1) Tribes Use SDVCJ to Combat Domestic Violence by Prosecuting Offenders Harming Their Communities

Sub findings:

1-1. Non-Indian perpetrated domestic violence is a real problem
1-2. Many defendants have numerous prior contacts with tribal police, demonstrating SDVCJ can end impunity
1-3. Many SDVCJ defendants have criminal records or outstanding warrants
1-4. A diverse array of tribes have successfully implemented SDVCJ

Appropriate criminalization of domestic violence is one of the primary ways a community can send the message that domestic violence is unacceptable and will not be tolerated. Prior to passage of VAWA 2013, non-Indians could largely commit domestic violence crimes with impunity on tribal lands. Many of the implementing tribes expressed a similar sentiment when asked about their reason for implementing SDVCJ.

“It is incredible for us to be able to say, we can do this, we can protect you. You are our citizen, and it matters to me as a tribal leader—it is my responsibility in fact—to say that this tribe will do everything we can to protect you.” —Terri Henry, Former Tribal Council Chairwoman of the Eastern Band of Cherokee Indians

“We knew we had a problem with non-Indians committing crimes on the reservation, we knew that we had victims and tribal members that were facing dark days and dark nights on the reservation. I don’t think it was something that the tribal council was willing to wait.” —Alfred Urbina, Former Attorney General, Pascua Yaqui Tribe

“SDVCJ has enabled the Sac and Fox Nation to provide for the safety and protection of its people, which is inherently the responsibility of any government. Through the SDVCJ the community has seen how importantly the Nation takes its responsibility of protecting its people. The Nation is proud to be able to provide security to victims that their abusers will not go unpunished.” —Kay Rhoads, Principal Chief of the Sac and Fox Nation

While in custody, DV defendant makes serious threats of further violence 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.

1-1. Non-Indian perpetrated domestic violence is a real problem

As discussed in Section II, American Indian and Alaska Natives experience domestic violence at disproportionately high rates. When VAWA 2013 was pending before Congress, some policymakers and commentators questioned whether a significant number of non-Indians were committing domestic violence crimes in Indian Country and whether the tribal jurisdiction provision was needed. Five years after passage of VAWA 2013, the prosecution numbers from the implementing tribes provide an unequivocal answer to that question.

The 18 implementing tribes have made a total of 143 SDVCJ arrests, resulting in 74 convictions. The tribe with the highest number of SDVCJ arrests, Pascua Yaqui, reports that SDVCJ cases account for 15-25 percent of the tribe’s overall domestic violence caseload.

Case from the Choctaw Nation
Defendant severely beat his wife in front of their three children

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.

The vast majority of SDVCJ cases are domestic or dating violence cases. Among the implementing tribes, 125 of the cases are domestic or dating violence cases, while 34 involved criminal violations of a protection order. Protection order violations make up a comparatively small proportion of the prosecutions thus far. Protection order violations are arguably the broadest recognition of tribal authority under VAWA 2013. The federal framework recognizes the inherent power of tribal courts to prosecute offenders for violating a protection order that protects anyone, not just an intimate partner, so long as the other jurisdictional requirements are met. The implementing tribes, however, have largely not yet used this provision in this broad manner. Of the implementing tribes, only Pascua Yaqui reported a potential SDVCJ case for violation of a protection order where the protected party was not an intimate partner.  However, many of the tribes rely heavily on protection orders to protect SDVCJ victims, and NCAI and its partners expect to see an increase in the number of SDVCJ cases involving protection order violations where a child or other family member is the protected party.

Case from the Pascua Yaqui Tribe
Protection Order for Grandmother

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.

The sentences for individuals convicted of SDVCJ-related crimes have ranged from probation to 3 years. The vast majority of offenders were sentenced to probation or less than a year of incarceration. Several tribes are also using banishment as a punishment in SDVCJ cases, and many SDVCJ offenders are sent to batterer intervention or other programs aimed at offender rehabilitation. Several of the tribes report that they have arrested and charged the same defendant for an SDVCJ-related offense more than once. While the defendants are primarily male, several tribes have arrested and charged women with SDVCJ-related crimes. All races are represented among the defendants, and several of the defendants have been non-U.S. citizens.

Prosecution numbers alone do not paint the full picture. In addition to the arrests and prosecutions, multiple tribes have anecdotally reported an increase in victims seeking help, even if they do not chose to report their abuse to law enforcement or file charges. According to victim service providers at these tribes, the choice to implement SDVCJ has increased awareness in their communities about domestic violence, and thereby made many victims (1) more aware of services, and (2) feel safer asking for help given the tribe’s public commitment to ending domestic violence.

