4) SDVCJ Implementation Promotes Positive Changes
In addition to empowering tribes to hold offenders accountable in a manner that fully upholds the rights of the defendants, implementation over the past five years has led to several additional outcomes worth noting. Implementation of SDVCJ has been the catalyst for important discussions and improved relationships at the tribal, inter-tribal, and federal levels
Experience shows that passing the tribal legislation necessary to implement SDVCJ generates community reflection and commitment to addressing domestic violence for the implementing tribes. Tribes have had to examine their codes closely to ensure that their laws—including their constitutions—comply with the requirements of SDVCJ, and make careful decisions about how best to implement SDVCJ given their community’s unique history, needs, and priorities. The variety of different ways tribes have decided to comply with the statute is a testament to the statute’s flexibility, the diversity of the Native nations implementing it, and to the creativity and care with which those nations have crafted their codes.
Furthermore, it has led many tribes to consider more broadly the impact of domestic violence on their communities, and take SDVCJ implementation as an opportunity to go beyond the exercise of criminal jurisdiction under VAWA 2013’s requirements. The Nottawaseppi Huron Band of Potawatomi (NHBP), for example, view implementation of SDVCJ as part of a larger commitment to addressing domestic violence:
The leadership across the branches of the NHBP Tribal Government has, collectively and individually, unequivocally and without question, prioritized a comprehensive and holistic approach to addressing domestic violence that includes implementing: 1. Educational programming; 2. Intervention programs and services; 3. Programs and services that support, protect and empower survivors; 4. Systems to hold offenders accountable and protect victims and the community as a whole; and 5. Programs and services that provide offenders with the tools to end their abusive behavior.
As the tribe began transforming these goals into a reality, it formed a team to discuss the need for victim services. These discussions revealed that community members were seeking services from tribal programs not designed for those purposes:
The tribe’s Health and Human Services Staff and the Probation Officer both advised that domestic violence was a significant issue for many of their clients. NHBP Staff were providing services where possible and/or connecting Tribal Citizens and community members to outside service providers, but on a case-by-case basis. The implementation team determined that a dedicated victim services program was needed. NHBP applied for and received a grant from the OVW to fund a domestic violence victim advocate position in the tribal court, where she would have the support of the tribal court administrator and tribal court judge, both of whom had previously worked as victim advocates.
Like Nottawaseppi, many other implementing tribes have expanded victims’ services, or strengthened victims’ rights, as a part of their implementation process. The victim supports at each tribe are discussed here. Tribes have tailored their approach to combatting domestic violence to the unique needs and values of their communities. Several of the laws enacted by tribes implementing SDVCJ contain findings sections that highlight their individualized approaches.
“[T]he Elwha Klallam Tribe will not tolerate or excuse violent behavior under any circumstances. All people, whether they are elders, male, female, or children of our Elwha Klallam Tribe, or other individuals residing on the Elwha Klallam Reservation, are to be cherished and treated with respect. The Elwha Klallam Tribe has traditionally referred to itself as the “the Strong People” (n?xws?’ay’?m) and as such recognizes that strength as a tribal community is directly linked to the health of its families and specifically its children.” —Lower Elwha Klallam Code
The implementing tribes have all found that involvement of the community in implementation is critical.
“In drafting the Code, NHBP’s goal was to include the Community in the development phase as much as possible, to request their input and participation, keep them informed of the code writing process, and to provide domestic violence awareness information throughout this phase.” —Nottawaseppi Huron band of Potawatomi
NHBP further described in detail how they obtained community buy-in for implementation. They invited “Tribal member employees from various departments within the Tribe to attend our code drafting, working group, and code review team meetings, among other groups and teams formed during this process.” Ultimately members of the Tribal Court, Membership Services, Human Resources, and the Police Department attended code drafting meetings, and members of the Culture Department and Culture Committee provided input. By doing this, Nottawaseppi found “Tribal members were involved and their thoughts and guidance was included in the process.” Eventually, “Community Meetings were held with the larger community once a final draft was prepared for presentation.
While much of the work preparing to implement SDVCJ focuses on revising tribal codes, policies, and procedures, the tribes all devoted considerable resources to training for tribal law enforcement officers, prosecutors, judges, and other key stakeholders. Often the need for training became evident as the tribes encountered an unexpected obstacle of one kind or another. For example, the day after SDVCJ was enacted on one reservation, a non-Indian offender was arrested and delivered to the county authorities where he was promptly released. That incident served as a reminder that tribal and BIA officers needed to be fully trained about the scope of the tribe’s authority and how SDVCJ jurisdiction works. Similarly, Pascua Yaqui’s experience with its first jury trial—which ended in an acquittal for lack of jurisdiction—demonstrated the importance of training law enforcement about how to properly investigate whether there is a qualifying relationship sufficient to trigger SDVCJ in a particular case.
In its June 14, 2013 Federal Register Notice, the DOJ asked tribes to indicate interest in joining an Inter-tribal Technical-Assistance Working Group on Special Domestic Violence Criminal Jurisdiction (ITWG): a voluntary working group of designated tribal representatives intended to help exchange views, information, and advice about how tribes may best implement SDVCJ, combat domestic violence, recognize victims’ rights and safety needs, and safeguard defendants’ rights.
