Court revises test on who is Native American

By Associated Press

FLAGSTAFF (AP) — Attorneys in federal cases stemming from crimes on American Indian reservations have new guidance on what’s needed to prove a defendant is Indian.

Federal authorities have jurisdiction over major crimes on tribal land when the victim, suspect or both are American Indian. A two-part test determines who is Indian.

The 9th U.S. Circuit Court of Appeals revised the first part of that test in an opinion Tuesday — no longer requiring that the degree of Indian blood be traced to a federally recognized tribe — and restored an Arizona man’s 90-year sentence on assault and firearms charges.

The court said evidence at trial was enough to find Damien Zepeda is American Indian. Zepeda, an enrolled member of the Gila River Indian Community, disagreed.

“That’s why it was so important to clarify that the proof in this case was sufficient,” said Arthur Hellman, a University of Pittsburgh law professor who monitors the 9th Circuit. “This will lay down the rule for future prosecutors.”

In 2013, a three-judge panel of the 9th Circuit ruled prosecutors did not prove beyond a reasonable doubt that Zepeda’s bloodline of one-quarter Pima and one-quarter Tohono O’odham derived from an American Indian tribe recognized by the U.S. Bureau of Indian Affairs. It reversed all but one of nine convictions and ordered a lower court to resentence him.

The panel also said federal recognition of a tribe is a matter for a jury to decide.

The court revised its opinion in September 2013 and said federal recognition is a question of law to be decided by a judge. The full 9th Circuit agreed Tuesday.

The new opinion reinstates Zepeda’s convictions and sentence, and modifies what’s known as the Bruce test for determining who is American Indian.

Under the revised test, a defendant still must be a member of or affiliated with a federally recognized tribe, and have a degree of Indian blood. But the defendant’s blood quantum no longer must be traced to a federally recognized tribe.

The full 9th Circuit said the test was satisfied with Zepeda’s tribal enrollment certificate, testimony by Zepeda’s brother that their father was an Indian, and the Gila River Indian Community being a federally recognized tribe.

Zepeda’s attorney, Michele Moretti, said Wednesday she would appeal to the U.S. Supreme Court. Federal prosecutors declined to comment.

The 9th Circuit had placed several other cases dealing with Indian status on hold until it addressed the question in Zepeda’s case.

The court was unanimous its ruling, but Judges Alex Kozinski and Sandra Ikuta disagreed with the reasoning. They said the Bruce test as refined by the majority violates equal protection rights because it turns on race, not political affiliation.

Kozinski said the U.S. Supreme Court has stressed that federal regulation of tribes does not equate to federal regulation of the Indian race.

“Damien Zepeda will go to prison for over 90 years because he has ‘Indian blood,’ while an identically situated tribe member with different racial characteristics would have had his indictment dismissed,” Kozinski wrote.

Rob Williams, a University of Arizona law professor, said the cases raises interesting questions about identity, who asserts that identity and what makes someone Indian.

Standards vary among federal agencies that administer benefits to tribes and in the court system about what defines Indians, he said. Some tribes use blood quantum to determine membership, while others require ancestry to be traced to the original rolls.

“This is what is unique about federal Indian law as opposed to other countries,” he said. “There is no uniform definition of who an Indian is.”

Proponents fight for change so Alaska Natives covered by VAWA

Complicated history excludes Alaska Native women from Violence Against Women Act

Ishmael Hope, left, and other Alaska Native representatives at the 2013 Choose Respect rally in Juneau, Alaska, asking legislators to address issues with the Violence Against Women Act.Heather Bryant/KTOO Public Media

Ishmael Hope, left, and other Alaska Native representatives at the 2013 Choose Respect rally in Juneau, Alaska, asking legislators to address issues with the Violence Against Women Act.Heather Bryant/KTOO Public Media

 

By: Kayla Gahagan, Aljazeera America

 

Opponents of the reauthorization of a federal law passed last year say it has created a dangerous situation for Alaskan domestic violence victims and are urging lawmakers to support a repeal.

Proponents of the original 1994 Violence Against Women Act say it was signed into law with the purpose of providing more protection for domestic violence victims and keeping victims safe by requiring that a victim’s protection order be recognized and enforced in all state, tribal and territorial jurisdictions in the U.S.

According to the White House, the VAWA has made a difference, saying that intimate partner violence declined by 67 percent from 1993 to 2010, more victims now report domestic violence, more arrests have been made and all states impose criminal sanctions for violating a civil protection order.

Last year the law was reauthorized, clarifying a court decision that ruled on a case involving civil jurisdiction for non–tribal members and amending the law to recognize tribal civil jurisdiction to issue and enforce protection orders “involving any person,” including non-Natives.

But almost all Alaska tribes were excluded from the amendment, with only the Metlakatla Indian community from Alaska included under the 2013 law. The rest of Alaska remains under the old law.

