2) Tribal Courts Uphold the Rights of Defendants and Are Committed to Their Rehabilitation
The tribes implementing SDVCJ have made something very clear about the new non-Indian defendants in their courtrooms: they will receive fair treatment. Many of the implementing tribes have long provided all of the due process protections required by the federal statute and describe the exercise of jurisdiction over non-Indians as largely unremarkable.
The case statistics from the implementing tribes thus far reveal justice systems not unlike the other criminal justice systems in the United States. Of the 143 arrests for SDVCJ-related crimes, 52 percent have resulted in convictions, while 18 percent have resulted in acquittals or dismissals. Of the cases that were ultimately filed, 21 percent were dismissed or resulted in acquittals. Tribes report that the cases are dismissed, or they are unable to prosecute for a range of reasons including: uncooperative witnesses, insufficient evidence, determination that the tribe lacks jurisdiction, filing errors, plea deals on other cases, or detention by another jurisdiction.
The number of dismissals suggest that tribes are committed to getting it right—both making sure that they have jurisdiction and that they have sufficient evidence. Just like across the rest of the U.S. judicial system, most convictions happen through plea bargains. Of the six SDVCJ trials that have occurred—five jury trials and one bench trial—five ended in acquittal. One jury trial at the Pascua Yaqui Tribe resulted in a conviction. While it is not possible to draw definitive conclusions from a small number of trials, this does disprove the notion that a non-Indian could never get a fair trial in front of a tribal jury or tribal judge in tribal courts.
“Although we would have preferred a guilty verdict, this first full jury trial fleshed out many pre-trial arguments, and proved our system works. A non-Indian was arrested and held by Pascua Yaqui law enforcement, he was represented by two attorneys, and a majority Yaqui jury, after hearing evidence presented by a tribal prosecutor, in front of an Indian judge, determined that the Tribe did not have jurisdiction in a fairly serious DV Assault case.” —Alfred Urbina, Former Attorney General, Pascua Yaqui Tribe
Offering further support for the fairness of tribal courts, there have also been no petitions for habeas corpus review filed in an SDVCJ case. The VAWA statute requires that defendants are affirmatively notified of their right to petition for habeas review in federal court, and of their right to request that tribal detention be stayed during that review. An attorney for the Confederated Tribes of the Umatilla Indian Reservation has reported that the Tribe actively encouraged their first SDVCJ defendant to file a habeas petition to test the statute, but he was not interested. According to Professor Angela Riley, who has written about VAWA implementation, “during the course of the early VAWA prosecutions, tribes and tribal advocacy groups encouraged defendants to file writs of habeas corpus to appeal their convictions to federal court, but the defendants declined. Numerous parties asserted that they preferred tribal court to federal court, stating that the tribal process was less formal, less intimidating, offered more focus on treatment and showed more respect to defendants.”
0 Petitions for a Federal Writ of Habeas Corpus
Case from the Pasqua Yaqui Tribe
First SDVCJ trial ended in acquittal for jurisdictional reasons
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.
Many tribes are committed to ensuring that non-Indian defendants—who are usually partners and parents of tribal members—get help in addition to punishment. Most SDVCJ offenders are well-established in the tribal community. Many SDVCJ offenders live on the reservation in tribal subsidized housing, are married to Indians, or have Indian children. At least two of the SDVCJ arrests involved unenrolled Indians from either the U.S. or Canada.
51% Defendants Sent to Batterer Intervention, or Other Rehabilitation Program
Many tribal prosecutors expressed the sentiment that these offenders are part of their communities, and therefore the tribe is committed to ensuring that the defendant also heals. Many tribes offer batterer intervention programs. Several tribes require that every defendant convicted of a domestic violence offense completes a treatment program targeted to their abusive behaviors.
“[SDVCJ] has allowed us to address issues of family/dating violence with an approach much different than that of the state system. Here, the state system is much more punitive in nature, and at the tribal level we have a much greater ability to address the underlying issues that are the causes of this violence. In turn, our hope is to cut down on recidivism by addressing underlying issues such as drugs and alcohol. For us, the individuals we have prosecuted or currently have charges pending are individuals who have—and will continue to have—contact with the tribe and tribal members because they have children who are tribal members. Due to this fact, we want to try to help make sure that we do everything we can to deter them from reoffending.” —Jennifer Bergman, Tribal prosecutor for the Alabama-Coushatta Tribe of Texas
Case from the Alabama-Coushatta Tribe
Tribe ensures that a mother gets the help she needs so she can ultimately get her kids back
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.
Case from the Confederated Tribes of the Umatilla Indian Reservation
Tribe sends Iraq war veteran with PTSD to batterer intervention
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.