Native Americans Can Prosecute Non-Natives In Tribal Court

March 16, 2015

As of this month, Native American tribes across the country are allowed to prosecute crimes against women in their own courts, even if the perpetrator is non-native. Over the past year, three tribes have been piloting ways to do this that honor both tribal and federal law. 

Up until recently, the only thing a tribal officer could do to a non-native perpetrator is drive him to the edge the reservation and drop him off. Pascua Yaqui Tribal Police Chief Michael Valenzuela recently drove a Circle K to show me where officers often took them.

Laurel Morales
A painting hangs in the Pascua Yaqui victims’ services office.

“You’re kind of powerless,” Valenzuela said. “You can still physically do your job. You can go there and you can detain them, you can hold them, go through the procedures but at the end of the day you have to let them go.”The tiny reservation just outside Tucson has been plagued by domestic violence and many of the cases involve people outside the tribe.

Police officer turned victims advocate Canada Valenzuela said she was disheartened. She couldn’t look victims in the eye. 

“We would always hear ‘why can’t you guys arrest him?’” Valenzuela said. “‘Why is he getting away with it?’ ‘You know he’s just going to come back he knows you guys can’t do nothing.’”

Laurel Morales
Pascua Yaqui Attorney General Fred Urbina stands in front of the new $21 million justice complex.

And when the children see that dad can hit mom and there is no consequence, Valenzuela said that sent them the wrong message.

“There’s some, especially the boys who say, ‘well he’s just going to come back and she’s going to get what she deserves,’” Valenzuela said.

Laurel Morales
The old Pascua Yaqui jail was a two-bedroom house that sat in the middle of a neighborhood.

In 1978 the U.S. Supreme Court stripped tribal authority over non-natives in Oliphant versus Suquamish Indian Tribe. Justice William Rehnquist wrote non-natives were “aliens” to the reservation. They didn’t vote or live there, so they couldn’t be tried there.

Pascua Yaqui Judge Melvin Stoof never understood that legal rational.“It was always a red herring for me because if you’re a New Yorker and you commit a crime in California, California doesn’t ask if you’re registered to vote there or if you live there or reside there,” Stoof said. “You’re subject to the criminal jurisdiction of California.” 

Laurel Morales
Pascua Yaqui Police Chief Michael Valenzuela says, “we’re a people just as valuable and important as anybody else with a long history of our own judicial system taking care of our own.”

The U.S. Attorney’s office has jurisdiction to prosecute cases in Indian Country, if the violence is severe. But it still declines a third of all cases presented.

Congress changed that in 2013 when it passed the Violence Against Women Reauthorization Act. That gave tribes the authority to prosecute some Non Natives in tribal court and sentence them up to nine years in jail.

Pascua Yaqui Attorney General Fred Urbina said the new law is having a great impact but it’s not enough. It only protects women from their husbands or boyfriends, not from strangers. And it doesn’t include children.

“In 19 of our cases, we had 18 children involved, the average age being around 4 years old,” Urbina said. “Some of them were assaulted. A lot of times it was the children that were calling to report these domestic violence incidents.” 

Laurel Morales
Judge Melvin Stoof became the first tribal judge to hear a case against a non Native American in 36 years.

The Justice Department chose the Pascua Yaqui to pilot the program because they have state certified judges and lawyers and a brand new courthouse and jail. Police Chief Michael Valenzuela said the old jail was a two-bedroom house with a cage.“In the past, people were in jail people would come knock outside on the window,” Valenzuela said. “We’d have to shoo them away. It was not safe. We had people assaulted.”

Now, thanks to federal stimulus money, they have a 65,000 square foot justice complex complete with 20 beds to house both native and non-native inmates.