Sovereignty and Justice - Tribal Law and Court Systems

Jerry GardnerExecutive Director Tribal Law and Policy InstituteMay 28, 2015 ~ University of Washington Colloquium

Best Roadmap to address

Oliphant in the room Oliphant v. Suquamish, 435 U.S. 191 (1978)

ILOC’s Grand Bargain or

One crime at a time like VAWA 2013 “Special Domestic Violence Criminal Jurisdiction” over non-Indians .

Jurisdiction in Indian Country

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TRIBAL LAW AND ORDER ACTPublic Law 111-211 (2010)

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TLOA Purposes•Make Federal agencies more accountable •Provide greater freedom for tribes to design and run their own justice systems.•Enhance cooperation in law enforcement, interoperability, and access to criminal justice information.

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TLOA Means•Enhanced Funding for Tribal Justice Systems •authorization rather than appropriation

•Enhanced Authority for Tribal Justice Systems•enhanced Tribal court sentencing authority

•Enhanced Federal Cooperation and Accountability

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Expanding Tribal Court Sentencing Authority•Enhanced tribal court sentencing authority• 1-3 years imprisonment, $15,000 fine, or both• Tribal courts can stack sentences• 9-year cap on stacked sentencing

TLOA also created Indian Law and Order Commission

Indian Law and Order Commission Chapter 1: Jurisdictional Reform: Bringing Clarity Out of Chaos

1. Congress should clarify that any tribe that so chooses can opt out immediately, fully, or partially, of Federal Indian country criminal jurisdiction and/or congressionally authorized State jurisdiction, except for Federal laws of general application.

Indian Law and Order Commission Chapter 1: Jurisdictional Reform: Bringing Clarity Out of Chaos

2. Upon a Tribe’s exercise of opting out, Congress would immediately recognize the Tribe’s inherent criminal jurisdiction over all persons within the exterior boundaries of the Tribe’s lands as defined in the Federal Indian Country Act.

Indian Law and Order Commission Chapter 1: Jurisdictional Reform: Bringing Clarity Out of Chaos

3. This recognition, however, would be based on the understanding that the Tribal government must also immediately afford all individuals charged with a crime with civil rights protections equivalent to those guaranteed by the U.S. Constitution

Indian Law and Order Commission Chapter 1: Jurisdictional Reform: Bringing Clarity Out of Chaos

4. Ensure a direct appeal from Tribal court to new Federal court- the U.S. Court of Indian Appeals- for all criminal defendants for alleged Federal Constitution rights violations.

5. Amend the Indian Civil Rights Act to permit Tribal governments to define their own criminal laws and sentences.

VAWA: A Historic Victory

“Tribal governments have an inherent right to protect their people, and all women

deserve the right to live free from fear.” - President Obama. March 7, 2013

The Violence Against Women Reauthorization Act of 2013Special Domestic Violence Criminal Jurisdiction

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VAWA 2013 – Section 904•Authorizes tribes to exercise “special domestic violence criminal jurisdiction” over non-Indians for•Acts of domestic violence or dating violence that occur in the Indian country of the participating tribe; and

•Violations of Protection Orders that are violated in the Indian country of the participating tribe.

What VAWA 2013 Section 904 Does NOT Cover:

• Victim and Defendant are both non-Indian. • Non-Indian Defendant Lacks Sufficient Ties to the Indian Tribe. Defendant

must either: − Reside in the Indian country of the participating tribe;− Be employed in the Indian country of the participating tribe; or− Be a spouse, intimate partner, or dating partner of a tribal member, or an

Indian who resides in the Indian country of the participating tribe. • The crime did not take place in the Indian country of a participating tribe.• The crime is not DV, dating violence, or a protection order violation (child

abuse and elder abuse are not covered). 16

Limitations on Utilizing TLOA Enhanced Sentencing and/or VAWA Special Domestic Violence Criminal Jurisdiction

Limitations TLOA VAWA

Particular Offenses Only:Defendant must either (1) previously have been convicted of same or comparable offense by any jurisdiction in U.S.; or (2) is being prosecuted for a “felony” (an offense that would be punishable by more than 1 year imprisonment if prosecuted by U.S. or any of the States).

Particular Offenses Only:Defendant must be prosecuted for either (1) domestic violence, (2) dating violence, or (3) violation of a protection order. Particular Defendants Only:Defendant must have sufficient ties to the community, which could be either (1) residence on the reservation, (2) employment on the reservation, or (3) a relationship with a tribal member or Indian resident.