“[I]t’s going to take time for our women to have trust in the system that has failed them so many times… But the amount of women coming forward and talking about domestic violence, sexual assault and women’s rights, it has definitely…I would say doubled [since implementation], and some of those women are now talking that were holding onto this silence for many years. And once they start to talk and start to feel like, ‘This wasn’t my fault and I don’t have to carry the pain. I don’t have to carry the hurt.’ That’s part of the healing process. That’s when the awakening of their spirit becomes alive and they can find justice and peace. Will we capture all the perpetrators, will we close that door? Not entirely, but we’re definitely taking the right steps and I certainly hope the message is getting out there because our women need this justice desperately.” —Deborah Parker, Former Vice-Chair of the Tulalip Tribes Board of Directors

1-2. Many defendants have numerous prior contacts with tribal police, demonstrating SDVCJ can end impunity

Prior to implementing SDVCJ, tribal justice systems could not hold criminally abusive non-Indians who were continuing to harm their Indian partners accountable. SDVCJ was enacted to end the era of little to no prosecution of non-Indian domestic abusers. Today, in the 18 implementing tribes, many victims have finally seen their long-time abusers prosecuted—and by their own community law enforcement.

Many of the offenders had a significant number of tribal police contacts prior to implementation and had been menacing their victims and straining the tribes’ law enforcement resources. The Tulalip Tribes, for example, has reported that their 17 SDVCJ defendants had a total of 171 contacts with tribal police in the years prior to SDVCJ implementation and their ultimate arrests.

85 Defendants Account for 378 Prior Contacts with Tribal Police Before their Tribe Implemented SDVCJ 

Case from the Tulalip Tribes
Defendant with 19 prior contacts with tribal police

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.”

While the state has no jurisdiction over a crime in Indian Country involving an Indian victim, it does have jurisdiction over victimless crimes. Fortunately for the victim during this particular incident, the non-Indian perpetrator caused enough of a scene in the presence of the state police that he was arrested for disorderly conduct.

Ultimately, after VAWA’s passage, Sisseton-Wahpeton Oyate was able to bring the man who beat his wife in the parking lot to justice. When he beat his wife again, the tribal government was finally able to arrest and charge the man with assault. He eventually pled guilty in tribal court.

1-3. Many SDVCJ defendants have criminal records or outstanding warrants

Many of the defendants who have been arrested and convicted under SDVCJ have prior convictions or outstanding warrants. Because of SDVCJ, tribes are able to arrest, prosecute, and convict non-Indians with a documented history of violent behavior. Additionally, tribal convictions can now lay the groundwork for future federal habitual offender charges. State, federal, and tribal law enforcement are now able, through cooperation and information sharing across jurisdictions, to ensure that defendants with a pattern of dangerous behavior are identified and receive appropriate sentences.

Case from the Pascua Yaqui Tribe
Defendant with three prior felony convictions, including a domestic violence conviction

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. 

Offenders crossing jurisdictional boundaries create challenges for all of the jurisdictions involved. However, the implementing tribes all work closely with not only federal law enforcement but state law enforcement to ensure that defendants with outstanding warrants are extradited to the appropriate jurisdiction if they are picked up.    

Case from the Fort Peck Tribes
Defendant has outstanding warrant for drug possession and is able to use same counsel in both cases

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.

1-4. A diverse array of tribes have successfully implemented SDVCJ

The 18 tribes who have implemented SDVCJ represent a great diversity of Native nations. Located across the country in 11 different states, each one of these tribes implements SDVCJ in a way designed to suit their communities. The differences and similarities between the tribes are highlighted in depth in Section IV, which includes an individual profile of each tribe and a section contrasting the similarities and differences in their tribal codes.

The implementing tribes have varying sized land bases and populations, and—as detailed in the below chart—the tribes have very different demographics on their tribal lands. The four tribes that have seen the most SDVCJ cases, Pascua Yaqui Tribe, Eastern Band of Cherokee Indians, Tulalip Tribes, and Fort Peck Tribes, represent a diverse range of regions and populations. Each is located in a different geographic region of the United States: the Southeast, the Northwest Coast, the Plains, and the Southwest. Pascua Yaqui’s land base is 2,200 acres, while Fort Peck’s reservation is over four hundred times that size, totaling just short of one million acres. Pascua Yaqui is a relatively urban community, located within the greater metropolitan area of Tucson, Arizona, while Eastern Band of Cherokee is in the mountains, surrounded by forests, and over an hour away from the nearest small city. The population of Pascua Yaqui is only 12 percent non-Native, while Tulalip is just over 75 percent non-Native.

Map of current implementing tribes. (Updated October 2018)

The political structure of the tribes also varies based on their unique histories, cultures, and worldviews. Economic development and employment opportunities also vary considerably. The implementing tribes have generally entered into 638 contract agreements with the BIA to assume control of law enforcement on the reservation. Many have similarly assumed responsibility for detention, although for several of the tribes, detention remains a direct service provided by the BIA. All of the implementing tribes have their own courts. Only one of the implementing tribes, Alabama Coushatta, is in a jurisdiction where Public Law 280 (PL 280) or a similar statute gives the state jurisdiction over a broader group of crimes. Several of the other implementing tribes, including both CTUIR and Tulalip, have undergone either partial or full retrocession, a process by which state jurisdiction under PL 280 is returned to the federal government.