The Pascua Yaqui Tribe was one of three initial tribes selected by the U.S. Department of Justice to pilot enhanced criminal court jurisdiction pursuant to the Violence Against Women Reauthorization Act (VAWA) of 2013. This law vested tribes with the authority, subject to certain conditions, to arrest, and prosecute non-Indians who commit certain domestic violence crimes within their territory. The Pascua Yaqui Tribe formed an advisory board that worked with state and federal agencies, as well as with an inter-tribal working group, to prepare for implementation of the law. The tribe began exercising Special Domestic Violence Criminal Jurisdiction under VAWA in February of 2014 and prosecuted the country’s first criminal domestic violence case against a non-Native offender under this law. With the law fully implemented, the Pascua Yaqui Tribe now has the ability to protect adult victims within its reservation from non-Indian domestic violence offenders.
Violence Against Women Act Special Domestic Violence Criminal Jurisdiction
Program Running Length: February 2014 to the Present
Location: The Pascua Yaqui Indian Reservation is located in Tucson, Arizona. The reservation is known as “New Pascua,” a reflection of the fact that the tribe has several other traditional communities throughout southern Arizona, many of which are older than the reservation itself. These communities include Old Pascua (also in Tucson), Barrio Libre (in the City of South Tucson), Marana (northwest of Tucson), = Guadalupe (southeast of Phoenix), Penjamo (in Scottsdale), and Coolidge (north of Tucson).
Land Characteristics: The Pascua Yaqui Indian Reservation is a desert community. The reservation is located in the southwestern part of the Tucson metropolitan area and is adjacent to the San Xavier Indian Reservation, part of the Tohono O’odham Nation.
Population: As of 2015, there were over 19,000 enrolled tribal members. Around 800 non-Indians work for the tribal government and casino (approximately 32% of all employees). Five hundred non-Indians live on the reservation.
Problem to Be Addressed
As with many other tribes, domestic violence poses a serious threat to the safety and well-being of the Pascua Yaqui community. Pascua Yaqui Tribal Police respond to incidents of domestic violence on a daily basis, and often the perpetrators of these incidents are non-Indians. However, until recently, federal law prevented the tribe from arresting and prosecuting non-Indians who committed domestic violence crimes on tribal lands. If a domestic violence report was made, there were few options available to tribal law enforcement. Often tribal officers would pick up the offenders, drop them off at the edge of the reservation, and threaten to arrest them for trespass if they returned. The federal government had criminal jurisdiction over these cases but rarely prosecuted them, leaving non-Indian offenders free to continue their criminal conduct and leaving tribal victims at risk.
In order to increase its ability to protect its citizens, the Pascua Yaqui Tribe petitioned Congress for Special Criminal Jurisdiction under the Violence Against Women Act (VAWA) of 2013, which would enable them to arrest and prosecute non-Indian domestic violence offenders. The tribe was granted this authority when it was accepted as one of the three initial tribes for the VAWA Pilot Project.
As a tribe that meets the requirements to implement Special Domestic Violence Criminal Jurisdiction under VAWA, the tribe may now arrest and prosecute non-Indians who commit certain domestic violence crimes against Pascua Yaqui adults. However, because VAWA jurisdiction is limited to domestic violence crimes and to cases involving adult victims, the tribe does not have the ability to prosecute non-Indians who commit non-domestic violence crimes or who threaten or abuse Pascua Yaqui children.
The history behind the development of this program stretches back before the 2013 reauthorization of the Violence Against Women Act. Over the years, the Pascua Yaqui Tribe has worked to overcome problems stemming from the federal limitations on tribal criminal jurisdiction and they have been lead contributors to the development of enhanced sentencing options for Indian tribes.
For the Pascua Yaqui Tribe, expressing the full extent of their jurisdictional sovereignty has been a priority for many years. In 2008 a tribal member challenged the tribal court’s authority to impose consecutive sentences exceeding one year under the Indian Civil Rights Act. That case, titled Miranda v. Anchondo, was eventually appealed to the Ninth Circuit Court of Appeals. As the case brought widespread attention to the Pascua Yaqui Tribal Court, it pushed the tribe to evaluate their court system and determine whether any reforms were needed.