Due Process Protections Required by TLOA and/or VAWA

TLOA and VAWA Due Process Requirements TLOA VAWA

1. Defendants are provided with effective assistance of counsel equal to at least that guaranteed in the U.S. Constitution.*

2. Tribal government provides, at their expense, to an indigent defendant a defense attorney licensed to practice by any jurisdiction in the United States.*

3. Defense attorney is licensed by a jurisdiction that applies appropriate licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys.*

4. Judges presiding over criminal proceedings subject to enhanced sentencing/non-Indian defendants have sufficient legal training to preside over criminal trials.*

5. Any judge presiding over criminal proceedings subject to enhanced sentencing/non-Indian defendants are licensed to practice law by any jurisdiction in the United States.*

*Note: These due process protections are required under TLOA. But, they are only required under VAWA if a term of imprisonment of any length may be imposed.

*Note: These due process protections are required under TLOA. But, they are only required under VAWA if a term of imprisonment of any length may be imposed.

*Note: These due process protections are required under TLOA. But, they are only required under VAWA if a term of imprisonment of any length may be imposed.

Intertribal Technical-Assistance Working Group (ITWG)

The DOJ launched the ITWG as a key part of the Pilot Project.

The ITWG is a voluntary working group of tribal representatives who exchange views, information, and advice about how tribes may best exercise special domestic violence criminal jurisdiction (SDVCJ) and combat domestic violence.

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ITWG• Multiple in-person meetings• Webinar series on jury selection, defendant’s rights,

indigent defense, domestic violence best practices

1.Cherokee Nation2.Chickasaw Nation3.Colorado River Indian Tribes 4.Confederated Tribes of the Umatilla Indian Reservation5.Eastern Band of Cherokee Indians6.Eastern Shawnee Tribe of Oklahoma7.Gila River Indian Community 8.Fort Peck Assiniboine & Sioux Tribes9.Hopi Tribe of Arizona10.Kickapoo Tribe of Oklahoma11.Menominee Tribe of Wisconsin12.Mississippi Band of Choctaw Indians13.Muscogee (Creek) Nation14.Nez Perce Tribe15.Nottawaseppi Huron Band of Potawatomi16.Oneida Tribe of Indians of Wisconsin17.Pascua Yaqui Tribe of Arizona18.Passamaquoddy Tribe19.Pauma Band of Mission Indians20.Penobscot Nation

21.Pokagon Band of Potawatomi Indians22.Prairie Band Potawatomi Nation23.Pueblo of Isleta24.Pueblo of Laguna25.Pueblo of Santa Clara26.Quapaw Tribe27.Quinault Indian Nation28.Sac and Fox Nation29.Salt River Pima-Maricopa Indian Community30.Sault Ste. Marie Tribe of Chippewa Indians31.Seminole Nation of Oklahoma32.Sisseton-Wahpeton Oyate 33.Spokane Tribe34.Standing Rock Sioux Tribe 35.Suquamish Indian Tribe36.Three Affiliated Tribes 37.Tulalip Tribes of Washington38.White Earth Nation39.Winnebago Tribe of Nebraska

Tribes Represented on the ITWG

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VAWA 2013 Pilot ProjectPilot Project Tribes Approved February 6, 2014

• Pascua Yaqui Tribe (AZ)

• Confederated Tribes of Umatilla (OR)

• Tulalip Tribes (WA)

Pilot Project Tribes Approved March 6, 2015• Ft. Peck (MT)• Sisseton-Wahpeton Oyate (SD)

Confederated Tribes of Umatilla –

Feb. 20, 2014• 4 SDVCJ cases involving 3 offenders

• 3 guilty pleas• 1 case pending

Those who have been convicted are subject to tribal probation, including the requirement to undergo batterer intervention treatment provided by the tribe

In 2012, 60% of the cases seen by the Umatilla Victims Services Program were non-Indian 25

Tulalip Tribes- Feb 20, 2014

• 5 SDVCJ cases

•3 cases resulted in guilty pleas•1 was dismissed for insufficient evidence•1 was transferred for federal prosecution primarily because children were involved and SDVCJ does not include assault of a child.

• Tulalip operates a DV court and these cases are handled there 26

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Pascua Yaqui - Feb 20, 2014• 18 SDVCJ cases, involving 15 separate offenders.

• 1 jury trial resulted in an acquittal; a 2nd jury trial will begin in April• 4 guilty pleas• 4 referrals for federal prosecution• 10 cases dismissed for various reasons

• In the past year, 25% of the tribe’s total domestic violence caseload has involved non-Indian abusers.

• 18 children under the age of 11 were involved as witnesses or victims.

• The 15 non-Indian defendants had over 80 documented tribal police contacts, arrests, or reports attributed to them over the past 4 years.

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Pascua Yaqui - Lessons Learned

• Most Pascua Yaqui VAWA SDVCJ cases involving defendants with significant ties to the community.

• Domestic Violence crimes committed by non-Indians are a significant problem on our Reservation (average of 6 prior police contacts per defendants).

• Pascua Yaqui VAWA offenders are a diverse group (3 Hispanic descent including 2 Mexicans, 2 Caucasian, 3 African American, and 1 Asian American).

• Pascua Yaqui children are being exposed to violence and at high risk of physical abuse, neglect, and witnessing intimate partner violence.

