Tribes given power to prosecute non-Indians for crimes linked to domestic violence

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WASHINGTON — Congress has given Native American tribes new power to prosecute non-Indians in tribal courts for any crimes linked to domestic violence.

Ending a 16-month battle with the Senate, the House of Representatives voted 286-138 to approve the plan last week as part of an expansion of the 1994 Violence Against Women Act.

The bill now goes to President Obama, who said he would sign it into law.

The bill also would expand federal investigative assistance to include gay, lesbian, bisexual and transgender victims of violence and would allow more illegal immigrants who are victimized to get temporary visas to stay in the United States.

“This is a long-delayed and hard-won victory for millions of women in this country,” said Sen. Patty Murray, D-Bothell, who made the issue a top priority after Congress allowed the law to expire in 2011.

“I'm ecstatic,” said Deborah Parker, vice chairwoman of the Tulalip Tribes in Snohomish County.

She came to the Capitol last year to recount how she'd been sexually and physical abused while growing up on the reservation.

Parker and other tribal officials lobbied hard for a new law in response to a 1978 U.S. Supreme Court ruling that tribes had no authority to try or punish non-Indians.

The case involved a Washington state man whom the Suquamish tribe ordered to appear in tribal court after he was cited on charges of resisting arrest and assaulting a police officer.

Tribal courts

While its 1978 ruling found that tribes don't have jurisdiction to prosecute non-Indians, the high court also explicitly stated Congress could change that.

With Thursday's passage of the Violence Against Women Act, Congress has done just that.

Most of the Supreme Court decision still stands — tribes still can't prosecute non-Indians for most crimes.

But in cases of domestic violence, it's a new day.

Under the legislation, tribes may elect to prosecute non-Indians for crimes of domestic violence, date violence and violation of protection orders, instead of turning them over to local, state or federal officials — which still retain jurisdiction, for tribes that don't want to prosecute.

But for tribes that do, the legislation allows them to investigate, prosecute, convict and sentence non-Indians who assault Indian spouses, intimate partners or dating partners, or who violate protection orders in Indian Country.

The legislation also clarifies that tribal courts may issue protective orders against any offender, regardless of race.

Right now, tribal courts have no authority at all to prosecute a non-Indian, even if the offender lives on the reservation and is married to a tribal member.

Yet non-Indians commit more than 85 percent of all violent crimes against Native American women, according to the U.S. Department of Justice.

The expanded jurisdiction would not go into effect for two years after enactment, to allow time to gear up for tribes that want to use the authority to prosecute, which remains optional.

“This is historic,” said Robert Anderson, professor and director of the Native American Law Center at the University of Washington Law School in Seattle.

“It is a great day for Indian Country and a huge legal victory.”

Opponent of new law

But a Washington congressman, Doc Hastings, R-Pasco, said he believed the new law would not survive a court challenge.

“In a tribal court, constitutional protections and the Bill of Rights do not apply,” Hastings said.

“Under the bill, a non-Indian citizen tried in a tribal court has no right to appeal to a federal court, lacks the guarantee of due process, has no right to an impartial jury of one's peers and more.

“A vote in favor of the bill was a vote to deny U.S. citizens their Bill of Rights.”

At Suquamish on Port Madison Bay in northeast Kitsap County, the legislation is a bit of victory for the tribe 35 years later.

“We are all very pleased, we are just thrilled,” said Donna McNamara, prosecutor for the Suquamish tribe.

“It has been a problem when tribal members have been victims of domestic violence and there has been no way for the community to handle that.

“The reason this is very important to us is these perpetrators have often escaped any responsibility or accountability for their actions.”

Last modified: March 03. 2013 2:50AM
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