The Pascua Yaqui Tribal Council examined the tribe’s criminal codes and procedures regarding fair treatment of criminal defendants, and decided to pass a law that guaranteed all Native defendants, including Indians from other tribes, the right to defense counsel at the tribe’s expense if the tribe was seeking jail time. The tribe also lobbied Congress about increasing the sentencing authority of tribal courts. The tribe employed this second approach to validate that tribal courts can impose criminal sentences of more than one year and to affirm the legitimacy of their court processes.
In October of 2009, the Chief Prosecutor of the Pascua Yaqui Tribe attended the Department of Justice’s Tribal Nations Listening Session on public safety. During that session, representatives from the Tribe offered several suggestions to strengthen the sovereignty of tribes and their ability to protect their tribal members. First, representatives suggested increasing sentencing maximums from one year to up to three years imprisonment for each criminal offense. Additionally, Pascua Yaqui representatives suggested that tribal courts should be allowed to consecutively sentence offenders for separate criminal offenses to multi-year sentences of incarceration. The talks from that session added to the development of new federal laws regarding enhanced sentencing options for tribal courts--Congress ultimately incorporated the suggestions made by tribal advocates into the Tribal Law and Order Act of 2010 (TLOA).
Immediately after the passage of TLOA, the Pascua Yaqui Tribal Council amended the Pascua Yaqui Court Rules in order to comply with the requirements of the law and gain enhanced sentencing authority. In order to become TLOA compliant, the Tribal Council had to make its laws publicly available, provide defense counsel to indigent defendants, have a law-trained judge, and purchase technology to record court proceedings. In complying with the requirements of TLOA, the tribe also laid the groundwork for complying with some of the mandates of VAWA.
In 2012, and again in 2013, Pascua Yaqui tribal leaders travelled to Washington, D.C. to appeal to Congressional leaders for criminal jurisdiction over non-Indians and explain the serious need for the Violence Against Women Reauthorization Act to help alleviate domestic violence on reservations. Tribal leaders also explained that tribal courts would be fair to non-Indian defendants and had the ability to ensure the full protection of their rights.
In March of 2013, President Obama signed the Violence Against Women Reauthorization Act (VAWA) into law, authorizing tribes that meet certain conditions to exercise Special Domestic Violence Criminal Jurisdiction. This would allow tribes to exercise their sovereign power to investigate, prosecute, convict and sentence non-Indian offenders who commit domestic violence crimes against tribal members. Though the law was scheduled to take effect on March 7, 2015, it also authorized a voluntary “Pilot Project” which would allow certain tribes to begin exercising Special Domestic Violence Criminal Jurisdiction before the law’s effective date.
Pilot Project Phase (Planning, Design, and Implementation)
The Pilot Project was designed to have two separate phases. The first phase would invite tribes to participate in a working group in order to help plan and troubleshoot ideas relating to the implementation process for tribes. In order to participate in this phase, tribes had to submit letters of interest to join the working group. The second phase would begin when a tribe was authorized by the Department of Justice to begin the early exercise of Special Domestic Violence Criminal Jurisdiction. Tribes that wished to participate in this phase were asked to submit applications to the Department of Justice for review.
During Phase I of the Pilot Project, the Department of Justice launched the Intertribal Working Group (ITWG) on Special Domestic Violence Criminal Jurisdiction. The ITWG is voluntary meetings of tribal representatives who exchange opinions, information, and advice on how tribes can best exercise Special Domestic Violence Criminal Jurisdiction (SDVCJ). Between July and December of 2013, the Pascua Yaqui Tribe participated in numerous meetings with the ITWG where they discussed methods for combating domestic violence, addressing victims’ safety needs, and strategies to safeguard defendants’ rights.
