Due Process Requirement
The following are case studies collected from the 18 tribes implementing SDVCJ as of March 2018.
The defendant was a non-Indian with a record of previous arrests for domestic assault. Tribal police arrived to find the defendant holding a knife. The defendant allegedly struck the victim in the face, resulting in a nose bleed, swelling, and marks on her face. According to the victim, this was not the first time the defendant assaulted her.
The victim was pregnant with the defendant’s child at the time of the assault, and the assault was witnessed by the victim’s two daughters, who were the ones who ran for help.
The defendant was arrested and the Tribal Court immediately issued an automatic Protection Order.
It was noted in the report that during transport to jail, the suspect stated multiple times that if he was going to jail “the next time, there would be more blood.”
The defendant pled guilty to a one year jail sentence and two years of probation. Though most of his incarceration was initially suspended, due to probation violations he ultimately spent nearly a year behind bars. As part of his probation he was required to take batterer intervention courses, undertake community service, and abide by the terms of the court’s Protection Order.
The defendant is married to a tribal member and is the father of three tribal member children. Defendant was arrested and charged with domestic assault after he severely beat his wife in front of their three children. The victim was hit and then pushed to the ground where the defendant proceeded to kick her repeatedly and then broke a beer bottle over her head. The victim was so severely beaten she had to take medical leave from her job. Defendant pled guilty in tribal court and is serving a sentence which includes a mandatory batterer intervention course.
An elderly grandmother lived with her minor granddaughter on the Pascua Yaqui Reservation. The granddaughter began dating a non-Indian. After a time, the grandmother came to fear that her granddaughter’s boyfriend would physically harm her and filed for a Protection Order from the Pascua Yaqui Tribal Court. Before the boyfriend could be served, he violated the terms sought by the grandmother. Had the Protection Order been in place, the Pascua Yaqui tribe would have prosecuted the boyfriend for violating the Protection Order. He was later arrested by the state for a separate incident involving the daughter.
An Indian woman was assaulted and raped by the non-Indian father of her children. The couple’s 8-year old son disclosed in his statement to police that he was “punched in the face” by his father. This incident, the latest in a long history of abuse, resulted in charges of Assault in the First Degree Domestic Violence and Rape Domestic Violence, but the defendant was not immediately apprehended. Based on the conduct alleged, the victim petitioned for a protection order, which was granted. Prior to defendant’s arraignment on the violent crimes, he was served with, and twice violated, the Protection Order. At the scene of these violations, the defendant was taken into custody. The defendant had nineteen contacts with Tulalip Police prior to these incidents. However, after the implementation of SDVCJ, the defendant was finally held accountable for his crimes. The defendant served a significant jail sentence and is now supervised by Tulalip Probation. He is getting the treatment he needs. The victim and her children were finally able to make a life for themselves away from the violence and abuse.
In 2014, a non-Indian man attacked his Indian wife in a public parking lot of a gas station. During the assault in the car, he also bit her. When she ran out of the car and rushed into a women’s restroom to seek shelter, he followed her and continued to assault her. The police were called, and tribal and state officers arrived at the scene. In any other case, the man would have been arrested and charged. However, because the assault took place on the Sisseton-Wahpeton Oyate’s reservation land and the defendant was a non-Indian, only the federal government had jurisdiction. So, the tribal and state police who responded did the best they could do. They held the man in custody and painfully told the woman all they could do is try to “give her a head start.”
The defendant, a non-Indian, Hispanic male, was charged with Domestic Violence Assault and Domestic Violence Threatening and Intimidating. On March 4, 2015, the defendant was arrested for threatening to harm his live-in girlfriend and mother of his six children. In this instance, a relative of the victim witnessed the defendant dragging the victim by her hair across the street back towards their house. The defendant pled guilty to Domestic Violence Assault and was sentenced to over two months of detention followed by supervised probation and domestic violence counseling. The defendant had at least seven prior contacts with Pascua Yaqui Law Enforcement and three felony convictions out of Pima County, Arizona. This was the defendant’s second domestic violence conviction, and the first on the Pascua Yaqui Reservation. Because of the tribal conviction, if the defendant reoffends, he will now be eligible for federal domestic violence prosecution as a habitual offender.
The defendant, a male in his 50s, moved to the area for a job during a recent oil boom. He met and began dating a tribal member, and then moved into her reservation residence after his job ended. He lived there for three to four years.
Tribal police responded to a call about a domestic disturbance. They found that the defendant had been beating his girlfriend with a wooden stick and threatened to kill her. He was arrested by tribal police. The victim was treated for severe bruising across her legs and head—one of her eyes was completely swollen shut. This became Fort Peck’s first SDVCJ case.
