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21–390 PDF 2016

S. HRG. 114–347 

S. 2785, A BILL TO PROTECT NATIVE CHILDREN 

AND PROMOTE PUBLIC SAFETY IN INDIAN 

COUNTRY; S. 2916, A BILL TO PROVIDE THAT 

THE PUEBLO OF SANTA CLARA MAY 

LEASE FOR 99 YEARS CERTAIN RESTRICTED 

LAND AND FOR OTHER PURPOSES; AND 

S. 2920, THE TRIBAL LAW AND ORDER 

REAUTHORIZATION ACT OF 2016 

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

MAY 18, 2016 

Printed for the use of the Committee on Indian Affairs 

( 

(II) 

COMMITTEE ON INDIAN AFFAIRS 

JOHN BARRASSO, Wyoming, Chairman 

JON TESTER, Montana, Vice Chairman 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JOHN HOEVEN, North Dakota 

JAMES LANKFORD, Oklahoma 

STEVE DAINES, Montana 

MIKE CRAPO, Idaho 

JERRY MORAN, Kansas 

MARIA CANTWELL, Washington 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

BRIAN SCHATZ, Hawaii 

HEIDI HEITKAMP, North Dakota 

T. MICHAEL ANDREWS, Majority Staff Director and Chief Counsel 

ANTHONY WALTERS, Minority Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on May 18, 2016 ............................................................................... 1 

Statement of Senator Barrasso ............................................................................... 1 

Statement of Senator Daines .................................................................................. 3 

Statement of Senator Franken ............................................................................... 4 

Statement of Senator Heitkamp ............................................................................. 49 

Statement of Senator Hoeven ................................................................................. 55 

Statement of Senator Murkowski ........................................................................... 4 

Statement of Senator Tester ................................................................................... 2 

WITNESSES

Black, Michael S., Director, Bureau of Indian Affairs, U.S. Department of 

the Interior ........................................................................................................... 6 

Prepared statement .......................................................................................... 7 

Buckles, Hon. Dana, Councilman, Assiniboine and Sioux Tribes, Fort Peck 

Reservation ........................................................................................................... 19 

Prepared statement .......................................................................................... 21 

Chavarria, Hon. J. Michael, Governor, Santa Clara Pueblo ................................ 17 

Prepared statement .......................................................................................... 19 

Toulou, Tracy, Director, Office of Tribal Justice, U.S. Department of Justice ... 11 

Prepared statement .......................................................................................... 13 

Urbina, Hon. Alfred, Attorney General, Pascua Yaqui Tribe .............................. 23 

Prepared statement .......................................................................................... 25 

APPENDIX

Central Council of Tlingit and Haida Indian Tribes of Alaska, prepared statement ...................................................................................................................... 92 

Gardner, Jerry, Executive Director, Tribal Law and Policy Institute, prepared 

statement .............................................................................................................. 96 

National Congress of American Indians, prepared statement ............................. 59 

Sheldon, Jr., Hon. Melvin R., Chairman, Tulalip Tribes of Washington, prepared statement ................................................................................................... 98 

(1) 

S. 2785, A BILL TO PROTECT NATIVE 

CHILDREN AND PROMOTE PUBLIC SAFETY 

IN INDIAN COUNTRY; S. 2916, A BILL TO 

PROVIDE THAT THE PUEBLO OF SANTA 

CLARA MAY LEASE FOR 99 YEARS CERTAIN 

RESTRICTED LAND AND FOR OTHER 

PURPOSES; AND S. 2920, THE TRIBAL LAW 

AND ORDER REAUTHORIZATION ACT OF 

2016 

WEDNESDAY, MAY 18, 2016 

U.S. SENATE, 

COMMITTEE ON INDIAN AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:15 p.m. in room 

628, Dirksen Senate Office Building, Hon. John Barrasso, 

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM WYOMING 

The CHAIRMAN. Good afternoon. I call this legislative hearing to 

order. 

Today the Committee will examine three bills: S. 2785, the Tribal Youth and Community Protection Act of 2016; S. 2916, a bill to 

provide that the Pueblo of Santa Clara may lease for 99 years certain restricted land, and for other purposes; and S. 2920, the Tribal 

Law and Order Reauthorization and Amendments Act of 2016. 

On April 12, 2016, Senators Tester and Franken introduced S. 

2785, the Tribal Youth and Community Protection Act of 2016. 

This bill seeks to expand tribal criminal jurisdiction over: crimes 

against children; drug-related crimes; and crimes against law enforcement and court personnel during the exercise of tribal criminal jurisdiction. 

It would also provide funding for tribal substance abuse prevention programs and for building tribal jurisdictional capacity. I am 

going to turn to the bill’s sponsors for their comments in a moment. 

On May 11, 2016, Senator Udall, along with Senator Heinrich, 

introduced S. 2916, the Pueblo of Santa Clara 99 Year Certain Restricted Land Lease. 

This bill would amend the Long Term Leasing Act to clarify that 

the Santa Clara and the Ohkay Owingeh Pueblos may lease their 

2 

restricted fee lands for up to 99 years. I will turn to Senator Udall 

for comments at a time convenient for him. 

On May 11, 2016, Senator McCain and I introduced S. 2920, the 

Tribal Law and Order Reauthorization and Amendments Act of 

2016. In 2010, Congress passed the Tribal Law and Order Act to 

improve criminal justice and public safety in Indian communities. 

This Committee held an oversight hearing on December 2, 2015 

and a roundtable on February 25, 2016 regarding next steps to improving public safety in Indian communities. 

Access to data, information sharing, public defense support, juvenile justice, and substance abuse were among the most significant 

challenges facing the tribes. This bill, S.2920, reauthorizes many of 

the needed programs in the Tribal Law and Order Act. It is intended to address some of the more pressing issues that can be 

passed this Congress. 

Before I turn to the Vice Chairman, let me say that I am disappointed that the Department of Justice chose not to provide comments on S. 2920. It is hard to believe that the chief law enforcement agency of the Federal Government did not provide any recommendations or provide comments to this bill. 

I can certainly understand the short timing, we introduced this 

bill last week, and the department probably wanted more time but 

to provide nothing is unacceptable. I now have to wonder about the 

commitment from the Department of Justice on Indian programs. 

Let me remind everyone that it was just last year that the Department of Justice failed to send a single witness to our budget hearing and failed to produce the required annual reports demanded by 

Congress. 

Starting with this hearing, the members of this Committee fully 

expect the Administration, the Department of Justice in particular, 

to work diligently and expeditiously with this Committee on this 

and other bills. The tribes and their people deserve nothing less. 

With that, I would like to turn to the Vice Chairman for any 

opening statement. Senator Tester. 

STATEMENT OF HON. JON TESTER, 

U.S. SENATOR FROM MONTANA 

Senator TESTER. Thank you, Mr. Chairman. 

Thanks for holding this legislative hearing to discuss the bills we 

have before us today. 

These bills talk about two important issues to tribes, protection 

of tribal communities and management of public tribal lands. 

I also want to thank the witnesses for being here to provide testimony. In particular, I welcome Councilman Dana Buckles. It is 

good to have you here. 

Dana traveled all the way from northeast Montana, Fort Peck, 

I guess you call that God’s country up there, to share their experience as one of the first tribes to begin exercising criminal jurisdiction restored by the Violence Against Women Act of 2013. 

Tribal law enforcement and tribal courts are the first and sometimes the only line of defense for people living on Indian reservations. This is especially true in rural areas. It is vitally important 

to empower tribes to protect their communities and to ensure they 

3 

have the tools necessary to investigate and prosecute criminal offenses. 

Just this month, the National Institute of Justice released a report on sexual and domestic violence against Native women and 

men. We all know that Native Americans are victims of violence 

way too often. The report found in some instances, 90 percent or 

more of these crimes are committed by non-Indians. 

We cannot continue to sit back and fail to address these issues. 

That is why Senator Franken and I, along with Senator Udall, 

have introduced the Tribal Youth and Community Protection Act. 

This bill would allow tribes to better protect their communities 

from folks who could cause harm, regardless of whether they are 

Indian or non-Indian. This bill builds on tribal provisions of the 

2013 Violence Against Women Act by restoring tribal criminal jurisdiction over violent crimes committed against Native children 

and tribal law enforcement. 

We are also starting to see that domestic violence in Indian 

Country is related to the increased use of drugs on Indian reservations. That is why my bill would also let tribes prosecute drug offenses occurring in their communities. 

In Montana over the last year alone, three reservation communities have declared a state of emergency due to illegal drug epidemic. Criminals, including cartels of organized crime, know that 

gaps in police and prosecution make reservations easy targets to 

push their drugs. 

That is why we have to recognize the tribes’ sovereign authority 

to prosecute these crimes and ensure the safety of their communities. 

To assist tribal courts, the Tribal Youth and Community Protection Act also reauthorizes several programs that address drug 

crimes and substance abuse and expands the VAWA 2013 grant 

program to help tribes build their criminal justice system. 

Again, I want to thank you, Mr. Chairman, for elevating these 

very important issues and for holding this hearing. I look forward 

to the witness’s testimony on each of these bills before us today. 

The CHAIRMAN. Thank you, Senator Tester. 

Senator Daines. 

STATEMENT OF HON. STEVE DAINES, 

U.S. SENATOR FROM MONTANA 

Senator DAINES. Thank you, Mr. Chairman and Ranking Member Tester. 

I would also like to welcome Councilman Dana Buckles of the Assiniboine & Sioux Tribes of the Fort Peck Reservation in Montana 

who will be testifying today. Councilman, it is great to have you 

here. 

As our witnesses attest, when it comes to crime in Indian Country, the statistics are devastating. Montana’s Indian reservations 

are no exception. I would like to share a story that Councilman 

Buckles alludes to in his testimony. That is the story of a fouryear-old girl who lives on the Fort Peck Reservation in Wolf Point. 

In February, this little girl was playing on a playground across 

the street from home when she was abducted. When she was found 

four days later, she was miraculously alive but a victim of sexual 

4 

assault. Such a crime against anyone is unthinkable, let against a 

four-year-old. 

We get to hear from Councilman Buckles as he has served on the 

council. Councilman Dana Buckles, thanks for being here. 

The CHAIRMAN. Thank you. 

Senator Franken? 

STATEMENT OF HON. AL FRANKEN, 

U.S. SENATOR FROM MINNESOTA 

Senator FRANKEN. Thank you Mr. Chairman and Vice Chairman 

Tester for holding this hearing and thanks to all the witnesses for 

testifying here today. 

As a member of the Judiciary Committee and the Indian Affairs 

Committee, I am committed to making sure that we continue to update the Violence Against Women Act to more effectively address 

the unique needs of women and children in Indian Country which 

is why I co-sponsored Senator Tester’s Tribal Youth and Community Protection Act. 

This legislation helps to remove the jurisdictional obstacles that 

have prevented American Indian communities from prosecuting 

acts of sexual and domestic violence that occur in their territories. 

I look forward to hearing from all of you on how we can continue 

to improve the Violence Against Women Act as well as the Tribal 

Law and Order Act in order to keep Native women and children 

safe. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Franken. 

Senator Murkowski? 

STATEMENT OF HON. LISA MURKOWSKI, 

U.S. SENATOR FROM ALASKA 

Senator MURKOWSKI. Thank you, Mr. Chairman. Thank you for 

convening this very important hearing. Welcome to all of our witnesses. 

It seems that it was just last year, just yesterday, that the Senate enacted the Tribal Law and Order Act and the 2013 reauthorization of VAWA. 

I am tremendously invested in the success of both of these significant legislative accomplishments. Even though the Tribal Law 

and Order Act was signed into law in 2010, the heavy lifting, if you 

will, of that legislation occurred when I was Vice Chairman of the 

Committee and Senator Dorgan was Chair at the time. We had 

some pretty exceptional staff work by David Mullon and Allison 

Binney. Really the work that went into it was considerable. 

I was an early co-sponsor of the VAWA reauthorization, working 

with Senator Leahy and Senator Crapo and consistently supported 

that partial Oliphant fix which today we refer to as the special domestic violence jurisdiction. That provision, which became known 

as Section 904 of the VAWA amendments, was very controversial 

in both Houses, but thanks to a lot of persistence and hard work, 

and a little bit of courage, it became law. 

Today, Mr. Toulou and our witnesses will tell us how this all 

worked out. I am anxious to hear about that. I understand from 

the advance statement, it is working reasonably well. 

5 

Mr. Chairman, if I may, I would like to take just a minute to talk 

about the situation in Alaska. As a consequence of the U.S. Supreme Court’s Venetie decision, most of the acreage of indigenous 

lands in rural Alaska occupied predominantly, if not overwhelmingly, by Alaska Natives is not Indian Country. 

Thus, when we empower tribes to do more within the tribes’ Indian Country, we effectively exclude Alaska. There is no consensus 

in Alaska that the Venetie decision should be wholesale overturned 

but neither is there consensus in Alaska that our tribes should be 

disempowered to maintain peace in the rural communities or to 

protect our people. 

This is especially important because the State of Alaska maintains a very small State police force relative to the millions of acres 

of land they have to patrol. Oftentimes weather keeps our troopers 

from flying out into the communities where they need to be. 

Over the past several years, it has been my impression that Alaskans are seeking a new paradigm for public safety protection in the 

rural communities and believe that tribes need to be empowered to 

be a part of that solution. 

I have laid the foundation for these efforts in the Tribal Law and 

Order Act which brought new cops funding to rural Alaska. I have 

used my real estate on the Interior Appropriations Subcommittee 

to focus BIA on the need to support our tribal courts in the State, 

even though we are a P.L. 280 State. 

It does not matter that we are a P.L. 280 State. Our tribal courts 

have jurisdiction notwithstanding P.L. 280 and need Federal support to exercise that jurisdiction. In VAWA, I asked the Justice Department to take the lead in reconstituting a major forum for Federal, State and tribal coordination on public safety issues, the Alaska Rural Justice Commission. 

Unfortunately, we have not seen any progress on this but I am 

committed to pursuing new pathways for protection of our Native 

people, especially our Native women and our children. I have been 

impressed by the work of the Chairman and the Vice Chairman on 

this Committee. 

As we move to mark on both of these issues, I hope to engage 

other Committee members on the specific challenges we face within 

Alaska which require perhaps a little more creative solutions going 

forward. 

Again, Mr. Chairman and Vice Chairman, thank you. I thank the 

witnesses for your testimony in advance. 

The CHAIRMAN. Thank you, Senator Murkowski. 

We have five witnesses here today. We have: Mr. Michael S. 

Black, Director, Bureau of Indian Affairs, U.S. Department of the 

Interior; Mr. Tracy Toulou, Director, Office of Tribal Justice, U.S. 

Department of Justice; the Honorable J. Michael Chavarria, Governor, Santa Clara Pueblo, Espanola, New Mexico; the Honorable 

Dana Buckles, who has been introduced by our two Senators from 

Montana; and the Honorable Alfred Urbina, Attorney General, 

Pascua Yaqui Tribe of Tucson, Arizona. Thank you all for being 

with us. 

I want to remind the witnesses that your full written testimony 

will be made a part of the official hearing record. Please try to keep 

6 

your statements to five minutes or less so we may have more time 

for questioning. 

I look forward to hearing your testimony beginning with Mr. 

Black. Mr. Black, welcome back to the Committee. Please proceed. 

STATEMENT OF MICHAEL S. BLACK, DIRECTOR, BUREAU OF 

INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR 

Mr. BLACK. Chairman Barrasso, Vice Chairman Tester and members of the Committee, thank you for the opportunity to provide 

testimony before this Committee on S. 2920, the Tribal Law and 

Order Reauthorization Act of 2016; S. 2785, the Tribal Youth and 

Community Protection Act of 2016; and S. 2916, a bill to provide 

a bill to provide that the Pueblo of Santa Clara Ohkay Owingeh 

Pueblos may lease for 99 years certain restricted lands. 

S. 2920, the Tribal Law and Order Reauthorization Act brought 

about necessary and important changes in addressing public safety 

in Indian Country. Our experiences in implementing TLOA have 

highlighted additional areas that still need to be addressed. 

In the six years since TLOA was passed in 2010, the Department 

of Interior still strongly supports the purposes of TLOA. We believe 

there is no substitute for having enough officers on the ground and 

will continue working to improve law enforcement in Indian Country. 

I am pleased to be before the Committee today to provide the department’s full support of and recommendations for S. 2920. 

A major focus of TLOA was to address challenges related to reporting and data collection. We want to continue this effort to build 

robust data and provide the public with information it needs. Section 103 provides for sharing Federal data with the tribes. One gap 

we recognize is the lack of incorporation of tribally-owned data into 

State and Federal data bases. 

To foster respect and reciprocity for tribally-collected data, the 

department would like to encourage the bills’ authors to consider 

extending the Department of Justice’s new tribal access program 

for national crime information which provides tribes access to national crime information for both civil and criminal purposes and 

to include a pilot program or other mechanism to support tribes interested in sharing tribal court criminal records with other law enforcement agencies. 

In reviewing S. 2920, we note it does not address some of the 

issues such as those related to resumption of concurrent Federal 

jurisdiction in P.L. 280 States and extended sentences provisions 

for tribes. We would appreciate the opportunity to work with the 

authors to ensure the tribes can utilize our full authority and jurisdiction to prosecute crimes in Indian Country. 

The department appreciates the inclusion of alternatives to detention in the bill as many of our offenders are engaging in criminal activity due to untreated mental health, alcohol and substance 

abuse issues. We want to continue to look for ways to get these individuals the help they need to break the cycle of recidivism. 

We also recommend the following number of technical changes to 

TLOA in the areas of technical assistance and training, data sharing, annual reporting requirements, background checks and the 

7 

Bureau of Prisons pilot program. We look forward to working with 

the Committee on these recommendations. 

Regarding S. 2785, the Tribal Youth and Community Protection 

Act of 2016, the Administration has made it a priority to improve 

the health, welfare and safety of tribal communities. The department supports S. 2785. 

S. 2785 would authorize Section 4206 and 4218(b) of the Indian 

Alcohol and Substance Abuse Prevention and Treatment Act of 

1986 to authorize funding for tribal action plans and training programs. The department supports this reauthorization. 

The department, however, does recommend changing the tribal 

action plan to a tribal strategic plan based on feedback received 

from tribes regarding current tribal practices. Such a change would 

allow for plans driven by tribes rather than the Federal Government. 

S. 2785 would also amend 25 U.S.C. Section 1304, tribal jurisdiction over crimes of domestic violence to include tribal jurisdiction 

over crimes of tribal violence and drug offenses, as well as amending the definitions for dating and domestic violence to include felony and misdemeanor violations of the tribe’s criminal law within 

its own lands. 

S. 2785 also amends the current authorized amount of appropriations from $5 million to $10 million for fiscal years 2016–2020 pursuant to DOJ grant programs for tribes under Subsection (f). 

Since these amounts represent DOJ resources specifically authorized to strengthen and support tribal criminal justice systems, we 

are open to continued conversations about the appropriate reporting mechanism. 

Regarding S. 2916, to amend the Act of August 9, 1955 to authorize the Pueblo of Santa Clara Ohkay Owingeh Pueblos 99 year 

lease authority for certain restricted lands. 

The Administration strongly supports the principles of self determination and self governance, recognizing that intrinsic to these 

principles is tribal control over tribal resources, especially over 

tribal homelands and the welfare of Native people. 

This concludes my testimony for today. I am happy to answer 

any questions. 

[The prepared statement of Mr. Black follows:] 

PREPARED STATEMENT OF MICHAEL S. BLACK, DIRECTOR, BUREAU OF INDIAN

AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

Chairman Barrasso, Vice-Chairman Tester, and members of the Committee, my 

name is Mike Black and I am the Director for the Bureau of Indian Affairs (BIA) 

at the Department of the Interior (Department). Thank you for the opportunity to 

provide testimony before this Committee on S. 2785, the Tribal Youth and Community Protection Act of 2016. The Department supports S. 2785. 

The Obama Administration has made it a priority to improve the health, welfare, 

and safety of Tribal communities. Two separate federal taskforces, the Indian Law 

and Order Commission and the Attorney General’s Task Force on American Indian/ 

Alaska Native Children Exposed to Violence, concluded local control is the key for 

promoting public safety in Indian Country. The tribal provisions in the Violence 

Against Women Reauthorization of 2013 employed this principle and since its enactment, a number of tribes are making strides in combatting domestic violence. S. 

2785 continues to move in this direction by strengthening tribes’ ability to protect 

their communities and prosecute non-Indian offenders. 

8 

S. 2785 

S. 2785 would reauthorize Section 4206 and 4218(b) of the Indian Alcohol and 

Substance Abuse Prevention and Treatment Act of 1986 (25 U.S.C. Section 2412 and 

Section 2451(b) respectively) to authorize funding for Tribal Action Plans (Section 

4206) and Training Programs (Section 4218(b) for fiscal years 2016 through 2020. 

The Department supports this reauthorization. 

S. 2785 would amend 25 U.S.C. Section 1304, Tribal jurisdiction over crimes of 

domestic violence, to include Tribal jurisdiction over crimes of child violence and 

drug offenses. S. 2785 amends 25 U.S.C. Section 1304 definitions for dating violence 

and domestic violence to include ‘‘felony and misdemeanor violations’’ of the Tribe’s 

criminal law within its own lands. S. 2785 also amends Section 1304 by including 

definitions for ‘‘caregiver,’’ ‘‘child violence,’’ ‘‘drug offense,’’ and ‘‘related conduct.’’ 

The Department recommends changing the ‘‘Tribal Action Plan’’ (TAP) to a ‘‘Tribal Strategic Action Plan’’ (TSAP) based on feedback received from Tribes regarding 

current tribal practices. Such change would allow for plans that are driven by 

tribes, rather than the Federal Government. 

The Department recommends adding language to 25 U.S.C. Section 2412 (c) provisions that provide more deference to the Tribal Strategic Action Plan. 

S. 2785 also amends the current authorized amount of appropriations from $5 

million to $10 million for fiscal years 2016 through 2020 pursuant to DOJ grant programs for tribes under subsection (f). Since these amounts represent DOJ resources 

specifically authorized to strengthen and support tribal criminal justice systems, we 

are open to continuing conversations about the appropriate reporting mechanism. 

Conclusion 

Thank you for providing the Department the opportunity to prove input into S. 

2785. The Department supports S. 2785 and recommends a few changes as noted 

above. I am available to answer any questions the Committee may have. 

S. 2916 

I am here today to provide the Department’s position on S. 2916, a bill to provide 

that the Pueblo of Santa Clara and the Ohkay Owingeh Pueblo may lease for 99 

years certain restricted land. 

The purpose of S. 2916 is to amend the Act of August 9, 1955, to authorize the 

Pueblo of Santa Clara and the Ohkay Owingeh Pueblo a 99-year lease authority for 

restricted land. The Administration strongly supports the principles of self-determination and self-governance, recognizing that intrinsic to these principles is tribal 

control over tribal resources, especially over tribal homelands, and the welfare of 

Native people. In line with these principles, the Administration believes that tribal 

governments are in the best position to determine the duration of tribal leases. Accordingly, the Department supports S. 2916. 

Background 

Since the enactment of the Act of June 30, 1834, 4 Stat. 730, codified as 25 U.S.C. 

Sec. 177, and predecessor statutes, land transactions with Indian tribes were prohibited unless specifically authorized by Congress. This law is commonly known as 

the Non-intercourse Act. Congress enacted the Act of August 9, 1955, codified at 25 

U.S.C. Sec. 415, commonly known as the Long-Term Leasing Act, to overcome the 

prohibition of the Non-intercourse Act. The Long-Term Leasing Act permitted some 

land transactions between Indian tribes and nonfederal parties—specifically, the 

leasing of Indian lands. The Act required that leases of Indian lands be approved 

by the Secretary of the Interior and limited lease terms to 25 years. 

As business opportunities and economic considerations changed over time, leases 

longer than 25 years were desired. To facilitate economic development on Indian 

lands, over the years, a number of tribes have obtained amendments to the LongTerm Leasing Act so that they could enter into leases for terms longer than 25 

years. Approximately 50 tribes have obtained these amendments and all are listed 

in the Long-Term Leasing Act as having authority to enter into leases for terms as 

long as 99 years. 

