Yakima, Klickitat counties concerned about Yakama Nation retrocession petition

By Kate Prengaman, Yakima Herald-Republic

As the federal government moves toward approving the Yakama Nation’s retrocession petition — which returns civil and criminal jurisdiction over tribal members on the reservation from the state back to the tribe — officials in Yakima and Klickitat counties are concerned that some questions remain unanswered.

In Klickitat County, commissioners want to know how retrocession would affect a long-standing boundary dispute, and officials in Yakima County want to ensure there’s a formal plan detailing how tribal and local law enforcement agencies will work together once the retrocession is approved.

The concerns arose, in part, because retrocession is rare. The Yakama Nation was the first tribe to propose it since state lawmakers approved the process in 2011 and Gov. Jay Inslee signed the retrocession proclamation in January 2014.

The Yakama Nation’s leaders and Inslee praised it as a strong step toward greater sovereignty for the tribe to regain authority over its people.

It’s known as retrocession because it returns certain criminal and civil authorities to the tribal government that the state took over in 1963 under a federal law known as Public Law 280.

Once approved by the Secretary of the Interior, tribal police and tribal courts would have jurisdiction over issues involving tribal members on the reservation while the state would retain its authority over all criminal cases involving nontribal members.

It sounds straightforward, but the details get complicated quickly.

Since the 1.2 million-acre reservation is actually a patchwork of tribal trust land, incorporated towns and lands within the reservation that are owned by nontribal members, it’s likely to create logistical challenges for law enforcement.

Yakima County Commissioner Kevin Bouchey said the county, along with the cities of Toppenish and Wapato, are worried that the petition might be approved before law enforcement protocols are agreed upon.

“We’re not opposed to the petition, we just want to figure out the details before the Secretary of the Interior signs off on it, rather than after the fact,” Bouchey said. “It comes down to public safety for tribal members and nontribal members on the reservation and we need an established working relationship to do that.”

Klickitat County Commissioner David Sauter echoed Bouchey’s concerns. Development of this type of formal agreement between law enforcement agencies is encouraged in the state’s retrocession law, but is not required.

Bouchey said the county has drafted a letter expressing its concerns to the Bureau of Indian Affairs (BIA), which it plans to send this week.

A spokeswoman for the federal agency confirmed in an email that the petition is under review by the BIA with input from the Department of Justice, but did not offer any details. Request for comment from the Yakama Nation’s Tribal Council was not returned.

Klickitat County leaders sent their letter to BIA Secretary Ken Washburn in April to request clarification on how the governor’s proclamation defines the exterior boundaries of the Yakama Reservation. Sauter recently traveled to Washington, D.C., to discuss the issue with the agency and Washington’s elected officials as well.

The county’s concern centers on a disputed 95,000 acres of land to the southeast of Mount Adams that is known as “Tract D.” It includes Glenwood, an unincorporated community of about 700.

The Yakama Nation has long claimed the land as within its boundaries, including in its published maps. But Klickitat County officials say the land has clearly been in the county’s jurisdiction under state and federal law for more than 100 years.

The concern for Glenwood residents is that the retrocession proclamation says it applies to everything within the reservation’s boundaries, and the county wants reassurance that the state and federal interpretation of those reservation boundaries doesn’t change, said Klickitat County Prosecuting Attorney David Quesnel.

“There’s been issues going on for years, like the disputes over liquor licenses a few years ago, because the tribe has taken the position that Tract D is within its exterior boundaries,” Quesnel said. “We want to make it abundantly clear that Tract D would not be included.”

Glenwood-area residents told the Goldendale Sentinel that they didn’t want to have to go to the Yakama Nation’s Tribal Court to get divorced or to deal with traffic tickets or criminal charges.

But those concerns appear unfounded because the retrocession proclamation only returns jurisdiction over tribal members to the tribe, it doesn’t give the tribe authority over nontribal members, said Yakima County civil prosecutor Terry Austin.

The exceptions would be for civil matters such as domestic relations or juvenile delinquency for families in which one parent is a tribal member. Then, either the tribal court or state courts could decide the case.

As far as the boundary dispute, a spokeswoman for the governor’s office said the retrocession proclamation deals only with jurisdiction and does not in any way change existing reservation boundaries. In fact, the governor does not have the authority to change reservation boundaries, which is a federal issue.

