RAPID CITY, S.D. (AP) — An agreement on law enforcement was reached Tuesday between Pennington County and four Sioux tribes that bought 3 square miles of land they consider sacred in western South Dakota’s Black Hills.
In 2012, the Great Sioux Nation raised $9 million to buy land the tribes call Pe’ Sla from private landowners. The tribes hope to put the land, also known as Reynolds Prairie, in trust with the federal government to be held on behalf of tribal members.
None of the tribes has a headquarters closer than a four-hour drive from Pe’ Sla, the Rapid City Journal (http://bit.ly/1JQ1LYV ) reported. The area is used as a ceremonial site by the tribes because of its role in tribal creation stories. They also plan to reintroduce bison to the site.
If the land is put into trust, tribal jurisdiction would apply. But the agreement would allow the county, the Bureau of Indian Affairs and tribes to handle law enforcement. If a tribal member is cited or arrested for a crime at the site, he or she would be prosecuted in tribal court, but non-tribal members would be prosecuted in other courts belonging to the local jurisdiction.
Sheriff Kevin Thom said he has some concerns about the agreement, which he called “a little confusing, a little mushy.”
For example, it doesn’t specify which party will be responsible for transporting a tribal member who’s arrested by a county deputy at Pe’ Sla to tribal court on the Rosebud Reservation, he said. It’s also unclear if county deputies will be required to testify in tribal court, requiring them to drive several hours to the reservation, according to Thom.
“That creates some problems from an enforcement standpoint,” he said.
But county commissioners still approved the agreement with a 3-1 vote.
Information from: Rapid City Journal, http://www.rapidcityjournal.com
After decades of grassroots advocacy and calls to action, the Violence Against Women Act is putting justice back in the hands of tribal authorities in cases of abuse and violence against Native American women.
WASHINGTON — In March 2013, following nearly two decades of grassroots work and advocate work, President Barack Obama signed a reauthorization of the Violence Against Women Act that offers expanded protections for Native American women.
The reauthorized act extends tribal jurisdiction to non-Native Americans who commit acts of violence or sexual assault against their Native American spouse or partner. While such incidents often go unreported, the amount that are reported reflect a disproportionate number of Native American women will be raped, stalked or physically assaulted compared to their non-Native American peers.
“One of the most basic human rights recognized under international law is the right to be free of violence. While many in the United States take this right for granted, Native women do not,” –Jana Walker, senior attorney and director of Indian Law Resource Center’s Safe Women, Strong Nations.
Federal authorities currently maintain jurisdiction over offenses committed by non-Native Americans coming onto the territories, but with prosecuting attorneys often located hundreds of miles from these areas, reporting is infrequent. From October 2002 to September 2003, 58.8 percent of cases the Bureau of Indian Affairs referred for federal prosecution were declined, compared to the national average of 26.1 percent.
However, VAWA will now allow territories to impose a penalty on non-Native Americans married to a community member, as well as those living in the community or employed by the community. Many hope this newly granted authority will put an end to the notion of reservations as hunting grounds where offenders have impunity.
The initial Violence Against Women Act resulted from grassroots efforts that started in the late 1980s, with advocates from the battered women’s movement, law enforcement, victims services and prosecutor’s offices. It was signed into law in September 1994 as Title IV sec 4001-4073 of the Violent Crime Control and Law Enforcement Act to fund the investigation and prosecution of acts of violence against women and impose restitution. It also established the Office on Violence Against Women in the Department of Justice.
Throughout its 20 years of reauthorizations, tribal leaders had partnered with the advocacy groups, having to explain to many in Congress the realities of living on a reservation. Tribal jurisdiction continued to be debated last year — largely around questions of whether non-Native American offenders would be treated fairly in tribal judicial systems.
To be eligible, tribes must have a criminal justice system that provides representation for defendants, provide non-Native Americans in a jury, and inform defendants of their right to file federal habeas corpus petitions. The U.S. Attorneys, state and local prosecution offices continue to hold the same authority to prosecute crimes in Indian country if tribes cannot afford prosecution costs or if further charges are pending.
