POULSBO — If a non-Native American man commits an act of violence against a Native woman on a reservation, the suspect can only be detained by Tribal police until city or county law enforcement officers arrive. In Kitsap County, whether the suspect goes to court is up to the prosecuting attorney’s office.
One advocate says that not all of those cases are prosecuted. And a Tribal leader says the system, as it exists today, makes it cumbersome for Native women to get court protection.
Nationwide, the problem gets bigger.
According to U.S. Justice Department statistics, 86 percent of cases of sexual violence against Native women are committed by non-Native men. According to a 2010 report by the U.S. General Accounting Office, up to 67 percent of those crimes are not prosecuted.
The jurisdictional conflict is rooted in Oliphant vs. Suquamish Tribe. In 1978, the U.S. Supreme Court ruled 6-2 that Tribal courts do not have criminal jurisdiction over non-Indians, and may not assume jurisdiction unless specifically authorized to do so by Congress. (Mark David Oliphant, a non-Native man, was arrested in 1973 and charged by Suquamish Tribe police with assaulting a Tribal police officer and resisting arrest. Oliphant challenged, claiming he was not subject to Tribal authority because he was not an American Indian.)
A proposed reauthorization of the Violence Against Women Act of 1994 would extend domestic violence criminal jurisdiction to Tribes that choose to assume jurisdiction. H.R. 11, introduced by Rep. Gwen Moore, D-Wis., has 157 co-sponsors, including Rep. Derek Kilmer, D-Bremerton.
Among other things, the bill would provide protections for female victims who are evicted from their homes because of events related to domestic violence or stalking. It would provide funding for rape crisis centers and hotlines, programs to meet the needs of immigrant women and women of different races or ethnicities, programs and services for female victims with disabilities, and legal aid for female survivors of violence. It would also extend assistance to battered undocumented immigrants and same-sex couples.
Under the bill, a Tribe may exercise special domestic violence criminal jurisdiction over a defendant “only if (i) the defendant resides in the Indian country of the participating tribe; (ii) is employed in the Indian country of the participating tribe; or (iii) is a spouse, intimate partner, or dating partner of a member of the participating tribe; or an Indian who resides in the Indian country of the participating tribe.”
The bill provides for the defendant the right to a trial “by an impartial jury that is drawn from sources that (a) reflect a fair cross section of the community; and (b) do not systematically exclude any distinctive group in the community, including non-Indians; and all other rights whose protection is necessary under the Constitution of the United States.”
An effort to reauthorize the Act before the end of the last Congress failed “in part because of misunderstanding and trepidations among some members of Congress,” Ray Halbritter wrote in Indian Country Today newsmagazine, of which he is publisher.
“The issue? The idea that non-Indians could be prosecuted by Native tribal authorities for crimes committed on tribal land against Native women. Apparently, exercising this natural right would somehow subvert justice in some eyes … There are many different jurisdictions that manage to work together in the United States and throughout the world.”
Suquamish Tribe Chairman Leonard Forsman, who visited Washington, D.C. to lobby for the bill, is confident the new bill protects the rights of defendants and will pass. Without criminal jurisdiction, Oliphant will continue to be a loophole “exploited by perpetrators who are looking for ways to avoid jurisdiction.”
“For me, one of the big issues is, we want to be able to have people deal with issues in our own court. We don’t want them to have to run all over the countryside to get a court order,” Forsman said. “It’s like someone telling you, ‘You can’t go to Poulsbo [for a court order]. You have to go to Tacoma to do it.’ It’s inconvenient and you’re not part of that community. For us, we want to be able to have justice in our court.”
Mandi Moon, a domestic violence advocate in the Port Gamble S’Klallam Tribal Court for the past five years, said it’s sometimes difficult to get domestic violence victims to press charges. It’s even more difficult if there’s a chance the perpetrator won’t be prosecuted.
“It’s difficult because of the jurisdiction,” Moon said. “The county doesn’t always want to step in.”
Of 12 domestic violence cases on her desk involving non-Native suspects, “five or six” are being prosecuted, she said.