While the defendant was in jail awaiting trial, tribal police were informed that he had an outstanding state warrant for drug trafficking. His state appointed public defender, who was already licensed to practice in tribal court, was able to serve as defense counsel in both cases. The defendant remained in jail awaiting trial until he was released on bond several months later. However, the victim passed away several months after the defendant was released on bond, and the case was dismissed. The prosecution stated that it was impossible to prove the case without the victim’s testimony. The defendant currently has additional state warrants for drug trafficking.
The first jury trial for a SDVCJ case was a domestic violence assault involving two men allegedly in a same-sex relationship. The defendant was acquitted by the jury. Interviews with the jurors suggest that the jury was not convinced that the two individuals had a relationship that would meet the requirements for tribal jurisdiction under VAWA 2013. There was no question that the assault occurred. In fact, if the defendant had been an Indian, the prosecutor would not have had to prove any particular relationship between the offender and the victim. But SDVCJ is limited to the specific crimes of domestic or dating violence, both of which require a particular relationship. After his acquittal, the non-Indian defendant was subsequently extradited to the State of Oklahoma on an outstanding felony warrant—a warrant that was only uncovered during the course of the investigation and would not have been found if the tribe had not implemented SDVCJ.
The defendant, a non-Indian woman, is married to a member of the Alabama-Coushatta Tribe of Texas and, through that marriage, is the mother of five tribally enrolled children. One evening the defendant used methamphetamine and started hitting her husband. Later she tried to hit him again, and he also became violent. Both parents were arrested on separate counts of assault and possession. The defendant spent three days in jail sobering up, and the children were placed with family members.
The tribe charged her with family violence and she was appointed counsel. If the defendant was prosecuted in state court, she likely would have faced an additional drug possession charge, and been given a longer sentence given her criminal record. However, the tribe was determined to keep the case in tribal court so they could focus on holding her accountable while also getting her the help she needed so she would not reoffend. The defendant is the mother of tribal children, and a member of the community. The tribe was able to use additional resources and work closely with her and her family to get her appropriate mental health services and drug rehabilitation services. She ultimately took a plea deal that required her to attend rehab, and then placed her on probation where she was required to follow her doctor’s instructions, and to attend mental health, anger management, and batterer intervention counseling. All of her substance abuse and mental health supports work in conjunction with the work services she completes through child protective services with the goal of getting her children back. The defendant is drug tested every month, and has not failed a single one of her drug tests.
On October 21, 2014, during an argument with his girlfriend, a male non-Indian defendant ripped her clothes off, pushed her to the bed, and strangled her while a comforter was over her face, all while repeatedly delivering death threats. All of this occurred in front of their infant child. The police found the victim with scratch marks on her neck and in such fear that she was only partially dressed, hyperventilating, and unable to maintain balance. The defendant is an Iraq war veteran who suffers from PTSD, and he reportedly missed taking his medication immediately preceding the assault. He wished to take responsibility at arraignment; however, the Tribe suggested that they appoint him an attorney. After being appointed an attorney, the defendant ultimately pled guilty to felony DV assault with terms consistent to what he would see if prosecuted by the State. Specific terms include compliance with his VA treatment recommendations and completion of a tribally funded 12-month batterer intervention program.
A female tribal member employed at the tribal casino was working one evening. Part of her duties included fixing slot machines if they jammed or otherwise malfunctioned. A group of non-Indian male patrons were intoxicated and began making harassing and sexual comments to the employee. She ignored the comments and proceeded to fix the slot machines. The male patrons became more disruptive and were about to be removed by casino security. As one of the men was being escorted out of the casino, he grabbed the female employee by her genitals and squeezed. All of this was caught on surveillance video and the employee wanted charges to be filed. According to all accounts, she had never met this man before this instance of sexual assault. Because VAWA is limited to intimate partner violence and there was no prior relationship, the Tribal Court lacks jurisdiction. Pascua Yaqui has a good working relationship with the local U.S. Attorney’s Office (USAO) and has referred the case to them. The USAO has a tremendous amount of discretion, however, and should they decide to decline charges, the offender will avoid prosecution.
The defendant had criminal convictions before he moved to the Sault Ste. Marie Reservation. The defendant entered into an intimate relationship with a tribal member. Sometime thereafter, the defendant began making unwanted sexual advances on his girlfriend’s 16-year-old daughter. The defendant sent inappropriate texts to the daughter, would stand outside the windows of their home, and on one occasion groped the daughter and then told her she could not tell anyone about it.
The tribe charged the defendant with domestic abuse, attempting to characterize his actions toward the daughter as tied to the relationship with the mother and thus within SDVCJ, but the tribal judge dismissed the case as beyond the court’s jurisdiction.