In a 2000 federal court case over the Yakama Nation’s attempts to ban alcohol sales on the reservation, the state argued that “Tract D was not historically considered to be within the surveyed boundaries of the Yakama Reservation” and the state does not recognize it as being within the exterior boundaries.

The court later threw out the tribe’s attempts to ban alcohol sales in the reservation’s incorporated towns where a majority of the nontribal residents live, limiting the tribe’s authority to regulate nontribal members.

The retrocession petition also keeps existing limits on the tribe’s authority over reservation residents who are not tribal members, but expands its ability to self-govern. Once the details get worked out, county officials say they support that.

“They have a right to self-regulation and we’re not trying to interfere with that; we just want clarification,” Quesnel said.

Department of Justice Releases Second Report to Congress on Indian Country Investigations and Prosecutions

By Yuma News Now

Washington, DC – The Department of Justice released today its second report to Congress entitled Indian Country Investigations and Prosecutions, which provides a range of enforcement statistics required under the Tribal Law and Order Act of 2010, as well as information about the progress of the Attorney General’s initiatives to reduce violent crime and strengthen tribal justice systems.

The report, based on data compiled from the case management system used by U.S. Attorney’s Offices (USAO), shows prosecutors in 2013 continued to bring substantial numbers of cases to federal court (a 34 percent increase over FY 2009 numbers) and prosecute a substantial majority of all cases referred to them.   Of the cases that were declined for federal prosecution, most were declined for insufficient evidence or because they were referred to another prosecuting authority, such as the tribe, for potential prosecution.

“As detailed in this report, the Department of Justice is making good on our commitment to strengthen cooperation with sovereign tribes, reduce violent crime, and ensure justice for every individual,” said Attorney General Eric Holder.  “From our work to empower Indian women under the landmark Violence Against Women Reauthorization Act, to the task force we established to safeguard children in Indian country from violence and abuse, we have made significant strides – in close partnership with tribal nations – to bolster the safety and security of all American Indian and Alaska Native communities.   As we move forward, we will continue to expand on this critical work; to deepen our ongoing efforts; and to reaffirm our dedication to the promise of equal rights, equal protection, and equal justice for all.”

Although declination rates are an imperfect means of evaluating the effectiveness of criminal justice in Indian country or elsewhere, the report shows that with few exceptions, areas where the largest populations of American Indian people live and suffer from the most serious crime rates, such as the Southwest and the northern plains states (which together handled approximately 70 percent of the 2,542 cases resolved in 2013), federal declination rates were the lowest in the nation.   For instance, South Dakota had the second to highest number of cases resolved in the country last year, 470 cases, and one of the lowest declination rates of 26 percent.   Arizona resolved the highest number of cases, 733 cases, and had a declination rate of 28 percent.

Associate Attorney General Tony West announced the findings in remarks to the Four Corners Indian Country Conference today on the Navajo Nation in Flagstaff, and met separately with the Attorney General’s advisory subcommittee on Native American issues to discuss the report, among other matters.

“We are witnessing an unprecedented era of collaboration among U.S. Attorneys’ offices and tribal law enforcement and prosecutors across the country,” said Associate Attorney General West.   “This report shows the fruits of this continuing partnership between the federal government and American Indian tribes, including enhancing training and capacity building for tribal court systems and improving responses to victims in Indian country.”

“Over the past five years, the Justice Department and our tribal partners have taken important steps forward on our journey toward a safer Indian Country,” said Timothy Purdon, U.S. Attorney for the District of North Dakota and chair of the Attorney General’s advisory subcommittee on Native American issues.   “Vigorous enforcement of federal laws is vitally important to strengthening public safety on American Indian reservations.   We are pleased to see in this report that U.S. Attorney’s Offices across the country continue to work hard to remove the most dangerous offenders and work closely with tribal law enforcement and prosecutors.  These promising numbers are the direct result of this enhanced communication and collaboration.”

“The FBI continues to be committed to public safety in Indian Country,” said FBI Assistant Director Joseph S. Campbell. “Our partnership with federal, state, local, and tribal agencies remains strong as we continue to aggressively address violent crime and victimization in tribal communities.”