According to the Indian Law Resource Center: “One in three Native women will be raped in their lifetime, and three in five will be physically assaulted. Native women are more than twice as likely to be stalked than other women and, even worse, Native women are being murdered at a rate ten times the national average.”
These statistics only take reported cases into account, and they also fail to include data on violence against Native American girls, which is estimated to also be “disproportionately high.”
“Young women on the reservation live their lives in anticipation of being raped,” said Juana Majel Dixon, 1st vice president of the National Congress of American Indians and co-chair of the NCAI Task Force on Violence Against Women. “They talk about, ‘How will I survive my rape?’ as opposed to not even thinking about it. We shouldn’t have to live our lives that way.”
The Indian Law Resource Center, the NCAI Task Force on Violence Against Women, Clan Star, Inc., National Indigenous Women’s Resource Center, and other Native American women’s organizations have also turned to the international human rights community for help in the past.
In the summer of 2010, nearly 2,000 Indigenous representatives from around the world gathered at the Headquarters of the United Nations in New York for the ninth session of the Permanent Forum on Indigenous Issues.
Discussion turned to the issue of people from outside Indigenous communities entering these communities to commit abuses against Indigenous women, effectively making such behavior part of these women’s homes and communities. Speakers from Mexico, Kenya and New Zealand emphasized the necessity of Indigenous communities establishing programs relevant to them, as well as holistic approaches, environmental health and government policies to eliminate abuses such as genital mutilation.
Women of the Haudenosaunee, the Maori of New Zealand, Wara Wara of Australia, the peoples of the Lakota, Tibetan and Hawai’i nations came out of the shadows and spoke of disruptions to womanhood.
The U.N. and the Organization of American States began examining the situation of American Indian women. In 2011, Rashida Manjoo, U.N. Special Rapporteur on the Rights of Women, presented her report to the U.N. General Assembly in New York, telling the United States to “consider restoring, in consultation with Native-American tribes, tribal authority to enforce tribal law over all perpetrators, both Native and non-Native, who commit acts of sexual and domestic violence within their jurisdiction.”
After touring Native American territories for a month in the U.S., James Anaya, U.N. Special Rapporteur on the Rights of Indigenous Peoples, went before the U.N. Human Rights Council in Geneva in September 2012 and recommended that the U.S. put creating legislation to protect Native American women as an immediate priority.
The reality of the lives of women around the world started being documented in 1946, when the U.N. created a Commission on the Status of Women. At first focusing on the need for education and employment, by the spring of 2013 the theme of the 57th session of the commission was “Elimination and prevention of all forms of violence against women and girls.”
When it became clear that a cooperative environment could promote protections, space was made to include the Indigenous voice to the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child and the U.N.’s Declaration on the Rights of Indigenous People.
The 2013 report by the U.N.’s Permanent Forum on Indigenous Issues and the International Indigenous Women’s Forum was called “Breaking the Silence on Violence against Indigenous Girls, Adolescents and Young Women,” based on analysis of data from Africa, the Asia-Pacific region and Latin America. The Indigenous Women’s Rights, Violence and Reproductive Health forum, meanwhile, underlined the need for grassroots programs that reach community members and can set precedents.
In February 2013, Manjoo and Anaya urged the U.S. House of Representatives to approve a revised version of VAWA that would extend protections to not only Native American women, but also to immigrant and gay victims of violence and sexual abuse.
“Congress should act promptly to pass key reforms to the Violence Against Women Act that bolster indigenous tribes’ ability to prosecute cases involving violence against indigenous women,” Anaya said, urging the House to approve the version of the act already approved by the Senate that month.
The OAS’ 2011 Inter-American Human Rights Commission also produced a report, “Violence Against Native Women in the United States,” expressing concern about violence against women in Honduras, Nicaragua, Colombia and the U.S., urging laws, policies and programs in collaboration with the women.
