosecute any non-Indian living or working on the reservation.

Over the years, the inability to prosecute these kinds of crimes has led to what U.S. Attorney General Eric Holder recently described as “a public safety crisis in Indian Country.”  Last November, a federally funded report detailed flaws in the broken tribal justice system and spelled out ways to fix some of the problems. Ultimately, the report found the American legal system had “significantly hamstrung (tribes) ability to ensure safety in Indian Country.”

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One major area targeted for improvement deals with the chronically high rates of violence against Native American and Alaska Native women. Recent statistics show one in three Native American women will be raped or violently assaulted in their lifetime. And the most recent data on record indicates more than 60 percent of all Indian victims report their attacker as being white.

Yet, when it comes to responding to these kinds of violent crimes from Indian Country — offenses that tribal courts have been prevented from legally prosecuting — federal agencies have reportedly declined to investigate more than half.

Figures like these are what spurred Parker into action. Today, she is the Tulalip Tribe Vice-Chairwoman and one of Indian Country’s leading advocates for anti-violence on tribal lands.

On Thursday, Feb. 20, she took pride in watching Tulalip become one of the first tribes in the nation to begin reversing decades of judicial dormancy that’s prevented tribal courts from prosecuting non-Native offenders who commit crimes on Indian land.

After meeting certain requirements, the Tulalip, along with the Confederated Tribes of the Umatilla Indian Reservation in Oregon and the Pascua Yaqui Tribe of Arizona, now have the judicial authority to try non-Indians for certain domestic violence-related cases under a pilot program of the Violence Against Women Act (VAWA). Congress passed its reauthorization last year, and by March 2015, the tribal provision will take effect for all U.S. tribes.

Last year, Parker said she lobbied members of Congress about the measure until her "toes bled." And she said she advocated so frequently on Capitol Hill — 500 days to be exact — that even President Barack Obama got to know her by her Indian name. Putting a human face to a problem that’s long-plagued tribal communities, Parker beams believing justice is on its way to being restored in Indian Country.

“Some opponents on Capitol Hill and Congress said there was no way we would get to see the day again when you could arrest a white man on the reservation,” Parker said. “But it’s now time when we can bring justice back to the reservation. It’s restoring out inherent right to our victims and our tribes.”

Brent Leonhard, an attorney with the Umatilla Office of Legal Counsel said the new jurisdiction is a "huge deal." Because rates of domestic violence and sexual assault are so problematic in tribal communities, the goal, he said, will be sending a message to both victims and their attackers that consequences are now a real thing when it comes to these types of crimes.

“It makes sense that if historically these perpetrators in the past have been able to walk free, then why would their victims come forward to report an incident to police? It just endangers them more,” said Leonhard. “We’re hopeful this will get a few cases started and set an example that (offenders) will be held accountable and locally.”

As the pilot program gets underway, there will undoubtedly be challenges in testing the limits of the tribal courts. The provision allows tribes to bring cases against non-Natives only for domestic violence, so-called “dating violence” as termed by the Department of Justice, and violations of protection orders. 

Meanwhile, the Department of Justice, the agency that oversees the pilot program, has listed a handful of criminal scenarios that the tribal courts will not be allowed to prosecute under the VAWA provision. On paper, the short list appears rather simple, but there are instances that could raise future debate.

For example, offenses occurring between two non-Indians on the reservation cannot be prosecuted. As such, a white father living with his Indian wife on the reservation who violently or sexually assaults their child, a “non-Indian” due to lineage restrictions, can hypothetically evade prosecution.

The tribal courts are also barred from prosecuting crimes “between two strangers,” even in cases of sexual assaults. In such a scenario, the assailant in Parker’s story who raped and beat the Tulalip Indian woman could possibly go free.

Both Parker and Leonhard are optimistic. They say their tribal justice systems have been functioning ahead of the curve in recent years. But Leonhard admits that a current public defender shortage could slow progress at the start. After all, at least 40 percent of the reservation population is comprised of non-Indian residents.

For Parker, she says certain staff is continuously being trained and she likens the process to taking "baby steps."

“It’s going to be very critical to how we receive support to our justice system. We’re looking to the DOJ to support our programs,” she said.  

Ultimately, she believes tribes will prevail and set new examples in the rehabilitation of nearby criminals. “For those perpetrators who are more than likely repeat offenders, for them to be punished by tribal law, if we do that the Native way, I know we’ll heal them. For us to take these steps, it’s a greater system.”

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