The information contained in the report shows the following:

  • The Justice Department’s prioritization of Indian country crime has continued to result in substantial numbers of prosecutions, despite resource constraints that impacted the U.S. Attorney community in 2013.   Between FY 2009 and FY 2012, the number of cases the department filed against defendants in Indian country increased nearly 54 percent.   In FY 2013, due to fiscal challenges, overall case filings in Indian country declined somewhat compared to FY 2012, but still remained 34 percent above the number of cases filed when the department first began its department-wide tribal justice initiative in 2009.   Notwithstanding the fiscal impact of the sequester, reduced budgets, and a hiring freeze, federal agents and prosecutors continued to focus their efforts on improving public safety in Indian country.
  • A substantial majority of Indian country criminal investigations opened by the FBI were referred for prosecution.
  • A substantial majority of Indian country criminal cases opened by the United States Attorneys’ Offices were prosecuted.
  • USAO data for CY 2013 show that 34 percent (853) of all Indian country submissions for prosecution (2,542) were declined for prosecution.   In CY 2012, USAOs declined approximately 31 percent (965) of all (3145) Indian country submissions for prosecution.   USAO data for CY 2011 indicate that just under 37 percent (1,041) of all Indian country submissions for prosecution (2,840) were declined.
  • The most common reason for declination by USAOs was insufficient evidence (56 percent in CY 2013, 52 percent in CY 2012, and 61 percent in CY 2011).
  • The next most common reason for declination by USAOs was referral to another prosecuting authority (21 percent in CY 2013, 24 percent in CY 2012, and 19 percent in CY 2011).

The most common reason FBI Indian country investigations were closed administratively without referral for prosecution was that the investigation concluded that no federal crime had occurred.

  • For instance, all but 30 of the 164 death investigations the FBI closed administratively in CY 2013 were closed because the FBI established that the death was due to causes other than homicide – i.e., accidents, suicide, or death from natural causes.

Other important developments in FY 2013:

VAWA Pilot Projects

The fight against domestic violence in Indian country has been an especially important priority for the Department of Justice, and in 2013, Congress and this administration took an historic step forward with the passage of the Violence Against Women Reauthorization Act of 2013 (VAWA 2013), which the President signed into law on March 7, 2013.

Congress, in VAWA 2013, provided new tools to fight domestic violence in Indian country, and the department spared no time utilizing them.   From the date the act took effect, March 7, 2013, through the end of fiscal year 2013, U.S. Attorneys with prosecutorial responsibilities in Indian country have charged defendants with the amended provisions of the federal assault statutes that strengthened penalties for domestic assault offenses, such as strangulation and stalking.   And, while the new law’s tribal criminal jurisdiction provision takes effect generally on March 7, 2015, under VAWA 2013’s “Pilot Project” provisions, the department recently approved three tribes’ applications voluntary “Pilot Project” to begin exercising special domestic violence criminal jurisdiction sooner.   These tribes – the Pascua Yaqui Tribe of Arizona, the Umatilla Tribes of Oregon, and the Tulalip Tribes of Washington – will be the first tribes in the nation to exercise special criminal jurisdiction over crimes of domestic and dating violence, regardless of the defendant’s Indian or non-Indian status, under VAWA 2013.

Strengthening Partnerships and Support for Tribal Self-Governance

Strengthening partnerships and tribal self-governance was a major theme of the Attorney General’s message to tribal leaders on Nov.13, 2013, at the White House Tribal Nations Conference, where he announced a proposed statement of principles   to guide the department’s work with federally recognized tribes.   As the Attorney General said, “ As a result of these partnerships – and the efforts of everyone here – our nation is poised to open a new era in our government-to-government relationships with sovereign tribes.”

U.S. Attorneys’ offices around the country are engaged in an unprecedented level of collaboration with tribal law enforcement, consulting regularly with them on crime-fighting strategies in each district.   One important example of this is the department’s enhanced Tribal Special Assistant U.S. Attorney (SAUSA) program.   Tribal SAUSAs are cross-deputized tribal prosecutors who are able to prosecute crimes in both tribal court and federal court as appropriate.   These Tribal SAUSAs serve to strengthen a tribal government’s ability to fight crime and to increase the USAO’s coordination with tribal law enforcement personnel.   The work of Tribal SAUSAs can also help to accelerate a tribal criminal justice system’s implementation of TLOA and VAWA 2013.

Read the entire report at www.justice.gov/tribal/tloa.html

Read about the Justice Department’s efforts to increase public safety in Indian County at www.justice.gov/tribal/accomplishments.html