S. 2916 would further amend the Long-Term Leasing Act by amending the LongTerm Leasing Act to add the Pueblo of Santa Clara and the Ohkay Owingeh Pueblo 

to the list of tribes that may enter into 99-year leases within the boundaries of their 

respective Pueblo lands. The Pueblo of Santa Clara and the Ohkay Owingeh Pueblo 

are currently listed in 25 U.S.C. Section 415(a), but the listing is restricted to ‘‘lands 

held in trust for the Pueblo of Santa Clara’’ and ‘‘lands held in trust for the Ohkay 

Owingeh Pueblo.’’ There exists, and in the future there could exist, lands within the 

boundaries of either Pueblo’s boundaries, owned by either Pueblo, but not held in 

9 

trust for the Pueblo of Santa Clara or Ohkay Owingeh Pueblo. Thus, S. 2916 seeks 

to include all the lands within the boundaries either Pueblo. The Department supports S. 2916. 

S. 2920 

Thank you for the opportunity to provide testimony before this Committee on S. 

2920 the Tribal Law and Order Reauthorization Act (TLORA) of 2016. 

The Tribal Law and Order Act (TLOA) brought about necessary and important 

changes in addressing public safety in Indian Country. Our experiences implementing TLOA have highlighted additional areas that still need to be addressed. 

TLOA was passed to clarify the responsibilities of Federal, state, tribal, and local 

governments with respect to crimes committed in Indian country; to increase coordination and communication among Federal, state, tribal, and local law enforcement 

agencies; to empower tribal governments with the authority, resources, and information necessary to provide public safety in Indian country effectively; to reduce the 

prevalence of violent crime in Indian country and to combat sexual and domestic 

violence; to prevent drug trafficking and reduce rates of alcohol and drug addiction 

in Indian country; and to increase and standardize the collection of criminal data 

and the sharing of criminal history information among Federal, state, and tribal officials responsible for responding to and investigating crimes in Indian country. 

In the six years since TLOA was passed in 2010, the Department of the Interior 

still strongly supports the purposes of TLOA. We believe there is no substitute for 

having enough officers on the ground, and we will continue working to improve law 

enforcement in Indian country. The Obama Administration has made it a priority 

to improve the health, welfare, and safety of tribal communities, and I am pleased 

to be here before this Committee today to provide the Department’s full support of 

and recommendations for S. 2920. 

A major focus of TLOA was to address challenges related to reporting and data 

collection. We want to continue this effort to build robust data and provide the public with the information it needs. Section 103 provides for sharing of federal data 

with tribes. One gap we recognize is the lack of incorporation of tribally-owned data 

into state and federal databases. For example, an individual may have prior tribal 

arrests that are not reflected in state and federal databases. To foster respect and 

reciprocity for tribally-collected data, the Department would like to encourage the 

bill’s authors to consider extending the Department of Justice’s new Tribal Access 

Program for National Crime Information, which provides tribes access to national 

crime information for both civil and criminal purposes, to include a pilot program 

or other mechanism to support tribes interested in sharing tribal court criminal 

records with other law enforcement agencies. The Department recognizes many 

tribes are currently doing this; however, we should encourage law enforcement 

agencies and courts to adopt this practice across Indian Country. 

Even with the information improvement efforts of TLOA, Indian Country still 

lacks data on criminal justice, or, more accurately, the ability to identify and analyze the information needed to paint an accurate picture of law enforcement in Indian Country. This is a challenge in multiple sectors, including health, child welfare, 

and others, but it is particularly problematic in the context of criminal justice, in 

which Federal, state, tribal, and local governments share responsibilities. 

Further, as the nation moves toward evidence-based policy making, there has 

been increased focus on the quality of information the Department and other agencies are required to collect in order to report back to Congress. This bill has numerous reporting requirements, but stops short of providing additional resources for us 

to effectively meet this direction effectively and in a timely manner. We would appreciate the opportunity to share more with the bill’s sponsors about our capacity 

to analyze complex data sets in a way that is meaningful for Congress. 

Tribal courts are an essential part of tribal governments, which provide local delivery of justice in tribal communities. We support Section 107, which reauthorizes 

tribal court training programs. Those training programs are critical to assisting 

tribes with building capacity. 

We are encouraged by the tremendous progress some tribes are making to build 

their courts up. Many more tribes continue to face challenges. TLOA’s Indian Law 

and Order Commission (ILOC) recognized that tribes in Public Law 280 states, particularly those in California and Alaska, have even greater hurdles to the development of their justice systems. Additionally, TLOA allowed for re-assumption of concurrent federal jurisdiction in Public Law 280 states and extended sentencing provisions for tribes, followed by the Violence Against Women Reauthorization Act of 

2013, which contained special domestic violence criminal jurisdiction provisions. Despite their strong desire, relatively few tribes are able to take on these additional 

10 

responsibilities. In reviewing S. 2920, we note that it does not address these issues 

and would appreciate the opportunity to work with the authors to ensure that tribes 

can utilize their full authority and jurisdiction to prosecute crimes in Indian Country. 

The Department appreciates the inclusion of alternatives to detention in the bill 

as many of our offenders are engaging in criminal activity due to untreated mental 

health and alcohol and substance abuse issues. We want to continue to look for 

ways to get these individuals the help they need to break the cycle of recidivism. 

One detention issue not addressed in the bill is the disproportionately high costs 

of time and expense for transporting prisoners within the current system of facilities. We believe issues associated with transportation of prisoners contribute to the 

scarcity of detention funding. Transporting a prisoner requires two officers, and in 

remote areas this pulls officers off patrol and out of the community for days at a 

time. This creates severe safety risks across Indian County, where a tribe may have 

only two officers in its entire police force. Transporting juveniles presents an additional challenge, as it often requires traveling a longer distance in order for the individual to be housed at one of a very limited number of juvenile facilities. These high 

transportation costs soak up the already scarce resources available for detention. We 

believe one method to solve this problem may be to create incentives for intergovernmental cooperation with regard to bed space in detention facilities to allow tribal 

prisoners to be housed closer to home in local or county facilities. 

TLOA’s ILOC devoted an entire chapter to intergovernmental cooperation, noting 

that some tribal governments have seen success through partnerships with local 

counties and state agencies using cross-deputization agreements and memoranda of 

understanding. We know not every tribe, state, local, or county official will feel 

enough groundwork has been laid to foster a strong working relationship today. 

However, we believe encouraging them to pool their limited resources makes good 

fiscal sense, and can lead to better cooperation in other areas that face similar jurisdictional challenges, such as health care delivery, natural resources management, 

or road maintenance. Recognizing that all these entities have a role to play will ensure communities as a whole, Indian and non-Indian, are safer. With this in mind, 

we recommend additional bill language to create strong incentives toward intergovernmental cooperation. 

Collaboration is also important within the Federal family. Federal interagency collaboration, breaking down silos within government, remains a priority for this Administration as it seeks to create an ‘‘all of government’’ approach to Indian Affairs. 

S. 2920 recognizes that public safety in Indian Country is an issue which needs attention from multiple agencies. Section 102 asks us specifically to work with Health 

and Human Services and the Department of Justice to integrate and coordinate 

around our respective criminal justice programs. We believe the fragmentation of 

programs across agencies is confusing for tribes and impedes our ability to care for 

tribal members once they enter into the criminal justice system. Interior stands 

ready to collaborate with its counterparts. 

We also recommend the following technical changes to TLOA in addition to our 

views on TLORA: 

Currently TLOA Section 211(c)(13) requires BIA to provide technical assistance 

and training to tribes on the DOJ National Crime Information Center (NCIC) databases. As this Committee is aware, the NCIC and other national crime information 

databases are maintained by the DOJ. It would be more appropriate if this responsibility were assigned to the Department of Justice, with input from BIA Office of 

Justice Services (OJS). 

TLOA Section 211(c)(15) allows BIA to share with the Department of Justice all 

relevant crime data delivered to BIA by tribes. The BIA does share all relevant data 

including Uniform Crime Reports Data. To maximize this opportunity, the Department recommends language that allows FBI’s Criminal Justice Information Services 

(CJIS) to work with OJS to ensure each tribal jurisdiction is assigned an ORI number for uniform crime reporting purposes. 

Finally, Section 211 of TLOA provided for BIA–OJS to develop an annual report 

of unmet staffing needs of the law enforcement, corrections, and tribal court programs. The Department is concerned with the proposal to withhold funding in the 

event the reports currently required to Congress are delayed. All funding for law 

enforcement within the BIA–OJS is essential and withholding such funding would 

negatively impact the BIA’s delivery of public safety needs to tribes and Indian 

Country. The Department acknowledges the delay in providing this report and is 

working to provide accurate and relevant data to the Committee. We hope to have 

an opportunity to work with the Committee to refine the annual reporting requirements. 

11 

Currently, Section 231(a)(4)(A) of TLOA states that if a request for a background 

check is made by an Indian Tribe that has contracted or entered into a compact for 

law enforcement or corrections services, OJS must complete the check no later than 

60 days after the date it received the request. As the Office of Personnel Management (OPM) has the responsibility for completing background checks for the Federal 

Government, we recommend tribal background investigations be reassigned to OPM. 

If not reassigned, the 60-day requirement should be changed to 120 days, which 

would allow more time for completion. 

Section 234(c)(1) of TLOA established a four-year pilot program under which the 

Federal Bureau of Prisons would accept up to 100 offenders convicted in tribal court. 

We agree that this program should be continued, and that a working group should 

be established to assist in streamlining a process in which tribal court judges can 

more easily sentence individuals into the program. 

Conclusion 

Thank you for inviting the Department to testify. We look forward to working 

with this Committee on S. 2920 Tribal Law and Order Reauthorization Act. We 

want to take full advantage of making TLOA stronger in order to make significant 

steps toward to the goals of TLOA, which was and continues to aim at improving 

and addressing law and order in Indian country. 

This concludes my prepared statement. I will be happy to answer any questions 

the Committee may have. 

The CHAIRMAN. Thank you, Mr. Black. 

Mr. TOULOU. 

STATEMENT OF TRACY TOULOU, DIRECTOR, OFFICE OF 

TRIBAL JUSTICE, U.S. DEPARTMENT OF JUSTICE 

Mr. TOULOU. On behalf of the Department of Justice, I want to 

thank Chairman Barrasso, Vice Chairman Tester and members of 

the Committee for focusing attention on the critically important 

issues of protecting Native American children and promoting public 

safety in Indian Country. 

My name is Tracy Toulou. I am the Director of the Justice Department’s Office of Tribal Justice. 

Protecting Indian families from violence in their homes, whether 

committed by an Indian or non-Indian, has been a central concern 

of our department for years. Our conversations and consultations 

with tribes after passage of the Tribal Law and Order Act of 2010 

and the 2013 VAWA reauthorization has underscored the urgent 

public safety issues facing tribal communities. 

The department remains dedicated to working with tribes to 

identify and implement tribally-driven solutions to these problems. 

I would like to focus on gaps in coverage that have been identified by tribes such as Mr. Urbina at the end of the table that have 

already begun exercising jurisdiction over non-Indians under Section 1304 of Title 25 and gaps that S. 2785 seeks to address. 

Tribal efforts to implement Section 1304 have been impressive. 

Actual tribal experience prosecuting cases under Section 1304 has 

revealed three significant gaps in the Federal law. First, there has 

been some confusion about the scope of conduct covered by Section 

1304’s definition of domestic violence and dating violence. This confusion is compounded by dicta in the 2014 U.S. Supreme Court 

case, United States v. Castleman. 

As a result, there is a need to clarify when a tribe can prosecute 

a non-Indian. Because tribes have been cautious not to exceed their 

authority under Section 1304, they have hesitated to prosecute 

non-Indians who have attempted or threatened to cause bodily injury without causing actual physical injury. 

12 

In a real world example of this, a non-Indian boyfriend in an intoxicated state attempted to punch his Indian girlfriend but missed 

and fell to the ground. Concerned that a case with no actual physical contact would not meet the definition of dating violence in Section 1304, the tribe declined to prosecute. That defendant later returned to assault his victim again and was arrested again by the 

tribe. Language in S. 2785 would amend Section 1304(a) to address 

this serious problem. 

The second gap in law addressed by S. 2785 involves Indian children. Too often a child is victimized during an episode of domestic 

violence, yet the current version of Section 1304 allows a tribe to 

prosecute only the crime committed against the adult victim and 

not the equally serious crime committed against the child. 

In one example, a non-Indian boyfriend, after a methamphetamine binge, forced both his Indian girlfriend and her child to sit 

in a chair while he threw knives at them. While this particular 

case was prosecuted federally, the tribe should also have the ability 

to prosecute these crimes. 

The third gap in the law is that the law does not clearly recognize that tribes exercising this jurisdiction have authority to protect tribal law enforcement officers, prosecutors, judges and courtroom officials. For example, there is uncertainty about a tribe’s authority to charge an offender for resisting arrest by a tribal police 

officer. This uncertainty threatens the tribe’s power and practical 

ability to successfully prosecute domestic and dating violence 

crimes. The department supports S. 2785’s efforts to address these 

problems. 

The 2013 VAWA reauthorization that gave rise to Section 1304 

was closely and carefully tied to problems caused by non-Indian 

perpetrators of domestic violence. We support Congress’ efforts to 

empower tribal criminal justice systems to deal strongly and appropriately with all persons already subject to tribal jurisdiction under 

Section 1304. 

While the department fully recognizes the terrible impact of 

drugs on Native American communities, we recommend against expanding the universe of potential tribal court criminal defendants 

beyond domestic violence offenders in this particular bill. We would 

be happy to work with Committee staff to more effectively target 

these non-DV related offenders. 

Finally, the department is still in the process of working through 

the Tribal Law and Order Act reauthorization and amendments of 

2016. We will provide our comments as soon as that process is finished. 

That said, there are two important issues contained in the bill 

upon which the department has already commented. The department appreciates the support for the tribal access to Federal law 

enforcement databases or TAP program. Initial feedback from 

tribes using the program has been overwhelmingly positive. We appreciate the support for expansion of this program. 

Second, as I mentioned in my December 2015 Tribal Law and 

Order Act testimony, the department supports extension of the Bureau of Prisons Pilot Project, another program which has broad 

tribal support. 

13 

Senator Barrasso, I want to apologize for the fact that these 

items did not make it to my written testimony but obviously they 

are very important. I thank the Committee for its willingness to 

address these important issues. I look forward to answering any 

questions you might have. 

[The prepared statement of Mr. Toulou follows:] 

PREPARED STATEMENT OF TRACY TOULOU, DIRECTOR, OFFICE OF TRIBAL JUSTICE, U.S. DEPARTMENT OF JUSTICE

On behalf of the United States Department of Justice, I want to thank Chairman 

Barrasso, Vice Chairman Tester, and the members of this Committee for focusing 

attention on the critically important issues of protecting Native American children 

and promoting public safety in Indian country. My name is Tracy Toulou, and I am 

the Director of the Department of Justice’s Office of Tribal Justice. I also want to 

thank you for holding this hearing on pending legislation including S. 2785, the 

Tribal Youth and Community Protection Act of 2016. Protecting Indian families 

from violence in their homes, regardless of whether it is committed by Indians or 

non-Indians, has been a central concern of our Department for many years. Our conversations and consultations with tribes after the passage of the Tribal Law and 

Order Act of 2010, or TLOA, and the Violence Against Women Reauthorization Act 

of 2013, or VAWA 2013, have only underscored the urgent public-safety issues facing tribal communities. The Department remains dedicated to working with tribes 

to identify and implement tribally driven solutions to these problems. My testimony 

today will address S. 2785 and the specific issues that gave rise to it, as the Department of Justice is still in the process of formulating views on the other bills that 

are the subject of today’s hearing. 

S. 2785 primarily would amend Section 1304 of Title 25 of the United States 

Code, which is part of the Indian Civil Rights Act of 1968, as amended. Congress 

enacted Section 1304 as the tribal-criminal-jurisdiction provision of VAWA 2013. We 

commend the entire Committee, and Senators Tester and Franken in particular, for 

their willingness to listen to Indian tribal leaders and to take action to improve and 

strengthen VAWA 2013 and Section 1304. 

Domestic Violence and the Jurisdictional Gap in Indian Country 

Before describing in detail the Department’s views on Section 1304, some background may be helpful. Criminal jurisdiction in Indian country generally is shared 

among the federal, state, and tribal governments, according to an extraordinarily 

complex matrix that depends on the nature of the crime, whether the crime has victims or is victimless, whether the defendant is Indian or non-Indian, whether the 

victim is Indian or non-Indian, and sometimes other factors as well. In 1978, in Oliphant v. Suquamish Indian Tribe, the U.S. Supreme Court held that, absent express 

Congressional authorization, tribes lack jurisdiction over crimes committed by nonIndians. Prior to VAWA 2013, even violent crimes committed by a non-Indian husband against his Indian wife, in the presence of their Indian children, in their home 

on the Indian reservation, could not be prosecuted by the tribe. Instead, these 

crimes fell within the exclusive criminal jurisdiction of the United States or, in some 

circumstances, of the state. 

In the decades following Oliphant, too many cases of domestic violence and dating 

violence committed by non-Indians against their Indian spouses and dating partners 

went unprosecuted and unpunished. This was particularly true for misdemeanor 

crimes of domestic violence, which, absent a response from law enforcement, often 

escalated to domestic-violence felonies within weeks or months. 

As a result of this jurisdictional gap, as well as other factors, Native American 

women have suffered some of the highest rates of violence at the hands of intimate 

partners in the United States. A recent National Institute of Justice analysis of 

2010 survey data collected by the Centers for Disease Control and Prevention found 

that more than half (55.5 percent) of American Indian and Alaska Native women 

have experienced physical violence by an intimate partner in their lifetimes. Among 

these victims, 90 percent have experienced such violence by a non-Indian intimate 

partner. Over their lifetimes, American Indian and Alaska Native women are about 

five times as likely as white women to have experienced physical violence at the 

hands of an intimate partner who is of a different race. 

The Department’s 2011 Legislative Proposal 

In 2011, the Justice Department took the unusual step of drafting and proposing 

to Congress legislation responding to this crisis. The Department’s proposed legislaVerDate Mar 15 2010 14:00 Sep 08, 2016 Jkt 021390 PO 00000 Frm 00017 Fmt 6633 Sfmt 6621 S:\DOCS\21390.TXT JACK
14 

tion was designed to decrease domestic violence in Indian country, to strengthen the 

capacity of Indian tribes to exercise their inherent sovereign power to administer 

justice and control crime, and to ensure that perpetrators of domestic violence are 

held accountable for their criminal behavior. Part of the legislation amended the 

Federal Criminal Code to provide a ten-year offense for assaulting a spouse, intimate partner, or dating partner by strangling or suffocating; a five-year offense for 

assaulting a spouse, intimate partner, or dating partner resulting in substantial 

bodily injury; and a one-year offense for assaulting a person by striking, beating, 

or wounding. 

Another part of the legislation focused on tribal, rather than federal, prosecution. 

Specifically, it proposed to amend the Indian Civil Rights Act by recognizing tribes’ 

concurrent criminal jurisdiction to investigate, prosecute, convict, and sentence both 

Indians and non-Indians who assault Indian spouses, intimate partners, or dating 

partners, or who violate certain protection orders, in Indian country. 

While the Department focused tightly on the problems of domestic violence and 

dating violence in crafting this proposed legislation, the broad principles undergirding the proposal were clear: The division of labor between federal and tribal 

prosecutors should depend more on the nature and seriousness of the crimes and 

less on the Indian or non-Indian identity of the victim or of the defendant. U.S. Attorneys’ Offices and the FBI will have the greatest positive impact on public safety 

in Indian country when they can concentrate on the most dangerous crimes. And 

local tribal prosecutors can be most effective when they focus on offenses that, if 

left unaddressed, can escalate to more dangerous crimes. 

VAWA 2013 and Special Domestic Violence Criminal Jurisdiction 

Following the Department’s 2011 legislative proposal, this Committee held hearings and received extensive testimony on these issues. Its members ultimately 

played key roles in enacting, as part of VAWA 2013, the law that is now codified 

at 25 U.S.C. 1304. Section 1304 recognizes and affirms tribes’ inherent power to exercise ‘‘special domestic violence criminal jurisdiction,’’ or SDVCJ, over certain defendants, regardless of their Indian or non-Indian status, who commit acts of domestic violence or dating violence or violate certain protection orders in Indian country. 

For the first time in decades, tribes therefore could prosecute non-Indian perpetrators of domestic violence and dating violence. 

In broadening the set of persons who could potentially be prosecuted by tribes, 

Congress also carefully delineated the scope of tribal authority recognized by VAWA 

2013. First, Congress included two important exceptions to tribes’ exercise of 

SDVCJ. Tribes may exercise SDVCJ only if the defendant resides in the tribe’s Indian country, is employed in the tribe’s Indian country, or is a spouse, intimate 

partner, or dating partner of a member of the tribe or of an Indian who resides in 

the tribe’s Indian country. Tribes also may not exercise SDVCJ over an offense with 

a non-Indian victim. These provisions ensure that the defendant has adequate ties 

to the tribe and its reservation and that this jurisdiction does not include cases involving only non-Indians, which typically fall within a state’s exclusive criminal jurisdiction. 

Second, Congress effectively ensured that the protections for a defendant’s federal 

rights and civil liberties would be as robust in tribal court as they would be if the 

defendant were prosecuted in any state court. Specifically, in any case in which a 

term of imprisonment of any length may be imposed, the defendant is afforded all 

applicable rights under the Indian Civil Rights Act of 1968, all rights applicable to 

defendants charged with felony offenses under TLOA, and also the right to trial by 

an impartial jury chosen from a jury pool that reflects a fair crosssection of the community, including both Indians and non-Indians. 

Third, to give tribes time to prepare to meet the requirements of the statute, Section 1304 generally did not take effect until March 7, 2015, two years after VAWA 

2013 was signed into law by President Obama. In the interim, VAWA 2013 established a voluntary Pilot Project authorizing tribes to commence exercising SDVCJ 

on an accelerated basis, but only if the tribe could establish to the Attorney General’s satisfaction that it would fully protect defendants’ rights. Once the two-year 

Pilot Project concluded, other tribes were authorized to exercise SDVCJ without 

seeking the Attorney General’s approval. 

The Pilot Project for Tribal Jurisdiction over Crimes of Domestic Violence 

After enactment, the Department moved quickly to implement the Pilot Project, 

which we recognized would lay the groundwork for the success of SDVCJ in general. 

After consulting with tribal officials and requesting public comment, on November 

29, 2013, the Department published a final notice establishing procedures for tribes 

to request accelerated designation, establishing procedures for the Attorney General 

15 

to act on such requests, and soliciting such requests from tribes. Two months later, 

on February 6, 2014, the Department of Justice announced that the Pascua Yaqui 

Tribe of Arizona, the Tulalip Tribes of Washington, and the Confederated Tribes of 

the Umatilla Indian Reservation in Oregon were selected for the Pilot Project. On 

March 6, 2015, the Department announced the designation of two additional pilot 

tribes, the Sisseton Wahpeton Oyate of the Lake Traverse Reservation in South Dakota and the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation in 

Montana. 

The three original Pilot Project tribes achieved notable success implementing 

SDVCJ during the Pilot Project period from February 2014 through March 2015. In 

this first year of implementation, the three pilot tribes had a total of 27 SDVCJ 

cases involving 23 separate offenders. Of the 27 cases, 11 were ultimately dismissed 

for jurisdictional or investigative reasons, 10 resulted in guilty pleas, 5 were referred for federal prosecution, and 1 offender was acquitted after a jury trial in tribal court. 

Although these tribes moved swiftly to implement SDVCJ, they also acted with 

deliberation. They worked closely with their local United States Attorneys’ Offices 

to identify which cases were best prosecuted by the tribes and which were more 

suitable for federal prosecution, with the common goal of holding offenders accountable and keeping tribal communities safe. And not one of their SDVCJ non-Indian 

defendants petitioned for habeas corpus review in federal court, which is a testament to the tribes’ ability to safeguard the rights of all defendants in their tribal 

courts. 

Statistics from the individual Pilot Project tribes reveal that many SDVCJ defendants have long histories with the police, underscoring how VAWA 2013 has empowered tribes to respond to long-time abusers who previously had evaded justice. The 

Pascua Yaqui Tribe reported that their non-Indian defendants had at least 80 documented tribal-police contacts, arrests, or reports attributed to them over the past 

four years. Similarly, the Tulalip Tribes reported that their non- Indian defendants 

had at least 88 documented tribal-police contacts, arrests, or reports in the past. 

