Inside the Pilot Project That Grants Tribal Authority Over Domestic Violence Cases

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Analysis Violence

Inside the Pilot Project That Grants Tribal Authority Over Domestic Violence Cases

Annamarya Scaccia

As of February 20, three federally recognized tribes have the power to arrest and prosecute non-Natives who assault Native intimate partners, under a pilot project to test a historic expansion of special domestic violence criminal jurisdiction.

Editor’s note: This article was updated at 11:51 am, Thursday, April 24th, 2014 to correct errors in the presentation of statistics in the article regarding the prevalence of domestic violence among Native American women.

Nestled at the base of the Blue Mountain foothills, near the Oregon-Washington border, is the Confederated Tribes of the Umatilla Indian Reservation of Oregon. Just three hours east of Portland, the Northwestern tribal nation sweeps across a picturesque 172,000 acres, with winding roads curving along the Umatilla River that cuts through it.

A member of the Umatilla Indian Reservation since 2002, Desireé Coyote describes her community as a warm and welcoming place where everyone says hello and attends local celebrations. Tribal leaders and members, she told Rewire, “have the heart of the community in their mind and heart all the time,” and—like her—want to move the Umatilla Indian Reservation forward “to a more positive community.”

Yet, in her role as Umatilla Tribes’ Family Violence Services program manager, Coyote is often confronted with the aftershock of a decades-old U.S. Supreme Court decision that severely restricted tribal sovereignty and, as a result, puts the safety—and lives—of Native American women at risk. That opinion, issued in the 1978 Oliphant v. Suquamish Indian Tribe case, bars federally recognized tribes from exercising criminal jurisdiction over non-Native defendants, including those who commit acts of domestic violence against tribal members on the reservation.

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With the contentious reauthorization of the Violence Against Women Act (VAWA) last year, that 35-year-old decision was partially overturned in an effort to address the disproportionately high rates of domestic and sexual violence against Native American women. Under Section 904 of the Violence Against Women Reauthorization Act of 2013, most of the United States’ 566 federally recognized tribes will now have the power to arrest and prosecute non-Natives who assault Native intimate partners, or violate protection orders, in Indian country come March 2015.

The Umatilla Tribes of Oregon, however, began to exercise this special domestic violence criminal jurisdiction as of February 20. That month, the U.S. Department of Justice announced that, as part of a pilot project, Umatilla—along with the Pascua Yaqui Tribe of Arizona and the Tulalip Tribes of Washington—would be the first tribes in the country to test this historic expansion before it takes effect nationwide.

“These tribal [and] non-tribal families living on the reservation all deserve the right [to] equal access to services and equal protection in regards to intimate partner violence,” Coyote told Rewire. “It is key not only for today’s generation, but for future generations.”

Protecting Umatilla’s Women

A union of the Cayuse, Umatilla, and Walla Walla tribes, the Umatilla Indian Reservation is a small Shahaptian-speaking nation made up of nearly 3,000 tribal members, 1,500 of whom reside on or near the reservation itself. Another 300 Native Americans from other tribes, such as the Yakama and the Nez Percé, and about 1,500 non-Natives also call the Umatilla Indian Reservation home.

Native American women are subject to high rates of violence of all kinds. A 2004 U.S. Department of Justice (DOJ) statistical profile reveals that Native American women are victims of violent crime at three and half times the national average. The U. S. Centers for Disease Control and Prevention reports that approximately 46 percent of American Indian and Alaska Native women have been victims of rape, physical violence, and/or stalking by an intimate partner in their lifetime. Statistics kept by the Umatilla Indian Reservation reveal similar patterns: Nearly 40 percent of violent crimes against tribal members between 1992 and 2002 were domestic violence-related, and in 75 percent of those cases, non-Natives were identified as the offender.

Yet, up until February, Umatilla’s survivors had no recourse to seek justice through the tribal courts. The 1978 decision that stripped tribal authority in turn gave non-Natives what many consider an unspoken prerogative to commit crimes of sexual and domestic violence on reservations; it is widely known that federal or state agencies tend not to prosecute such cases. 

“Everybody knew—everybody knew—that if you’re a non-Native, you really could get away with a lot of these crimes out here,” Coyote said. “That really, really [impaired] tribal nations’ experience in being able to move forward on keeping their community safe.”

For the community-based advocate, one of the most difficult parts of working with Native American survivors abused by non-Native partners on the reservation was explaining the federal government’s role, as derived from the Supreme Court opinion, in prosecuting these domestic violence cases.

Before VAWA 2013, the federal government had exclusive jurisdiction over domestic violence crimes involving non-Natives, but the threshold for which cases the U.S. Attorney’s Office would take up “was still pretty high,” said Coyote, “usually severely maimed or dead.” And while that perimeter has “gotten better” under the work of Assistant U.S. Attorney Craig Gabriel, the federal prosecutor assigned to tribal nations in the District of Oregon, the federal government often failed to pursue misdemeanor domestic violence cases—both for a lack of resources and a lack of want.