• Implementation is complex but we are learning.

Children Exposed to Violence

Attorney General Advisory Committee on AI/AN children Exposed to Violence (final report: November 2014)• Recommendation 1.3: “Congress should restore the inherent authority

of American Indian and Alaska Native (AI/AN) tribes to assert full criminal jurisdiction over all persons who commit crimes against AI/AN children in Indian country.” • Recommendation 1.3 also provides that: “Congress has restored

criminal jurisdiction over non-Indians who commit domestic violence, commit dating violence, and violate protection orders. Congress should now similarly restore the inherent authority of AI/AN tribes to assert full criminal jurisdiction over all persons who commit crimes against AI/AN children in Indian country including both child sexual abuse and child physical abuse.”

ILOC Grand Bargain - Advantages:

•global in scope – covers all criminal jurisdiction rather than just limited subject matter •applies only to tribes which opt in• tribes can opt in fully or partially at tribal option•eliminates the “maze of Injustice”

(If tribe fully opts in, then only tribe has jurisdiction - no federal or state jurisdiction)

•would amend ICRA to permit Tribal governments to define their own criminal laws and sentences

ILOC Bargain -Disadvantages:

•Not currently politically feasible•Even if becomes politically feasible, not likely that it would become law exactly as set

forth by ILOC and thereby upset delicate balance that ILOC strove to achieve •Requiring that full Bill of Rights apply rather than ICRA could change nature of tribal courts and potentially lose what makes tribal courts unique•Imposing Anglo-American notions of “due process” onto indigenous justice system•Changing entire tribal court system to handle what could be limited number of cases•Many – if not most – tribes are not likely going to have the funding needed to implement at least fully implement

Crime by Crime (like VAWA) - Advantages:

• Much more politically feasible than ILOC grand bargain (though still a heavy lift)

• Allows tribes to focus on subject matter (DV, SA, child abuse) most politically feasible

• Allows for legal challenges and issue to be raised in context of most politically feasible crimes

• Tribes can prove that it works and survive federal test cases before going for grand bargain

• The ITWG and pilot project process allowed many tribes to come together to collectively address the wide range of challenging issues posed by the many requirements

• While only one subject matter at a time, sends message to the community that non-Indians are no longer above the law

• TLOA enhanced sentencing and VAWA enhanced jurisdiction have established clear series of required rights to implement – making it easier to apply same standards to additional crimes

• Does not require that the full Bill of Rights apply – preserves indigenous justice systems

• Easier to avoid changing entire tribal court system to handle what could be limited number of cases

• Applies only to tribes that opt in

Crime by Crime (like VAWA) -Disadvantages:

•Not global in scope – covers only limited subject matter•Not as clear that Tribes can opt in fully or partially at tribal option•Requirements are actually very complex and challenging•Does not eliminate “maze of injustice” since federal and state jurisdiction would still exist •Creates potential equal protections concerns•Does not amend ICRA to permit Tribal governments to define their own criminal laws and sentences beyond the specific offenses•Does not allow tribe to prosecute collateral crimes Like child abuse•Many tribes not likely going to have the funding needed to implement

Possible Approach Going Forward:

•Going for crime by crime approach initially does not prohibit grand bargain later•More politically feasible to go with crime by crime approach while maintain longer term goal of ILOC grand bargain• Focus on subject matter (DV, SA, child abuse) most politically feasible

• Tribes can prove that it works and survive federal test cases before going for grand bargain

• Encourage collaborative processes (like ITWG) going forward which encourage many tribes to come together to collectively address challenging issues

• Pilot project process more politically feasible (grand bargain tribal demonstration project?)

• Ensure publicity sends message to the community that non-Indians are no longer above the law

• Preserve indigenous justice systems – do not change entire tribal court system to handle what could be limited number of cases

• Share creative approaches, lessons learned, and resources so more tribes are able to implement

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How Can I Find More Information and Resources??

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RESOURCES• Tribal Code Checklist- http://

www.ncai.org/tribal-vawa/getting-started/code-development-checklist• Tribal Legal Resource TLOA and VAWA 2013-

http://www.tribal-institute.org/codes/TLOA-VAWA-Guide.html • SDVCJ Model Code - http://

www.tribal-institute.org/download/codes/TLOA_VAWA_3-9-15.pdf•www.tribalprotectionorder.org• Join the ITWG, email: tribal-vawa@NCAI.org

www.tribalprotectionorder.org

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Learn more atwww.ncai.org/tribal-vawa

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Issue List• Tribal Code Development • Jury Selection and Judicial Requirements• Criminal Defense and Defendant’s Rights• Law Enforcement Arrest Authority Guidance• Law Enforcement Training• Detention Policies at Interior• Habeas Corpus and Legal Challenges• Coordination with U.S. Attorneys• Victims’ Rights and Victims’ Safety• Access to Criminal Databases• RESOURCES