Ongoing Implementation of VAWA 2013 by Tribes and the Department 

During the course of consultation about how to structure the Pilot Project, tribal 

officials and employees repeatedly highlighted the usefulness of exchanging ideas 

with their counterparts in other tribes. With these views in mind, in June 2013, the 

Department established the Intertribal Technical-Assistance Working Group on Special Domestic Violence Criminal Jurisdiction, or ITWG. Approximately 45 tribes 

have voluntarily joined the ITWG, sharing their experiences implementing or preparing to implement SDVCJ, attending six inperson meetings, and participating in 

numerous webinars on subjects such as jury pools and juror selection, defendants’ 

rights, victims’ rights, and prosecution skills. The Department is supporting the 

ITWG with training and technical assistance, including an award by its Office on 

Violence Against Women to the National Congress of American Indians to support 

the ITWG’s ongoing work. 

Since the end of the pilot period, we understand that five more tribes have implemented SDVCJ, including two in the last two months. In the ten communities that 

have now implemented SDVCJ, tribal governments are working to end impunity for 

non-Indian abusers and to bring safety and justice to Native American victims. Together, as of February 2016, the implementing tribes reported having made a total 

of 51 SDVCJ arrests (involving 41 separate offenders), resulting in 18 guilty pleas, 

5 referrals for federal prosecution, 1 acquittal by jury, and 12 dismissals, with 13 

cases pending. 

Just as the implementing tribes have been working to hold non-Indian abusers 

accountable, the Department has stepped up prosecutions of felony-level domesticviolence offenders in Indian country. Since the passage of VAWA 2013, our United 

States Attorneys have been making good use of their new ability to seek more robust federal sentences for certain acts of domestic violence in Indian country, including the ten-year offense for assaulting an intimate partner by strangling or suffocating. Over the past three years, federal prosecutors have indicted more than 100 

defendants on strangulation or suffocation charges. 

Based on reports from tribal members of the ITWG, the Department anticipates 

that many more tribes will choose to implement SDVCJ in the coming year. We 

know, however, that tribes cannot be expected to shoulder this responsibility without the support of the federal government. To this end, United States Attorneys’ Offices will continue to collaborate with tribes that exercise this jurisdiction, and the 

Department will continue to support peer-to-peer technical assistance to tribes. In 

addition, by the end of this fiscal year, the Office on Violence Against Women anticiVerDate Mar 15 2010 14:00 Sep 08, 2016 Jkt 021390 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 S:\DOCS\21390.TXT JACK
16 

pates announcing awards under its new Grants to Tribal Governments to Exercise 

Special Domestic Violence Criminal Jurisdiction program. 

Gaps in Coverage of Special Domestic Violence Criminal Jurisdiction 

Although tribal efforts to implement Section 1304 have been impressive, actual 

tribal experience prosecuting cases under Section 1304 has revealed three significant gaps in the federal law. Our reading of S. 2785 is that it is intended principally 

to address these gaps. While we applaud that effort, we believe it is important that 

any legislation effectively and precisely target the areas of greatest need. We would 

be happy to work with the Committee’s members and staff to refine some of the 

bill’s language to achieve that goal. 

First, there has been some unfortunate confusion in the field about the scope of 

conduct covered by Section 1304’s definitions of ‘‘domestic violence’’ and ‘‘dating violence.’’ This confusion was exacerbated by dicta in footnotes in the majority and concurring opinions in a 2014 U.S. Supreme Court case, United States v. Castleman. 

As a result, there is a need to clarify whether a tribe can prosecute a non-Indian 

whose acts against an Indian spouse or partner arguably would fall short of constituting ‘‘violence’’ in a nondomestic context, but nonetheless use a sufficient degree 

of force to support a common-law battery conviction. Moreover, because tribes have 

been cautious not to exceed their authority under Section 1304, implementing tribes’ 

prosecutors have hesitated to prosecute a non-Indian who attempts or threatens to 

cause his Indian spouse or partner bodily injury, without causing physical injury. 

In a real-world example of this, a non-Indian boyfriend, in a highly intoxicated 

state, attempted to punch his Indian girlfriend but missed and fell to the ground. 

Concerned that a case with no actual physical contact would not meet the definition 

of ‘‘domestic violence’’ in Section 1304, the tribe declined to prosecute. The defendant later returned to assault his victim again—and was arrested again by the tribe. 

Given this uncertainty, the Department recommends legislation clarifying that 

Section 1304 covers the use, attempted use, or threatened use of physical force 

against the person or property of the victim, including any offensive touching of the 

victim (consistent with the common-law crime of battery). It appears that the language S. 2785 proposes to add to Section 1304(a) was intended to achieve this result, but it may inadvertently sweep in a far broader range of criminal conduct, including acts that do not even involve physical force (or an attempt or threat to use 

force). The Department would be glad to provide technical drafting assistance to ensure that this provision is properly tailored. 

The second gap in the law involves Indian children. All too often, a husband or 

boyfriend who assaults or batters his Indian wife or girlfriend also assaults or 

abuses her children during the same incident. Yet Section 1304 allows the tribe to 

prosecute only the former crime (committed against the wife or girlfriend) and not 

the latter crime (committed against the children). In these circumstances, the only 

effective way to hold the perpetrator accountable for all his misconduct, including 

his crimes against the children, is to prosecute him federally, rather than tribally. 

In one example from a Pilot Project tribe, a non-Indian boyfriend, after a prolonged 

methamphetamine binge, forced both his Indian girlfriend and her child to sit in a 

chair while he threw knives at them. Given the tribe’s inability to prosecute the defendant for crimes committed against the child, as well as the severity of the conduct, the tribe referred the case for federal prosecution. 

The Department believes that Congress should close this gap in the law as well. 

And the Department would welcome the opportunity to work with the Committee 

to make sure that this fix is narrowly tailored to the circumstances we have just 

described—where the crime against a spouse, intimate partner, or dating partner 

goes hand-in-hand with a crime against the victim’s children. 

The third gap in the law, exposed by practical experience, is that it does not clearly recognize that tribes exercising SDVCJ have the authority to protect the tribal 

law-enforcement officers, prosecutors, judges, and courtroom officials who administer justice. For example, there is uncertainty about a tribe’s authority to charge 

an SDVCJ offender for resisting arrest by a tribal police officer. In one case, an 

SDVCJ defendant attempted to escape mandatory court appearances and physically 

struck a tribe’s bailiff in tribal court. Obviously, this sort of misconduct is a direct 

affront to the tribe’s power and practical ability to successfully prosecute domesticand dating-violence crimes under Section 1304. 

The Department therefore believes that Section 1304 should be amended to protect tribal criminal-justice officers and employees from crimes that directly frustrate 

the successful arrest, detention, and prosecution of SDVCJ defendants and the adjudication of their criminal cases. This appears to be the intended focus of S. 2785’s 

proposal for new Sections 1304(a)(12) and 1304(c)(3). The Department would be glad 

17 

to provide the Committee with technical drafting assistance to sharpen the focus of 

these provisions, as well. 

At this time, the Department would recommend against expanding the universe 

of potential tribal-court criminal defendants, although we fully recognize the terrible 

impact of drugs on Native American communities. For now, we believe Congress’s 

focus instead should be to empower tribal criminal-justice systems to deal strongly 

and appropriately with all persons who are already subject to tribal criminal jurisdiction under Section 1304. 

As federally recognized Indian tribes, usually with financial support from Congress and the federal government, continue to build their capacity to effectively enforce their own criminal laws, Congress may well choose to expand the universe of 

potential criminal defendants in tribal courts, and also to expand the sentencing authority of those courts. Soon, it may make sense to vindicate the broad principles 

underlying VAWA 2013 and Section 1304 by expanding tribal criminal jurisdiction 

to cover additional non-Indian perpetrators, perhaps starting with those offenders 

who abuse Indian children (regardless of whether they also are abusing a spouse 

or intimate partner) and then considering other offenders, such as perpetrators of 

sexual assault, stalking, and sex trafficking, and criminals who bring illegal drugs 

into tribal communities. 

But today, less than 15 months after the effective date of VAWA 2013, the Department believes the most important and timely legislative reforms should focus 

instead on clarifying and expanding tribal prosecutors’ tools for bringing to justice 

the defendants who are already within the tribe’s jurisdiction. 

We thank the Committee for its willingness to undertake this important project. 

And we look forward to working with you and your staff as you shape properly targeted language to accomplish our common objectives. I will be happy to answer any 

questions you may have. 

The CHAIRMAN. Thank you, Mr. Toulou. 

Mr. CHAVARRIA. 

STATEMENT OF HON. J. MICHAEL CHAVARRIA, GOVERNOR, 

SANTA CLARA PUEBLO 

Mr. CHAVARRIA. [Greeting in Native Language.] Good afternoon, 

Chairman Barrasso, Vice Chairman, and members of the Committee. 

My name is J. Michael Chavarria. I serve as Governor for Santa 

Clara Pueblo in New Mexico. I appreciate the opportunity to testify 

before this Committee regarding S. 2916, a bill which would allow 

the Pueblo to lease all of our lands for up to 99 years. 

In 1992, Congress adopted an amendment to 25 U.S.C Section 

415 that allowed 99-year leasing authority for lands held in trust 

for the Pueblo Santa Clara. Unfortunately, those lands consisted of 

forested lands, our spiritual sanctuary, which we would never lease 

to outsiders for any type of economic development ventures for 

such an amount of time. 

The request in 1992 should have been inclusive of all our lands 

which include not only lands held in trust but also lands inclusive 

of what is known as the Santa Clara Pueblo grant. This is a square 

piece of land comprising about 17,300 acres that under Spanish colonial law dating back to the 1600s are considered to be the minimum area of land to which New Mexico Pueblo is entitled. 

In 1851, Congress enacted legislation extending the terms of the 

Indian Non-Intercourse Act over Pueblo Indians. The Act prohibits 

any Indian tribe from disposing of its lands or any interest therein, 

except for authority granted by Congress. That made the Pueblo 

fee simple title to its lands restricted fee because it was subject to 

Federal law restrictions on alienation. 

In 1858, Congress confirmed our title to the grant but it was subject to Federal law restrictions on alienation. That land is held in 

18 

trust whether the term uses restricted fee or ownership under Federal supervision. 

These restrictive fee lands are extremely important for current 

and proposed future economic development ventures as we diversify our economic portfolio. Currently, 25 U.S.C. Section 415 generally restricts a lease of tribal land to a term of 25 years with the 

possibility of one renewal period for another 25 years. However, 

these terms are not economically feasible as the terms of these 

lengths are too short to allow for the amortization of substantial 

capital investments which means that big businesses are deterred 

from locating on tribal lands. 

I do have a map here that shows our trust lands and the restrictive fee. The square in red is the 17,300 acres dating back to the 

colonial law. These are the Santa Clara Pueblo grant lands we 

want to utilize for commercial interests for economic development. 

Senator Udall’s bill fixes that problem by allowing us to enter into 

long term leases with our commercially valid lands. 

Again, I appreciate the opportunity to come before this Committee to testify to gain support not only from this Committee but 

also from Congress. Chairman, members of the Committee, I now 

stand for any questions. 

[The prepared statement of Mr. Chavarria follows:] 

19 

PREPARED STATEMENT OF HON. J. MICHAEL CHAVARRIA, GOVERNOR, SANTA CLARA

PUEBLO

The CHAIRMAN. Thank you so much for your testimony. 

Mr. BUCKLES. 

STATEMENT OF HON. DANA BUCKLES, COUNCILMAN, 

ASSINIBOINE AND SIOUX TRIBES, FORT PECK RESERVATION 

Mr. BUCKLES. Good afternoon, Mr. Chairman, Vice Chairman 

and members of the Committee. 

I am Dana Buckles, Councilman of the Assiniboine and Sioux 

Tribes of the Fort Peck Reservation. I would like to thank the Committee for the invitation to testify. 

I am pleased to testify in strong support of the Tribal Youth and 

Community Protection Act. This bill would recognize the inherent 

tribal authority to protect our children and our communities. 

At Fort Peck, we have long believed that a strong tribal government is the way that we can best keep our communities safe. The 

Fort Peck Tribes have provided law enforcement and correction 


511b7.eps
20 

services on our reservation since 1996 under an Indian Self-Determination and Education Assistance Act contract. 

We are also one of the first Indian tribes in the Nation to enter 

into a cross-deputization agreement with State, county and city law 

enforcement agencies. Under this agreement, tribal officers are 

deputized to enforce State and local law on the reservation and 

State and local officers are authorized to enforce tribal law. 

For more than 40 years, the Fort Peck tribes have had an independent judicial system, including an appellate court. It is through 

this system that we provide justice to our victims and our defendants. Currently, our judicial system includes law-trained judges, 

law-trained prosecutors, and law-trained public defenders. 

Given the strong foundation of our court and the tribal council’s 

desire to combat domestic violence with every tool possible, the 

tribes elected to pursue the opportunity presented by the Violence 

Against Women Act and exercise our inherent jurisdiction to prosecute non-Indian defendants who commit domestic violence on our 

reservation. 

We did this not because we lack good partners in our U.S. attorney and local law enforcement, but because this is simply another 

avenue to provide justice to the victims. We are pleased to share 

that we are working with the U.S. Attorney to designate our special prosecutor as a Special Assistant U.S. Attorney, so he will be 

able to prosecute crimes not only in tribal court, but also Federal 

court. In short, we think providing justice to victims is an important step in providing them a pathway to heal and move on with 

their lives. 

Unfortunately, violent crime is all too common in our community. 

A new study by the National Institute of Justice confirmed that violence in our community is a constant reality. According to this 

study, 84 percent of Indian women have experienced violence in 

their lifetime and 49 percent experienced violence in the past year. 

This violence is impacting our children. 

Since 2012, over half of the clients served by the tribe’ Family 

Violence Resource Center were children. This amounts to approximately 1,000 children who were in need of family crisis services as 

victims or witnesses to violence in their homes. 

That is why we so strongly support the Tribal Youth and Community Protection Act. We know that prosecuting crimes against 

children is the highest priority for our U.S. Attorney. The Fort 

Peck Tribes recently experienced two horrible crimes against two 

little girls. We are thankful that our Federal partners came forward quickly to bring justice to the victims. 

However, our children are victims of crime every day. In 2015, 

our tribal court had 329 criminal cases involving crimes against 

children. These cases included aggravated sexual assault of a child, 

felony abuse of a child and endangering the welfare of child. 

These cases only reflect the cases where we had the jurisdiction 

to prosecute. These do not reflect the cases where the perpetrator 

was a non-Indian. Those cases must be addressed by the U.S. Attorney. 

Our U.S. Attorney is a good partner, but he does not have the 

resources to prosecute all the crimes against children that our community experiences. Moreover, as the Department of Justice notes 

21 

in its 2014 declination report, there are structural barriers in the 

Federal system that make certain prosecutions like child molestation cases difficult. 

These challenges include the fact that the victims and witnesses 

are reluctant to travel outside their communities to testify and that 

Federal investigators do not have a rapport in the community the 

same way local law enforcement officers do. 

Our tribal law enforcement and our courts are the resources that 

are working on the ground every day in our community. They know 

the victims and they know the perpetrators. In order to respond to 

this tide of violence, Congress must empower tribes to recognize 

our inherent jurisdiction to prosecute non-Indians who commit 

crimes against our children. 

I want to thank you for the opportunity to testify on this vitally 

important issue of making our communities and our children safer. 

[The prepared statement of Mr. Buckles follows:] 

PREPARED STATEMENT OF HON. DANA BUCKLES, COUNCILMAN, ASSINIBOINE AND

SIOUX TRIBES, FORT PECK RESERVATION

I am Dana Buckles, Councilman of the Assiniboine and Sioux Tribes of the Fort 

Peck Reservation. I would like to thank the Committee for the invitation to testify 

on these two important bills. 

The Fort Peck Reservation is in northeast Montana, forty miles west of the North 

Dakota border, and fifty miles south of the Canadian border, with the Missouri 

River defining its southern border. The Reservation encompasses over two million 

acres of land. We have approximately 12,000 enrolled tribal members, with approximately 7,000 tribal members living on the Reservation. We have a total Reservation 

population of approximately 11,000 people. 

I am pleased to testify in strong support of the Tribal Youth and Community Protection Act. This bill would recognize the inherent tribal authority to protect our 

children and our communities. Specifically, this bill would extend the exercise of the 

special jurisdiction recognized in the 2013 Violence Against Women Act, to include 

crimes against Indian children, drug offenses, and for crimes committed against our 

tribal officials that are connected to the exercise of this jurisdiction. 

At Fort Peck, we have long believed that a strong tribal government is the way 

that we can best keep our communities safe. Furthermore, we have taken action to 

maximize our authorities to protect everyone living within our boundaries. In this 

regard, the Fort Peck Tribes have provided law enforcement and correction services 

on our Reservation since 1996 under an Indian Self-Determination and Education 

Assistance Act contract. We are also one of the first Indian tribes in the nation to 

enter into a cross-deputization agreement with state, county and city law enforcement agencies. Under this agreement, first ratified almost twenty years ago, tribal 

officers are deputized to enforce state and local law on the Reservation and state 

and local officers are authorized to enforce tribal law. 

For more than forty years, the Fort Peck Tribes have had an independent judicial 

system, including an appellate court. It is through this system that we provide justice to our victims and our defendants. Currently, our judicial system includes lawtrained judges, law-trained prosecutors, law-trained public defenders, probation officers, a published tribal code, and experienced court clerks and court reporters. Our 

court’s opinions are published and available to the public. Our tribal courts and our 

court services are largely supported by tribal funds. 

Given the strong foundation of our court and the Tribal Council’s desire to combat 

domestic violence with every tool possible, the Tribes elected to pursue the opportunity presented by the Violence Against Women Act (VAWA) and exercise our inherent jurisdiction to prosecute non-Indian defendants who commit domestic violence on our Reservation. We did this—not because we lack good partners in our 

U.S. Attorney and local law enforcement—but because this is simply another avenue 

to provide justice to the victims. We are pleased to share that we are working with 

the U.S. Attorney to designate our special prosecutor as a Special Assistant U.S. Attorney, so he will be able to prosecute crimes not only in tribal court, but also federal court. In short, we think providing justice to victims is an important step in 

providing them a pathway to heal and move on with their lives. Thus, we are working hard to ensure that we fully utilize all the tools available to do this. 

22 

Unfortunately, violent crime is all too common in our community. We are all familiar with the statistics regarding domestic violence in tribal communities. A new 

study by the National Institute of Justice confirmed that violence in our community 

is a constant reality. According to this study, 84 percent of Indian women have experienced violence in their lifetime and 49 percent experienced violence in the past 

year. And while we are right to focus on violence against women; the men in our 

community experience violence as well. Eighty-one percent of Indian men have experienced violence, including 27 percent who experienced sexual violence. This violence 

impacts every aspect of our Tribes from the mental and physical health of our people to our economy. According to this study, 40 percent of the women and 9.7 percent of the men missed work because of the violence committed against them. Even 

more startling is that while Indian women are only 7 percent of the population in 

Montana, they are 13 percent of the intimate partner deaths in the State. During 

a one-year period, from October 1, 2013 to September 30, 2014, the Roosevelt County/Fort Peck Tribes’ 911 Call Center received 718 reports of domestic violence. This 

means that nearly twice a day, every day, our law enforcement officers were responding to a domestic violence call. It is not known how many more incidents were 

not reported, but nationwide it is estimated that domestic violence is reported only 

60 percent of the time. 

Since 2012, over half of the clients served by the Tribes’ Family Violence Resource 

Center were children. This amounts to approximately 1000 children, who were in 

need of family crisis services as victims or witnesses to violence in their homes. 

Every year brings new challenges that our families are facing, including meth and 

other drug-related violence. The latest challenge in this regard is Bath Salts. We 

have all heard the stories in the news of people essentially having psychotic breakdowns and committing horrendous acts of violence when they are under the influence of these drugs. We are now experiencing this on our Reservation. 

According to the Indian Tribal Trauma Center, Indian children nationally are 2.5 

times more likely to suffer trauma than non-Indian children, and violence accounts 

for 75 percent of the deaths of Indian children between the ages of 12 and 20. This 

is leaving a devastating legacy for our children. As stated in the November 2014 

Report from the Department of Justice Task Force on American Indian/Alaska Native Children Exposed to Violence, Indian children experience Post Traumatic Stress 

Disorder (PTSD) at a rate of 22 percent. This is the same level as Iraq and Afghanistan war veterans. That means more than 1 in 5 Indian children in this country 

is suffering from battlefield PTSD. 

That is why we so strongly support the Tribal Youth and Community Protection 

Act. We know that prosecuting crimes against children is the highest priority for 

our U.S. Attorney. The Fort Peck Tribes recently experienced two horrible crimes 

against two little girls. We are thankful that all of our federal partners came forward quickly to bring justice to the victims. We cannot commend enough the work 

of our U.S. attorney and all of our law enforcement partners in these two tragic 

cases. 

However, our children are victims of crime every day. In 2015, our tribal court 

had 329 criminal cases involving crimes against children. These cases included aggravated sexual assault of a child, felony abuse of a child and endangering the welfare of child. These cases only reflect the cases where we had the jurisdiction to 

prosecute. These do not reflect the cases where the perpetrator was a non-Indian. 

Those cases must be addressed by the U.S. Attorney. 

Our U.S. Attorney is a good partner, but he does not have the resources to prosecute all the crimes against children that our community experiences. Moreover, as 

the Department of Justice notes in its 2014 declination report, there are structural 

barriers in the federal system that make certain prosecutions like child molestation 

cases difficult. These challenges include the fact that the victims and witnesses are 

reluctant to travel outside their communities to testify and that federal investigators do not have a rapport in the community the same way local law enforcement 

officers do. 

Our tribal law enforcement and our courts are the resources that are working on 

the ground every day in our community. They know the victims and they know the 

perpetrators. They do not have the same structural barriers to prosecuting these difficult cases encountered by the U.S. Attorney. In order to respond to this tide of violence, Congress must empower tribes by recognizing our inherent jurisdiction to 

prosecute non-Indians who commit crimes against our children and bring drugs into 

our communities. 

It should be noted however, that none of this will be realized without the proper 

funding from Congress. We appreciate that last year Congress provided funding to 

assist tribes, like Fort Peck, as we exercise our inherent jurisdiction to prosecute 

individuals who commit domestic violence on our Reservation. If Congress expands 

23 

this to include violence against children, the funding will also have to increase. On 

that point last year, we testified about the need to expand tribal funding within the 

Victims of Crime Fund (VOCA). I want to thank Senator Tester and Senator Daines 

for their work this year in the Appropriations Committee to create a tribal set-aside 

for tribes in VOCA with an amendment to the Commerce, State and Justice Appropriations bill. This funding will go a long way to support the work that we do at 

the Family Violence Resource Center to serve the victims in our community. 

Finally, we support the goals of S. 2920, a bill to reauthorize and expand the services and programs under the Tribal Law and Order Act. We are, in particular, supportive of the focus on tribal youth and addressing the reality that Indian youth are 

over-represented in the state and federal juvenile systems. We strongly support the 

provision in the bill that would allow federal juvenile cases to be referred to tribal 

courts, and the provision in the bill that would require states to provide notice to 

tribes when a tribal member youth enters a state or local justice system. We urge 

our two Senators from Montana to join the Chairman and Senator McCain in sponsoring this bill. 

Thank you for the opportunity to testify on the vitally important issue of making 

our communities and our children safer. I would be pleased to answer any questions 

and to provide any additional information that may assist the Committee. 

The CHAIRMAN. Thank you very much, Mr. Buckles, for your testimony. I am very grateful. 

Now we will turn to Mr. Urbina. 

STATEMENT OF HON. ALFRED URBINA, ATTORNEY GENERAL, 

PASCUA YAQUI TRIBE 

Mr. URBINA. Good afternoon, Chairman Barrasso and distinguished members of the Committee. 

My name is Alfred Urbina and I currently serve as the Attorney 

General of the Pascua Yaqui Tribe. It is an honor to be here today 

to provide testimony to the Committee regarding the need for public safety improvement and tribal law and order in Indian Country. 

On behalf of my tribal council and our membership, thank you 

for this opportunity. I am pleased to offer support for the Tribal 

Youth and Community Protection Act and the Tribal Law and 

Order Reauthorization Act. 

Both bills will go a long way to help tribes close lingering jurisdictional gaps regarding violence against families, help stop the 

spread of illegal drugs and provide additional tools for cross jurisdiction cooperation. 