The change has created confusion, opponents say, particularly in cases when there is a 911 call about enforcing a protective order.

“The trooper is waiting, because he’s not sure who has jurisdiction,” said David Voluck, a tribal court judge for the Central Council of Tlingit and Haida Indian Tribes of Alaska. “We need to get rid of those exceptions that create confusion.”

An ongoing debate

The reauthorization highlighted an ongoing debate about Native communities and tribal courts’ and governments’ jurisdiction, particularly in cases of policing and justice.

The reauthorization made sense, according to Alaska Attorney General Michael Geraghty, who noted that Alaska has always been treated differently because of the 1971 Alaska Native Claims Settlement Act. In exchange for 40 million acres of land and about $1 billion, he said, tribes forfeited reservations and the notion of Indian country to form Native corporations.

He said the state needs to find better ways to collaborate with institutions in small communities to provide better protection and justice but disagrees with giving pockets of tribal authority throughout Alaska.

“We do have an issue with violence and domestic violence,” he said. “We have a challenge in providing safety.”

But Geraghty said he has never heard of a situation when a victim was in danger because of confusion over jurisdiction.

“There’s nothing in the act that expands or retracts the jurisdiction of tribal courts,” he said. “If tribal courts had jurisdiction before, they do now. Troopers are not lawyers. If they are faced with a situation, they are going to protect the public. These concerns are overblown.”

‘A cloud over Alaska’

Lloyd Miller, an attorney who works on Indian rights and tribal jurisdiction litigation, disagrees and said things did change with the 2013 reauthorization.

“What he’s saying is that an Alaska village only has the authority to issue a protective order if that man is a member of the tribe. They can’t if he’s from the neighboring tribe,” he said. “Why would we not want to have Alaska villages have all the tools to protect women from domestic violence?”

Voluck agreed. “Does it really matter if a woman is hit in a mall somewhere or the south corner of where the tribe lives?” he said.

Opponents of the Alaska exemption recently urged a task force convened by Attorney General Eric Holder to study the effects of violence on Native American children to support the repeal of Section 910 of the law.

“VAWA creates a cloud over Alaska, and the last thing women and children need is a delay in an emergency,” said Voluck. “A matter of minutes can mean life or death. It’s unequal protection under the law for a very vulnerable part of the population.”

Lack of law enforcement

Voluck was one of a number of experts who testified last month before the Task Force on American Indian and Alaska Native Children Exposed to Violence about the special circumstances surrounding Alaska Native domestic violence, including geography, a lack of law enforcement and difficulty for victims to travel to safety.

Experts attested to a number of facts, including that Native American and Alaska Native women are 2.5 times as likely to be raped or sexually assaulted than other American women. About 140 villages have no state law enforcement. Eighty have absolutely no law enforcement. One-third of Alaska communities do not have road access.

It’s a serious issue for communities, said Valerie Davidson, a task force member who lives in Alaska. “Even if you only have 300 people, you still need law enforcement,” she said.

The debate continues, this time in Congress as the Senate Indian Affairs Committee works on legislation, which includes a provision repealing Section 910 of the 2013 reauthorization. Geraghty and the governor oppose a repeal, but the U.S. attorney general’s office has voiced its support.

Associate U.S. Attorney General Tony West attended the Alaska task force hearing and said arguments about the scope of authority of Alaska Native villages and tribes shouldn’t get in the way of protecting Native children from harm.

“If there are steps we can take that will help move the needle in the direction for victims, we need to do it,” he said. “When a tribal court issues an order, the state ought to enforce it. If not, the orders are worth nothing more than the paper they’re written on.”

More than just symbolic

Repealing the law won’t resolve the multilayered issues of jurisdiction, but it would be a step in the right direction, West added.

“It is more than just symbolic,” he said. “Repeal of Section 910 is an important step that can help protect Alaska Native victims of that violence and, significantly, the children who often witness it, and it can send a message that tribal authority and tribal sovereignty matters, that the civil protection orders tribal courts issue ought to be respected and enforced.”

The Task Force on American Indian and Alaska Native Children Exposed to Violence will make a recommendation to Holder by late October.

“Alaska is frozen in time,” Voluck said. “Why in the world would you hold the worst state when it comes to domestic violence in the old law? Forty-nine other states have figured out how to work with their tribal courts. Let’s work together. People are getting hurt and dying. That’s why I’m upset.”

Justice Long Denied Comes to Indian Country; First Post-VAWA Trial Set

Santa-Fe-Indian-School-for-VAWA

 

Tanya Lee, Indian Country Today

 

The Pascua Yaqui Tribe in Arizona is making history. Nearly 40 years after the U.S. Supreme Court ruled in Oliphant v. Suquamish Indian Tribe (1978) that American Indian tribes did not have jurisdiction over non-Indians who committed crimes on reservations, the Pascua Yaqui are preparing to try as many as 10 non-Indians alleged to have committed domestic violence crimes on their reservation.

