3) Implementation Revealed Serious Limitations in the Law
3-1. The statute prevents tribes from prosecuting crimes against children
3-2. The statute prevents tribes from prosecuting alcohol and drug crimes
3-3. The statute prevents tribes from prosecuting crimes that occur within the criminal justice system, thereby endangering law enforcement and undermining the integrity of the system
3-4. There was initial confusion concerning the scope of the federal statutory definition of “domestic violence”
3-5. SDVCJ is prohibitively expensive for some tribes
3-6. Detention issues and costs create implementation challenges
3-7. SDVCJ is jurisdictionally complex
Though SDVCJ has allowed the implementing tribes some measure of recourse to stop non-Indian violence in their communities and on their lands, the narrowness of SDVCJ is a continual source of frustration for the implementing tribes. SDVCJ was intended to apply only in cases of protection order violations, domestic violence, and dating violence. Other crimes of violence against women, including stalking, sexual assault by a stranger or acquaintance, and sex trafficking, for example, are not included. The omission of other common forms of violence against women is a continuing source of frustration for implementing tribes.
Case from the Pascua Yaqui Tribe
Tribe is unable to charge workplace sexual assault
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.
In addition, the implementing tribes are unable to prosecute non-Indians for many of the crimes that co-occur with domestic violence—thereby limiting how effectively tribes can prosecute non-Indian domestic violence offenders. Tribal prosecutors have described this as being forced to prosecute these crimes with one hand tied behind their backs. Tulalip Tribal Prosecutor Sharon Jones Hayden has explained, “These cases do not happen in isolation. We don’t get a slap and then run away. There are attendant, and related, ancillary—whatever word you would like to use—crimes that occur in almost all of these situations. It is extremely rare for me to charge just one count in a domestic violence related offense.” Non-SDVCJ crimes committed by defendants that are tied to their SDVCJ crimes, or that they committed while being arrested or in custody for an SDVCJ crime, remain outside tribal jurisdiction. In many cases, the inability to prosecute other crimes interferes with the tribe’s ability to prosecute their SDVCJ cases effectively, leaves them unable to hold offenders accountable for criminal conduct not covered by SDVCJ, and results in a criminal history that may not accurately reflect the magnitude of the crimes committed.
In the years since SDVCJ took effect nationwide, there has been increased discussion about amending the law to improve its effectiveness. Several bills have been introduced in Congress that would add additional categories of criminal conduct to the existing framework.
“Although tribal efforts to implement [SDVCJ] have been impressive, actual tribal experience prosecuting cases under [SDVCJ] has revealed … significant gaps in the federal law.” —Tracy Toulou, Director of the Office of Tribal Justice, U.S. Department of Justice Testimony before the Senate Committee on Indian Affairs
Additionally, the DOJ supports amendments to address some of the gaps revealed through the experiences of the implementing tribes. NCAI has passed a resolution concluding that, to fully protect Native women, full territorial criminal jurisdiction should be restored.
The implementing tribes have consistently highlighted three kinds of crimes that are currently outside the scope of SDVCJ, but that have caused significant problems for them in exercising SDVCJ: crimes against children, drug and alcohol crimes, and crimes that occur within the criminal justice process. According to the Pascua Yaqui Tribe, which has the highest number of arrests, if they were able to prosecute offenders for these ancillary crimes, they would have an additional one charge per case, at a minimum.
“In reservation attorneys’ offices and tribal court houses throughout the United States when VAWA was passed, there was celebration like you wouldn’t believe…what we didn’t realize then…was how it’s really just a little tiny down payment on a much bigger issue that needs to be addressed.” —Sharon Jones Hayden, Tulalip Prosecutor & Special Assistant U.S. Attorney
Many of the tribes report that children are usually involved as victims or witnesses in SDVCJ cases. These children have been assaulted or have faced physical intimidation and threats, are living in fear, and are at risk for developing school-related problems, medical illnesses, post-traumatic stress disorder, and other impairments. However, SDVCJ currently only applies to crimes committed against romantic or intimate partners or persons covered by a qualifying protection order. The common scenario reported by implementing tribes is that they are only able to charge a batterer for the times he hit the mother, and can do nothing about the times he hit the kids. Instead, they are only able to refer these cases to state or federal authorities, who may or may not pursue them.
