Pascua Yaqui Tribe Attorney General Alfred Urbina and Sisseton Wahpeton Oyate Tribal Attorney Shawn Eastman share how their tribes have implemented the new guidelines.
Tribes discuss prosecution of non-Indians on Tribal lands
Pilot projects spring up on several reservations
By Ernestine Chasing Hawk
Native Sun News Editor RAPID CITY –– It was announced in March that all tribes are now eligible to investigate and prosecute not only Indians but also non-Indians who commit crimes of domestic violence, dating violence, or violate a protection order against a Native victim on tribal lands. Last week representatives from the U.S. Attorney’s Offices of both North and South Dakota and Nebraska met with tribal officials to discuss how to implement the federal guidelines which will enable them to utilize the new provisions of the Violence Against Woman Act. Also present to discuss the new provisions were BIA Assistant Secretary Kevin Washburn and U.S. Assistant Attorney General Sam Hirsch. Last month, former S.D. U.S. Attorney Brendon Johnson before leaving his post said he would like to see all South Dakota Tribes implement the Violence Against Women Act and the new provisions allowing for prosecution of Indians as well as non-Indians. Of the 562 federally recognized tribes in the U.S., five are currently taking advantage of the new provisions. Three tribes were granted federal approval to initiate pilot projects in 2014—the Pascua Yaqui Tribe of Arizona, the Tulalip Tribes of Washington, and the Umatilla Tribes of Oregon. To date the Tribes have charged a total of 26 Special Domestic Violence Criminal Jurisdiction cases. Since then two additional tribes—the Sisseton Wahpeton Oyate of the Lake Traverse Reservation in South Dakota and the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation in Montana have received pilot-project approval. Presenters at the conference hosted by the University of South Dakota School of Law and the Department of Justice at the Rushmore Holiday Inn in Rapid City included members of those five tribes. Shawn Eastman Tribal Attorney for the Sisseton Wahpeton Oyate shared the process which enabled the SWO to take advantage of the new provisions. “It is really new for us,” Eastman said and that SWO was able to take advantage of a grant from the National Congress of American Indians to assist with implementation of the Act. Alfred Urbina Attorney General for the Pascua Yaqui Tribe in Arizona, who participated in the initial pilot project, was on site to give an overview on the successes and challenges they encountered with enactment of the new guidelines. One of significant challenges they encountered he said was when the Supreme Court decided the U.S. v Castleman case. The Supreme Court defined domestic violence as “offensive touching” which does not include other crimes that are nonetheless violent and dangerous he said. “These crimes can include trespassing, threatening and intimidation, tampering with communications, burglary, breaking and entering, stalking, disorderly conduct, unlawful imprisonment, harassment, endangerment, custodial interference and malicious mischief,” Urbina said. “This issue needs to be on the radar and needs to be addressed.” VAWA 2013 also includes provisions to ensure that defendants have the opportunity for a full and fair trial. In order for a tribe to exercise its authority, it must extend due-process rights, such as providing access to an attorney to the defendant. He said when his tribe first began to select juries; they used a bingo drum to select jurors. They have significantly improved their jury selection process since then he laughed. Ann Mousseau, Domestic Violence Instructor for the Oglala Sioux Tribe Department of Public Safety said she does not see the Oglala Sioux Tribe implementing the new guidelines right away because of funding issues. However she agreed that the majority of domestic violence offenses on the Pine Ridge Indian reservation were by tribal members. Carmen O’Leary Director of Native Women’s Society of the Great Plains said the Cheyenne River Sioux Tribe is currently updating their Law and Order Code and working toward implementation of the new provisions of VAWA. The push to give Indian tribes a more active role in prosecution of Indians and non-Indians on reservations came as a result of an Amnesty International report that revealed the maze of jurisdictional issues left loopholes in the system allowing many offenders to go free. The report published in 2007 concluded that “More than one in three Native American or Alaska Native women will be raped at some point in their lives.” “Most do not seek justice because they know they will be met with inaction or indifference. As one support worker said, ‘Women don’t report because it doesn’t make a difference. Why report when you are just going to be re-victimized?’” The report called sexual violence against Indigenous women “a human rights abuse” and unraveled some of the reasons why, “Chronic under-resourcing of law enforcement and health services, confusion over jurisdiction, erosion of tribal authority, discrimination in law and practice, and indifference.” Cecilia Muñoz, Assistant to the President and Director of the Domestic Policy Council and Tina Tchen, Assistant to the President and Executive Director of the White House Council on Women and Girls said in a press release: “This Administration has witnessed a new dawn for restorative justice and a stronger nation-to-nation relationship to protect our tribal nations, and the implementation of these critical provisions represents a victory for Indian Country.” The National Congress of American Indians and the Tribal Law & Policy Institute have developed a Legal Code Resource for implementation of the new provisions at www.TLPI.org. (Ernestine Chasing Hawk can be reached at email@example.com) Copyright permission Native Sun News
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