Adelle Fontanet (AF): Hi, my name is Adelle Fontanet, I am a senior associate with the Tribal Justice Exchange at the Center for Court Innovation. At the 2015 Indian Nations Conference we sat down with Alfred Urbina, former attorney general for Pascua Yaqui, and O.J. Flores, chief prosecutor for the Pascua Yaqui Tribe about the implementation of VAWA (Violence Against Woman Act) jurisdiction in the Pascua Yaqui community.
Thank you both for meeting with me. I was hoping we could talk a bit about the early implementation process. The initial implementation of VAWA jurisdiction began with three pilot tribes, including Pascua Yaqui. Alfred, could you explain how this pilot process works?
Alfred Urbina (AU): The pilot process is a 2-part process. The first part was the application where the application was scrutinized by the US Attorney’s office, the Department of Justice, the Bureau of Indian Affairs, and quite a number of folks that looked at our application and looked at our code, looked at the questions that we had answered in terms of what we would be providing to defendants to see how our system met the mandates of the law. The second phase happened after we were advised that we were going to be a pilot tribe and then we could start prosecuting as a pilot tribe.
AF: Now that you’ve entered the prosecution phase, how has the community responded to the exercise of the special domestic violence tribal jurisdiction?
AU: I know that the council is pleased. I know that the community members are pleased, at least the folks that we've talked to. They see it as an issue of fairness. If a tribal member is going to be prosecuted for domestic violence, then certainly a non-Indian who commits the same crime should be treated the same way. I think they understand that these relationships are occurring and there's violence associated with some of these relationships and they don't want that as part of the community. The response has been very positive.
O.J. Flores (OF): It's also had a trickle-down effect in terms of the community having an education as far as domestic violation I suppose. The eye-opener that we can arrest and put in a detention facility non tribal members. When you know, that hasn't always been the case. Before we'd take them to the edge of the reservation and hope they wouldn’t come back. That what the best that we can do. Now the word is spreading that that's not the case anymore. That awareness that there's actually some movement being made; progress being made in terms of our ability to protect our own community.
AF: Could you tell us what this progress looks like in your community and what prosecution of these new cases looks like?
OF: One of our cases that we had was a same sex case involving 2 males, older tribal male and a younger African American male from Oklahoma. One of the things that we learned through the whole process of that investigation and even through the prosecution of it was, we have to get our officers trained to be able to deal with asking the questions about their relationship with one another. And that was the issue that ultimately the case rested on, was whether or not we could prove that there was a relationship. That’s part of the requirement of essentially VAWA, the VAWA statute itself, it specifically defines what scenario it is that we can prosecute within a reservation or Indian country and that it’s pretty specific as to it has to be some sort of intimate or romantic relationship.
AU: The jury that made this determination was mainly Yaqui jurors but the foreman of the jury was a non-Indian, an African American male, an employee who worked for the tribe. They considered the question on whether or not there was a relationship and they determined that enough evidence wasn’t presented to determine that relationship existed which is a requirement for the jurisdiction. It’s refreshing to know that a) we’ve proven that a Yaqui jury will be fair to a non-Indian person whose been arrested and charged and there’s allegations made against that person. It was just refreshing see that.
OF: At the end of the day our system worked. It did exactly what everybody expected it to be, it was exactly as it would be in any other court. It was as predictable as any other court that you would ever encounter. Our law trained judge handled the case, handled the objections, dealt with evidentiary issues.
AF: You talked about having a diverse jury that is representative of your community, which is a requirement of VAWA. Can you tell us a bit about the jury selection process that you ended up using?
AU: You have to have a fair cross section of the community represented on a jury. What that means is maybe the non-Indians that live and work in that community that this crime occurred in. We populate the jury with employees that work at the casino and government. We also use spouses and folks that live on the reservation. That population and those names are provided to our court, we use our enrollment database to provide the tribal jurors who are over 18. We mix those two lists and randomize the list and that's how our jury is picked. This jury was made up of five tribal members and two non-Indians. One non-Indian was alternate and one non-Indian was the African American foreman for the jury.
AF: As you mentioned, having a fair cross section of the community represented on the jury is a requirement of VAWA, and you talked a bit about the challenges with implementing that. But can you tell us a little bit about challenges you’ve experienced in other areas of implementation?
OF: I think one of the biggest impacts or impediments to the actual jurisdiction itself was the Supreme Court case Castleman which talked about domestic violence and had requirements in there and talked a little bit about our special jurisdiction and that it required some sort of physical violence. I think that alone had the greatest impact on our ability to exercise the jurisdiction because it caused us to be really deliberate, really scrutinize the cases that were brought to us to see whether or not we could charge some of these things.