58% Incidents Involved Children
The inability to prosecute crimes against children decreases the charging power available to prosecutors, and also decreases the protections available to abused children because they are not considered ‘victims’ in these cases.
Case from Sault Ste. Marie Tribe
Child sexual predator evades tribal prosecution and is subsequently arrested by the county for raping a young girl
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.”
This frustration is further compounded by the prevalence and severity of this problem. According to the DOJ, American Indian and Alaska Native children suffer exposure to violence at rates higher than any other race in the United States. Native youth are 2.5 times as likely to experience trauma compared to their non-Native peers. This violence has immediate and long term effects, including: increased rates of altered neurological development, poor physical and mental health, poor school performance, substance abuse, and overrepresentation in the juvenile justice system. Unfortunately, American Indian and Alaska Native Children experience posttraumatic stress disorder at the same rate as veterans returning from Iraq and Afghanistan and triple the rate of the general population. Nationally, almost 1/3 of the American Indian and Alaska Native population is under 18, compared to approximately 1/4 of the total U.S. population. This trend is reflected by the implementing tribes, where the percent of their residents under 18 is consistently high. Sault Ste. Marie and Pascua Yaqui, two implementing tribes with a high number of SDVCJ cases, have close to 40 percent of their population under the age of 18. Pascua Yaqui alone identified 38 children who have been involved in their cases as either witnesses or victims.
Another frequent presence in many of the SDVCJ cases is alcohol or controlled substances. Unfortunately, the tribes are unable to charge the defendants with any co-occurring drug and alcohol crimes. Some tribes reported that this greatly decreases their ability to get appropriate sentences or plea bargains from offenders, because they are unable to include the possession or intoxication charges as a part of negotiations with the defendants and their attorneys. Additionally, the complication of having state or federal jurisdiction crimes intertwined with these cases can interfere with full investigation or prosecution.
51% Incidents Involved Drugs or Alcohol
Case from the Sisseton-Wahpeton Oyate
Potential State drug case interferes with Tribe’s willingness to pursue DV investigation
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.
Case from the Confederated Tribes of the Umatilla Indian Reservation
Tribe cannot prosecute DUI case, and prosecutor is unable to use DUI charges to leverage plea bargain
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 narrow scope of criminal conduct that can be charged under SDVCJ not only prevents the tribe from ensuring that defendants are being charged for all of their crimes, but also has created a real safety concern for some tribal law enforcement. Domestic violence calls are the most common type of call that a law enforcement officer responds to, and also the most dangerous. If a tribal law enforcement officer is assaulted by an SDVCJ suspect, the tribe has no jurisdiction to charge the suspect for this crime. Instead, the case must be treated as a separate case and referred to another jurisdiction, which may or may not swiftly prosecute the SDVCJ offender for that assault. The same is true if the defendant assaults the bailiff in the courtroom, commits perjury, intimidates a witness, or commits a crime in a tribal detention facility. Rather than a swift additional charge being added to the defendant’s case, crimes committed in custody are instead put into a slow referral process that is further complicated by the jurisdictional landscape. Several tribes have described this situation as making them feel like they are unable to protect their law enforcement officers and other criminal justice professionals in the line of duty.
Case from the Eastern Band of Cherokee Indians
Serious DV assault leads to threatened mass shooting as well as assault and threats against tribal law enforcement
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.
Case from the Sisseton-Wahpeton Oyate
Defendant assaults tribal police officers and walks out of tribal court
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.
Special Domestic Violence Criminal Jurisdiction (SDVCJ) under 25 U.S.C. § 1304 for both “dating violence” and “domestic violence” is limited to “violence committed by a person” who has a qualifying relationship with the victim. The implementing tribes have struggled with determining what constitutes sufficient “violence committed” to support tribal jurisdiction. This confusion stems largely from the Supreme Court decision in United States v. Castleman, 134 S. Ct. 1405 (2014), which was issued during the Pilot Project Period for tribal SDVCJ. With this timing, it was widely noted that both the majority opinion and Justice Scalia’s concurrence included footnotes referencing the definition of the term “domestic violence” under the new federal law, 25 U.S.C. § 1304.