In order to ensure that they would be able to participate in Phase 2 of the Pilot Project, on December 28, 2013, the Pascua Yaqui Tribal Council passed an ordinance amending its court rules to be compliant with VAWA. These amendments provided for changes to the tribe’s criminal jurisdiction to allow the tribe to prosecute non-Indians under SDVCJ; increased due process rights for defendants; and ensured that a cross-section of the community would be represented in the jury pool.
On December 30, 2014, the Pascua Yaqui Tribe submitted its application to the Department of Justice requesting to enter Phase 2 of the Pilot Project. The application consisted of an in-depth questionnaire that required the tribe to demonstrate that it provided all of the procedural safeguards required by the Act to protect defendants’ rights. On February 6, 2014, the tribe received official notice that it had been selected as a pilot tribe. One of the requirements of the Pilot Project was that the tribe provide a two-week notice period to inform the community of the change in the law. In order to ensure that individuals would be aware that a change in legal process might be affecting their rights, the tribe sought opportunities to broadcast their pilot status. The tribe conducted interviews with several news outlets across the country, including an internet news program called Colorlines and National Public Radio. Stories and press releases were also posted online and on social media platforms like Facebook. Community meetings advising of the change in law were also held in New Pascua and the tribe’s other traditional communities.
On February 20, 2014, the Pascua Yaqui Tribe began exercising Special Domestic Violence Criminal Jurisdiction over non-Indian perpetrators of domestic violence. On July 2, 2014, for the first time since 1978, an Indian tribe obtained the conviction of a non-Indian for committing a crime, in this case, the crime of domestic violence.
The Pascua Yaqui Tribe seeks to provide all of its citizens with the greatest protection from crime and violence that the law can provide. The Pascua Yaqui Tribe implemented VAWA 2013 in order to address the issue of domestic violence on the reservation. The tribe is now better able to protect its women and children by ensuring that every perpetrator of domestic violence is held accountable for his or her actions.
Legal Requirements for Implementation
The Violence Against Women Reauthorization Act of 2013 contains a series of legal requirements that must be satisfied in order for a tribe to exercise Special Domestic Violence Criminal Jurisdiction. These requirements act as procedural safeguards to ensure that non-Indian defendants are provided the due process protections that they would receive in federal or state court. The requirements can be broken down into three categories: 1) due process protections, 2) limitations on jurisdiction, and 3) compliance with federal case law.
Due Process Protections:
In addition to the rights guaranteed to defendants by the Indian Civil Rights Act, VAWA requires that tribes implement several additional specific procedures to ensure that defendants receive due process. Many of these rights overlap with those required by the Tribal Law and Order Act. These rights are:
- The right to counsel for indigent defendants: The tribe must provide legal counsel to any defendant who cannot afford an attorney. The Pascua Yaqui Tribe has hired additional public defenders to deal with the increased caseload.
- Law-trained judges: The judge presiding over the criminal proceeding must be law-trained and licensed by any jurisdiction in the United States.
- Publicly available criminal laws: The tribe must make all of their applicable criminal laws, codes, court rules, and rules of evidence available to the public.
- Maintain a record of criminal proceedings: The tribal court must produce and maintain a record of the criminal proceedings.
- The right to a jury selected from a fair cross-section of the community: The Pascua Yaqui Tribe selects non-Indians who live and/or work on the reservation to sit on its juries. The tribe mixes a list of enrolled tribal members with a list of the non-Indians on the reservation and then randomizes the lists to select the jury pool.
- The right to file habeas writ in federal court: The tribal court must inform a detained non-Indian defendant of his/her right to have a federal court review the case by petitioning for a writ of habeas corpus at any time.
Limitations on Jurisdiction:
The Violence Against Women Act places strict limitations on the exercise of Special Domestic Violence Criminal Jurisdiction. Several specific conditions must be met:
- Types of Crimes: The tribe may only prosecute a non-Indian who commits a) domestic violence, b) dating violence, or who c) violates a protection order.