Two months after the failed prosecution, the girlfriend filed for a temporary ex parte Protection Order for her and her daughter—a violation of which would protect both under SDVCJ. However, the girlfriend could not meet the burden of proof that she was under a threat of irreparable harm in the time before the court could schedule a hearing. When it came time for a hearing on her petition, the girlfriend failed to appear and so her petition was dismissed. When the court served the defendant with notice of the hearing, he was found to be living in a van parked just next to a tribal neighborhood with a large number of low income families.
Four months later, the defendant was arrested and charged by city police with three counts of criminal sexual conduct, one count of attempted criminal sexual conduct, one count of child sexually abusive activity, one count of using a computer to commit a crime, and one count of using a computer network to commit a crime.
The alleged incident involves a barely 14-year-old girl who was a tribal member and resided on the Sault Ste. Marie Reservation. Defendant allegedly contacted her online and then kidnapped and held her in an off-reservation motel, repeatedly raping her over the course of 12 hours. Defendant pled not guilty and the case is currently pending in state court.
According to Jami Moran, director of the tribe’s Advocacy Resource Center: “Had our tribe had jurisdiction to maintain court authority over the alleged non-Native perpetrator for the first incident, this second act of violence may have been prevented. This child’s life will never be the same.”
At 2:00 a.m., the tribal police were called to a domestic violence incident involving a non-Indian man. Methamphetamines were found on the premises, and tribal police requested an oral search warrant from the tribal judge to perform a urine analysis on the non-Indian. While being under the influence could be relevant to a DV investigation, the tribal judge ruled against issuing the search warrant. Some state case law has held that tribal police lack the authority to investigate crimes where they do not have jurisdiction, and the judge did not want to compromise a potential state case for drug possession.
The defendant was arrested for domestic assault, and was a repeat offender. When law enforcement arrived, the defendant was intoxicated. He attempted to then run away from the police. Despite his intoxicated state, the defendant got into his car and tried to drive away, but ran into his neighbor’s fence. If Umatilla had jurisdiction to charge him for the DUI and destruction of property tied to his DV arrest, they would have been able to charge and convict him quickly and easily given the evidence. They may have also been able to use the additional charges as leverage to secure a plea on the domestic violence crime. However, the tribe was only able to charge him with the domestic assault, which is the charge that put the most pressure on the victim to testify as a witness.
Over the eight months the tribe spent prosecuting him for the assault, the victim went back and forth multiple times about whether to testify. During the incident, the victim suffered a severe concussion, which caused long term side effects she still experiences to this day.
The defendant was eventually sentenced to 24 months, one month in custody, 23 months suspended sentence, and then three years probation.
The defendant assaulted his dating partner, a tribally-enrolled female, by striking and strangling her. When officers arrived he was subdued, but threatened to kill the officers and to come back with a gun and shoot up the reservation. In custody, he struck a jailer (another enrolled tribal member), causing bruising and a split lip. His likely mental health issues, coupled with his assault on enrolled members and his threats against law enforcement officers, which the tribe could not charge, led to the decision to refer the case to federal prosecutors. The defendant pled guilty to assault by strangulation in federal court and received a 37 month sentence. The assault on the jailer and the threats of retaliation against the officer were dismissed.
The defendant was a non-Indian male, married to a tribal member. Law enforcement responded to a call of a domestic disturbance. When law enforcement arrived, they found the defendant reaching into a vehicle to take the keys from his wife as she was attempting to leave. He then reached for his belt and proceeded to have a scuffle with the police. He was originally arrested for domestic violence, after law enforcement was able to subdue him. At the defendant’s first mandatory court appearance, he tried to walk out of the court room in the middle of court proceedings, constituting direct contempt of court. There was a second incident of domestic violence, and he was again arrested. The tribal court convicted him of two counts of domestic violence.
He was ultimately charged in federal court for both domestic violence crimes as well as for forcibly assaulting, resisting, opposing, intimidating, and interfering with the tribal police officer. He pled guilty to two counts of domestic abuse and one count of failure to appear.
A non-Indian boyfriend, engaged in a three day methamphetamine bender, refused to let his Indian girlfriend and her children leave the home or use the phone. Over the course of several days, the man repeatedly assaulted and threatened his girlfriend, including strangling her with a pipe, throwing knives at her, and threatening to burn down the house with her children inside. Because of the severity of the violence, and because SDVCJ does not provide accountability for the crimes committed against the children, the case was referred to the U.S. Attorney for prosecution. The Tulalip Tribal Prosecutor, who is also designated as a Special Assistant U.S. Attorney, was able to assist with the prosecution. The judge in the case noted that the victim suffered “an extended period of hell on earth” and sentenced the defendant to nearly 6 years in prison.