AU: Castleman essentially defines domestic violence as a physical touching. When you think about VAWA and the jurisdiction tribes had, have had originally since when it was written, it’s very limited. It required that DV relationship and domestic violence so it’s limited to those situations and for us that meant that we could prosecute for assaults, for aggravated assaults, for threats, for a person breaking a cell phone, harming an animal, harming a family member. We thought it would be trespassing, we thought it encompassed all of those crimes which it’s very limiting, people call it a first step, but the Castleman decision essentially said you require someone to actually touch a person essentially. It reduced the number of crimes that we could charge, probably cut it in half or more and so it’s further limited and when we go back to congress that’s something we’re going to certainly talk to them about, to address that definition and expand the number of crimes we can charge.
AU: As a group we talked to the Intertribal Working Group, the Department of Justice, discussed this matter and felt that it was in our best interest but it also in the best interest of other tribes to be very conservative with how we charged. We didn’t want the law overturned on a case that we would bring that didn’t satisfy those Castleman restrictions. And so that’s what we’ve been relegated to and for us, it’s resulted in females being physically assaulted probably because they thought, “Well nothing happened to me. I was released from custody, there’s nothing that could be done so I’m going to continue these, this conduct on the reservations.”
AF: So when the Castleman case came out and it had a requirement of physical touching, that was surprising, and that also created its own challenges. Is there anything else surprising or interesting that you’ve learned along the way since implementing VAWA that you can share with our listeners?
AU: One of the important facts that we've uncovered in all this is that we talk about the law not being expansive enough. We recognize that in a lot of our cases, there's children involved. There's been 18 children involved in the total of our cases. Those children range in age from 2 to 11 years old.
OF: Infants to 11 years old. The average age of 4.
AU: We haven't been able to address that; the law does not allow us to address that. We've had to remove children from the home during these cases because of the violence in the home. They're now in the foster system. They're being protected, however we're not able to prosecute for the crimes committed against these children. Some of these children have been victims. They're witnessing violence, they're witnessing their mother get beat up.
AU: We’ve got 18 children that have been in that situation and we’re not able to address it, and it’s not being addressed otherwise. When we go back to Congress, hopefully we can say, “Okay, now we expand to include children and also other crimes so that we can properly protect these families.”
AF: What do you think is the future of VAWA jurisdiction in the Pascua Yaqui community?
OF: Now we’re dealing, we’re taking a look back and we’re taking a de-briefing of what has just occurred, what areas we want to improve on, because now that we have this ability to do it, we really want to fine-tune all the things that we do have and ensure that 1) we’re protecting, a lot of times it gets lost but prosecutor’s jobs and also among all the other jobs that they have, they have to ensure that the defendant’s rights are protected. We want to ensure that the victim’s rights are being complied with and that we are achieving justice in terms of what our community determines that to be.
Now we’re looking back, we’re reviewing our code, we’re looking at the criminal procedure rules, trial practices, rules of evidence and the completeness or whether or not we want to incorporate some additional rules to just further clarify and make our criminal system that much more predictable when we go into court. It’s actually been a really eye opening and exciting time to know that, okay, at the end of the day, when all the critics were opposing VAWA coming into play, the fear was that the Indians weren’t going to give anybody a fair trial. They’re going to do whatever it is that they want to do, they’re not capable of handling this VAWA. That, it couldn’t be any further from the truth.
AF: What do you see as the future of VAWA more generally in Indian country?
AU: Just when you think about the number of cases we had. If you take the 15 defendants, the 18 cases that we’ve had and you extrapolate it to 566 other tribes across the country and you basically say that they average 15-20 cases in that short period of time, then we’re talking about 8,000-10,000 cases that we could prosecute across Indian country or prevent from occurring when you think about it on a wide scale. Because although we have this jurisdiction and we’re able to protect some of the women when they report these crimes, this stuff is still occurring across Indian country. It’s still happening today. Tonight there will be someone beat up on a reservation somewhere and that tribe will not have the authority to protect that person. It’s still, it’s very depressing when you think about it like that but there’s a crack in the door, there’s some light shining through this dark cloud that hopefully will spread across Indian country once we’re able to continue working with these tribes and just opening the door a little further.
OF: I know for the pilot tribes, we recognize that we're in a really unique circumstance where people are offering so much help to us. Some of the other tribes that like when we meet with the inter-tribal working, they have you know, they're struggling to develop those relationships. They've got a history of not having the best of relationships. Hopefully this will you know, it will spread and it will be understood that tribes can handle these cases and with VAWA, the potential for 10,000 additional cases in the United States, US attorney's office or in tribal court. Where the culture can handle it and solves and deal with their community issues that's something much more beneficial.
AF: Despite the limitations of VAWA jurisdiction, you have been able to expand justice in your community and provide due process to non-tribal members. You have been dedicated to preserving and expanding this jurisdiction in your own community and across Indian country. It has been a pleasure to speak with you both today. Thank you both for taking the time to meet with me and to share your stories with us.
I’m Adelle Fontanet with the Center for Court Innovation. Thank you for listening.