The Castleman decision involved a separate question under 18 U.S.C. § 922(g)(9), a federal law that forbids the possession of firearms by those convicted of “misdemeanor crimes of domestic violence.” The question before the Court in Castleman was whether the “physical force” prong of the definition of “misdemeanor crime of domestic violence” under 922(g)(9) is satisfied by offensive touching or if a more substantial degree of “force” is required. The majority held that Congress intended to incorporate common law misdemeanor domestic violence offenses, which include offensive touching. In a concurrence, Justice Scalia argued that the literal meaning of “violence” should apply, and that a substantial degree of force is needed. The majority, however, distinguished “domestic violence” as a term of art from “violence” standing alone, which they agreed would “connote a substantial degree of force.” Scalia cited to the definition of “domestic violence” under 25 U.S.C. § 1304 as an example of a statute that defines “domestic violence” as “violence” and does not include offensive touching and other non-violent forms of abuse. The majority opinion agreed—in dicta—that its broader view of “domestic violence” as a term of art likely does not extend to a provision that specifically defines “domestic violence” by reference to generic “violence.”
The discussion of the VAWA statute by the Justices in dicta raised questions about the scope and severity of “violence committed” required for crimes that can be charged by tribes who have implemented SDVCJ under VAWA.
The technical assistance team, in consultation with the DOJ, has provided guidance to the ITWG about what type of conduct likely constitutes “violence committed” for SDVCJ purposes. In that guidance, technical assistance providers advised that relying on the common understanding of the term “violence” in ordinary language, and the legal definition of “crime of violence” found at 18 U.S.C. § 16(a), it seems clear that, if the defendant’s conduct involved the reckless or intentional use, threatened use, or attempted use of force capable of doing injury to the victim or the victim’s property, then it constitutes “violence” under § 1304.
However, several of the tribes who have implemented SDVCJ report that the Castleman decision had an immediate impact on their charging decisions. There have been several cases where the tribe felt it could not prosecute conduct that clearly fit within the tribe’s domestic violence statutes based on the dicta in Castleman and dismissed the case only to have the offender subsequently reoffend with a more serious crime. Tulalip Tribal Prosecutor Sharon Jones Hayden has described the issue saying, “At Tulalip, it is against the law to prevent somebody from calling for help in relation to a domestic violence crime. So if he grabs her cell phone and throws it out of her reach, she can’t get the help she needs. But, we can’t prosecute that crime either because it is not a ‘violent’ crime.” Some other tribes have cautiously chosen to prosecute only those crimes that involve clear physical assaults, even though this would not be required to support a domestic violence charge under tribal law. The Pascua Yaqui Tribe’s public defender has filed several motions to dismiss on the grounds that the tribal lacked jurisdiction because the conduct alleged was not sufficiently violent.
The tribal prosecutors and victim advocates report that SDVCJ would be more effective if it is amended to further clarify that Indian tribes possess the authority to prosecute a non-Indian for the types of offenses that often occur in the cycle of domestic abuse that may or may not involve physical force, but are nonetheless harmful to victims.
Case from the Pascua Yaqui Tribe
Tribe declines to prosecute attempted assault
A woman called the police to remove her highly intoxicated partner from her home. The defendant returned an hour later. He was so intoxicated that when he swung to punch the victim, he missed and fell to the ground. Although the conduct at issue is undoubtedly violence under federal law, in the wake of the Castleman decision, the tribal prosecutor declined to prosecute because there was no actual physical contact, and they were concerned the incident did not meet the definition of domestic violence in the federal law. The defendant subsequently assaulted the victim again and was arrested.