- Types of Defendants: The defendant must be a non-Indian with sufficient ties to the Indian community. This requirement is only satisfied if the defendant lives on the reservation, works for the tribe, or is the spouse, intimate partner, or dating partner of a tribal member or other Indian person living on the reservation.
- Types of Victims: The victim must be a tribal member or Indian who lives on the prosecuting tribe’s reservation.
- Place of Criminal Act: The crime must occur in Indian Country.
Federal Case Law:
Beyond the statutory requirements, the Pascua Yaqui Tribe is careful to comply with any federal case law that could potentially restrict tribal exercise of Special Domestic Violence Jurisdiction. For instance, a recent Supreme Court case, U.S. v. Castleman, has had a major influence on the tribe’s charging decisions. In Castleman, the Supreme Court concluded that for an act to qualify as domestic violence, an aggressor must engage in “offensive touching” so that the offense meets the statutory requirements for physical force. Although the Court was interpreting a different federal statute, not directly related to the requirements of VAWA, the language from Castleman is likely to be invoked if a challenge is posed to the implementation of VAWA in federal court. Therefore, the Pascua Yaqui Tribe continues to be cautious with its charging decisions while they await confirmation from Congress that violent force is not required to charge domestic violence crimes under VAWA 2013.
The tribe adapted its existing procedural framework for investigating and prosecuting domestic violence crimes so that it may now, under the conditions specified above, exercise jurisdiction over non-Indians. The investigation of a domestic violence crime is now similar whether or not the accused is Native. When an act of domestic violence is committed on the reservation, tribal law enforcement officers respond to the scene and question whoever is present in order to establish what happened, create a police report, and possibly make an arrest. If the offender is arrested, tribal prosecutors use the information contained in the police report to make a charging decision.
However, the tribe does not pursue every potential VAWA case, and may hand cases over for state or federal prosecution, depending on the circumstances. The tribe works extensively with state and federal law enforcement agencies and is able to consider any open cases an offender may have when deciding whether to charge that defendant in tribal court. Non-Indian offenders, who are picked up for domestic violence crimes may have active state or federal warrants for more serious offenses. For example, the tribe recently had a defendant with an active warrant for armed robbery from the state of Oklahoma. While the tribe lost the jury trial against the defendant on jurisdictional grounds (failure to prove an “intimate relationship” in a same-sex context), the defendant was immediately extradited to Oklahoma for prosecution. Although not a so-called successful prosecution, the case illustrated that tribal courts are able to carry out fair trials against non-Indian defendants.
The tribe also uses a multidisciplinary team (MDT) comprised of tribal and federal law enforcement agencies to assist with the investigation and prosecution of multi-jurisdictional cases. Using this process, the tribe has referred several of its more severe domestic violence cases (i.e. strangulation, aggravated assault) for federal prosecution, since greater punishment may be secured in federal court than in tribal court, due to the limits on tribes’ sentencing authority. Cases referred for federal prosecution may be picked up by the U.S. Attorney’s Office in Tucson or brought by one of the Tribe’s Special Assistant U.S. Attorneys (SAUSAs). SAUSAs are appointed by the tribe, in partnership with the U.S. Attorney’s Office and Department of Justice, and may prosecute cases in federal court.
Throughout the pilot project, the tribe was required to report to the Department of Justice. The tribe was also in constant communication with the Bureau of Indian Affairs, the National Congress of American Indians, and a number of other committees and advisory groups formed to address and respond to implementation issues.
On the Pascua Yaqui reservation, no single person, group, or agency is responsible for running the pilot project. Tribal Council, law enforcement, prosecutors, public defenders, judges, court personnel, and the entire Pascua Yaqui community have been vital to the implementation and enforcement of the law. In cooperation with state and federal law enforcement agencies, and the U.S. Attorney’s Office in Tucson, the tribe now investigates domestic violence crimes that are perpetrated by both Indians and non-Indians and decides the proper judicial forum for charging those individuals.