Before expanding on the need for the new proposed legislation, 

I will talk briefly about the current state of VAWA and TLOA implementation on the Pascua Yaqui Reservation because it provides 

relevant context to the bipartisan measures brought forward today. 

Domestic violence is considered a serious crime against the tribe 

and our families. Recent tribal justice measures presented Indian 

Nations with an opportunity to restore and exercise additional authority and jurisdiction to protect their citizens from crime and violence. 

However, aside from VAWA and TLOA and the crime fighting efforts of tribes, there still exists a super storm of injustice that has 

darkened Indian Country for decades. Today in 2016, a public safety and public health crisis is still present on most Native American 

reservations. 

The Pascua Yaqui Tribe sought to afford victims of crime and domestic violence the maximum protection the law provides when we 

enacted the provisions of TLOA and VAWA. On February 20, 2014, 

pursuant to VAWA 2013, the Pascua Yaqui Tribe began exercising 

24 

special domestic violence criminal jurisdiction over non-Indian perpetrators of domestic violence. 

On July 2, 2014, for the first time since 1978 when the U.S. Supreme Court stripped tribal governments of their criminal authority over non-Indians, the Pascua Yaqui Tribe obtained the first conviction of a non-Indian, 26-year-old Hispanic male for the crime of 

domestic violence and assault committed on our reservation. 

Since that time, the tribe has prosecuted a total of 22 non-Indian 

cases and 30 VAWA related criminal investigations. That has resulted in 8 criminal convictions. To us it is clear that the starting 

place to reverse historical jurisdictional problems and injustice in 

Indian Country is by empowering tribal justice systems. 

Tribes are in the best position to close Indian Country safe havens being exploited by lawbreakers. Local tribal government is the 

best option to protect Indian Country mothers, daughters, sisters 

and brothers. 

Regarding S. 2920, the reauthorization of the Bureau of Prisons 

pilot project is a critical part of any plan that will address tribal 

law and order. The current regime is unworkable, unreliable and 

jail conditions and programs are unacceptable. 

Reauthorizing law enforcement and judicial training for the investigation and prosecution of illegal narcotics is also critical. Substance abuse problems brought on by illegal drug sales, drug manufacturing and the explosion of the opioid addiction epidemic is crippling Indian Country. 

The implementation of VAWA 2013 confirms that tribes require 

access to NCIC and Federal background-check information both in 

the criminal and civil context. Data collection and sharing and 

criminal information database access is critical in a cross-jurisdiction environment. 

Improving justice outcomes for Indian youth is long overdue. Juvenile justice issues are very important to the Pascua Yaqui tribe 

and the legislative provisions in S. 2920 provide the necessary 

starting points for understanding and coordinating future juvenile 

justice matters. 

Creating tribal liaisons and special assistant Federal public defenders, similar to the U.S. attorney liaisons and special assistant 

U.S attorneys will be an important tool. However, tribes need direct funding to provide public defender services. 

Regarding S. 2785, it is clear to the tribe that after exercising 

valid jurisdiction that several important provisions are still needed. 

First, when responding to domestic violence, there is a strong likelihood that children will be present as well as other family members. In our VAWA cases, a total of 20 children, all under the age 

of 11, were exposed to violence, were victims or reported crimes 

while they were in progress. 

Without criminal jurisdiction to address this issue, the tribe had 

to remove the children from their homes in order to protect them. 

VAWA domestic violence jurisdiction must be expanded to include 

children. 

The tribe is also unable to charge a VAWA offender with secondary crimes that were committed during the commission of a 

VAWA offense. For example, this applies in instances where a 

VAWA offender may be in possession of illegal drugs, assaults a poVerDate Mar 15 2010 14:00 Sep 08, 2016 Jkt 021390 PO 00000 Frm 00028 Fmt 6633 Sfmt 6601 S:\DOCS\21390.TXT JACK
25 

lice or detention officer, destroys property or commits a crime of 

child violence while being prosecuted for a VAWA offense. 

Federal definition of domestic violence as defined by Federal case 

law stops tribes from properly addressing the full range of domestic 

violence offenses. The tribe had to dismiss VAWA cases and refrain 

from charging cases that did not meet the requisite Federal definition of violence. 

S. 2785 provides a workable solution to this problem by the use 

of tribal code provisions that define domestic violence in corresponding crimes according to the community. 

The Pascua Yaqui Tribe also supports S. 710, the SURVIVE Act, 

and the current efforts by Congress to set aside 5 percent of VOCA 

funding for tribal government victim programs. 

As we work to strengthen measures for tribes to protect themselves and provide additional protections for defendants, it is important that we balance those efforts with enhanced rights and protections for victims and families who have suffered loss and injury. 

Finally, tribes need permanent and direct funding to properly address crime and violence in a comprehensive and sustainable manner. Periodic and short term grant funding does not allow tribes to 

build the necessary capacity to operate robust court systems. 

Thank you very much. This concludes my statement. Thank you, 

Mr. Chairman and members of the Committee. Thank you, staff, 

for your hard work on these important issues. 

[The prepared statement of Mr. Urbina follows:] 

PREPARED STATEMENT OF HON. ALFRED URBINA, ATTORNEY GENERAL, PASCUA YAQUI

TRIBE

Chairman Barrasso and Distinguished Members of the Committee: 

Good afternoon, my name is Alfred Urbina, and I currently serve as the Attorney 

General of the Pascua Yaqui Tribe, a Federally Recognized Tribe from the State of 

Arizona. On behalf of our Tribal Council and membership, thank you for this opportunity. It is an honor to be here today to provide testimony to the Committee regarding the need for public safety improvement and tribal law and order in Indian 

Country. I am pleased to offer support for the ‘‘Tribal Youth and Community Protection Act of 2016,’’ and the ‘‘Tribal Law and Order Reauthorization Act of 2016.’’ Both 

Bills will go a long way to help tribes confront lingering jurisdictional gaps regarding violence against tribal families, help stop the proliferation of illegal drugs, and 

provide additional tools for cross-jurisdiction cooperation. 

First, I would like to thank the Committee and staff for your leadership on these 

matters. The drafting, passage, and implementation of the ‘‘Tribal Law & Order Act 

of 2010’’ (TLOA) and the ‘‘Violence Against Women Reauthorization Act of 2013,’’ 

(VAWA 2013) is having a positive impact in Indian Country. Recent TLOA and 

VAWA authority provided measured tools that foster longstanding policies of tribal 

self-determination and tribal self-governance. 

Before expanding on the need for the new proposed legislation, I will talk briefly 

about the current state of VAWA and TLOA implementation on the Pascua Yaqui 

Reservation because it provides relevant context to the bipartisan measures brought 

forward today. 

The Success of TLOA & VAWA Implementation 

To begin, the strength of the Pascua Yaqui Tribe flows directly from our people. 

Domestic violence is considered a serious crime against the Tribe, and our families. 

In enacting the provisions of TLOA and VAWA, the Tribe sought to afford the victims of domestic violence the maximum protection that the law provides. The safety 

of victims of domestic violence and drug related crimes, especially children, became 

easier to address through the intervention of Tribal law enforcement, Tribal Special 

Assistant U.S. Attorneys (SAUSA), and support from our federal partners and Tribal Liaisons. 1

On February 20, 2014, pursuant to VAWA 2013, the Pascua Yaqui Tribe was one 

of three Tribes to begin exercising Special Domestic Violence Criminal Jurisdiction 

26 

(SDVCJ) over non-Indian perpetrators of domestic violence. On July 2, 2014, for the 

first time since 1978 when the U.S. Supreme Court stripped tribal governments of 

their criminal authority over non-Indians, 2 the Pascua Yaqui Tribe obtained the 

first conviction of a non-Indian, a twenty-six year old Hispanic male, for the crime 

of domestic violence assault committed on the Pascua Yaqui Reservation. 

Since that time, the Pascua Yaqui Tribe has prosecuted a total of 22 non-Indian 

cases involving 15 males and 1 non-Indian female involved in 30 VAWA investigations that have thus far resulted in 8 criminal convictions. VAWA cases include 

crimes of domestic violence and violations of protection orders where 15 tribal females and 2 tribal male were victims. Most of the VAWA perpetrators have extensive criminal records in the State of Arizona. 

• Two offenders had active state warrants for their arrests, one for armed robbery 

out of the State of Oklahoma. 

• Four of the cases were serious enough to warrant referrals for federal prosecution. 

• On average, VAWA offenders were contacted by Tribal police at least six times 

before VAWA authority existed on the Pascua Yaqui Reservation and VAWA offenders have been involved in close to 90 Pascua Yaqui police incidents, pre and 

post VAWA. 

• Eleven of the cases involved children in the home. A total of 20 children, all 

under the age of eleven, were exposed to violence, were victims, or actually reported the crime while it was in progress. 

• Three of the VAWA offenders have already reoffended with the same victim, 

demonstrating a pattern of abusive behavior that we know can be a part of domestic violence relationship dynamics. 

• Thirteen (13) of the offenders are of Hispanic descent, 2 are ‘‘Legal Permanent 

Residents’’ from Mexico. Two (2) offenders are Caucasian males, 4 are AfricanAmerican, 1 is of Asian descent, and 1 offender is a lineal tribal descendant who 

does not qualify for enrollment. 

• Thirteen (13) of the incidents involved alcohol or drugs. Ten (10) of the offenders have been previously arrested for cases involving drug use, possession, DUI, 

or alcohol related offenses. 

• Most of the offenders appeared to be unemployed and only 2 offenders did not 

have a criminal record in the State of Arizona. Seven of the offenders had previously been arrested for violent crimes, weapons, or threats in the State of Arizona. Two offenders are felons, both having been convicted for Burglary in the 

State of Arizona. 

• Five cases remain open and in 2 cases, tribal warrants have been issued, one 

post-conviction (probation absconder) and one pre-trial for failure to appear. 

Seven (7) cases were declined after review. 

• Seven (7) cases were dismissed for issues related to the U.S. v. Castleman 

case. 3

Problems Persist 

Recent and important Tribal justice measures presented some Indian Nations 

with an opportunity to restore and exercise selected authority to protect their people 

from crime and violence. However, notwithstanding VAWA, TLOA, and the crime 

fighting efforts of tribes, there still exists a super storm of injustice that has darkened Indian Country for decades. Today, in 2016, a public safety and public health 

crisis is still present on most Native American reservations. The long-term lack of 

security for women and children has brought on a ‘‘crisis of confidence’’ in both tribal and federal justice systems. The restoration of authority, new proposed legislation, and enhanced coordination with federal authorities represents a new dawn. 

Not only are we now able to address human rights abuses perpetuated for decades 

upon women, but we are also able to do this while guaranteeing the civil rights of 

the accused. On the other hand, just like when a major storm passes, our community will have to take time to survey the damage, reconcile with victims and families, and rebuild the trust that has been lost. There are shattered homes across our 

Reservation and across Indian Country. Many men, women, and children will continue to suffer through this storm of injustice. The new legal and jurisdictional 

framework, while slightly changed, will not work absent the proper funding for tribal courts, victims, and support services. The majority of tribes simply do not have 

the resources to provide comprehensive changes to their systems or guarantee suitable services for victims and their families. 

27 

Tribal Control Is the Key 

The starting place to reverse historical jurisdictional problems and injustices in 

Indian Country is with strong tribal justice systems. Criminal investigations occur 

at the local level. Local government is the best government to protect Indian Country’s mothers, daughters, sisters and brothers. Tribes are in the best position to 

close jurisdictional gaps and safe havens for lawbreakers. 

With a self-reported 500 non-Indian community members living on the Pascua 

Yaqui Reservation and approximately 800 Non-Indians working or attending school 

on the Pascua Yaqui Reservation, the probability that additional VAWA cases will 

arise is foreseeable and likely. 

Regarding S. 2920, the reauthorization of the Bureau of Prisons pilot program is 

a critical part of any plan that will address tribal law and order. The current regime 

is unworkable, disorganized, and jail conditions are deplorable. Reentry programming will be unsuccessful without a strong primary detention system and a humane 

corrections option. Reauthorizing law enforcement and judicial training for investigation and prosecution of illegal narcotics is critical. Substance abuse problems 

brought on by illegal drug sales, manufacturing, and the explosion of the opioid addiction epidemic is crippling Indian Country. The implementation of VAWA 2013 

SDVCJ confirms that Tribes require access to federal background-check information 

in the criminal and civil context. Data collection and criminal information database 

access is critical in a cross-jurisdiction environment. Also, given that access would 

allow for the sharing of tribal criminal justice information, increased data sharing 

would allow for the closure of criminal information gaps that now stretch across the 

tribal-federal landscape. The Shadow Wolves drug-trafficking-prevention program is 

an important tool for drug interdiction and the prevention of terrorism in our homeland. The Shadow Wolves are also an organization that operates in a traditional 

manner that respects the culture of the indigenous people who have inhabited the 

desert southwest for thousands of years. Improving justice for Indian youth is long 

overdue. When Native youth are prosecuted federally, there is a lack of programming and coordination. When youth are held in the State juvenile system, there is 

an absence of culturally relevant curriculum available. Creating tribal liaisons and 

special assistant federal public defenders, similar to the liaisons and special assistant U.S attorneys in the U.S. attorneys’ offices is a great idea, however, Tribes also 

need direct funding to provide these critical services. A liaison will be helpful if 

Tribes have established the Public Defense infrastructure to begin with. 

Regarding S. 2785, ‘‘A bill to protect Native children and promote Public Safety 

in Indian Country,’’ it is clear to the Pascua Yaqui Tribe after exercising Special 

Domestic Violence Criminal Jurisdiction under VAWA 2013, that several important 

provisions were omitted. First, when addressing domestic violence, there is a strong 

likelihood that children will be part of most relationships, as will other family members who may live in the home. In our cases, we found that at least 13 of our incidents included children in the home. Some children were victims of violence or were 

exposed to violence. In three cases, tribal officials had to remove the children from 

the home and place them in a foster home for their protection. Also, the Tribe found 

that we could not charge a VAWA offender with ancillary crimes that were committed during the commission of a VAWA offense or during the prosecution of that 

offense. For example, in one case, a VAWA offender was brought in for violating a 

court probation order. Since the infraction was not an original DV VAWA offense, 

the Tribe could not proceed. This would apply to instances where the offender was 

in possession of illegal drugs, assaulted a police or detention officer, destroyed property, or committed any other crime while they were being prosecuted for a VAWA 

offense. Finally, in recent VAWA cases, criminal background checks of VAWA offenders found that many had criminal convictions for drug or alcohol offenses and 

many of our cases were alcohol related. If VAWA offenders are on the Reservation 

and they are associated with drug use, drug sales, or the facilitation of such conduct, Tribes require the necessary authority to address this behavior. 

BACKGROUND INFORMATION

Pascua Yaqui VAWA Implementation 

On March 7, 2013, VAWA 2013 was signed into law by President Obama. On Jun 

26, 2013, the U.S. Attorney for the District of Arizona, John Leonardo, visited the 

Pascua Yaqui Tribe and toured our court facility. The Tribe expressed an interest 

in the implementation of Special Domestic Violence Criminal Jurisdiction. On July 

09, 2013, the Tribal Chairman submitted a letter to the Department of Justice’s, Mr. 

Tracy Toulou, as a preliminary expression of interest in exercising SDVCJ and 

asked to be designated as a participating Tribe. On July 15, 2013, the Pascua Yaqui 

Tribe was one of approximately 27 federally recognized Indian tribes that timely 

28 

sent ‘‘preliminary expressions of interest’’ in participating in the Pilot Project. By 

doing so, tribes expressed an interest in participating in both Phase One and Phase 

Two of the Pilot Project. 

The Department of Justice launched the Intertribal Technical-Assistance Working 

Group on Special Domestic Violence Criminal Jurisdiction (ITWG), as part of Phase 

One of the Pilot Project. The ITWG is a voluntary working group of designated tribal representatives who exchange views, information, and advice, peer to peer, about 

how tribes may best exercise SDVCJ, combat domestic violence, recognize victims’ 

rights and safety needs, and safeguard defendants’ rights. Between July, 2013 and 

December 2013, Tribal representatives participated in a series of teleconferences, 

participated as panelists, and participated in ITWG in-person meetings. 

On December 30, 2013, the Tribe submitted an extensive application to the DOJ 

to be designated a Pilot Tribe and to start exercising SDVCJ (Phase II). 4 On February 6, 2014, the Tribe received official notice that the Tribe was designated a participating Pilot Tribe authorized to exercise SDVCJ. 5 The Pascua Yaqui Tribe 

SDVCJ Pilot status story was picked up and released locally, statewide, and nationally, via press release by the White House. 6 On February 12, 2014, VAWA Pilot information was posted for notice in the Federal Register by the Department of Justice. 7 Official Tribal notice was sent out via global e-mail to all tribal government 

and casino enterprise employees, as well as being posted on the official Pascua 

Yaqui Tribal Internet site on February 6th, 2014. 8 On February 10th, 2014, the Arizona Daily Star ran a front page story that circulated to 238,000 readers in Southern Arizona, including the City of Tucson. The story was also posted on their online 

news site. The online AZSTARNET has a reach of 1 million independent views per 

month and has approximately 12 million page views per month. 9 The Pascua Yaqui 

press release was shared online through a leading Internet Indian Country legal 

news blog called ‘‘Turtle Talk,’’ it was posted on February 7, 2014. 10

The Tribe conducted interviews with several news outlets to include, the Arizona 

Daily Star, the Seattle Times, the L.A. Times, Washington Post, Tucson KVOA television news, Colorlines, Aljazeera, NPR, 91.5 KJZZ, MintPress, the Arizona Daily 

Wildcat, and Cronkite News. 11 The Tucson area news story by KVOA ran on the 

nightly news on February 23, 2014 and on the morning of February 24, 2014, and 

was broadcast in the greater Southern Arizona area, to include the City of Tucson 

and the Pascua Yaqui Reservation. 

On February 20, 2014, pursuant to VAWA 2013, the Pascua Yaqui Tribe was one 

of three Tribes to begin exercising Special Domestic Violence Criminal Jurisdiction 

(SDVCJ) over non-Indian perpetrators of domestic violence. On July 2, 2014, for the 

first time since 1978 when the U.S. Supreme Court stripped tribal governments of 

their criminal authority over non-Indians, 12 the Pascua Yaqui Tribe obtained the 

first conviction of a non-Indian, a twenty-six year old Hispanic male, for the crime 

of domestic violence assault committed on the Pascua Yaqui Reservation. The Tribe 

has had one jury trial where the jury found that there was not sufficient evidence 

of a dating relationship between the victim and defendant. The case, PYT v. Garris, 

ended in the acquittal of the defendant. Although we would have preferred a guilty 

verdict, this first full jury trial fleshed out many pre-trial arguments, and proved 

our system works. A non-Indian was arrested and held by Pascua Yaqui law enforcement, he was represented by two attorneys, and a majority Yaqui jury, after 

hearing evidence presented by a tribal prosecutor, in front of an Indian judge, determined that the Tribe did not have jurisdiction in a fairly serious DV Assault case. 

Recently, after the Tribe started to exercise VAWA SDVCJ, a survey was administered by the Prosecutor’s Office. 220 surveys were filled out by community members 

about VAWA and the Tribe’s implementation. Of the 220 people surveyed, 130 respondents thought that DV/family disputes were a big problem. Thirty-six people 

knew someone who was a victim of domestic violence and the perpetrator was a 

non-Indian. An additional twenty-seven were the victims of DV and the perpetrator 

was Indian. An additional thirty-six knew someone who was a victim of DV and the 

ethnicity of the perpetrator was unknown. Twenty-five had been an actual victim 

of DV, of those, six were victims of non-Indian perpetrators. 140 respondents had 

heard of VAWA and 155 had heard of the tribe having VAWA jurisdiction. 

Lessons Learned 

Some offenders have had a long history of contact with Tribal Police & generally 

have a State criminal history: 

1. NCIC access is required to properly assess who the offender is (DOJ TAP 

Program). 

2. Offenders may have warrants or a history of harming the victim in another 

jurisdiction. 

29 

3. Offenders are using Indian Country to exploit jurisdictional gap and offenders 

are aware of jurisdictional gap. 

4. Victims were reluctant to report DV incidents due to jurisdictional gap and 

no safety option from Tribal, State, or Federal system (no trust). 

5. Difficult DV cases are increasingly difficult in VAWA SDVCJ context. 

Multi-jurisdictional environment makes prosecution difficult: 

1. Offenders can flee Tribal jurisdiction and Tribal Court process. Tribes may 

require a State/Tribal IGA/MOU to extradite, ensure comity to tribal court 

order, and domesticate & execute tribal warrants. Outreach between tribes and 

surrounding jurisdictions need to occur. 

2. Proximity to Mexico raises issues of prosecuting Legal Permanent Residents, 

or undocumented aliens, must advise Border Patrol upon arrest. There is 

heightened scrutiny as a conviction can also trigger deportation. Tribes may be 

required to provide Spanish language court interpreters. 

3. The limited nature of jurisdiction & the Supreme Court Castleman decision 

makes cross-deputization and jurisdictional flexibility important. This allows officers to arrest into surrounding State or Federal jurisdictions on ancillary 

charges (trespassing, drugs, non-victim crimes, etc.). 

4. Criminal investigations are more difficult and police officers require additional training. Depending on the facts, an SDVCJ case can have several different matters evolve from one incident (Tribal criminal case, federal case, tribal dependency case, or a state criminal case). 

5. Offender can have a state felony or misdemeanor warrants. Coordination, extradition and inter-jurisdictional movement of offenders have to occur. 

6. Ethical issues arise if a Defendant is not provided effective assistance of 

counsel. Public Defenders must have a working knowledge of Indian Law and 

how to operate in a cross-jurisdictional environment. 

Non-Indian offender issues: 

1. There is no requirement from the VAWA law to collect offender or victim 

data. 

2. VAWA convictions are not being entered into NCIC, national database (yet). 

3. Preliminary profile of PYT VAWA offender is unemployed male in long term 

relationship with Tribal member, who may have drug or alcohol use history, 

previous criminal history and previous tribal police contact. 

4. Healthcare costs are an issue. Who covers when a non-Indian is in Tribal custody? While in BIA custody? Jail costs & transportation? 

5. Indirect costs have increased: Healthcare, case related investigative costs, expert witnesses, mental health evaluations, child welfare matters, ancillary 

cases, post-conviction costs, additional litigation. 

6. Who funds Offender sanctioned classes and programming. There will be a requirement to loop in state services or contract for such services. 

7. Equal protection and due process issues may arise, fairness & equal treatment in sentencing, pre-trial release determinations, and jury composition. 

8. Composition of jury is difficult when attempting to hail non-Indian jurors and 

not excluding non-Indian jurors. 

9. Non-Indians can be lineal tribal descendants who don’t meet blood quantum 

requirements (1 case for Pascua Yaqui). 

TLOA//VAWA authority maximized, gives tribes the flexibility to control crime: 

1. The purpose of VAWA Pilot Program was to develop best practices. 

2. Exercising integrated authority of TLOA and VAWA through Tribal SAUSAs, 

Tribal Law enforcement with SLEC cards, NCIC access, and State law enforcement & prosecution authority, provides 360 degree jurisdictional management 

and complete criminal data intelligence. This provides an opportunity for planning, prevention, and crime control policy creation. 

3. Hybrid systems allow for better coordination with DOJ, BIA, and State authorities. The DOJ sponsored Inter-Tribal Working Group (ITWG), SAUSA Program, SLEC Cards, Central Violations Bureau (CVB) citations program, BIA 

Purpose Code X Program, and the DOJ Tribal Access Program (TAP), provides 

maximum jurisdictional flexibility for tribal justice systems. 

30 

4. The TLOA DOJ Bureau of Prisons (BOP) Pilot program must be reauthorized 

by Congress and expanded to include VAWA defendants and lower level crimes 

and convictions involving multi-year sentences related to Domestic Violence. 

Victim issues: 

1. VAWA victim Profile: Single tribal female with children, unemployed, living 

in Tribal housing as head of household or in a multi-generational household, in 

long term relationships with Non-Indian males. (Married, children in common, 

or residing in same household). 

2. VAWA does not include funding for prevention services. 

3. Tribal Orders of Protection are not being entered into NCIC, making it difficult to enforce off Reservation. 

4. VAWA Offender Tribal Criminal history currently iscnot being added to 

NCIC. 

5. Women, children, and non-intimate partners living in the household are not 

being fully protected by VAWA. (Grandparents, elders, cousins, etc.) 