While over 50 tribes have been actively participating in the ITWG, as of March 2018, only 18 tribes have implemented the law. The primary reason tribes report for why SDVCJ has not been more broadly implemented is a focus on other priorities and a lack of resources. During and beyond the implementation phase, tribes need funding, access to resources, and services to support implementation.
A lack of resources is one of the burdens facing many tribes. According to the U.S. Commission on Civil Rights, “[t]ribal justice systems have been underfunded for decades,” and revising tribal codes and then ultimately taking on additional cases comes with a set of both predictable and unforeseen costs for tribes. The Pascua Yaqui Tribe has described the costs this way:
In addition to the direct costs of complying with the prerequisites (indigent defender systems, jury trials, incarceration, etc.), substantial indirect costs are also likely to be required. For example, who will review and propose changes to your laws and procedures? Who will train law enforcement, prosecutors, judges, court staff and defense counsel on the new laws and procedures and how they work? What funding will be required to make these changes? To pay for any additional prosecutors, judges, defense counsel, and court staff? To pay to publish the laws and regulations? To process the licensing and educational requirements? To implement the jury selection process? To pay for incarceration? Where will these funds come from? Is that source of funding stable and reliable?
Tribes with fewer resources have been able to implement SDVCJ by relying on support from others. Many were able to cut code drafting costs by relying on the codes of the first few implementing tribes as a starting point. Some tribes have also been able to rely on contract attorneys to do the majority of their defense counsel work, thereby minimizing the amount the tribe is required to pay to keep defense counsel on call.
Incarceration costs alone can be significant for the implementing tribes, many of whom contract with nearby county facilities to house their offenders.
Incarceration Costs Range from $32.25-$150+ per day
Average Incarceration Cost - $86 per day
VAWA 2013 authorized $5,000,000 for each of fiscal years 2014 through 2018 for SDVCJ implementation. Over the past two years, OVW has awarded $5,684,939 in competitive grant funds to 14 different tribes to support their implementation of SDVCJ. Only four implementing tribes—Tulalip, Little Traverse Bay Band, Eastern Band of Cherokee Indians, and Standing Rock—have received any of these grant funds. However, none of them have used any of these funds to prosecute. A full list of these OVW grant awards is included in Appendix B.
Detention is an area where many tribes have encountered significant challenges. There are generally four different ways that a tribe may handle detention for inmates sentenced in their courts. The inmates be housed in facilities: 1) operated and funded by the BIA; 2) wholly funded and operated by the tribe; 3) operated by tribal governments with BIA funds provided through 638 contracts or self-governance compacts; or 4) in contract beds at county or private facilities pursuant to a contract with the tribe and paid for with either BIA or tribal funds. Which of these systems is in place ultimately creates different challenges for tribes implementing SDVCJ
If a tribe does not rely on a BIA-operated and funded facility for detention, they will likely incur additional costs for the provision of health care and other services to non-Indian inmates. Tribal and BIA detention facilities general rely on the Indian Health Service (IHS) to provide health care to inmates. This is not usually an option for non-Indian defendants, since they are generally ineligible for care at IHS. Neither the BIA nor the IHS receive appropriated funds for non-Indian correctional health care purposes. Although the federal government provides health care in Bureau of Prisons (BOP) and Immigration and Customs Enforcement (ICE) detention facilities through the use of Public Health Service Commissioned Corps Officers, none of these personnel work in BIA jails. Questions remain about who has the obligation to cover these costs and where health services will be provided. For tribes who have their own corrections facilities, or contract directly with county facilities to arrange for detention, detention-related healthcare costs are a significant challenge.
One of the SDVCJ defendants at Eastern Band of Cherokee Indians, for example, required extensive medical care while in tribal custody, which ended up costing the tribe more than $60,000. These types of costs are simply prohibitive for many tribes, and several ITWG tribes have reported that the uncertainty about health care for non-Indian inmates is why the tribe is not proceeding with implementation of SDVCJ.
OVW allows a limited amount of inmate health care costs to be included in their grant program to support SDVCJ implementation, but few implementing tribes have received these grants.