PLANNING & IMPLEMENTATION
The Pascua Yaqui Tribe funded its own participation in the VAWA pilot project. However, in 2010 the tribe received a $21 million Recovery grant from the American Reinvestment Recovery Act (ARRA) to construct its multi-purpose justice complex. The ability to implement VAWA would have been far more challenging without some of the resources that were developed due to the support of the Recovery Act grant. That grant funded the tribe’s multi-purpose justice complex, which is used for officer training, court training, attorney training, victim services and a BIA-approved detention facility. Additionally, that grant funded necessary technology upgrades, such as a secured data-communication line so law enforcement could obtain information about the criminal histories of non-Indian defendants through NCIC.
When estimating the cost of implementing VAWA, the Pascua Yaqui Chief Prosecutor, O.J. Flores, stated that the cost incurred by a particular tribe could vary dramatically based on the size of the reservation, the number of cases, social demographics, and the extent of the tribe’s current infrastructure. However, Mr. Flores estimates that the cost of implementation could easily eclipse a million dollars annually considering all costs, including salaries for a law-trained judge and licensed prosecutors and defense attorneys, a court record system, administrative staff, approved detention facilities and personnel, training for law enforcement, code changes, and public forums to provide notice of the change in law. Additionally, there would be increased costs of litigation, such as working with experts when necessary, compensation for witnesses, defendant healthcare costs, overtime for officers, and forensic testing.
The Tribe has worked with multiple technical assistance providers throughout every phase of the project, including the Center for Court Innovation, the National Congress of American Indians, the Tribal Law and Policy Institute, and the National Council of Juvenile and Family Court Judges. Their assistance centered on conducting a justice system needs assessment, code structuring, law enforcement training, VAWA prosecutor training, and organizing the administrative process. Additionally, during implementation, the tribe worked with TA providers to troubleshoot early concerns and address unforeseen legal issues as they arose.
Local, state, and federal partnerships have been critical to the Pascua Yaqui Tribe’s successful exercise of Special Domestic Violence Jurisdiction. Each phase of the process has required extensive communication and collaboration between the tribe and its partners. The tribe works regularly with the Pima County Prosecutor’s Office, the Tucson Police Department, the U.S. Attorney’s Office in Tucson, the U.S. Department of Justice, and the Bureau of Indian Affairs. Because of the jurisdictional overlap, the tribe’s positive relationships with state and federal law enforcement have been very beneficial. The tribe also assists the state and federal governments with criminal extraditions. As of October 2014, the tribe has conducted a total of 65 criminal extraditions from the Reservation, primarily to the state of Arizona through the Pima County Prosecutor’s Office and the Tucson Police Department. Tribal law enforcement also participates in a local integrated information sharing system with state and federal law enforcement that makes investigation and prosecution more efficient for everyone.
Factors Contributing to Success
Much of the Pascua Yaqui Tribe’s success with the pilot project can be attributed to the groundwork that was laid prior to the passage of VAWA.
- Existing Justice Complex - In 2010, the tribe received a $21 million grant through the American Reinvestment Recovery Act (ARRA) to construct a state-of-the-art multipurpose justice complex, which enabled the tribe to comply with many of the requirements for VAWA implementation.
- Existing Legal Framework - Before applying for pilot status, the tribe had already developed its criminal justice system infrastructure and adapted its criminal code to comply with VAWA.
- Partnerships - The tribe had positive, preexisting relationships with many of the state and federal partners that it worked with throughout the pilot project and implementation phase.
