Jahi Chikwendiu/The Washington Post/Getty Images
Alfred Urbina, chief prosecutor for the Pascua Yaqui Tribe in Arizona, charts the complexities of tribal law in relation to state and federal law.
Jahi Chikwendiu/The Washington Post/Getty Images
For one Arizona tribe, a chance for justice after decades of legal limbo
The Pascua Yaqui are the first to use new authority to prosecute non–tribal members for domestic violence
TUCSON, Ariz. — For many of the women on the Pascua Yaqui reservation, life before the reauthorization of the Violence Against Women Act brings up one very common memory.
“The offenders knew nothing would be done,” said Gloria Zazueta. “So when they were arrested, they would just be like, ‘OK, give me a ride to the Circle K.’”
Officer Jose Montano in his squad car near the Circle K just outside the Pascua Yaqui reservation.Jahi Chikwendiu/The Washington Post/Getty Images
The Circle K is a small four-pump gas station located just feet beyond the northern border of the reservation. For many years, it was a common destination for tribal law enforcement officers to take non–Native Americans accused of domestic abuse because the officers often lacked the jurisdiction to do anything more.
“That was our remedy back then for law enforcement,” said Alfred Urbina, the Pascua Yaqui Tribe’s chief prosecutor. He explained that until recently, their tribal courts did not have criminal jurisdiction over non–Native Americans, so that trip to Circle K was the most an officer could do in that situation unless the case was severe enough to be prosecuted by a federal court.
But, he added, after dealing with years of jurisdictional limbo, things are finally beginning to change.
The ability to prosecute these offenders was granted to tribes on March 7, 2013, when President Barack Obama signed the reauthorization of the Violence Against Women Act. The legislation included a provision that would give many federally recognized tribes the authority to prosecute non–tribal members for these crimes, as long as their criminal justice systems met certain requirements.
As with any wide-reaching policy change, the rollout is expected to take a lot of time, money and effort.
"You know, you always think, ‘Oh, yeah, we’ll just implement it tomorrow,’ but most of the time, you really have to budget for these things,” said John Dossett, general counsel for the National Congress of American Indians. “And I don’t know if it’s a roadblock or just a natural part of the process.”
Peer to peer, tribe to tribe
For the last year, Dossett has been working closely with about 40 tribes as they update their tribal codes to meet the Department of Justice criteria to obtain the extended jurisdiction.
“That’s the hard part. It’s time consuming,” he said. “And you know, some of them are pretty easy procedural requirements, but some of them sort of take a while to work through the details.”
The requirements encompass changes to tribal criminal justice codes so that they meet federal standards and adequately protect defendants’ rights, including a public defender for the indigent, legally trained tribal judges who are also licensed to practice law and a jury of a defendant’s peers, with both non–tribal members and tribal members.
“And I think tribes are making a lot of progress on this,” he said.
Dossett credited much of that progress to what’s known as the Intertribal Technical-Assistance Working Group, composed of representatives from about 40 tribes who meet regularly to share knowledge and advice with one another about meeting those requirements.
“There are tribes in the country that were already doing those things. I don’t know if any tribes were doing all of them,” said U.S. Deputy Associate Attorney General Sam Hirsch. He explained that the group was formed to allow tribes to learn from one another about implementing various policies. “There’s a lot of peer-to-peer education going on, and we say it’s been one of the great successes of this pilot project.”
Hirsch said the Department of Justice has provided some training and technical assistance to the group when it’s appropriate, but, he insisted, it is mostly an intertribal effort.
Urbina is worried that most tribes won’t have the money to participate in the new prosecution project.Jahi Chikwendiu/The Washington Post/Getty Images
Many of the tribes participating in the working group will be able to begin prosecuting perpetrators of domestic violence in 2015. However, three of them — the Confederated Tribes of the Umatilla Indian Reservation, the Tulalip Tribe and the Pascua Yaqui Tribe — have already been granted full authorization as part of a pilot project being overseen by the Department of Justice.
The Confederated Tribes and the Tulalip have yet to use their new authority. The Pascua Yaqui Tribe, however, is a different story. According to Urbina, they began to use the jurisdiction just days after it was granted. The tribe is in the process of prosecuting eight non-Native men for domestic violence. And each case, according to Urbina, has been a learning experience.
“We’re running into things on a weekly basis,” he said. “We’re learning, and we’re correcting, and we’re adjusting as we go.”
He said at least three of those cases involved circumstances that the tribe had not foreseen — the most notable involving a man who did not have legal status to be in the country.
Urbina said he’s proud to be a leader in the rollout, but he’s concerned that not everyone will be able to participate.
“You now have the authority, but now you have to come up with the money to do it. We’re talking millions of dollars,” he explained. “I’m not sure that there’s going to be a whole lot of tribes that are going to be able to do this.”
Financial resources will be a serious determining factor for how many tribes in the Lower 48 will be able to take advantage of the extended jurisdiction. But for Native communities in Alaska, the barriers to inclusion are far bigger, as the law excludes most of them. This is due, in part, to the fact that most tribes in Alaska do not occupy federal Indian reservations, which means, in most circumstances, the state holds jurisdictional power to prosecute criminals.
“Unfortunately, Alaska was left out, but what we’re trying to do at this point is rectify the situation and move forward,” said Nicole Borromeo, general counsel for the Alaska Federation of Natives.
One of the ways activists are trying to do that is through the Alaska Safe Villages and Families Act. The bill, which is making its way through the U.S. Senate Committee on Indian Affairs, would encourage the state to make agreements with tribes that would allow them to enforce state laws.
“We are not a second class of citizen up here,” said Borromeo. “We deserve the same type of protection and attention from our law enforcement officials.” She added that some kind of action to address this problem needed to be taken because domestic violence is a pervasive issue in Alaska’s Native communities. Right now, about 47 percent of domestic violence victims in the state are Alaska Natives.
Urbina compared the jurisdictional limbo that many tribes must still deal with to a storm, one that’s had a firm grip on Native America for almost 40 years. And while the Violence Against Women Act doesn’t cover every scenario involving domestic abuse on tribal land, for him, it’s “a ray of hope.”
He added that he’s happy the law will provide the Pascua Yaqui more authority to address crimes committed on their land; he just wishes it could affect more people in Native America.
“It’s bittersweet,” he said. “It really is.”