6. Many Domestic Violence crimes can’t be prosecuted due to Castleman issues. 

7. Sexual assault by a non-Indian ‘‘stranger’’ who is not in a relationship with 

the victim is not covered by VAWA 2013. 

Challenges 

There have been challenges during Pascua Yaqui’s VAWA SDVCJ implementation. For example, on March 26, 2014, the Supreme Court decided U.S. v. 

Castleman. 13 Castleman had an immediate impact on the Tribe’s criminal charging 

decisions when evaluating arrests under SDVCJ authority. In the Castleman case, 

James Castleman moved to dismiss his 2008 federal indictment under 18 U. S. C. 

§ 922(g)(9), which forbids the possession of firearms by anyone convicted of a ‘‘misdemeanor crime of domestic violence.’’ He argued that his 2001 conviction in Tennessee did not qualify as a ‘‘misdemeanor crime of domestic violence’’ because it did 

not involve ‘‘the use or attempted use of physical force’’ required by 18 U. S. C. 

§ 921(a)(33)(A)(ii). The Court held that the use of physical force was ‘‘satisfied by 

even the slightest offensive touching.’’ What is problematic for new SDVCJ cases is 

that the VAWA defines the term domestic violence as ‘‘violence’’ committed by a current or former spouse or intimate partner of the victim. . .’’ 25 U.S. Code § 1304 

(a)(2). The federal definition of a ‘‘misdemeanor crime of domestic violence’’ used to 

determine Castleman, will likely be used by federal and tribal courts to establish 

the charging boundaries under VAWA. The Tribe, like many other jurisdictions commonly charge crimes that arise early in the cycle of domestic violence relationships 

that may not include an ‘‘offensive touching’’ as an element to the crime, but nonetheless, they are violent and dangerous. These crimes can include Trespassing, 

Threatening and Intimidation, Tampering with Communications, Burglary, Breaking & Entering, Stalking, Disorderly Conduct, Unlawful Imprisonment, Harassment, 

Endangerment, Custodial Interference, and Malicious Mischief. 

The dynamics and cycle of intimate partner violence is that offenders, in order 

to maintain power and control, will use escalating abusive and violent behavior 

against their partner. Over the life of a relationship, aggressive and hostile behavior 

increases in both frequency and severity. The cycle may end in the eventual separation of the couple, harm to the victim, or even the death of the victim. The Tribe’s 

ability to address and prevent violent encounters through the limited authority of 

VAWA SDVCJ appears to be further restricted by the holding in Castleman. 

VAWA Funding 

The Pascua Yaqui Tribe is requesting that Congress or the Department of Justice, 

make sufficient funds directly available to Tribes to properly implement and sustain 

into the future VAWA, SORNA, and the Tribal Law and Order Act (TOLA), during 

and beyond the implementation phase. Tribes require permanent funding and access 

to resources and services that are available to state, county, and municipal governments. Within VAWA 2013, there is authorization for appropriations of up to 

$5,000,000 for each of fiscal years 2014 through 2018 for participating tribes that 

are exercising SDVCJ. The Pascua Yaqui Tribe has officially requested a proportional share of the funding for the 2015–2018 fiscal years, in order that we may 

carry out all of the many responsibilities that we have as a VAWA Pilot Project 

Tribe. 

Section 904 of VAWA 2013, Public Law 113–4(2013) as codified in 25 U.S.C. 

1304(f) allows the Attorney General to award grants to Indian Tribes for the following purposes: 

31 

(f) Grants to tribal governments 

The Attorney General may award grants to the governments of Indian tribes 

(or to authorized designees of those governments)- 

(1) to strengthen tribal criminal justice systems to assist Indian tribes in exercising special domestic violence criminal jurisdiction, including- 

(A) law enforcement (including the capacity of law enforcement or court personnel to enter information into and obtain information from national crime 

information databases); 

(B) prosecution; 

(C) trial and appellate courts; 

(D) probation systems; 

(E) detention and correctional facilities; 

(F) alternative rehabilitation centers; 

(G) culturally appropriate services and assistance for victims and their families; and 

(H) criminal codes and rules of criminal procedure, appellate procedure, and 

evidence; 

(2) to provide indigent criminal defendants with the effective assistance of licensed defense counsel, at no cost to the defendant, in criminal proceedings 

in which a participating tribe prosecutes a crime of domestic violence or dating violence or a criminal violation of a protection order; 

(3) to ensure that, in criminal proceedings in which a participating tribe exercises special domestic violence criminal jurisdiction, jurors are summoned, selected, and instructed in a manner consistent with all applicable requirements; and 

(4) to accord victims of domestic violence, dating violence, and violations of 

protection orders rights that are similar to the rights of a crime victim described in section 3771(A) of title 18, consistent with tribal law and custom. 

The Pascua Yaqui Tribe currently expends considerable resources on all of the 

above programs, through both federal grants as well as significant sums of tribal 

dollars. The Tribe had two cases arise that implicated SDVCJ within the first two 

weeks of implementation and have had a total of 30 VAWA investigations and filed 

22 into Tribal Court. Significant resources have been dedicated to the cases. The 

Tribe would be better able to fund these programs as well as additional programs 

going forward if monies are appropriated under VAWA 2013, which are intended, 

pursuant to 25 USC 1304(g) to ‘‘supplement and not supplant any other Federal, 

State, tribal, or local government amounts made available to carry out activities described in this section.’’ A possible mechanism would be for the Department of Justice OVW Office to develop a Tribal Funding Plan and distribute the funds as tribal 

set-aside funding which could be added to existing Tribal 638 Contract as a modification. This method would allow the funding to be easily transferred to the Tribe. 

As such, we respectfully request that Congress or the Department of Justice provide 

a mechanism for disbursement of the funding provided for in VAWA 2013. 

Costs: The implementation of some of the provisions of the Tribal Law & Order 

Act, and the Violence Against Women Act, have raised costs that have been fully 

covered by the Tribe, with virtually no additional federal assistance. Through the 

Office of the Public Defender and contracted defense attorneys, the Pascua Yaqui 

Tribe now provides free legal representation to over 95 percent of all persons arrested on the reservation. All VAWA defendants who have been prosecuted have 

had a public defender or contracted defense attorney appointed at the Tribes expense in their cases to assist them. 

Pascua Yaqui Justice System 

Historically, the Yaqui people have always had some form of law enforcement and 

dispute resolution, most notably through our ceremonial societies. In 1982, the Tribe 

adopted a Criminal Code, some parts of our Civil Code, and adopted our Constitution in 1988, all of which helps spell out current Yaqui Law. In addition to our Constitution, our elders, chose to create a Tribal Court system as the arbiter of Yaqui 

justice and our forum for the resolution of disputes. Our official justice system has 

been operating in one form or another, for more than 25 years. Pursuant to its sovereign authority, our Tribal Council also created a law enforcement department and 

a tribal prosecutor’s office as the representatives of the tribe in matters both criminal and civil in nature. The various functions performed by the Office of the Prosecutor, law enforcement, and the Tribal Court, are instrumental in ensuring that 

the Tribal Council can help guarantee the safety and protection of our people. A sustainable future for our government and people is largely dependent on a robust judiciary and a strong executive arm to enforce the mandates of our Constitution, enVerDate Mar 15 2010 14:00 Sep 08, 2016 Jkt 021390 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 S:\DOCS\21390.TXT JACK
32 

sure the protection of the people, and defend individual rights guaranteed by our 

laws. 

In 1978, the Tribe was originally subject to Arizona State jurisdiction under 25 

U.S.C. § 1300f(c) and PL280. In 1985, the State of Arizona retroceded criminal & 

civil jurisdiction. 14 Between 1985 and 1988, the Department of Interior operated the 

Pascua Yaqui tribal court system through a ‘‘Court of Indian Offenses,’’ a ‘‘CFR’’ 

Court operated by the Bureau of Indian Affairs, (B.I.A.). In 1988, the Tribe took 

over the Tribal Court from the B.I.A. through a 638 contract. 15

The Bureau of Indian Affairs police patrolled the Reservation exclusively until 

1991. In 1991, the Tribe hired three Tribal police officers who served alongside the 

B.I.A. officers. In 1998, The Tribe signed a 638 agreement with the B.I.A. to direct 

its own law enforcement services. In 1997, the Tribe started the Pascua Yaqui Victim Services program. Currently, the Tribe employs twenty-six uniformed patrol officers who are certified by Arizona P.O.S.T as State certified officers and most are 

federal Special Law Enforcement Commissioned (SLEC) certified officers. Three of 

the officers are Criminal Investigators. The Tribe also employs a number of Victim 

advocates. 

The Tribe is also served by the Federal Bureau of Investigation (F.B.I.) (Phoenix 

Division), for assistance with major criminal investigations. In 1993, the Tribe entered into a User Agreement with the Arizona Department of Public Safety (DPS) 

for limited NCIC 16 and ACJIS 17 criminal information access. In 2005, the Tribe entered into an Intergovernmental Agreement with Pima County to participate in the 

Pima County Regional Special Weapons and Tactics (SWAT) Team program for police SWAT services. In 2006, the Tribe approved an Intergovernmental Agreement 

with Arizona DPS for crime laboratory services for the purpose of examining and 

processing evidence collected during criminal investigations. In 2009, the Tribe entered into an Intergovernmental Agreement (IGA) with the Pima County Sheriff’s 

Department for participation in the Spillman Records Management System and 

Computer Aided Dispatch System for enhanced access to ACJIS, NCIC, ALETS, 

NLETS, and MVD databases. In 2010, the Tribe entered into an IGA with Pima 

County to take part in the Pima County Wireless Integrated Network (PCWIN). 

PCWIN provides improved public emergency services and regionally coordinated 

mutual aid. 

In 2011, through the American Reinvestment Recovery Act (ARRA), the Tribe constructed a $21 Million dollar, state-of-the-art multi-purpose justice/court complex. In 

May of 2012, the Tribe began operating the Pre-Trial Services (PTS) Division of the 

Tribal Court. Pre-Trial Services has effectively reduced the number of Yaqui defendants being held for pre-trial detention, kept some offenders employed, and monitors 

offenders in the community who are released during the pre-trial phase of their 

case. In 2011, the Tribe, in partnership with the Department of Justice (DOJ) and 

the U.S. Attorney’s Office, appointed tribal prosecutors as federal Special Assistant 

United States Attorneys (SAUSA). The Tribe was also certified by the DOJ as substantially implementing the Sex Offender Registration and Notification Act 

(SORNA). 

Adult and Juvenile Detention Services are mostly handled by the Bureau of Indian Affairs, (B.I.A.). Adult Tribal inmates, including Non-Indian VAWA defendants, are transported to a private regional B.I.A. contracted detention facility in San 

Luis, Arizona. On Dec 20, 2013, the BIA began delivering Tribal inmates to the 

B.I.A. detention Pilot program at Emerald Corporation in San Luis, Arizona. The 

contracted facility, while located far from the tribal Reservation, is sensitive to tribal detainee needs. The Tribe employs detention officers for short-term tribal detention, booking, transportation, and pre-trial detention needs. 

Due Process 

In 1995, the Tribe opened the Pascua Yaqui Public Defenders Office to provide 

public defense services to indigent tribal members. In 2010, the Tribal Council 

amended the Pascua Yaqui Court Rules to implement federal amendments to the 

Indian Civil Rights Act (ICRA), 18 which was modified by the 2010 Tribal Law & 

Order Act (TLOA). The 2010 amendment guaranteed tribal members, (including Indians from other tribes) the right to defense counsel at the Tribe’s expense if the 

Tribe seeks any amount of jail time in their criminal cases. On Dec 18, 2013, the 

Tribal Council passed Ordinance 20–13, the Court Rules Amendments of 2013 to 

comply with VAWA 2013 implementation requirements. Ordinance 20–13 changed 

the Tribe’s jurisdiction, ensured defense counsel for indigent non-Indian defendants, 

and changed the composition of the Tribe’s jury pool to ensure that a fair cross-section of the community is included in the jury selection process. VAWA contains explicit language that requires tribes choosing to exercising authority under the new 

provisions, draw people from jury pools that reflect a fair cross-section of the comVerDate Mar 15 2010 14:00 Sep 08, 2016 Jkt 021390 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 S:\DOCS\21390.TXT JACK
33 

munity and do not systematically exclude any distinct group of people, including 

non-Indian community members. 

The Pascua Yaqui tribal court provides all defendants with the same rights in 

tribal court as they would have in state or federal court. The original Pascua Yaqui 

Constitution expressly incorporated the language of the Indian Civil Rights Act 

(ICRA) for the Tribe’s own Bill of Rights. The tribe funds a full-fledged Public Defenders Office with four licensed defense attorneys who represent those accused of 

crimes. The Tribe also funds four private contracted defense attorneys for those 

cases where a conflict of interest exists. Defendants are guaranteed all protections, 

including an indigent defendant’s right to appointed counsel at the expense of the 

tribe. Our Tribal Court enforces the Indian Civil Rights Act (ICRA), fundamental 

due process, Tribal common law, U.S. Supreme Court case law, and fundamental 

human rights. 

The right to counsel and due process that are products of American jurisprudence 

are deeply rooted in Yaqui indigenous tradition and practice. Our Tribal culture and 

history supports the right of having a person speak on behalf of the accused. These 

concepts, teachings, and traditions pre-date the U.S. Constitution and the Bill of 

Rights and are rooted in beliefs that are arguably as old as English Common Law. 

As early as 1918, in the United States, the Yaqui formed a quasi-governmental body 

in charge of the ‘‘Yaqui Nation’’ within the United States, presided over by a 

‘‘commandante-general’’ (captain) which is equated to a war chief, (wikoijaut) of a 

Yaqui Pueblo in present day Sonora, Mexico (it can also be equated to the executive 

branch of government). 19

The Captain was responsible for maintaining order, recruiting a police force, preside over trial courts, and administering punishments. The Yaqui Nation also had 

a Kovanau, or, in Spanish, gobernador, (governor). The ‘kovanau’s duty was first, 

to administer the land of the pueblo, and, second, to concern himself in all disputes 

and difficulties that arose. The war chief presided over ‘‘trials’’ and the ‘Kovanau 

gathered witnesses for defense and tried to uncover extenuating circumstances. 20

While courts generally enforce individual responsibility for crime and enforce individual rights, Pascua Yaqui historical cultural practices revolve around the principle 

of collective responsibility arising from a foundational social kinship system. Some 

concepts of traditional practices and norms included, ‘‘Lutu’uria,’’ which translates 

to ‘‘truth.’’ The phrase ‘‘yo’ora lutu’uria’’ refers to ‘‘elders truth’’ and the notion of 

senu noka (one word) was used to describe historical decisions (precedent). The concern for not just majority but a collective decision beyond individualism was prominent. 21

Demographics & Statistics 

Approximately 4–5000 people reside on the 2,200 acre Pascua Yaqui Reservation, 

located in Pima County, Arizona, near the southwestern edge of the City of Tucson. 

The Reservation is approximately 60 miles north of the United States-Mexico International Border. 22 The Tribe is located near a major metropolitan city, while this 

is important for business ventures, it can have a negative impact on crime that occurs on the reservation. Crime does not respect borders and the influx of illegal 

drugs, guns, and wrongdoers from surrounding communities is a major issue that 

impacts the safety of our community and strains our criminal justice system. Tribal 

members are exposed to drug smuggling, drug cartels, human traffickers, and gang 

members. The most recent murder of a tribal member to occur on the Pascua Yaqui 

Reservation was a shooting that was committed by a non-Indian, Hispanic male. 

According to U.S. Census data, Pascua Yaqui Reservation residents include nonIndians and a small number of individuals who are members of other tribes. Nearly 

43 percent of all Pascua Yaqui households consist of a mother and children with 

no father present, making single mother households the most common type of 

household on the reservation. Approximately 800 Non-Indians work for the Tribal 

government, work for Tribal casino enterprises, or attend school on the Reservation. 

The 2010 U.S. Census, estimates that a large percentage of Tribal members on the 

Reservation live in poverty. Per capita income on the reservation is $9,039, a third 

of the per capita income in Pima County ($25,093) and the State of Arizona 

($25,680). Pascua Yaqui households are four times more likely to receive Food 

Stamps (49 percent) and eight times more likely to receive public assistance than 

are residents of the county or state. Nearly forty percent of Pascua Yaqui adults, 

and forty-two percent of children, live at or below the federal poverty level, more 

than twice the county and state rates. 

The Pascua Yaqui Police responds to approximately 6000 calls for service a year. 

A percentage of the criminal cases are referred to the Pascua Yaqui Prosecutor’s office, the U.S. Attorney, or the Pima County Attorney for possible prosecution. The 

34 

cases referred are evaluated and the majority are independently charged into tribal 

court. 

• In FY 2011–2012, the Tribal Prosecutor’s Office filed a total of 684 cases. Of 

those, 650 were criminal and 267 were domestic violence cases. 121 cases were 

declined. 

• In FY 2012–2013, the Tribal Prosecutor’s Office filed a total of 698 cases. Of 

those, 600 were criminal matters and 155 cases were declined. A large percentage of the cases involved alcohol and domestic violence. 

• In FY 2013–2014, the Tribal Prosecutor’s Office filed a total of 934 cases. Of 

those, 610 were adult criminal matters and 176 cases were declined, (including 

3 potential VAWA cases). A large percentage of the cases have been related to 

alcohol and domestic violence. Our recent VAWA cases increased the number 

of adult criminal cases filed by 5 percent. 

The Pascua Yaqui Prosecutor’s Office also routinely handles criminal extradition 

cases. In the past few years, the office has extradited murder suspects, sex offenders, burglary suspects, witnesses, and people who were evading justice in other jurisdictions by hiding on our reservation. The Tribe has conducted 30 criminal extraditions in the past few years. Over all we have conducted a total of 65 criminal extraditions, mostly to the State of Arizona through The Pima County Prosecutor’s Office, and the Tucson Police Department. 

Criminal Jurisdiction 

The Pascua Yaqui Pueblo’s criminal jurisdiction is divided into three separate 

prongs: tribal jurisdiction, federal jurisdiction, and state jurisdiction. The court system where a person is prosecuted depends on the accused person’s citizenship status, status as an ‘‘Indian,’’ and the status of any victims. The determination can be 

complex. Roughly speaking, the Tribe has jurisdiction over all Indians who commit 

crimes within the reservation boundaries. The federal government also has jurisdiction over major crimes committed by Indians in our community. The federal government and the State of Arizona, by and large retain jurisdiction over crimes committed by non-Indians on the reservation. However, the Tribe now has criminal jurisdiction pursuant to VAWA 2013 over non-Indians in crimes of domestic violence 

committed on our Reservation. In the near future, the Pascua Yaqui Tribe hopes 

to better coordinate all three prosecution prongs from the reservation. This coordination will ensure that the Tribe can seek better outcomes for victims and be more 

accountable to the members of our community. For example, four Pascua Yaqui tribal prosecutors now have the opportunity to prosecute reservation based crimes in 

federal court as Special Assistant United States Attorneys, (SAUSAs). The Tribal 

Council recently signed a historic agreement with the Arizona U.S. Attorney’s Office 

that allows this to occur. 

Tribal Law and Order Act of 2010 

On September 22, 2010, the Pascua Yaqui Tribal Council amended the Pascua 

Yaqui Rules of Criminal Procedure and Criminal Court Rules to implement the federal amendment to the Indian Civil Rights Act (ICRA), to benefit from the changes 

to Indian Country criminal justice by the Tribal Law & Order Act, (TLOA). 23 Prior 

to the signing of the Act, the Tribal Council and the Office of the Attorney General 

were actively involved in shaping the federal language and urging our federal representatives to pass the law. For years, the Pascua Yaqui Tribal Council worked to 

change the status quo and informed Congress and federal officials about our struggles with crime control, safety, and security. 

Beginning on October 1, 2010, any Indian accused of a crime, including Indians 

from other tribes, have had the right to defense counsel at the Tribe’s expense, if 

the Tribe will seek any amount of jail time in their criminal cases. Soon, the Tribe 

will also be able to take advantage of additional authority to sentence criminals up 

to three years of incarceration per offense, up to a maximum total of nine years. 

At the time, TLOA was the most significant change in federal law affecting Indian 

Country and the Pascua Yaqui Tribe in close to 40 years. However, in order to benefit from the additional sentencing authority, the Pascua Yaqui Tribe had to amend 

our tribal Constitution. The Pascua Yaqui Constitution of 1988 adopted the provisions of the Indian Civil Rights Act, and incorporated the provisions as our ‘‘Bill of 

Rights.’’ Pascua Yaqui Constitution, Art. 1, Section 1(g). Our Constitution limited 

punishment to one (1) year per offense. On July 24, 2015, the Tribe held an election 

and removed the sentencing restrictions. In a few months, the Tribal Council will 

vote to consider changes to the criminal code that will adopt the enhanced sentencing authority found in TLOA. 

35 

Tribal Law and Order Act 2010 Implementation 

The Pascua Yaqui Tribal Prosecutor’s Office and the Office of the Attorney General took lead roles in providing input to federal authorities as they revised the 

ICRA. The Prosecutor’s office sent a representative to Washington D.C. and Minneapolis, Minnesota, to speak to lawmakers and the U.S. Attorney General to advocate for changes to tribal criminal justice. The Prosecutor’s office also worked closely 

with the U.S. Attorney’s Office for Arizona to help create an Indian Country framework that was put into practice by the U.S. Attorney to combat crime on Arizona 

reservations. The Tribe aggressively sought to promote an enhanced coordinated response to crime on reservations. This led directly to a sharp increase in tribal, federal, and state prosecutions for crimes that occur on our reservation. This policy and 

work will continue and it will hopefully increase the federal prosecution and convictions of those who commit major crimes and prey on our people. 

1. Costs: The implementation of some of the provisions of the Tribal Law & 

Order Act, namely, Title III, Section 304, has cost the Tribe approximately 

$300,000-$400,000 a year in additional attorney salaries and benefits by the 

hiring of 4 full time attorneys (2 prosecutors and 2 defense attorneys), and 

4 defense conflict (contract) attorneys. 

2. Representation: Through the office of the Public Defender and contracted defense attorneys, the Pascua Yaqui Tribe now provides free legal representation to 95 percent of all Indians and non-Indians arrested on the reservation. 

Approximately 2.5 percent of individuals arrested do not qualify for free legal 

representation and approximately 2.5 percent waive representation. 

3. Resources and Complexity: The majority of Pascua Yaqui criminal cases are 

appointed to the Pascua Yaqui Public Defender’s Office. Although the Tribe 

has hired additional attorneys, there is still a deficiency in resources when 

considering the resulting complexity of a full adversarial system. For example, the process has spurned additional appeals, evidentiary hearings, additional scientific evidentiary analysis, expert testimony, competency evaluations, and an increase in criminal trials. 

Pascua Yaqui Tribal-Federal Sausa Program 

Between October 31, 2011 and November 4, 2011, the United States Attorney’s 

Office for the District of Arizona held a week-long course to train prosecutors from 

several of Arizona’s tribal governments so they could participate in the federal prosecution of offenders from their communities. The training kicked off the U.S. Attorney’s Office Tribal Special Assistant United States Attorney (SAUSA) program. 24

This cross-commissioning is encouraged by the Tribal Law and Order Act and mandated by the District of Arizona’s Operational Plan for Public Safety in Indian Country. The goal of the Tribal SAUSA program is to train eligible tribal prosecutors in 

federal law, procedure, and investigative techniques to increase the likelihood that 

every viable criminal offense is prosecuted in tribal court, federal court, or both if 

necessary. The program also allows the tribal prosecutors to co-counsel with federal 

prosecutors on felony investigations and prosecutions of offenses arising out of their 

respective tribal communities. After completing training, each tribal SAUSA is 

mentored by an experienced federal prosecutor assigned to the District of Arizona’s 

Violent Crime Section. 

SAUSA Program Implementation 

The early phase of implementing the SAUSA program has focused on coordination 

of cases through federal/tribal Multidisciplinary Team Meetings (MDT), advancing 

the timeline for presentation of cases for federal prosecution, and improving coordination and management of cases between Tribal and Federal authorities. Special attention is given to cases involving violent crimes, sex crimes, and habitual domestic 

violence offenders, even in cases where the Defendant is a non-Indian. The tribal 

program has been in operation since 2011. The U.S. Attorney’s Office has been diligent in working cooperatively with the assigned tribal SAUSA and the Tribal Prosecutor’s Office. 