- Complying with Federal Case Law - A recently decided U.S. Supreme Court case, U.S. v. Castleman, poses a challenge to the tribe’s exercise of Special Domestic Violence Jurisdiction under VAWA. In Castleman, the Supreme Court held that the physical force requirement to establish a “misdemeanor crime of domestic violence” (under a different federal statute) was “satisfied by even the slightest offensive touching.” The tribe is troubled by the Supreme Court’s “offensive touching” language, as the tribal prosecutor’s office commonly charges for domestic violence crimes that do not involve physical contact, but still involve situations that are violent and dangerous to the victim. In the tribe’s experience, perpetrators of domestic violence tend to escalate their abusive behavior over time in order to maintain a position of power and control. Unfortunately, Castleman may be used to limit tribal domestic violence jurisdiction if a VAWA Special Domestic Violence Criminal Jurisdiction case winds up in federal court. The tribe wants to protect victims of domestic violence and ensure that VAWA 2013 will survive any future efforts to have the law narrowly construed or overturned. To balance these commitments, the tribe has been very conservative in deciding which VAWA 2013 cases to charge. It is also mounting a pre-emptive strike in anticipation of the law being challenged by collaborating with the U.S. Attorney’s Office to identify and respond to potential arguments.
- Articulating the existence of an “intimate” relationship - VAWA 2013 requires the tribe to prove that the victim and defendant were in an “intimate” or “dating” relationship before moving forward with prosecution. The tribe has encountered some difficulties with this requirement, particularly in one case that involved a same-sex couple whose relationship may not have been public. Tribal police are now being trained to ask questions that will help establish whether or not the relationship between the parties is “intimate,” as is required for the tribe to have jurisdiction.
- Costs & Resources - Tribal prosecutors have been very selective with which cases to charge due to limitations in resources, such as available bed spaces in their long-term detention facility. There have been instances where the contracted detention center has reached maximum capacity and the tribe has been left to consider alternative options, such as pre-trial release, as well as the housing needs of violent offenders and those with medical conditions. To remedy this issue, the tribe is asking Congress to appropriate money under VAWA 2013 to assist with some of the costs of implementation.
- Post-Conviction Challenges - Now that the tribe has convicted several non-Indians for domestic violence, they must determine the best way to manage these offenders once they begin probation. The tribe is exploring whether it should transfer probation services via an intergovernmental agreement to the State of Arizona or Pima County. Alternatively, if the offender stays on the reservation, the tribe will have to determine what sort of rehabilitative services it could offer given limitations on funding and facility space.
While implementing Special Domestic Violence Criminal Jurisdiction, the Pascua Yaqui Tribe has learned several important lessons. First, young children are often involved in domestic violence cases. These children live in homes where they are being exposed to violence, and are at high risk of physical abuse, neglect, and psychological trauma. In fact, in several of the VAWA cases that the tribe has prosecuted, the police reports were made by children. In one case, the child was assaulted by the victim for reporting the incident. Unfortunately, the tribe still lacks the authority to charge non-Indian offenders for committing crimes against children. The tribe is asking Congress to consider extending special criminal jurisdiction to include offenses committed against children.
Second, it takes significant time and money to implement and exercise VAWA jurisdiction. There are less costly alternatives to prosecution, such as civil remedies, alternative sentencing, and referral for state or federal prosecution, that may be equally effective in certain cases.
Thus far, the tribe has handled nearly thirty domestic violence cases involving non-Indians. Eight of these cases resulted in conviction by plea agreement, while another four cases were serious enough to warrant referral for federal prosecution.
VAWA cases accounted for 25% of all domestic violence cases filed by the tribe during the pilot period from February 2014 to March 2015. Additionally, the tribe is now collecting as much data as possible in order to identify the underlying risk factors for domestic violence in their community, with the hope of petitioning for funding to address these issues in the future. The tribe also hopes to work with federal partners to implement a comprehensive evaluation of the pilot tribes’ experiences.
The implementation of VAWA Special Domestic Violence Criminal Jurisdiction has made a meaningful impact in the Pascua Yaqui community. Tribal members had become accustomed to domestic violence by non-Indians because the justice system was not able to respond in any meaningful way. However, as the community has become aware of the tribe’s renewed ability to arrest, convict, and sentence non-Indian offenders, awareness has spread about the problem of domestic violence. Through outreach, the Pascua Yaqui community is slowly being re-educated and reassured that this form of abuse should not and will not be tolerated.
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