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U.S. law gives tribes new authority over non-Indians

Statute opens door for prosecuting domestic violence

By Felicia Fonseca

Associated Press

Published: Friday, March 15 2013 9:34 p.m. MDT

FLAGSTAFF, Ariz. — American Indian tribes have tried everything from banishment to charging criminal acts as civil offenses to deal with non-Indians who commit crimes on reservations.

Ever since the U.S. Supreme Court ruled in 1978 that tribal courts lack criminal jurisdiction over non-Indians, tribes have had to get creative in trying to hold that population accountable. They acknowledge, though, that those approaches aren't much of a deterrent, and say most crimes committed by non-Indians on tribal land are not punished.

Tribal leaders are hoping that will change, at least in part, with a federal bill signed into law last week. The measure gives tribes the authority to prosecute non-Indians for a set of crimes limited to domestic violence and violations of protecting orders.

Implementation of the Violence Against Women Act will take time as tribes amend their legal codes and ensure defendants receive the same rights offered in state and federal courts. But proponents say it's a huge step forward in the face of high rates of domestic violence with no prosecution.

"For a tribal nation, it's just absurd that (authority) doesn't exist," said Sheri Freemont, director of the Family Advocacy Center on the Salt River Pima Maricopa reservation in Arizona. "People choose to either work, live or play in Indian Country. I think they should be subject to Indian Country rules."

Native American women suffer incidents of domestic violence at rates more than double national averages. But more than half of cases involving non-Indians go unprosecuted because Indian courts have lacked jurisdiction and because federal prosecutors often have too few resources to try cases on isolated reservations.

Still, the tribal courts provision was a major point of contention in Congress, with some Republicans arguing that subjecting non-Indians to Indian courts was unconstitutional.

Rep. Doc Hastings, R-Wash., said after its passage that the bill denies basic protections and will be tied up in court challenges for years.

"It violates constitutional rights of individuals and would, for the first time ever, proclaim Indian tribes' 'inherent' authority to exercise criminal jurisdiction over non-Indian citizens," Hastings said in a statement. "The Supreme Court has ruled multiple times that tribes do not have this authority."

The U.S. Department of Justice met with tribal leaders to discuss implementing the provisions, which will take effect two years after the law is enacted. A pilot project would allow any tribe that believes it has met the requirements to request an earlier start date.

To ease concerns that the new authority would violate the constitutional rights of a non-Indian or that jurors in tribal court would be unfair, the bill allows defendants to petition a federal court for review. A tribe would have jurisdiction over non-Indians when that person lives or works on the reservation, and is married to or in a partnership with a tribal member.

About 77 percent of people living in American Indian and Alaska Native areas are non-Indian, according to a recent Census report. Roughly half of Native American women are married to non-Indians, the Justice Department has said.

Although tribes have civil jurisdiction over non-Indians, they often are reluctant to go forward with a case when the penalty amounts to a fine and offenders have little incentive to pay it. The hope in taking on criminal cases is that incidents of domestic violence will be quelled before they lead to serious injury or death, and that victims won't be afraid to report them.

"Having the ability to do it local and have the prosecution start soon after the offense, that's just going to be great for our victims," said Fred Urbina, chief prosecutor for the Pascua Yaqui Tribe in southern Arizona.

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