Just an example: The U.S. Government Accountability Office reports that, between 2005 and 2009, the U.S. Attorney’s Office declined to prosecute 68 percent of sexual abuse cases and 55 percent of cases categorized as “other offenses involving threats, force, or violence,” which includes domestic violence or stalking. The primary reason cited for declination is “weak or insufficient admissible evidence.”

“[Survivors] questions to us—‘Well, why can’t they do anything about this non-Native offender in court? Why can’t we take care of our own people?’—[were] always hard ones for us as community-based advocates to address,” Coyote said.

The high domestic violence rates, compounded by this frustration amongst survivors, were just part of the reason the Umatilla Indian Reservation decided to participate in the pilot project. While there is a limited category of domestic violence crimes that are prosecutable by tribes, Coyote sees this narrow parameter as “a way of testing the ground.”

The other reason for applying to the project, Coyote said, was Umatilla’s existing compliance with judicial codes required under the new law. In order to exercise the special jurisdiction, tribal nations must adhere to the Tribal Law and Order Act of 2010, as well as develop a diverse juror pool of Native and non-Native community members, among other prerequisites. 

Building Up Trust

The Umatilla Tribes have yet to prosecute a case under the new law. In fact, according to John Dossett, general counsel for the National Congress of American Indians (NCAI), there has yet to be a case prosecuted by any of the three tribes participating in the pilot program, although there have been a number of arrests under the law. Much of this has to do with the slow pace of the legal system, he said, “but over time, there will be reported cases … before too long.”

“The big news is that these women are being protected,” Dossett told Rewire. Under the new law, tribes will be able to intervene much earlier and hopefully break the cycle of domestic violence … because it affects families, it affects children, and it’s a very important aspect of public safety.”

Since joining the Umatilla Tribes 12 years ago, Coyote has been heavily involved with state and national coalitions in addressing violence against tribal women. When the Justice Department’s Office of Violence Against Women held its tribal consultations in 2006—the same year grant funding was made available to tribal nations under VAWA since it passed in 1994—Coyote was there.

Moreover, when U.S. Attorney General Eric Holder held a listening session about five years ago to address the victimization of Native women and “complex jurisdictional issues,” she attended.

Her efforts, and the efforts of other tribal advocates, helped pass a piece of historic legislation in which the federal government is “finally … actually seeing the atrocities going on [on] the reservations for all these years that have not been addressed, that have been swept under the table,” Coyote said.

“It’s like, for the first time, the lens is on the safety of Indian tribal women, and that hasn’t been seen in I don’t know how long,” she said.

Dossett echoed this sentiment, calling the passage of VAWA 2013 “a huge step forward for tribal authority and jurisdiction and for the safety of Native women.”

While there is hope survivors will start to come forward and seek help now that the pilot project is underway, Coyote believes survivors and their families will be tentative to trust the Umatilla Tribes’ ability to hold non-Native offenders accountable both in court and through its batterer’s intervention program, “until one case has gone through.”

“But I do think that once it becomes knowledge—truth—to our community, we will see a lot more victims willing to bring this forward,” she told Rewire.

Establishing trust, though, has less to do with the Umatilla Indian Reservation’s legal system than it does with the impact of the 1978 Oliphant opinion—and the United States’ long, sordid history of settler colonialism.

Through pugnacity, settlers of the “New World” pilfered much of the original Indian Country and its resources, pushing Native American tribes further away from the established lands. Iniquitous treaties and laws, and centuries of bloodshed, continued colonizers-cum-lawmakers’ exploitative clampdown on Native American tribes, with the Dawes Act of 1887—the United States’ official assimilation policy for nearly 50 years—the most shattering. Experts believe programs like the coercive Voluntary Relocation Program and the near erasure of Native American history in schools only serve to further Native American assimilation as a modern sociopolitical objective.

The corollaries of the United States’ settler colonialism and “generational trauma” still linger for tribal members, especially tribal women, says Coyote. If nowhere else, this is underscored by vehement dissent against expanding protections for Native American tribes under the Violence Against Women Act reauthorization. A number of Republican senators, including Ted Cruz and Rand Paul, have said Section 904 is unconstitutional, and questioned tribal nations’ ability to carry out the law.

Of the 138 House members who voted against VAWA 2013’s Senate-approved bipartisan version, all were Republican.

If you ask Coyote, “outright racism” and long-purported stereotypes towards Native people played a “huge role” in this pushback. In order for tribal members to trust the law, and to establish meaningful collaboration, the United States particularly will need to “take an honest look at the atrocities that occurred and learn from it,” she said, and not continue to look negatively at tribes “from a window or a magnifying glass.”

For the program to succeed, the federal government and tribal nations will have “to actually get together, know each other, and learn to be able to trust each other,” she said.

The inimical way in which Native tribes and people are treated in and by American society, though, are largely dictated by that prejudice, Coyote added, so “we have to really hope that [the United States doesn’t] lean on those stereotypes and leave it at that.”

She continued, “They have to really get out and be a part of a team who’s trying to address the issue in a positive way.”