A primary challenge has become coordinating time and scheduling. The Tribal 

SAUSA has a full criminal case load with the Pascua Yaqui Prosecutor’s Office in 

addition to the evaluation, follow-up, and assisting with the prosecution of cases at 

the federal level. As the program continues, it may be helpful for the SAUSAs to 

have dedicated support staff to help with logistics, coordination of calendars, and 

case management. Communication, coordination, and cooperation has been enhanced with several different agencies responsible for law enforcement on the 

Pascua Yaqui Reservation, to include, the U.S. Attorney’s Office (Tucson), the F.B.I., 

tribal Law Enforcement, and federal victim services. Cases are being filed, reopened, 

36 

and appropriate cases are being declined after thorough review and coordinated follow-up investigations. Tribal criminal investigators, F.B.I. agents, and crime labs 

are working closely together to bring strong tribal and federal investigations. Defendants are being transferred and transported to tribal court and federal court via 

writ and arrest warrants. The charging and prosecution of federal crimes committed 

on the Pascua Yaqui Reservation has increased exponentially due to the SAUSA 

program and enhanced local MDT meetings. Although federal prosecution is not the 

ultimate answer to social problems in our community, the Pascua Yaqui Tribe will 

continue to work with our federal partners to develop a coordinated crime control 

policy for our community. 

Adam Walsh Sex Offender Registration and Notification (SORNA) 

The Tribe has recently enacted the Adam Walsh Sex Offender Registration and 

Notification Act (SORNA). 25 The Prosecutor’s Office is working with the Tribal 

Council, Attorney General, and Law Enforcement to completely implement the new 

law. SORNA provides a comprehensive set of minimum standards for sex offender 

registration and notification to the Tribal community. SORNA aims to close potential gaps and loopholes that existed under prior law and strengthens the nationwide 

network of sex offender registration and notification programs. The Pascua Yaqui 

Tribe has substantially implemented SORNA and is registering, monitoring, and informing the community about the presence of twenty-four (24) registered sex offenders who are living on the Reservation. 

Office of the Prosecutor 

The Prosecutor’s Office performs several different functions for the Pascua Yaqui 

Tribe. The Office is responsible for representing our government in Tribal Court in 

all misdemeanor and felony type criminal matters, including adult and juvenile 

crimes. The Pascua Yaqui Police respond to approximately 6000 calls for service a 

year. A large percentage of the criminal calls are referred to the Prosecutor’s office 

for possible prosecution. The cases are evaluated and many are independently 

charged into tribal court. The Tribal Prosecutor also represents the tribe in civil related matters, to include civil forfeiture of property used in the transportation or 

sale of narcotics and all civil Child Welfare/Child Dependency matters that originate 

on the Reservation. The Prosecutor’s office advises, coordinates, and collaborates 

with Pascua Yaqui Law Enforcement, Pre-Trial Services, Probation, Victim Services, 

Centered Spirit, Education, and Social Services. The Tribal Prosecutor’s Office also 

handles victim notification in criminal cases. Victims are notified about the status 

of their case, the release conditions involving the defendant, plea agreements, provided transportation if needed, and advised of the terms of any sentence imposed 

by the court. 

Department of Justice Indian Country Legal Fellow 

On Thursday, December 4, 2014, the Department of Justice selected the First ever 

Indian Country Justice fellow Charisse Arce, of Bristol Bay, Alaska, to serve in the 

District of Arizona. 26 Arce will also serve a portion of her appointment in the 

Pascua Yaqui tribal prosecutor’s office. This is the first Gaye L. Tenoso Indian 

Country Fellowship within the Attorney General’s Honors Program, and it is awarded to an extraordinarily well-qualified new attorney with a deep interest in and enthusiasm for improving public safety in tribal communities. 

‘‘The Pascua Yaqui Tribe is pleased to have the opportunity to partner with the 

District of Arizona U.S. Attorney’s Office and the Attorney General’s Honors Program, through the Gaye L. Tenoso Indian Country Fellowship,’’ said Pascua Yaqui 

Tribal Chairman Peter Yucupicio. ‘‘We welcome the new Department of Justice fellow and look forward to a productive partnership as we fight violent crime, work 

to keep our community safe, and continue to implement the Violence Against 

Women Act (VAWA), and Special Domestic Violence Criminal Jurisdiction 

(SDVCJ).’’ 

Access to National Criminal Information Databases 

On November 5, 2015, the Department of Justice announced that the Pascua 

Yaqui Tribe would participate in the initial User Feedback Phase of the Tribal Access Program for National Crime Information (TAP), 27 a program that provides federally recognized tribes the ability to access and exchange data with national crime 

information databases for both civil and criminal purposes. ‘‘TAP will support tribes 

in analyzing their needs for national crime information and help provide appropriate solutions, including a state-of-the-art biometric/biographic computer 

workstation with capabilities to process finger and palm prints, take mugshots and 

submit records to national databases, as well as the ability to access the FBI’s 

Criminal Justice Information Service (CJIS) systems for criminal and civil purposes 

37 

through the Department of Justice. TAP will also provide specialized training and 

assistance for participating tribes.’’ 

Currently, the Tribe has limited NCIC ‘‘read only’’ access through an IGA with 

the Arizona Department of Public Safety (DPS). The TAP program will help the 

Tribe upload outstanding tribal warrants, orders of protection, and criminal conviction information. 

Purpose Code X 

The Pascua Yaqui Tribe has requested to formally participate in the Bureau of 

Indian Affairs’ Office of Justice Services (BIA–OJS) Purpose Code X 28 program that 

was created in 2015 to assist our tribal Social Services Department when they are 

seeking to place children in safe homes. ‘‘The BIA–OJS Purpose Code X Program 

will provide tribal social service agencies with the information they need [through 

name-based checks] to protect the children they place into care in emergency situations when parents are unable to provide for their welfare.’’ Currently, Pascua 

Yaqui social workers may be able to conduct a warrant check or private research 

of potential placement options, but warrant checks do not generally reveal criminal 

history. Also, the checks are impractical at night and after regular work hours in 

emergency situations. 

Bureau of Indian Affairs Tiwahe (Family) Initiative 

This year, the Pascua Yaqui Tribe was selected by the Bureau of Indian Affairs 

to participate in the federal Tiwahe initiative. 29 ‘‘The initiative promotes a comprehensive and integrated approach to supporting family stability and strengthening tribal communities by addressing interrelated issues associated with child 

welfare, domestic violence, substance abuse, poverty, and incarceration. Tiwahe 

means ‘‘family’’ in the Lakota language. The Tiwahe initiative directly supports the 

Generation Indigenous initiative, which is focused on addressing barriers to success 

for Native youth, by leveraging BIA programs in concert with other Federal programs that support family and community stability and cultural awareness.’’ 

The Pascua Yaqui Tribe will work with our federal partners to implement the 

Tiwahe program this fiscal year, through a tribal centered plan. The Tribe will attempt to address the interrelated problems of poverty, violence, and substance abuse 

faced by our community. The Tribe will do this through the coordination and integration of social service programs with our Tribal Court. We will work to strengthen 

and maintain family cohesiveness, prepare our family wage earners for work opportunities, and provide rehabilitative alternatives to incarceration for family members 

with substance abuse issues. 

Federal Court Sentencing, Prior Convictions, and Disparity 

Violent crime in Indian Country has created a public safety and public health crisis across the Nation. Although federal sentencing is not the main issue, it is a contributing factor when violent crime is not prosecuted, cases are declined, or when 

sentencing outcomes do not fit the crime. In order to help address this problem, 

counseled Tribal Court convictions should be recognized, considered, and applied to 

federal sentencing determinations of persons who commit crimes in Indian Country 

and additional data must be collected by all agencies responsible for criminal investigations. 

Federal prosecutions of offenders from Pascua Yaqui Indian Country generally 

consist of dangerous felony level cases. 30 In Arizona, Tribal borders do not protect 

Reservations from crimes related to gangs, drug sales, human smuggling, and major 

drug cartel enterprises. We are on the front line. The majority of offenders prosecuted federally have lengthy tribal criminal histories. Their criminal acts and individual crime sprees have harmed tribal families, injured vulnerable children, and 

have disrupted the peace of our tribal community. Tribal criminal convictions are 

not included as part of the criminal history determination of the federal sentencing 

guidelines in our Indian Country cases, (particularly felony-level crimes) and sentences only average approximately 32 months in length (when outliers are removed). 

Our outcomes are certainly less than a Native or non-Native offender would receive 

in Arizona State court for similar serious and violent felony crimes. Thirty-two 

months is generally not a long enough period to properly consider punishment, rehabilitation, justice, job training, or other restorative practices and policies prior to an 

offender returning home to our Tribal community. 

Criminal jurisdiction in Indian Country is evolving and many tribal Courts are 

as sophisticated as their state counterparts. Some of the arguments against recognition and reliance of tribal sentencing outcomes are outdated, paternalistic, do not 

afford comity and respect for tribal decisionmaking, and do not account for present 

day reality. There are now dozens of Tribes that are exercising either enhanced Special Domestic Violence Criminal Jurisdiction (SDVCJ) under the Violence Against 

38 

Women Act, (VAWA) or that have implemented the Tribal Law and Order Act 

(TLOA) provisions. The Pascua Yaqui Tribe is one of those Tribes. The Tribe has 

investigated 30 different cases of domestic violence committed by Non-Indians on 

our Reservation. The cases involved incidents of strangulation, hair-dragging, physical assaults, and conduct that repeatedly victimized whole families. Of those cases, 

the offenders had close to 90 separate Tribal police contacts, pre and post VAWA 

implementation. The majority of the offenders also had lengthy state criminal histories that consisted of violent offenses, drug and alcohol related offenses, and weapons related offenses. Three of the offenders were felons. Three offenders had felony 

warrants, two for burglary and one for armed robbery out of the State of Oklahoma. 

Two of the offenders were Legal Permanent Residents (LPR) from Mexico. The Tribe 

has convicted eight of the non-Indian offenders in Tribal court for domestic violence 

related offenses. Tribal Court convictions of Non-Indians and Indians should be recognized by federal courts. This is the new reality and the future of Indian Country 

jurisdiction. Jurisdiction is changing, tribes are fighting hard to protect their community, crime is multi-jurisdictional in nature, and there is no reason the federal 

court process should not properly account for this. 

Moreover, every person arrested and charged in the Pascua Yaqui Tribal Court 

is guaranteed legal representation if they face a day in jail, that has been the case 

now for many years. Most of the offenders that will be prosecuted in federal court 

will have a tribal criminal history and possibly, a State criminal history. The majority of their relevant Tribal court convictions will be counseled, unless they chose to 

waive legal representation. The actions of major crime offenders are not traditional, 

they are not cultural, and they are not the norm for our tribal community. 

Policymakers should also consider the unique nature of each tribe and each federal district. The District of Arizona is different than the District of South Dakota. 

Likewise, the Pascua Yaqui Tribe differs from the Navajo Nation and any other 

Tribe. Although we may be faced with some of the same realities, crime is different, 

laws are different, and approaches to justice, punishment, restoration, and sentencing are different. For example, in Arizona, federal priorities and resources are 

largely spent on immigration related enforcement. Federal courts in Arizona are 

clogged with immigration reentry cases, drug smuggling matters, and criminal 

charges centered on the policies of Operation Streamline. 31 Although necessary, the 

result is that there are less resources devoted to Indian Country crime in Arizona. 

This means that less Indian Country cases are investigated, less cases are referred, 

more cases are declined, and the cases that are referred are more likely to be declined due to inadequate investigations and delayed indictments. 32 We should also 

consider jurisdictional realities and how each Federal District policy impacts sentencing outcomes. 

In Arizona, generally, the U.S. Attorney’s Office does not prosecute Indian Country drug cases. It is hard to recall the last federal drug case prosecuted from the 

Pascua Yaqui Reservation. Drug use and sales, including marijuana, cocaine, crack, 

heroine, and methamphetamine have reached epidemic levels on the Pascua Yaqui 

Reservation. There have been drop houses, drug related shootings, gang violence, 

drug related violence, and serious crimes related to the sale of drugs. Many of the 

social ills in our community are directly related to drug use. The reason given for 

the lack of federal prosecutions of street level drug sales in Indian Country is that 

there is a threshold issue concerning ‘‘drug mules’’ who smuggle large quantities of 

drugs into the Country from Mexico. 

Disparity in sentencing is not an issue in Southern Arizona when comparing Indian defendants prosecuted for major violent felony crimes with similarly situated 

defendants prosecuted in Arizona. Often, federal ‘‘crack’’ conviction sentencing will 

be compared to sentences of tribal defendants to indicate that disparity that exists 

in Indian Country criminal outcomes. Because of the lack of federal drug prosecutions and our actual major crimes sentencing results, the analogy does not fit in the 

District of Arizona cases that flow from the Pascua Yaqui Reservation. However, if 

there is a glaring disparity, it may be in the justice received by victims and families. 

Victims may face language barriers, cultural barriers, discrimination, and inadequate federal jury representation. Largely, the Pascua Yaqui community and our 

victims were dissatisfied with our federal court outcomes, and our tribal court outcomes for that matter. Justice was hampered and limited by our tribal Constitution, 

our code, scarce resources, and decades enduring federal agencies who were not investigating or prosecuting our major crimes. This history helped to create a lawless 

atmosphere and a situation where the community simply does not trust our justice 

systems. Tribal Court outcomes should be respected and given as much weight as 

mitigating factors would have on downward departures during federal sentencing 

determinations. Tribal court criminal history should also play a factor when federal 

courts are considering pre-trial release of tribal defendants, especially if a court is 

39 

contemplating release back into the Tribal community. Federal policies, regional factors, and Reservation crime rates should be considered when allocating prosecution, 

victim, and investigative resources. 

Federal Declinations 

Any consideration of federal sentencing, federal prosecution, or Indian Country jurisdiction should include an analysis of federal declinations, as federal jurisdiction 

has been primary since the passage of the Major Crimes Act of 1885. Federal prosecutions and sentencing must be considered in light of federal declinations and federal resources for law enforcement investigations. On the Pascua Yaqui Reservation, 

the declination rate has actually risen dramatically. The U.S. Attorney advised the 

Tribe in 2008 that there was no crime on the Pascua Yaqui Reservation and no declinations. Although that may have been true when reviewing federal referrals and 

convictions, it was not an accurate representation of what was actually occurring 

on the ground. As expected, once federal crimes started to get prosecuted in earnest 

in 2009, the local declination rate increased. However, the rate is not as high as 

other places in Indian Country. Interrelated, less than half of the major crime incidents reported since 2008 have been officially referred for federal prosecution. However, in the major crime cases that have been officially referred since 2009, a majority have been indicted by the U.S. Attorney’s Office. Most of the cases were investigated and referred by tribal detectives who have their federal Special Law Enforcement Commission (SLEC) and they were assisted by local F.B.I. agents in complex cases. The prosecution process was facilitated by tribal prosecutors who are 

tabbed as Special Assistant United States Attorneys, (SAUSAs). Attached is a recent breakdown of most of the Pascua Yaqui Tribe’s Federal case outcomes from 

2009–2014 (taken from federal Sentencing Orders and press releases). The attached 

spreadsheet notes thirty-two federal convictions and six revocations. When you remove outliers, the average federal sentence involving Pascua Yaqui defendants is 

between 32–36 months, with 36 months of federal Supervision. That is fairly low 

when you compare a federal sentence to a sentence from the State of Arizona for 

a comparable crime. The Tribe has had approximately sixty cases officially referred 

over this time span. Referred means that a Tribal investigator, tribal police officer, 

or a federal agent sent an investigation to the U.S. Attorney for prosecution. This 

is much higher than what was occurring prior to 2008. Approximately fifteen cases 

have been officially declined, three cases were dismissed, one person was found not 

guilty at trial, and one case was prosecuted by the State. Five non-Indians were 

prosecuted federally over this time span (two for domestic violence incidents). Twenty of these cases were also prosecuted tribally, some were joint prosecutions, and 

most outcomes were concurrent to each other. The investigation, timing, (Statute of 

limitations) evidence, and coordination issues impact when, how, and by who a case 

gets prosecuted by. 

There were many potential federal (felony) cases, (probably close to 50 between 

2008–2014) that were reported and investigated, but never officially referred, indicted, or prosecuted because the investigation did not yield the proper probable 

cause to support charges or there were witness issues or a lack of cooperation. 

The Tribe has been working well with the F.B.I. and the U.S. Attorney’s Office 

and the listed outcomes serve as evidence of overall improved cooperation and good 

work by police, victim services, and other support divisions in our criminal justice 

system. The Tribe believes that recent federal arrests and convictions have helped 

to lower the overall crime rate on the Reservation, increased the quality of life, and 

also helped to provide a general deterrent, now and for the foreseeable future. 

Recommendations 

• The Pascua Yaqui Tribe strongly recommends that Congress require that counseled tribal court convictions be considered in federal sentencing determinations. 

• Federal Courts should also consider Tribal criminal history during pretrial release determinations. 

• The Pascua Yaqui Tribe recommends that federal sentences, release dates, and 

timely notification occur to Tribal authorities and victims. 

• The Tribe strongly recommends other sentencing alternatives, reentry programs, education, and or job related programming be included as part of criminal sentences, especially if the tribal defendant is going to return to the reservation. 

• The Pascua Yaqui Tribe recommends that federal declinations by the U.S. Attorney’s Office be broken out by Tribal jurisdiction, annually. 

40 

• The Pascua Yaqui Tribe recommends that all criminal investigations with a potential federal nexus that are opened by tribal law enforcement, B.I.A., and the 

F.B.I. be accounted for separately, aggregated annually, broken out by crime, 

and distinguished from investigations that are actually referred for prosecution. 

Previous & Relevant Pascua Yaqui Habeas Matter 

On August 17, 2011, the United States Court of Appeals for the 9th Circuit issued 

an Opinion in the case of Miranda v. Anchondo, 33 supporting the Pascua Yaqui 

Tribe’s argument that our Tribal Court has the authority to sentence those convicted of multiple offenses to more than one year in jail. The case had wide ranging 

implications because it set precedent concerning the issue and affected tribes across 

the United States. 

The Pascua Yaqui Tribal Court convicted Miranda of eight criminal violations. 

The Honorable Cornelia Cruz sentenced her to two consecutive one-year terms, two 

consecutive ninety-day terms, and four lesser concurrent terms, for a total term of 

910 days imprisonment. While serving her sentence, Miranda, through Chief Public 

Defender, Nicholas Fontana, appealed her conviction and sentence to the Pascua 

Yaqui Tribe Court of Appeals, arguing, inter alia, that her 910-day sentence violated 

the Indian Civil Rights Act (ICRA), 25 U.S.C. § 1302(7).The tribal appellate court 

rejected Petitioner’s arguments and affirmed her conviction on all counts. 

Miranda then sought redress through the federal court system via a writ of habeas corpus. On habeas review, by the U.S. District Court of Arizona, the court concluded that the Indian Civil Rights Act, 25 U.S.C. § 1302(7) prohibited the tribal 

court from imposing consecutive sentences cumulatively exceeding one year for multiple criminal violations arising from a single criminal transaction and ordered that 

Miranda be released.’’ The United States, through the U.S. Attorney’s Office, and 

the Pascua Yaqui Tribe, through the Office of the Attorney General, appealed the 

Arizona District court’s order granting Miranda’s petition for writ of habeas corpus. 

The 9th Circuit ultimately disagreed with the district court and held that the Indian 

Civil Rights Act § 1302(7), unambiguously permits tribal courts to impose up to a 

one-year term of imprisonment for each discrete criminal violation and reversed the 

lower court’s ruling. ‘‘Because § 1302(7) unambiguously permits tribal courts to impose up to a one-year term of imprisonment for each discrete criminal violation, and 

because it is undisputed that Petitioner committed multiple criminal violations, we 

reverse the district court’s decision to grant Petitioner’s amended habeas corpus petition.’’ 

Although the Miranda case never should have required federal court intervention, 

it cleared up any lingering doubt that tribal courts and our Tribal Council have the 

authority to impose punishments that are consistent with the Indian Civil Rights 

Act (ICRA), due process, and necessary to help keep our community members and 

visitors safe from harm. 

Conclusion 

The first responsibility of any government, tribal or otherwise, is the safety and 

protection of its people. For there can be no security or peace where there is insecurity and fear. Pascua Yaqui tribal officials no longer have to simply stand by and 

watch their people be victimized with no recourse. Violent behavior against intimate 

partners or vulnerable family members by tribal members or non-Indians is conduct 

that is no longer tolerated. Protecting victims of violent crime, domestic violence, 

and sexual assault is about justice and safety, and it is also about fairness, and dignity. 

Full restoration of criminal jurisdictional authority for Tribal governments over 

all crimes and persons should be the next step. Currently, SDVCJ under VAWA 

2013 is limited to only crimes of domestic violence, dating violence, or violations of 

an order of protection committed in Indian country, where the defendant is a spouse 

or intimate partner of a tribal member. VAWA does not permit tribal prosecutions 

unless the defendant has ‘‘sufficient ties to the Indian tribe,’’ meaning he/she must 

either reside in the Indian country of the prosecuting tribe, be employed in the Indian country of the prosecuting tribe, or be the spouse or intimate partner of a 

member of the prosecuting tribe. The proposed ‘‘Tribal Youth and Community Protection Act of 2016’’ will help address some of the gaps to cover children and ancillary crimes a VAWA defendant may commit. However, more problems exist, like the 

fact that the law does not cover sexual assaults or stalking committed by strangers. 

Full restoration would help ensure fairness, safeguard tribal communities, and 

help clear up long standing jurisdictional problems. When a resident of one State 

crosses the border to visit another, that individual is subject to the criminal jurisdiction of the State he or she is visiting, even though he or she cannot vote or serve 

on a jury there, his external criminal history may also be considered. Noncitizens 

41 

visiting or residing in the United States are also subject to federal and State criminal jurisdiction despite their exclusion from the political process. 

Additional Tribal Empowerment and Support Is Key 

The starting place to reverse historical jurisdictional problems and injustices in 

Indian Country is with strong tribal justice systems that are supported with the required resources. Criminal investigations occur at the local level. Along with strong 

and meaningful federal prosecutions, our local government and court system is the 

best vehicle to protect Yaqui victims, mothers, and children from violent perpetrators. The recent Pascua Yaqui VAWA and TLOA implementation process bear those 

beliefs out. However, without the resources to fund robust court and victim services, 

the gains may only lead to the same revolving door of repeat violence and ineffective 

criminal prosecutions that we are all too familiar with. The Tribal Law & Order Act, 

the amendments to the Indian Civil Rights Act, the Adam Walsh Act, VAWA, and 

changes to the Pascua Yaqui code will enhance the safety and security of our community as the laws are implemented, followed, and properly enforced. 

For several different reasons, the challenges facing law enforcement and the justice system in our community are substantial. However, a window of opportunity 

exists to revolutionize and strengthen our court system and heal our community. 

The Pascua Yaqui Tribal Council, law enforcement, the Tribal Court, the Prosecutor’s office, technical assistance providers, and our federal partners have recognized 

our current needs and have taken the opportunity to work together to effect change. 

In short, the Tribe has taken significant steps to protect our people, dedicated significant resources, and spent countless hours to see these changes through. However, it will take additional hard work, federal legislation, resources, and dedication 

to continue to fully and effectively protect and support our victims who have been 

impacted by violence. We respectfully request additional Congressional assistance to 

help address the persistent violence and drug abuse that plagues our community. 

Additional support for Tribal Court systems will also further the current federal 

strategy that promotes the longstanding policies of Indian self-determination, tribal 

self-governance, and tribal self-sufficiency. 

In closing, we thank the United States Congress, the Obama Administration, the 

Department of Justice (DOJ), our sister Tribes, advocacy groups, the National Congress of American Indians (NCAI), the Tribal Law & Policy Institute (TLPI), the National Indigenous Women’s Resource Center (NIWRC), the Center for Court Innovation (CCI), and the National Council of Juvenile & Family Court Judges 

(NCJFCJ) 34 for the leadership, cooperation, and assistance during the past few 

years as we worked to better protect our Reservation community. 

ENDNOTES

1 Senior Litigation Counsel and Tribal Liaison, John Joseph Tuchi, 2009–2012 

(now United States District Judge-District of Arizona), Tribal Liaison Rui Wang, Assistant U.S. Attorney, District of Arizona. 2 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). 3 The Supreme Court issued a decision in United States v. Castleman, 134 S. Ct. 