Today, a non-Native perpetrator can be excluded from the reservation by the Tribal Court or the Tribal Council, Moon said. If the individual violates the exclusion order, Tribal police have the authority to remove the perpetrator from the home or property, but must call Kitsap County Sheriff’s Department. Prosecution at that point is “the tricky part,” Moon said. “Kitsap County decides whether it wants to proceed with trespassing charges.”
‘Just as efficient'
At the time the Supreme Court ruled in Oliphant vs. Suquamish Tribe, the general view of Indian Country justice was based on a decision the Supreme Court made 90 years earlier, according to Tim Rybka, a prosecutor with the Northwest Intertribal Court System.
That decision upheld the Major Crimes Act of 1885, which placed seven major crimes under federal jurisdiction if they are committed by a Native American against another Native American in Indian Country. The court later decided in a test case that Indian tribes were not competent to deal with serious issues of crime and punishment.
“Most people don’t understand what Tribal courts are anymore,” Rybka said. “Based on my experience, they are just as efficient at fighting crime as any state court.”
He cited the Tulalip Tribes court as an example.
Associate Judge Theresa M. Pouley, a member of the Colville Confederated Tribes, serves as a trial judge and appellate court justice for several Northwest Tribes. She graduated from Wayne State University Law School in 1987, practiced law in Michigan and Washington, taught Indian Law at community colleges, and lectured with the Washington State Office of Administrator of Courts in the area of domestic violence and Indian Law. She was appointed by President Obama to the Indian Law & Order Commission in 2011.
Tulalip Associate Judge Gary F. Bass, a member of the Colville Confederated Tribes, is also a justice on the Colville Tribal Court of Appeals and a justice on the Nevada Inter-Tribal Court of Appeals. A Special Forces airborne ranger from 1962-65, he earned degrees from Gonzaga University and University of Washington School of Law, served as a King County Superior Court commissioner pro tem for 20 years, and started the Tulalip Wellness (Drug) Court.
In addition, 17 Tribal governments —- among them Port Gamble S’Klallam Tribe — are part of the Northwest Intertribal Court System, which provides judicial, prosecution and appellate court services and operates seven jails. In addition, Port Gamble S’Klallam and Suquamish contract with Kitsap County Jail for jail services.
Interagency relationships, and understanding of jurisdictional complexities, have grown.
In November, the Sheriff’s Department presented for its officers a 39-slide PowerPoint presentation, “Navigating the Complexities of Cooperation, Sovereignty, and Grant of Authority between KCSO and Tribal Law Enforcement.”
Suquamish Police Chief Mike Lasnier successfully pushed for state legislation that allows Tribal police officers to be deputized by neighboring jurisdictions. Cross-deputization would enable Suquamish police to act with the authority of the Kitsap County Sheriff’s Department. But it requires a memorandum of understanding between the sheriff’s office, County Commissioners, Suquamish Tribal Council and Suquamish Police.
“This has not been accomplished yet,” sheriff’s spokesman Deputy Scott Wilson said.
Prosecuting Attorney Russell Hauge said the county’s courts are working together to “harmonize” no-contact orders, meaning that the county court will treat as its own a no-contact order issued by Tribal court against a non-Native offender. “We do try to give full faith and credit to other courts’ orders,” Hauge said. But, he added, “It’s not something we see that often.”
Wilson said that, while Tribes may not have criminal jurisdiction over non-Native suspects, Tribal police do have the authority to detain — and the Kitsap County Sheriff’s Department will do what it can to support them.
“A Tribal officer has the authority to freeze the scene [and] detain a non-Native suspect. When we get there or State Patrol gets there, we’ll sort it out between us,” Wilson said.
Wilson said he has a lot of respect for Tribal police.
“There were times, when I joined the department in the 1990s, I wasn’t sure what their training was,” he said. “I never raised much of a beef about it. I worked the north end 10 years off and on and there were issues, but they have moved way beyond that. Their professionalism is up there with all other departments in Washington, whether they were trained at the BIA academy or the state academy.”