This peer-to-peer technical assistance covers a broad set of issues, from drafting stronger domestic violence codes and victim-centered protocols and policies, to improving public defender systems, to analyzing detention and correctional options for non-Indians, to designing more broadly representative jury pools and strategies for increasing juror compliance with a jury summons. The objective of the ITWG is to develop not a single, one-size-fits-all ‘‘best practice’’ for each of these issues, but rather multiple successful examples that can be tailored to each tribe’s particular needs, preferences, and traditions.
The ITWG at the ninth in person meeting in November 2017 hosted by the Tulalip Tribes.
To date, the ITWG has met in-person nine times. Each meeting includes working time as well as speakers and other programming to support the work or discussion. In addition, ITWG tribes have also participated in a series of teleconferences and webinars and produced white papers and other resources on a range of topics. Over 50 tribes currently participate in the ITWG.
The ITWG has proven to be a productive and useful mechanism for tribes to share information and best practices among themselves, to discuss challenges, and to jointly strategize about how to overcome obstacles. With the logistical support and substantive expertise of a group of DOJ-funded technical assistance providers, the tribes participating in the ITWG have tackled many difficult questions and have developed a collection of resources that will make it easier for tribes who wish to implement SDVCJ in the future. The ITWG continues to serve as an important resource for the implementing tribes as they encounter new questions and challenges. Tribes consistently say that the ITWG is the single most helpful thing for them concerning implementing SDVCJ. One tribe that regularly attends the ITWG described their experience as follows:
One benefit of immeasurable importance was–and is–the in-person ITWG Meetings. The in-person ITWG Meetings provided a forum for Tribes to collectively: review and analyze VAWA 2013 to identify requirements for exercising criminal jurisdiction over non-Indians in domestic violence cases; critically analyze these requirements in relation to the resources required; create solutions to challenges; share victories; share challenges; share resources; request guidance; anticipate threats to sovereignty; brainstorm responses; and build a united voice in protection of Tribal sovereignty and Tribal Citizens victimized by domestic and sexual violence. The Native Nations that implemented a VAWA 2013-compliant domestic violence code early on in ITWG graciously guided the remaining Nations by openly sharing their experiences at ITWG Meetings. They provided tremendous guidance to the Nations still in the planning stages. These conversations delved deeper into the practical–and often unexpected–challenges as the conversations were no longer hypothetical. Their openness enabled our tribe to be proactive in the planning process.
It is important to note that the problematic provisions in VAWA 2013, as well as the overall political climate, including that we expect continuing challenges to Tribal sovereignty generally and VAWA 2013 specifically, created a commitment among the participating Native Nations to collectively work together to defend both. The shared understanding of the pain and frustration of those VAWA 2013 provisions that reflect ignorance of Tribal Justice Systems was not only comforting, but empowering. These deeply emotional ties will keep the Tribes that participated in ITWG connected.
The success of the ITWG has been driven by the engagement of dedicated and knowledgeable attorneys and tribal representatives from across Indian Country. This engagement has been possible because of the travel support provided by DOJ, which allowed many of the tribes to participate in productive in-person meetings. The engagement and expertise of the technical assistance team has provided important coordination and leadership to the ITWG, while also helping the ITWG to track issues as they arise and to connect with necessary resources.
Tribes participating in the ITWG have also had opportunities to engage with DOJ and the Department of Interior (DOI), both of which have made key staff available to provide technical advice to the working group as a whole and work with individual tribes to address specific issues or concerns as needed.
The implementing tribes have worked closely with BIA and DOJ officials to address challenges that have come up as a result of the complicated and fragmented criminal justice system at work in Indian Country. It has been important, for example, to clarify that BIA detention facilities are permitted to house non-Indian SDVCJ offenders and that tribes can use their 638 contract funds to pay for costs associated with housing non-Indian SDVCJ offenders. Likewise, the implementing tribes have all worked closely with their local U.S. Attorney’s Offices to make decisions about which jurisdiction is most appropriate to prosecute a particular case. Many of the implementing tribes report that their decision to implement SDVCJ has led to improved communication with the local U.S. Attorney’s Office that is leading to greater accountability in non-SDVCJ cases.
Case from the Tulalip Tribes
Serious offense prosecuted in federal court with the assistance of tribal prosecutor
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.
Lastly, federal officials have consistently attended and presented at ITWG meetings, offering not only advice and valuable expertise, but also presentations that help tribes take advantage of various federal programs that could support their SDVCJ work or increase their access to other law enforcement data networks and/or resources.
Beginning with the very first ITWG meeting in August 2013, tribes voiced their concerns about their ability to get protection orders and criminal history into the NCIC (National Criminal Information Center). It is a re-occurring issue that has been addressed at nearly every ITWG meeting. Tribal prosecutors need to be able to access the criminal histories of defendants in order to properly charge them. Tribes can use such information for law enforcement purposes to create safer communities for their citizens.
In response to tribes’ complaints regarding criminal database access, the DOJ launched the Tribal Access Program (TAP) in August 2015 to provide tribes access to national crime information systems for both criminal and civil purposes. TAP ensures the exchange of critical data across the Criminal Justice Information Services (CJIS) systems and other national crime information systems. As of 2018, 47 tribes are participating in TAP, with additional expansion expected.
Tribes have also begun working with National Instant Criminal Background Check System (NICS) representatives from the Federal Bureau of Investigation to ensure that tribes are also able to enter their domestic violence convictions into the system so that offenders are no longer able to illegally purchase firearms. It is clear that tribes need to be fully integrated into national networks of data, database, and resource sharing.