1405 (2014) during the Pilot Project for tribal special domestic violence criminal jurisdiction. Both the majority opinion and Justice Scalia’s concurrence included footnotes referencing the definition of the term ‘‘domestic violence’’ under the new federal law, 25 U.S.C. § 1304. The discussion of the VAWA statute by the Justices in 

dicta raised questions about the scope and severity of ‘‘violence’’ required for crimes 

that can be charged by tribes who have implemented special domestic violence 

criminal jurisdiction (SDVCJ) under VAWA. Several of the tribes who have implemented SDVCJ report that the Castleman decision had an immediate impact on 

their charging decisions. There have been several cases where the tribes felt it could 

not prosecute based on the dicta in Castleman and dismissed the cases only to have 

the offenders subsequently reoffend with a more serious crime. 4 https://www.justice.gov/sites/default/files/tribal/legacy/2014/02/06/appl-questionnaire-pascua-yaqui.pdf 5 http://www.justice.gov/tribal/docs/letter-to-pascua-yaqui.pdf 6 (http://www.whitehouse.gov/blog/2014/02/06/moving-forward-protect-nativeamerican-women-justice-department-announces-vawa-2013-), Department of Justice 

(Attorney General) (http://www.justice.gov/opa/pr/2014/February/14-ag126.html), the U.S. Attorney for the District of Arizona, http://www.justice.gov/ 

usao/az/presslreleases/2014/PRl02062014lVawa.html), and a Pascua Yaqui 

press release, that was sent to the following Southern Arizona news organizations: 

Television Stations: KOLD, KVOA, FOX, and KGUN; Newspaper: AZ Daily Star, 

Explorer News, Wick Publications, and the Tucson Weekly. http:// 

42 

www.pascuayaqui-nsn.gov/ 

index.php?option=comlcontent&view=article&id=144:pascua-yaqui-tribe-asserts-authority-to-prosecute-all-persons-including-non-indians-for-domesticviolence&catid=12:newa There was also some television coverage in Phoenix via a 

news video segment available at http://www.azcentral.com/news/free/ 

20140206tribes-authority-non-indians.html 7 Fed. Reg. Volume 79, Number 29 (Wednesday, February 12, 

2014)][Notices][Pages 8487–8488] Federal Register Online via the Government 

Printing Office [www.gpo.gov] [FR Doc No: 2014–03023]http://regulations.justia.com/regulations/fedreg/2014/02/12/2014-03023.html See also 78 Fed. 

Reg. 71645 (Nov. 29, 2013) 8 (http://www.pascuayaqui-nsn.gov/). 9 See (http://azstarnet.com/news/local/pascua-yaqui-gain-added-power-to-prosecute-some-non-indians/articlel3417ac6e-c683–50d4–9a55-cc386524c468.html) 10 (http://turtletalk.wordpress.com/2014/02/07/pascua-yaqui-press-release-revawa-pilot-program-selection/) 11 http://www.kvoa.com/news/domestic-violence-not-tolerated-by-pascua-yaquitribe/), (http://colorlines.com/archives/2014/02/ 

alsmalllvictorylforlnativelwomen.html), http://america.aljazeera.com/watch/ 

shows/the-stream/the-stream-officialblog/2014/2/21/native-americantribesbeginpilotprogramtoprosecutedomesticviolen.html, http://n.pr/Nei2Mx, http:// 

www.nativeamericacalling.com/, http://kjzz.org/content/24088/pascua-yaqui-begins-prosecuting-non-natives-under-vawa, http://www.washingtonpost.com/national/arizona-tribe-set-to-prosecute-first-non-indian-under-a-new-law/2014/04/18/ 

127a202a-bf20-11e3-bcec-b71ee10e9bc3lstory.html, http://uanews.org/story/uaalums-involved-in-effort-to-legally-prosecute-non-indians-on-pascua-yaquitribe,http://america.aljazeera.com/articles/2014/4/23/for-one-arizonatribeachanceforjusticeafterdecadesoflegallimbo.html, http:// 

www.wildcat.arizona.edu/article/2014/04/ua-alum-aides-american-indian-tribe-insuing-non-indians, http://cronkitenewsonline.com/2014/10/pascua-yaqui-beginprosecuting-non-tribal-members-for-domestic-violence/ 12 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). 13 United States v. Castleman, 134 S. Ct. 1405 (2014). 14 50 Fed. Reg. 34,555 (Aug.26, 1985) 15 Indian Self-Determination and Education Assistance Act, Pub. L. 93–638 16 https://www.fbi.gov/about-us/cjis/ncic 17 Arizona Criminal Justice Information System (ACJIS) 18 25 U.S.C.§ § 1301–1304 19 Spicer, Edward. Pascua: A Yaqui Village in Arizona, University of Chicago 

Press, 1940. Reprint: University of Arizona Press, 1984. 20 Id. 21 Via email, Dr. David Delgado Shorter. 22 The Tribe has more than 19,000 members, many of whom have relatives residing on both sides of the border. Both the Pascua Yaqui Tribe and our Yaqui relatives in Mexico regularly visit each other for religious, cultural, and tribal purposes. 23 https://www.justice.gov/sites/default/files/usao-az/legacy/2010/10/14/ 

Tribal%20Law%20%20Order%20Act%202010.pdf 24 https://www.justice.gov/opa/blog/tribal-community-prosecutors-receive-federalcross-commissioning 25 http://pascuayaqui.nsopw.gov/Home.aspx 26 https://www.justice.gov/legal-careers/attorney-generals-indian-country-fellowship 27 https://www.justice.gov/opa/pr/department-justice-announces-10-tribes-participate-initial-phase-tribal-access-program 28 http://www.bia.gov/cs/groups/public/documents/text/idc1-031473.pdf 29 http://www.bia.gov/cs/groups/xasia/documents/document/idc1-032110.pdf 30 Offenses like murder, manslaughter, aggravated assault, sexual offenses, child 

abuse, child molestation, gang related crimes, gun related offenses, burglary, home 

invasions, and arson make up a majority of Pascua Yaqui cases referred for federal 

prosecution. 31 https://www.oig.dhs.gov/assets/Mgmt/2015/OIGl15–95lMay15.pdf 32 https://www.justice.gov/tribal/file/796976/download 33 Miranda v. Anchondo, 684 F.3d 844 (9th Cir. 844), cert. denied, 2012 WL 

2396988 (U.S. Oct. 1, 2012); Bustamante v. Valenzuela, 715 F.Supp.2d 960 

(D.Ariz.2010). Tribes are allowed to impose consecutive one year terms for separate 

offenses charged in a single criminal proceeding. 

43 

34 Humble thanks to the United States Congress for drafting and passing TLOA 

& the Reauthorization of VAWA, thanks to the Department of Justice, (DOJ) Deputy Associate Attorney General Sam Hirsch, Director Tracy Toulou, Counsel to the 

Director, Marcia Hurd, National Indian Country Training Coordinator Leslie Hagen, 

Native American Issues Coordinator Jeremy Jehangiri. And the U.S. Attorney’s Office, District of Arizona. Thanks for the efforts of the Department of the Interior 

(DOI), Kevin Washburn, Associate Solicitor Michael Berrigan, Attorney Advisor 

Leta Hollon, Director of the office of Tribal Justice, Darren Cruzan, Associate Director Tricia Tingle, and Deputy Associate Director Steve Juneau. Thanks to Technical 

Assistance providers: The National Congress of American Indians, (NCAI) Natasha 

Anderson, Virginia Davis, and John Dossett. The Tribal Law & Policy Institute 

(TLPI), Chia Halpern Beetso & Jerry Gardner and the National Council of Juvenile 

& Family Court Judges (NCJFCJ), Jessica Singer and Steve Aycock. The University 

Of Arizona School Of Law, and Professor Melissa Tatum, Finally, thank you to all 

the members of the Intertribal Technical Assistance Working Group on Special Domestic Violence Criminal Jurisdiction (ITWG). 


518a1.eps
44 

The CHAIRMAN. Thank you very much for your testimony. 

Senator Daines. 

Senator DAINES. Thank you, Chairman Barrasso. 

In Montana, the Northern Cheyenne and Fort Belknap Tribes, as 

well as the Fort Peck Tribes, recently declared states of emergency 

due to the increase in drug-related crimes on the reservations. This 

is how serious it is back home. 

Clearly there is a strong need for additional measures to help 

keep tribal communities safe and secure. In the last Congress, I 

was proud to pass the Violence Against Women Act which created 

a number of grant programs designed to prevent violence, investigate crimes and prosecute offenders and provide victim services. 

This piece of legislation was especially important for our tribes, 

as we know, which are disproportionately affected by domestic violence. However, we still have a lot to do. 

I want to thank the authors of the two safety-related bills we are 

discussing today for their work on this legislation. In particular, I 

am pleased to see the Tribal Law and Order Reauthorization and 

Amendments Act include critical tools to better equip law enforcement officials, reduce crime and recidivism, increase the Federal 

Government’s consultation with tribes and improve juvenile delinquency programs. 

Councilman Buckles, welcome again. It is good to have another 

Montanan in Washington. 

You shared in your testimony that while Indian women comprise 

only seven percent of the population in Montana, they represent 13 

percent of the intimate partner deaths in the State. As you see it, 

from your position, what is the root of domestic violence against 

women in Indian Country? 

Mr. BUCKLES. I think the main root of it is drugs. We see it so 

evident and so much more noticeable. It comes from all over and 

other communities. I think that is the root of what is happening 

to our Native American women, not only them but also our children. 


518a2.eps
45 

Senator DAINES. You mentioned the shared importance of a 

strong tribal government in keeping our tribal communities safe. 

As a tribal council member, could further explain the link you see 

between a strong tribal government and also having a safe community? 

Mr. BUCKLES. As far as us being legislators, we are trying to enhance our court system and help our court system. We are looking 

at the findings, stiffer sentencing to help build a stronger community. 

Also, we are looking at avenues of hiring other help from law enforcement by hiring drug enforcement officers to make our communities better and to crack down on all the drugs on our reservation. 

Senator DAINES. It is good to see that Fort Peck is seeing some 

success there. I think we can all agree that we have a long way 

to go to improve public safety in Indian Country. I am glad we are 

visiting some much needed solutions today such as Chairman 

Barrasso’s Tribal Law and Order Act and the reauthorization bill. 

I would like to know from your view what provisions in that bill 

are going to be most important to the Fort Peck Tribes? 

Mr. BUCKLES. I guess the part to prosecute juveniles in Federal 

court is part of it. Overall, the court systems and hopefully we will 

see a lot of help from the Federal system. 

Senator DAINES. You mentioned the kidnapping of the little girl 

and that she was rescued alive. Could you also share how the tribe 

worked with their Federal law enforcement partners to find her 

and bring her home? What can we learn from this successful operation? 

Mr. BUCKLES. It worked well with not only the State but with 

the city officials, officers, along with the Federal officers and all the 

communication, also with the Montana Highway Patrol and game 

wardens too that really pushed the issue. 

I think the Federal officials really helped out a lot and spent a 

lot of good time with the person that was arrested. With the Federal agency’s help, it moved faster. I am glad they found the child 

alive. 

With those agencies and our partnering together, we saw a good 

and fast recovery even though it took three or four days. I know 

the person did not really want to say but the Federal agency’s experience in finding someone really helped us a lot. We are glad that 

child is safe. I am glad they found her. 

Senator DAINES. Thank you, Councilman Buckles. 

The CHAIRMAN. Thank you, Senator Daines. 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. 

Director Toulou, as you know, the opioid crisis has disproportionately affected American Indians in this country and certainly in 

Minnesota. Last month over the course of three days, the White 

Earth, a band of the Ojibwe in northwestern Minnesota, reported 

eight overdoses. All the victims survived but we need to do everything we can to prevent these. 

Law enforcement agencies obviously have an important role to 

play in working to combat the opioid epidemic. 

In June 2013, White Earth became the first reservation and still 

the only reservation to have the Department of Justice assume conVerDate Mar 15 2010 14:00 Sep 08, 2016 Jkt 021390 PO 00000 Frm 00049 Fmt 6633 Sfmt 6601 S:\DOCS\21390.TXT JACK
46 

current criminal jurisdiction on their land under the Tribal Law 

and Order Act. 

This law is supposed to encourage development of more effective 

prevention programs to fight alcohol and drug abuse among at risk 

youth. Despite this goal, the White Earth has not received any 

funding to support their designation, nor have they been provided 

any FBI agents to patrol their land as tribes without this designation have received. 

Director, after three years, why has White Earth not received 

funding under this designation? Why have FBI agents not been 

provided to White Earth? Why has White Earth not received funds 

from the Department of Justice to help address the opioid epidemic 

on the reservation? 

Mr. TOULOU. I think one of the issues everyone at the table recognizes is we could use more funding in Indian Country, particularly around the opioid issue. I would say that I do know White 

Earth. I was involved in their designation when they applied for 

assumption of jurisdiction. 

While there has not been the funding, you are absolutely correct, 

and I am sure that would be helpful, but there have been a number 

of things that have happened recently on the reservation that were 

at least tangentially related to the designation. 

Within the last year, about a year ago, the FBI in conjunction 

with tribal law enforcement, had a raid on White Earth that took 

down 41 individuals involved in a heroin conspiracy ring. I think 

that probably would have happened, but the cooperation that the 

assumption of jurisdiction engendered helped in that matter. 

Just in March, ONDCP, BIA, HHS, SAMHSA, the FBI, and the 

Department of Justice met with the tribe regarding a pilot project 

to set up a tribal action plan for drug abuse. They are the first 

tribe to get the kind of attention through ONDCP. 

Again, that was not the direct result of the assumption of jurisdiction but it was in recognition of the relationship we have with 

the tribe and the problems they are having. There is a lot more to 

be done but we are aware and are interested. 

Senator FRANKEN. Was some of that initiated by Erma Vizenor, 

the chairwoman? 

Mr. TOULOU. She was a really strong partner as we went 

through all this. We miss her. 

Senator FRANKEN. Thank you. 

Attorney General Urbina, a one size fits all approach does not always work in correction systems or interventions. The interventions need to be targeted to the community. 

Leech Lake Chief Judge Paul Day recently testified before this 

Committee regarding the importance of tribal healing to wellness 

courts which uses traditional healing practices and other cultural 

activities to help people recover from drug and alcohol addiction. 

The program incorporates the unique culture and history of each 

tribe and promotes community involvement. 

Can you describe how the use of cultural activities and traditional healing methods have impacted recidivism rates and drug recovery in Indian Country? Have these methods impacted your 

work? 

47 

Mr. URBINA. Yes, sir, I think it has. I know of programs currently operating across Indian Country. I am not exactly sure of 

the outcomes. However, I think it is a good idea to focus on those 

issues. 

For us, as offenders come into our system, I think it is important 

that we do an assessment of their needs. Trying to address their 

substance abuse issues is part of a healing to wellness court. We 

call it a drug court where we are in Pascua Yaqui. 

I think the incorporation of cultural and traditional practices is 

important, along with the substance abuse treatment and also job 

training and various things that would help that person not come 

back into the system. Those are very important issues that need to 

be addressed. 

I think we are focused on correction and on jail but I think the 

approach needs to be more holistic across the board. 

Senator FRANKEN. When you say drug treatment, my understanding from the Minnesota tribes is that they try to do their drug 

treatment in a culturally sensitive way or in a culturally consonant 

way? 

Mr. URBINA. I think you can do that. We have a BIA-funded program that is culturally relevant, a program within the system. 

They do what is called cognitive behavioral therapy but it is also 

culturally relevant to the people there. There are a number of 

tribes that filter into this jail system. 

Senator FRANKEN. Thank you. Sorry, Mr. Chairman, for going 

over. 

The CHAIRMAN. No, no, thank you, Senator Franken. 

Senator Murkowski. 

Senator MURKOWSKI. Thank you, Senator Barrasso. 

Mr. Toulou, I want to start with you. I appreciate your testimony. Our staff had very complimentary words about the statement you had placed in the record. 

Your statement explains the concept of special domestic violence 

jurisdiction that originated in the legislative proposal the department submitted back in 2011. A tribe could only exercise that jurisdiction with respect to an offense which occurred within a tribe’s 

Indian Country. 

If a tribe does not have Indian Country under its jurisdiction, it 

could not utilize that jurisdiction, is that correct? 

Mr. TOULOU. I did speak with your staff, Mr. Bergerbest, about 

this initially. I think that is correct. I would say there have been 

a lot of discussions about this. 

In Alaska, as you know, jurisdiction is very different. I would appreciate the opportunity to talk further with your staff and the experts that I have dealt with when we develop the bill and get back 

to you. That seems consistent with my understanding. 

Senator MURKOWSKI. I am trying to figure out where we were so 

that we know where we need to move to so that with Alaska, as 

we are talking about how we can make a difference within a State, 

that because it is different, because of the Supreme Court’s decision 

in Venetie holding that these lands are not Indian Country. 

We have this special domestic violence jurisdiction that is of very 

limited value to our Alaska tribes. 

48 

It would be helpful if you could let me know whether it is correct 

in your understanding that the department, in its 2011 legislative 

proposal, had no suggestion this should be a Venetie fix that would 

have made it more meaningful to the special domestic violence jurisdiction? 

Mr. TOULOU. I think that is consistent with my recollection. 

Again, I really would like to talk with staff. 

Senator MURKOWSKI. Know that I would like to work with you 

and others about this. As we are trying to provide for a process in 

a State that is different for a host of different reasons, I think we 

need to be looking beyond the world as we know it or as it is structured today. 

If it means that we have to look to new jurisdictional definitions, 

these are some of the paths we want to explore. 

Mr. Black, I want to ask you basically the same question I asked 

the Acting Assistant Secretary related to BIA law enforcement resources in the State. 

Some in the Alaska Native community are of the impression that 

if the department would take land into trust for their tribes that 

we would see substantially greater BIA law enforcement resources 

that would follow with that. 

When I asked the question, I was told, we are a P.L. 280 State 

and it might be somewhat overly optimistic to assume that additional resources come. The more direct question to you would be 

whether or not the BIA has any plans to put BIA police or triballycompacted officers in our Native villages in the event that land encompassing that village would be taken into trust? 

Can you speak to this impression that there would be resources 

that follow if, in fact, this land is taken into trust? 

Mr. BLACK. Speaking to the 280 State status of Alaska, that 

would be something we would have to weigh into any decision we 

would make related to that and also working with the State under 

that 280 retrocession process or anything that potentially could 

come, I think there are a lot of questions around the jurisdictional 

authority that will come with any land into trust in Alaska. 

That is just one of the many factors I think we have to consider 

if that were to happen and how we would apply that. Right now, 

I do not know that we have any immediate plans or available resources to put toward that right now. 

Senator MURKOWSKI. That is where the huge frustration is. You 

have villages that simply lack any law enforcement presence. Our 

State is facing some very, very difficult financial pressures right 

now, so I think we are going to see a currently bad situation unfortunately possibly get worse. 

We are kind of talking hypothetically here but if Vinati had come 

out differently and all of these ANCSA lands were Indian Country, 

granted different Indian Country in a P.L. 280 State, but you 

would be sitting in a situation where effectively you have to wonder 

if BIA would have been prepared to ramp up its support for law 

enforcement in public safety tribes and really at the cost of it. 

When you think about the burden you have within BIA now or 

the responsibility you have for the substantial costs related to law 

enforcement, you have a situation in Alaska where because the 

courts have determined no Indian Country, because we are in this 

49 

P.L. 280 State status, we do not see the level of support from the 

Federal side when it comes to any level of enforcement in our 

States, a State that has more than half the tribes in the country. 

I am kind of speaking again hypothetically but as we are thinking about a new paradigm for public safety in our Native villages, 

I think it may be time for us to explore with the BIA and the Department of Justice some avenues as to how we contribute to an 

on the ground public safety presence in rural Alaska as well as 

how we empower our tribes to protect their communities. 

I think we know it does not come without cost. We recognize 

that. I certainly do. As Chairman of the Interior Appropriations 

Committee, believe me, I know the cost associated with it but it is 

a conversation that I think we need to be prepared to have in the 

future because we have a situation that is not getting better. 

My fear is that we are going in the wrong direction. I would like 

to explore with both of you further how we work to address this. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Murkowski. 

Senator Heitkamp. 

STATEMENT OF HON. HEIDI HEITKAMP, 

U.S. SENATOR FROM NORTH DAKOTA 

Senator HEITKAMP. Thank you, Mr. Chairman. 

Mr. Toulou, who is responsible for protecting children against 

major crimes on the reservation in North Dakota? 

Mr. TOULOU. I would say we all have a duty to protect children 

on any reservation but Major Crimes Act violations are prosecuted 

by the U.S. Attorney’s office. 

Senator HEITKAMP. And investigated? 

Mr. TOULOU. And investigated by the FBI. 

Senator HEITKAMP. I think the same is true on the Fort Peck 

Reservation in Montana as well? 

Mr. TOULOU. That is absolutely correct. 

Senator HEITKAMP. Let me read something to you from a recent 

Reuters’ article, ‘‘Drug users are selling their babies, daughters and 

sisters for the potent stimulant that is ravaging Native American 

communities such as the Assiniboine & Sioux Tribes living in the 

desolate Plains,’’ I dispute that, ‘‘of Fort Peck say community leaders. We are in crisis says the tribal chairman. We have mothers 

giving their children away for sexual favors for drugs. We have 

teenagers and young girls giving away sexual favors for drugs. 

’’No number records specific rates of local sex trafficking which 

can often be buried in crimes of sexual assault, abuse, prostitution, 

abandonment or kidnapping but it is a crime poorly documented in 

the field by drug abuse plaguing Indian reservations. The rate of 

meth use among American Indians is the highest of any ethnic 

group in our country and is more than twice as high as any group 

according to the National Congress of American Indians. The number of drug cases in Indian Country has risen sevenfold from 2009 

to 2014.’’ 

It is a crisis and we somehow do not seem to get a crisis response 

from the Department of Justice. I am beyond frustrated. I asked 

the FBI Chairman in this room to come to North Dakota to actually give us a plan. 

50 

We get, well, let’s put an FBI agent in Bismarck and hopefully 

they will get over to New Town sometime. In this story, six children in two weeks were born affected by methamphetamines. We 

do not know what the long term consequences of that is. 

I agree with you that this is a community problem but we have 

to have a cop on the beat. I will tell you I do not think we have 

a cop on the beat in Indian Country. The National Congress of 

American Indians calls it the asterisk nation. 

As I was just reminded at a hearing, Senator Kennedy once said, 

‘‘Our first children have become our last children.’’ They are last 

in peoples’ minds and memories but they and their families are suffering. We need law enforcement. We need to have attention to this 

problem. 

We cannot suffer another generation and sacrifice them to 

methamphetamines. It is beyond frustrating for me that in spite of 

our repeated requests, we do not seem to get the level of attention 

to this problem that we need to give to this problem. 

I hope you take back to the Department of Justice that our Preamble to the Constitution says ‘‘to provide justice.’’ Where is the 

justice in Indian Country for Native American children and families who are terrified by this epidemic? Where is the justice? Where 

is the accountability? Where is the law enforcement? 

This is a major crime. You are the cop on the beat and you are 

absent. We have to get this fixed because we cannot begin to solve 

the cultural issues or the public health problems until we have a 

cop on the beat providing deterrence. 

When you do not have a deterrence of any kind, you have rampant abuse. That is what we are seeing. The people who are suffering are children and families working very hard in very difficult 

situations. 

You just happened to be the guy in the line of fire today but I 

hope you take that back to the Department of Justice where I know 

there are many people working. I have directly talked about this 

with the Attorney General. This is not a new issue for us. 

This is a committee that sees it every day and we have to get 

some help. We have to have you treat it at the Department of Justice like the crisis it is. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Heitkamp. 

Senator Heitkamp, would you like the article you referenced included in the record? 

Senator HEITKAMP. Yes, I would. 

The CHAIRMAN. Without objection, so ordered. 

Thank you, Senator Heitkamp. 

Senator Tester. 

Senator TESTER. Thank you, Mr. Chairman. 

Thank you, Senator Heitkamp for your question. Unfortunately, 

I did not hear an answer. I do want to find out what is going on. 

Senator Heitkamp is right. You are in the line of fire today but 

she is also right that quite frankly, we have huge problems in Indian Country. There are a lot of reasons for them but why isn’t the 

Department of Justice stepping up in Indian Country to meet the 

problems out there? 