The stats for crimes against women in Indian country are appalling. A Department of Justice report states that American Indian/Alaska Native women are significantly more likely to be raped, physically assaulted and stalked than are white women. If, on an Indian reservation, that abuse was committed by a non-Indian, tribal law enforcement was not authorized to arrest the perpetrator and tribal courts did not have the jurisdiction to try him. Both arrest and prosecution were the responsibility of the federal government. But these are such challenging crimes to successfully bring to justice, federal resources are seldom deployed to deal with them.

RELATED: President Barack Obama’s VAWA Law Signing Spotlights Native Women Warriors

The Tribal Law and Order Act of 2010 and the Violence Against Women Reauthorization of 2013 radically changed that. Under VAWA Indian tribes will have jurisdiction over non-Indians who commit domestic violence crimes on reservations. The law will go into effect for all tribes in March 2015, but the Justice Department in February designated three tribes – the Pascua Yaqui Tribe, the Confederated Tribes of the Umatilla Indian Reservation and the Tulalip Tribes of Washington – for a pilot program that allows them to exercise the authority immediately.

RELATED: Three Tribes to Begin Prosecuting Non-Indian Domestic Violence Offenders

Troy Eid, chairman of the Indian Law and Order Commission mandated by TLOA, says, “The Pascua Yaqui Tribe has put a lot of energy into being ready for this day. My impression is they really tried to err on the side of caution so there would be no justification for overturning a tribal court verdict on federal review.”

RELATED: Troy Eid on Why Tribes Need Control Over Their Justice Systems

Listening to Pascua Yaqui Tribe Chief Prosecutor Alfred Urbina describe what has gone into this moment makes “a lot of energy” seem like an understatement. Urbina detailed some of the issues the tribe has had to deal with and what has been learned in an effort to help other tribes put their justice systems in order to begin prosecuting these cases. “The ability to prosecute non-Indians for domestic violence brings up a lot of questions for the tribe,” he says.

Urbina explains that there have been 11 recent incidents on the reservation with American Indian victims and non-Indian suspects; some are still in investigation or waiting for warrants to be served, while some are in the process of being prosecuted. The first trial is scheduled to begin August 19, but some cases could be resolved through plea agreements before that.

One thing that has been surprising is the number of cases. “We thought we’d have 5 to 10 cases for the whole calendar year,” Urbina says. “But in just the first two months since the tribe has had the authority to arrest non-Indians, there have been more than 10 arrests.”

Demographics are critical to predicting how many cases tribes will need to prepare for. So is location – whether or not the reservation is near an urban center or a major highway. Among the questions tribes will have to address is: Who is actually living in tribal housing? The perception is that tribal members live in tribal housing, but there are probably other people as well, especially if there are a lot of single mothers, says Urbina.

Other questions shed light on matters such as – What is the composition of law enforcement on the reservation? Do people trust law enforcement? Urbina explains that if people have seen non-prosecution of DV cases for many years by both tribal and federal authorities, distrust may have built up and this will affect the success of the cases the tribe brings to trial. How does the tribe get a warrant served off-reservation and the suspect extradited back to the reservation for trial? What if a suspect does not speak English—will an interpreter be available for court proceedings and for conferring with an attorney?

Then there is the question of public defenders. “Some tribes are saying we just need to hire a lawyer, but that person would need to have a background in Indian law, Indian sovereignty issues, different ways of doing things in Indian country and tribal court history. If the lawyer doesn’t have that kind of information it will impact the case.”

One compromise that had to be made to get the law passed was that the attorneys and judges in cases where whites are being tried have to be state-licensed. This brings up the question of access. How will public defenders hired by the tribe have access to their clients on rural reservations?

And that in turn brings up the question of costs—of public defenders, judges, travel, housing of both legal personnel and of those being held for trial and medical care for prisoners. These are issues that if not handled correctly could lead to federal appeals on constitutional grounds, Urbina explains.

Urbina estimates it could cost up to $500,000 for a tribe to get their justice system set up to meet the prerequisites to prosecute non-Indians for domestic violence crimes. “The process will be out of reach for some tribal governments without significant assistance from the federal government, but in order to get this law passed, no money was appropriated for that purpose,” says Urbina.

Nonetheless, the Pascua Yaqui are in a financial position to bring justice long delayed to women on their reservation and they are wasting no time in getting started. Says Eid, “Nothing could be more important for a tribal government to do. This has been an area where law and order breaks down. It’s important that this works.” Urbina puts it this way: “There is nothing more basic than the right to live in peace. Everything else flows from that.”

 

Read more at http://indiancountrytodaymedianetwork.com/2014/05/20/justice-long-denied-comes-indian-country-first-post-vawa-trial-set-154945?page=0%2C2