Confederated Tribes of the Umatilla Indian Reservation in Oregon
Given the porous borders of reservations, there’s usually frequent interaction between Native Americans and non-Native Americans and a limited scope for ensuring public safety in Indian country.
“VAWA was really needed in Indian Country,” said M. Brent Leonhard, an attorney for the Confederated Tribes of the Umatilla who was instrumental in crafting the language of VAWA applied in the tribe. “Historically, the federal government didn’t prosecute and it didn’t get reported to them.”
According to statistics cited by the Indian Law Research Center, more than 88 percent of violent crimes committed against Native American women are committed by non-Native Americans over which tribal governments lack any criminal jurisdiction under U.S. law. In 66 percent of the crimes in which the race of the perpetrator was reported, Native Americans victims indicated that the offender was not Native American.
Leonhard told MintPress that the latest changes to VAWA will give communities more confidence in their tribe’s ability to deal with an assault and be more comfortable in reporting it.
“We’re seeing at least 80 percent of those who come to our family violence program have not reported incidents to the police,” he said. “They seek help here but they won’t go to outside systems.”
The Umatilla are located near the city of Pendleton, where the FBI is stationed and can respond quickly to crimes. But for other reserves, federal law enforcement bodies may be as many as four hours away. For example, in Alaska, Leonhard said, “the problem is horrendous.”
The act legislatively reversed the U.S. Supreme Court decision in Oliphant v.Suquamish Indian Tribe, 435 U.S. 191 (1978), which held that inherent tribal sovereignty did not exist and “Indian tribes do not have inherent jurisdiction to try and to punish non-Indians.”
Leonhard said the Obama administration has been supportive of issues in American Indian territory. On July 21, 2011, Ronald Weich, assistant attorney general for the Office of Legislative Affairs, wroteto Vice President Joseph Biden and proposed the amendment to VAWA thatwould create the pilot project.
Pascua Yaqui Tribe of Arizona
Since the pilot program began in March, the Pascua Yaqui Tribe has tried more than a dozen cases involving non-Indians abusing Native American women.
VAWA does not cover crimes committed against Native American women by strangers or those who may live or work on a reservation but are not considered to be dating or in relationship with a Native American woman.
There’s a lot being defined as the process moves forward. “Dating,” for instance, is being questioned: Can it apply to a chance meeting at a restaurant between two people who have just met?
“We’ve found most of our defendants have been in relationships,” Alfred Urbina, the tribe’s attorney general, told MintPress. “Most have been contacted by tribal police six to 10 times, already have felonies on their record or are unemployed.”
To exercise the authority, a tribe must guarantee that a defendant’s rights are similar to those guaranteed by the U.S. Constitution, such as the right to a public defender and effective assistance of counsel. Tribes must also include non-American Indians in jury pools. For tribes with many enterprises that employ non-Native Americans, this is not an issue, but for those without such enterprises, this presents a problem.
Meanwhile, tribes must provide a public defender only if the offender is indigent,which also raises questions regarding who pays the costs associated with probation or treatment, or if an offender is homeless or if an offender needs to be monitored in another town.
“These are all questions we’re running into,” Urbina said. “We’re near Tucson and able to draw on defense attorneys and other resources. But for others who are remote from metropolitan areas, for instance the Diné, this will be difficult.”
Under the Indian Civil Rights Act, nations are limited to the amount of time they can sentence an offender to prison. The Yaqui constitution currently limits sentences to one year, while other tribes can sentence offenders to up to three years. For a case involving strangulation or another form of attempted murder, these sentencing limitations often mean that the cases are sent to U.S. Attorneys for further prosecution.
Meanwhile, some opt to leave criminal matters to the Bureau of Indian Affairs or FBI. The federal government deals with regional problems, so one reservation may be just a small part of an agent’s 100-mile radius. “It could be days before a person gets out to investigate a crime,” said Urbina.