One Tribe Paid Over $60,000 for One Offender’s Healthcare
SDVCJ has brought to light confusion regarding whether tribal law enforcement and BIA officers have the authority to arrest and detain non-Indian suspects who commit crimes on the reservation. In response to this uncertainty, the BIA issued clear guidance affirming that BIA officers have the authority to temporarily detain all non-Indian offenders, and that BIA officers operating within a tribe implementing SDVCJ are required to enforce tribal law, including arresting and incarcerating SDVCJ defendants.
Despite this guidance, several tribes report that their regional BIA officials insist that BIA facilities cannot house non-Indian offenders. For tribes that rely on the BIA for detention, this presents a significant challenge, and the burden often falls on the tribe to explain the law to the local BIA officials. For tribes who operate pursuant to a 638 contract or self-governance compact, there may be contract provisions in place that prohibit them from housing non-Indians that must be renegotiated.
In other places there simply are no detention options available. For a long time the Sisseton-Wahpeton Oyate ran its jail facility pursuant to a 638 contract with BIA. The facility was abruptly shut down in the fall of 2017. As a result, the BIA recommended that the tribe contract with local county facilities for detention bed space. Chairman Dave Flute has testified, however, that the counties “are overrun and have no space.” As a result, the tribe has had to release offenders on a no cost bond for the sole reason that they do not have anywhere to house them. Chairman Flute has called this “catch and release” and considers it a serious public safety issue.
These challenges demonstrate the need for increased funding, training, guidance, and to ensure that tribes can protect victims by efficiently detaining and incarcerating SDVCJ offenders.
SDVCJ is a very limited recognition of tribal jurisdiction. Navigating the boundaries of these new limitations has proven challenging and frustrating for many tribes. For tribes exercising SDVCJ, establishing whether the tribe has jurisdiction over the alleged offense involves answering factual questions. Specifically, to exercise SDVCJ, the tribe must demonstrate the Indian status of the victim, the existence of a qualifying relationship between the defendant and the victim, and whether the defendant has sufficient statutorily-enumerated connections to the tribe.
Several tribes stated that many of their decisions not to prosecute, or many of their prosecutor-initiated dismissals, were because the prosecutors were not sure that they could prove jurisdiction. As discussed in greater detail in Section V, for those SDVCJ cases that do go forward, tribes take different approaches to clarifying and asserting their jurisdiction. Many tribes provide a simple statement of jurisdiction early on in the proceedings that clearly includes their expanded authority under SDVCJ, and then resolve any specific challenges to their jurisdiction as they arise. However, other tribes chose to create processes that require dealing with jurisdictional questions as a procedural step for all of their SDVCJ prosecutions. These jurisdictional hearings can be time consuming, require the prosecution to collect and develop a separate set of evidence, and may lead to the odd situation where a judge is making findings of fact relevant to jurisdiction—some of which touch upon the merits—long before reaching the merits of the case.
Alternatively, tribes such as Pascua Yaqui treat the jurisdictional requirements as elements of the crime, and leave those questions for trial. Two of Pascua Yaqui’s trials, however, demonstrated that this strategy can result in a significant waste of resources. In both cases, the offender was acquitted by a jury on jurisdictional grounds: in one case, because the jury was not convinced that the two individuals had a relationship that meets the intimate partner requirement of SDVCJ, and, in the second case, because the jury was not convinced that the defendant was a non-Indian. The ITWG has discussed at length the issue of whether the non-Indian status of defendants must be specifically alleged and proved. There is no textual basis in the federal statute to suggest that this is required. In addition, tribal courts are best understood as courts of general jurisdiction whose inherent jurisdiction has been limited in certain ways by federal law. As such, proving non-Indian status is not necessary to establish tribal jurisdiction. The validity of Pascua Yaqui’s jury instruction concerning non-Indian status is currently being appealed through the Pascua Yaqui court system.
Ultimately, the narrowness of SDVCJ creates additional questions that implementing tribes have to deal with in addition to proving their merits cases. For domestic violence cases, which are especially difficult to prosecute, these additional statutory requirements are cumbersome and may result in the dismissal of meritorious cases.