While it’s brought benefits to those under the three pilot projects, Urbina said most reserves won’t have resources to put the program in place. (He estimated that about 30 would have adequate resources for implementing the program.)
The number of Native American women reporting abuse represents just small percentage of the reality, he added.
“If you don’t have jurisdiction over these crimes, you’re not going to collect data,” he said. “It can be decades a community puts up with rape and violent cases. You’re not going to find trust.”
Most tribes have victims services and access to federal grants to fund help for victims, and VAWA strengthens the trust Urbina mentioned by putting the response back into the hands of the nation’s people.
The Pascua Yaqui Tribe is making progress in Southern Arizona after being chosen to take early advantage of the Violence Against Women Act (VAWA). “So far VAWA is helping us analyze our own process and the Pascua Yaqui Tribal Council is really interested in how this is going to work out,” said Amanda Lomayesva, Attorney General for the Pascua Yaqui Tribe.
On February 6, the Pascua Yaqui Tribe, the Tulalip Tribes of Washington and the Umatilla Tribes of Oregon were chosen by the Obama Administration to exercise criminal jurisdiction over certain crimes of domestic and dating violence, regardless of the defendant’s Indian or non-Indian status, under the 2013 VAWA law.
Lomayesva (Lumbee) said the Pascua Yaqui Tribe became interested in VAWA when they wanted to expand their tribal jurisdiction. “I think it really started to gain steam in 2007 when people started talking about problems in Indian Country –about crimes that were reoccurring and not being taken care of,” said Chief Prosecutor for the Pascua Yaqui Tribe, Alfred Urbina.
Not to mention, the Domestic Violence is the main crime on the Pascua Yaqui reservation, he said.
Prior to the assertion of VAWA, when a non-Native American committed a crime on the Pascua Yaqui reservation, the Pascua Yaqui Police officers would drop them off on the edge of the reservation, Lomayesva said.
Also, prior to 2010, tribal members accused of a crime would only be incarcerated for one year and the Pascua Yaqui jail was not fit for anyone. The office was in a house and the jail was a cage, said Urbina (Pascua Yaqui).
In 2010, the Tribal Law and Orders Act changed that allowing the tribe to sentence criminals up to three years of incarceration per offense with a maximum of nine years.
And the tribe was able to have a multi-purpose justice complex built through a $20 Million American Reinvestment Recovery Act in 2010. “There has been a real tribal effort to address these problems and a challenge to not only our courts, but all tribal courts to protect tribal members,” said Lomayesva.
The tribe currently has 12 VAWA investigations that have lead to arrests of non-Native Americans, said Urbina. “We had two individuals that were wanted felons by the State of Arizona hiding out on the reservation,” he said. “This happens on our reservation a lot, and other surrounding reservations.”
Also, they are finding that majority of the women involved in the cases are single, young females with children. Typically, both parties are unemployed, alcohol is involved and the accused are repeat offenders.
Urbina admits it is too early to start drawing conclusions. But he’s beginning to see what some of the key issues are, and is asking questions. “VAWA is giving us an opportunity to do an assessment and look into bigger problems,” he said.
Lomayesva admits that a couple of the VAWA cases have fallen apart, and it has led them to question what the tribe can do to help support domestic violence victims.
Tribal members Lourdes Escalante and Feliciano Cruz Sr. both believe VAWA will have a positive effect on their community. “As a community member I think it is about time the tribe start prosecuting non-Natives,” Cruz said. “If they live on our reservation they should abide by our laws.”
Cruz believes that domestic violence on the Pascua Yaqui reservation has gone on long enough and is happy to see that non-Native Americans who are accused won’t be “slapped on the back of the hands anymore. They commit the crime, they go to do the time.”
As for Escalante, a law student at the University of Arizona, is interested to see what VAWA does for her tribe. “I like that my tribe was one of the first to take this on,” she said. “Hopefully, it makes a huge difference; but since it is still kind of new, we will have to wait and see.”
Diane Millich, a member of the Southern Ute Tribe of of Colorado, made national news a year ago at the signing of S.47, a reauthorization of the Violence Against Women Act that recognizes tribal jurisdiction over non-Indian offenders. She shared her story of surviving abuse and a near-fatal shooting at the hands of her non-Indian former husband.
Millich created a non-profit called Our Sister’s Keeper Coalition to help other survivors. But DOJ’s Office on Violence Against Women cut off all federal funds in 2012 and the group shut its doors in September, The Durango Herald reports.
“We were serving a lot of women,” Dedra White, the group’s former director and Millich’s sister, told the paper. “A lot.”
According to DOJ’s Office of Inspector General, Our Sister’s Keeper Coalition received $570,000 in federal funds between 2007 and 2011. Of that amount, auditors found problems with about $200,000 in spending that were considered “unsupported” and “unallowable.”
“We found that, OSKC did not comply with essential grant conditions in the areas of internal controls, grant drawdowns, grant expenditures, budget management and control, grant reporting, and grant goals and accomplishments,” the March 5 report stated. “Most significantly, OSKC commingled the OVW grant funds with funding from other sources, did not consistently identify funding sources for expenditures, made drawdowns in excess of grant expenditures, charged unallowable and unsupported costs to the grant, did not submit accurate or timely grant reports, and did not meet grant goals and objectives.”
Millich did not talk to the paper about the audit.
DENVER, CO – A nationally known, nonprofit, public-interest law firm with decades of experience addressing constitutional and legal issues as to American Indians today urged the U.S. Court of Appeals for the Ninth Circuit to uphold the holding of an Arizona federal district court that a Navajo District Court has no jurisdiction over non-Indians in a civil lawsuit filed for allegedly tortious conduct on an Arizona highway. Mountain States Legal Foundation (MSLF), which had been urged to file a brief by the tribal court but whose arguments were rejected, urged the appeals court to uphold the federal district court’s ruling that the tribe lacks jurisdiction. In August 2012, the federal district court ruled that the Navajo tribal court has no jurisdiction over the non-Indians sued in the case. MSLF, which has been involved for decades in state and federal courts with regard to the authority of tribal courts over non-Indians and American Indians from other tribes, relied on U.S. Supreme Court and Ninth Circuit Court of Appeals rulings in arguing that the appellate court should uphold the lower court’s ruling.
“The highway is alienated, non-Indian land, no treaty or statute allows the Tribe to govern non-Indian conduct there, and no exception to these general rules applies,” said William Perry Pendley, president of MSLF.
In September 2004, an automobile/tour bus accident occurred within the exterior boundaries of the Navajo Nation on U.S. Highway 160 near Kayenta, Arizona. The tour bus passengers had stayed overnight at a hotel on Navajo Nation land, and the following day the bus, driven by Russell J. Conlon, left the hotel. As it proceeded westward on Highway 160 the bus collided head on with a 1997 Pontiac that contained two members of the Navajo Nation. One Navajo passenger was killed and the other passenger was injured. In December 2006, relatives and the survivor filed a lawsuit for allegedly tortious conduct, seeking compensatory and punitive damages, against the tour bus owners, operators, driver, and insurance company in the District Court of the Navajo Nation for the Kayenta District.
Those sued were all non-Indians; therefore, they filed a motion to dismiss the lawsuit in the Navajo District Court, alleging that the court lacked subject matter jurisdiction. The District Court entered an Order denying the motion and ruled that it had jurisdiction. Those sued then filed a Petition for Writ of Prohibition with the Navajo Supreme Court asking that the Navajo Supreme Court bar the District Court from proceeding with the case. In March 2010, the Navajo Supreme Court issued an Order asking that MSLF and others file amicus curiae briefs; MSLF filed the sole brief in April 2010. The case was argued in May 2010 and decided in September 2010.
Mountain States Legal Foundation, founded in 1977, is a nonprofit, public-interest law firm dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system freedom. Its offices are in suburban Denver, Colorado.