51 

Mr. TOULOU. I want to say to both of you, Senator Tester and 

Senator Heitkamp, I appreciate the passion you bring to this important issue. I was a prosecutor in the U.S. Attorney’s office in 

Montana and I worked on Fort Peck. I have a lot of friends there. 

I understand how important this issue is. 

I think we do take it seriously but clearly there is more we need 

to do. I will take back those concerns and talk to the FBI and our 

folks who specifically focus on drug trafficking. Yes, it has gotten 

worse at least from what I am hearing from tribal leaders. 

That is not something I would have expected to happen having 

seen methamphetamine abuse in Montana in the 1990s. We hear 

the problem and with the resources we have, we will move to address it as we can. I will take back that passion. 

Senator TESTER. Is the problem where it is located? If this was 

going on in a place closer to an airport, would we be dealing with 

it in a different way? 

Mr. TOULOU. I don’t know that we would be dealing with it in 

a different way but I think law enforcement resources have something to do with this. Again, I am talking outside of my depth. I 

know Indian Country. I did violent crime. I did not do drug cases 

but when you see drugs coming into large cities, you have major 

suppliers. 

What we have seen and what I have been told by tribal leaders 

is you have relatively small amounts diversely spread across Indian Country. That is harder to handle from a law enforcement 

perspective. 

We all know that on the ground, first responders in Indian Country are limited as compared to other communities. Those are the 

guys who would initially deal with those crimes. 

That is not an excuse. We need to figure out how to work with 

the reality we have but I think those are some of the explanations. 

Senator TESTER. Not only that but are the statistics in the Reuters article right? Did you say six kids in the last two weeks? 

Senator HEITKAMP. That is correct. 

Senator TESTER. Six kids in the last two weeks is not insignificant. 

Mr. TOULOU. No. 

Senator TESTER. That is a huge problem. 

We are not the committee that deals with your budget at least 

in the Department of Justice. I know oftentimes we use money as 

an excuse but it is also about prioritization quite frankly. 

Prioritization is really important. 

You said you would take it back to the department. I hope you 

do. I would hope the department might give us, the Chairman and 

me, some sort of information so we can distribute to the Committee 

what we are doing proactively to stop this. I am telling you, it ain’t 

going to get better. 

Mr. TOULOU. No, and I will commit to getting the information. 

Senator TESTER. We are talking about Fort Peck. I would suggest 

the Salish and Kootenai in the western part of the State have probably the least poverty. Still its poverty rate is probably 50 percent 

or higher, the unemployment rate, I mean. It is probably the least 

poverty stricken of any of the reservations in Montana. Seventy to 

52 

80 percent of those kids born on the reservation are born addicted 

to drugs. It is a problem all over. 

Mike Black, the Santa Clara bill would allow you to lease up to 

99 years on tribal lands. We have done this before for individual 

tribes. My question is, why don’t we do it for all the tribes? 

Mr. BLACK. I think on its face that sounds like probably a pretty 

good idea. I just do not know for sure unless we hear from all the 

other tribes whether or not they have issues or why they would not 

want to do it. I testified on a number of bills just like this. 

Senator TESTER. Is there a reason we would not want to do it? 

From a Federal perspective, is there a problem with doing it? 

Mr. BLACK. Nothing that comes to my mind right now. 

Senator TESTER. It would be good to get your perspective on that 

after you do your due diligence. 

Mike Chavarria, tell what extending the lease for 99 years does 

for you from a certainty standpoint for economic development? 

Mr. CHAVARRIA. It gives us the option to go ahead and lease 

these lands for larger businesses. Right now, you have 25 which is 

an option of 25 years and that is 50 total. It is not good for us to 

go to the larger businesses because of the substantial capital investments. The bigger businesses are deterred from partnering 

with us in Santa Clara. That is very important. 

That would allow us to do longer term leases. It is up to the tribe 

to determine which business they want to venture into. It is not 

going to be for all; it is going to be for certain projects. 

Senator TESTER. Dana, thanks for being here. I really appreciate 

your testimony and being available to answer a few questions. 

The Fort Peck tribal court was one of the first tribal courts to 

implement VAWA jurisdiction. Your tribe needs to be commended 

on that for being a leader. 

Where do the resources come from for the tribe to have lawtrained judges, prosecutors and defense attorneys? 

Mr. BUCKLES. The tribes largely support their tribal court at the 

expense of other programs. 

Senator TESTER. It came out of the tribal conference? 

Mr. BUCKLES. Yes 

Senator TESTER. What aspect of implementing VAWA has been 

the most resource intensive? What have you had to spend the most 

money on? If you do not know, that is fine. You can get back to 

me on that. 

Mr. BUCKLES. Can I get back to you on that? 

Senator TESTER. Absolutely you can. 

If you had more dollars, if you had more resources, do you have 

any idea where the tribe might focus those resources? 

Mr. BUCKLES. If we had more dollars, as well as the court system, but I think we would focus on law enforcement. Law enforcement is a biggie for us. I just heard the discussion here. That is 

what a lot of tribes are facing not only Fort Peck. A lot of the tribes 

in general lack more officers. That is what we need. 

Senator TESTER. I want to thank you all for being here and for 

your testimony and I want to thank the Chairman for having this 

hearing. 

Going back to the first line of questioning, I just want to say nobody expects the Department of Justice to do this alone. I do think 

53 

there is an expectation that you guys are leading the charge. There 

are other support groups around who will help you. I believe that 

to be the case. 

We have someone I think is a very, very, very good U.S. Attorney 

in the State of Montana. I think we have a history of good U.S. Attorneys in the State of Montana. 

I have to tell you, this has been going on for a while now. We 

really do need to get on it. It is a big problem. It is not made up; 

it is not imagined; and it is not someone trying to bilk money from 

the Federal Government. It is a problem we need to get fixed. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator Tester. 

Director Black, S. 2920 includes several provisions to improve 

justice for Indian youth. One of the key provisions would require 

State notice to tribes when one of their members enters the State 

or local juvenile justice system. That would also include a tribal 

representative on State advisory groups for juvenile justice. 

I am wondering how you think these provisions would help Indian youth? Should the Office of Justice Services have a role in 

State notification or advisory group requirements? 

Mr. BLACK. I think all of that would probably be beneficial to Indian Country and our ability to deal with the youth and some of 

the issues that are out there. Increased collaboration always leads 

to additional resources and additional data sharing. 

I think there would be some questions as to the logistics of how 

that would work. Are we talking about communities located right 

near Indian Country? Are we talking about communities and Indian youth that are arrested in a large city, far away from Indian 

Country? 

I do think that does give us a better picture of exactly what the 

issues are facing our Indian youth out there, whether they are in 

a big or small city. Improved data sharing of that kind of information would give us a lot better idea of those issues and how we can 

better address them by coordinating with all of our partners. 

The CHAIRMAN. Violent crimes, we have heard, drug trafficking, 

it seems they affect Indian communities much more acutely than 

many other communities. Tribes have long sought help with these 

problems. 

To address the problems, in part, my legislation would establish 

a new Federal crime of criminal trespass for violating tribal exclusion orders which arise from convictions of tribal violent crimes 

and drug trafficking. 

Do you think this approach would help address the problem or 

is there another alternative to perhaps tackling violent crimes and 

drug trafficking? 

Mr. BLACK. I would want to talk with my colleagues at the department but I think anything we can do to assist tribes in maintaining law and order on the reservation is important. It seems like 

a good strategy to me if that includes addressing crimes by people 

coming off the reservation or onto the reservation. 

The CHAIRMAN. One of the provisions, based on circumstances, is 

a Federal referral to tribal court for juvenile cases. Is that something you think would be helpful? 

54 

Mr. BLACK. I think we talk quite a bit with tribes when we take 

Federal cases. There are not all that many juveniles who are in the 

Indian Federal system. It runs between 25, 30 to 35 in a given 

year. It is important that we take care of each of those children appropriately but it is a small number of very troubled offenders. 

Yes, I think any communication is a good idea. We do have pretty extensive communication. 

The CHAIRMAN. Mr. Urbina, the Pascua Yaqui Tribe is surrounded by the City of Tucson, Pima County, and the Tohono 

O’odham Nation. I am just looking at the map of the surroundings. 

Can you identify the jurisdictional issues that you have encountered while trying to implement the Tribal Law and Order Act? 

Mr. URBINA. It has been difficult. For us, crime does not respect 

borders. In addition to being outside of Tucson, we are about 60 

miles from the U.S. and Mexican border. We are located on a major 

drug corridor. I think that impacts crime on our reservation. 

The last homicide on our reservation was committed by a nonIndian male who shot a young tribal male. I went out to the scene 

that night to help with the search warrant. I still remember that 

night. I still see his mom. That is pretty much what we are dealing 

with jurisdictionally. 

For our VAWA offenders, for the most part, probably almost 90 

percent of those folks have significant criminal histories, have committed offenses on the reservation pre-VAWA, some of them had 

warrants, and one who had a warrant from the State of Oklahoma 

for armed robbery lived in tribal housing. 

That is our biggest problem, encountering folks and not having 

the tools to address these issues on the reservation from both nonIndian offenders and tribal members who might offend in the State 

of Arizona. 

The CHAIRMAN. Can you talk a bit about how the Tribal Law and 

Order Act helped the tribe work with Federal agencies to keep your 

community safer? 

Mr. URBINA. For us, it has been night and day. I think shortly 

after 2010, we started our SAUSA program. We now have four 

SAUSAs working out of our prosecutor’s office who help staff those 

cases with the U.S. Attorney’s office. 

The U.S. Attorney liaison is on the reservation quite often. It is 

fairly close to their Tucson office but she also has an office in our 

prosecutor’s department. There is a lot of communication and a lot 

of working together. 

Our MDP process is not simply looking at child-related crimes, 

but we look at all major crimes. We staff them as a group. Our 

SAUSAs are helping bring those cases to Federal court. 

Along the same timeline, we also worked with the U.S. Attorney’s office to set up our Special Law Enforcement Commission 

cards for our law enforcement. That gives them Federal authority. 

They also have State authority and are State certified. Our system 

has a lot of flexibility built into it. 

When we encounter jurisdictional problems, we are able to address them on the front end by law enforcement or by our SAUSAs 

and our prosecutor’s office. For us, the Tribal Law and Order Act 

has been fairly successful. It has caused our Federal cases to churn 

and be processed by the court system. 

55 

I personally believe it has reduced the crime on the reservation 

over the past few years. Anecdotally, I know that is true, so the 

whole process since 2010 until now, I think has been successful. 

There are things we need to work on and things in the bill that 

will help. Certainly, the base has helped the Pascua Yaqui Tribe 

address crime. 

The CHAIRMAN. Thank you. 

Senator Hoeven. 

STATEMENT OF HON. JOHN HOEVEN, 

U.S. SENATOR FROM NORTH DAKOTA 

Senator HOEVEN. Thank you, Mr. Chairman. 

I would like to thank all of our witnesses for being here today. 

My question relates to not only the Tribal Law and Order Reauthorization Act, which Chairman Barrasso has brought forward, 

which would allow tribes access to certain databases for criminal 

background checks which I think is a very good thing. 

It also relates to legislation I have put forward, the Native American Children’s Safety Act, which we passed through the Senate. It 

is now in the House. Actually, the House has passed their version 

which essentially is the same bill. I am working to get the bill finalized. 

Essentially, the Native American Children’s Safety Act would 

provide or require the tribal social service agencies conduct background checks on any adults living in a foster home before a foster 

child is placed in that foster home. I think Director Black is familiar with it. 

That is actually a requirement we put at the State level when 

I was Governor in North Dakota. Many other States have done the 

same. It is not something applied or required consistently across 

reservations. 

Starting with Director Black and then Director Toulou, I would 

like you to talk for a minute about the importance of being able to 

conduct these criminal background checks, first, on a more broad 

scale as related to the Tribal Law and Order Reauthorization Act 

of Chairman Barrasso and then also in regard to foster care, both 

the ability of the BIA to implement and support that, your willingness to support it and your feelings in regard to its efficacy both 

in terms of reducing crime and protecting children. 

Mr. BLACK. I think this goes back to a lot of the discussion we 

have had here today related to data sharing. I think the more data 

we can make available, including criminal background checks and 

the opportunity for tribes to participate in all of that, will increase 

their ability to protect their citizens in Indian Country, especially 

when we talk about the kids. 

We have implemented that in some areas on a pilot basis to 

make sure we have the necessary tools to do background checks on 

the foster families to ensure that when we are placing children in 

those homes, we are placing them in a safe environment. 

I think we do support that because I think that is critical to ensuring those kids have a good, safe place to be while we are working through the other issues related to their family and whatever 

we can to try and reunite the family but in the meantime, we are 

providing a safe environment for those kids. 

56 

Senator HOEVEN. Thank you, Director. I want to note and express my appreciation for your help in this effort. 

Mr. Toulou. 

Mr. TOULOU. Thank you, Senator. 

We believe that access to databases is absolutely critical on many 

different levels on the reservation. Clearly, it is a public safety 

issue, both for its citizens and for police officers responding to a 

crime on the macro level of calling in on the radio and being able 

to find out the car you are pulling over has somebody who just 

committed an armed robbery. 

As we reached out to tribes about their data access issues, we 

found there were a lot of other things that were important that 

they did not have access to beyond pure criminal justice issues, for 

instance, tribal courts having the ability to put protection orders in 

databases to be recognized in nearby towns. 

The issues involved in child placement were critical. One of the 

things we have done in conjunction with BIA is made BIA a portal. 

They have agreed to be a portal for tribes who want to use Program Category X which allows the placement officers in social services to go through a portal at BIA to find out whether the individual is on a name-based check system and have the criminal 

record before you put that child in the home. This could be in the 

middle of the night or at 2:00 a.m. 

We also have the TAP Program, our tribal access program. The 

kiosk we put in allows tribes to automatically enter fingerprint information in order to quickly do a fingerprint check. 

There are a lot of important issues beyond those kind of law enforcement issues we have talked about to make those communities 

safer. 

Senator HOEVEN. Thank you. 

Mr. Urbina, from the reservation side, do you see any concerns 

in terms of embracing use of background checks? Is this something 

the tribes are looking for, will embrace and use? 

Mr. URBINA. Yes, sir. We are looking forward to that. We are 

part of the TAP Program being rolled out. We should have implementation in place for the tribe in the next few months. We are 

also looking to be a part of the Purpose Codex Program through the 

BIA. It is necessary for us. 

We also get calls from the State folks looking to place tribal children on the reservation or in foster homes in the State. They can 

do those checks stateside but it is important for us to have that 

ability as well. 

I can recall an incident where some children were placed in the 

home of a sex offender because we did not have these things in 

place. Right now, we have to wait a number of weeks before we get 

a fingerprint background check to see about those folks in the 

home. By that time they are already in the home for at least a 

month. 

Senator HOEVEN. Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Hoeven. 

I want to thank all of the witnesses for being here today. I am 

very grateful that you took the time to visit with us and testify. 

57 

Members of the Committee may submit follow-up written questions for the record. The hearing record will remain open for two 

additional weeks. 

I want to thank all of you for your time and your testimony. 

The hearing is adjourned. 

[Whereupon, at 3:44 p.m., the Committee was adjourned.] 

(59) 

1 Rosay, Andre ́, Ph.D., National Institute of Justice Research Report: Violence Against Indian 

and Alaska Native Women and Men 2010 Findings from the National Intimate Partner and Sexual Violence Survey, p. 2–3 (May 2016) U.S. Dept. of Justice, Office of Justice Programs, available at: https://www.ncjrs.gov/pdffiles1/nij/249736.pdf. 

A P P E N D I X 

PREPARED STATEMENT OF THE NATIONAL CONGRESS OF AMERICAN INDIANS

Honorable Chairman and members of the Committee, thank you for the opportunity to provide testimony on two very important legislative efforts that will improve public safety in Indian Country. Nine years ago, the National Congress of 

American Indians passed a resolution at its Midyear conference in Anchorage, Alaska, and provided testimony to this Committee calling for Congress to redirect the 

law enforcement priorities of the Department of Justice on Indian reservations, and 

to empower tribal government law enforcement. This was followed by several years 

of hearings and legislative drafting in the Senate Committee on Indian Affairs. 

From that resolution, as well as a great deal of effort from many tribes and the 

leadership of this Committee, Congress enacted the Tribal Law and Order Act of 

2010 (TLOA) and set the stage for expanded tribal jurisdiction under the Violence 

Against Women Act Reauthorization of 2013 (VAWA 2013). We recognize your commitment in introducing the legislation that is the subject of this hearing, and greatly appreciate your continuing efforts to build on those laws and improve public safety in tribal communities. 

NCAI is the oldest and largest national organization representing American Indian and Alaska Native tribal governments in the United States. We are steadfastly 

dedicated to protecting the rights of tribal governments to achieve self-determination and self-sufficiency, and to the safety and security of all persons who reside or 

visit within Indian Country. 

S. 2785, The Tribal Youth & Community Protection Act 

We appreciate Senator Tester and Senator Franken’s leadership in introducing 

the Tribal Youth and Community Protection Act, S. 2785. This legislation would 

amend the domestic violence criminal jurisdiction provision included as Section 904 

of VAWA 2013, which established a framework for tribal prosecution of certain nonIndian domestic violence offenders . Since passage of VAWA 2013, NCAI has been 

providing technical assistance to the tribes who are implementing the law pursuant 

to a cooperative agreement with the DOJ. Through this work, we have witnessed 

the ways in which expanded tribal jurisdiction has transformed the criminal justice 

landscape in some tribal communities and also the ways in which it falls short. The 

lessons learned from implementation of VAWA 2013 are summarized in the attached ‘‘Special Domestic Violence Criminal Jurisdiction Pilot Project Report,’’ which 

provides a comprehensive overview of the experience of the tribes implementing the 

new law during the pilot project period. While NCAI supports full reaffirmation of 

tribal authority on tribal lands, we welcome introduction of this bill, which would 

address some of the gaps in the existing law and make important strides toward 

restoring public safety and justice on tribal lands. We are particularly encouraged 

that this legislation recognizes that Native children are equally in need of the protections that were extended to Native women in VAWA 2013. We look forward to 

discussing this bill with tribes in more depth at our upcoming Midyear conference, 

and are pleased to share our preliminary thoughts about this important legislation. 

Tribal communities continue to be plagued by the highest crime victimization 

rates in the country. A recent study by the National Institute of Justice found that 

over 80 percent of Native Americans will be a victim of violent crime in their lifetime. The study also found that 90 percent of these victims were victimized by a 

non-Indian perpetrator. 1 Sadly, Native children are particularly affected by this violence. Native children are 50 percent more likely to experience child abuse and sexVerDate Mar 15 2010 14:00 Sep 08, 2016 Jkt 021390 PO 00000 Frm 00063 Fmt 6601 Sfmt 6621 S:\DOCS\21390.TXT JACK
60 

2 Children’s Bureau, U.S. Department of Health and Human Services, Child Maltreatment 

2011, 28 (2012). 3http://www.acf.hhs.gov/sites/default/files/cb/cm2012.pdf, pg. 37. 4 Attorney General’s Advisory Committee on American Indian/Alaska Native Children Exposed 

to Violence: Ending Violence so Children Can Thrive (2014), pg. 6. 5SAMHSA, National Survey on Drug Use and Health, 2003. 

6 AG Advisory Committee, supra, note 12, at 38. 7 Id. 

8 Id. 

ual abuse than white children. 2 Rates of child maltreatment in certain states are 

even more alarming. According to data from the Department of Health & Human 

Services, Native children in Alaska experience maltreatment at a rate more than 

six and a half times the rate for white children. 3 In North Dakota, the rate of maltreatment for Native children is more than three times the rate for white children. 

Native children also experience extremely high rates of secondary victimization and 

exposure to violence. In 2013, Attorney General Holder appointed an Advisory Committee on American Indian and Alaska Native Children Exposed to Violence that 

held field hearings across the nation. In their final report the Committee concluded 

that service providers and policy makers should assume that all Native children 

have been exposed to violence and ‘‘the immediate and long term effects of this exposure to violence includes increased rates of altered neurological development, poor 

physical and mental health, poor school performance, substance abuse, and overrepresentation in the juvenile justice system. This chronic exposure to violence often 

leads to toxic stress reactions and severe trauma; which is compounded by historical 

trauma.’’ 4

Children who experience abuse and neglect are at higher risk for depression, suicidal thoughts, and suicide attempts. As this Committee knows, Indian youth have 

the highest rate of suicide among all ethnic groups in the U.S., and suicide is the 

second-leading cause of death (after accidental injury) for Native youth aged 15– 

24. 5 Due to exposure to violence, Native children experience post-traumatic stress 

disorder at a rate of 22%—the same levels as Iraq and Afghanistan war veterans 

and triple the rate of the rest of the population. 6

One of the most important provisions of S. 2785 would reaffirm tribal jurisdiction 

over certain non-Indians who commit crimes against Native children in Indian 

Country. This is in line with one of the key recommendations of the AG’s Advisory 

Committee who noted that ‘‘it is troubling that tribes have no criminal jurisdiction 

over non-Indians who commit heinous crimes of sexual and physical abuse of [American Indian and Alaska Native] children in Indian country,’’ and called on Congress 

‘‘to restore the inherent authority of AI/AN tribes to assert full criminal jurisdiction 

over all persons who commit crimes against AI/AN children in Indian country including both child sexual abuse and child physical abuse.’’ 7

Although there are no statistics available on the number of non-Indians who 

abuse Native children on tribal lands, the Attorney General’s Advisory Committee 

looked at available data and concluded that ‘‘it is clear from what we do know that 

it is a very substantial problem.’’ 8 In drawing this conclusion, the AG’s Advisory 

Committee relied on available statistics about the rates of non-Indian perpetrated 

violence against Native people aged 12 and older and national studies showing that 

men who batter their partners also abuse their children in more than half of the 

cases. This is consistent with the experience of the tribes who have implemented 

the criminal jurisdiction provision of VAWA 2013. The implementing tribes report 

that in most of their cases, Native children are present either as additional victims 

or witnesses. S. 2785 would untie the hands of tribal governments and allow them 

to protect Native children who are abused on tribal lands, regardless of the race of 

the perpetrator. 

We cannot think of a single principled reason why Native children are less deserving of the protection that Congress extended to Native domestic violence victims in 

VAWA 2013, and we strongly support this provision of S. 2785. Those who suggest 

that Indian tribes are not ready for this responsibility or need more time to develop 

the capacity of their court systems leave Native children without the protection they 

desperately need. As with the SDVCJ provision, we recognize that not all tribes will 

chose to implement this expanded authority immediately. The experience of SDVCJ 

implementation over the past three years demonstrates that tribal governments 

take their responsibility to administer justice fairly for all involved seriously and 

will act with care and deliberation. Where tribes have the capacity and desire to 

exercise criminal jurisdiction over those individuals who commit violent crimes 

against Native children, federal law should not stand in the way. 

S. 2785 would also reaffirm tribal criminal jurisdiction over drug offenses. The illegal manufacture, sale and use of illegal drugs on American Indian reservations 

61 

9 U.S. v. Castleman, 134 S. Ct. 1405 (2014) 

and in Alaska Native villages creates a dangerous environment with enormous costs 

for tribal communities. Many tribal communities are targeted by non-Indians as 

centers for distribution because of their geographic isolation and persistent poverty. 

This has a significant impact on overall health-care costs in tribal communities, 

where recovery treatment is largely unavailable, and access to primary care is limited. Drugs and alcohol abuse also are a contributing factor in far too many cases 

of domestic violence, sexual assault, and child abuse. As this legislation recognizes, 

Indian tribes need authority to protect themselves from those who bring drugs onto 

tribal lands. 

S. 2785 would also address two a significant gaps in VAWA 2013. First, since tribal SDVCJ jurisdiction is limited to domestic violence, dating violence, and protection 

order violations, any other attendant crimes that occur fall outside the scope of the 

tribe’s jurisdiction. The tribes that have implemented SDVCJ have reported cases, 

for example, where a domestic violence offender also committed a drug or alcohol 

offense or a property crime that the tribe was unable to charge. Tribes also lack 

jurisdiction to charge an offender for crimes that may occur within the context of 

the criminal justice process, like resisting arrest, assaulting an officer, witness tampering, juror intimidation, or obstruction of justice. This creates an obvious public 

safety concern. S. 2785’s inclusion of ‘‘related crimes’’ would address this gap. 

In addition, S. 2785 makes an important technical change to the definition of ‘‘domestic violence’’ that would clarify current confusion about the severity of violence 

that must occur for a tribe to have jurisdiction in the wake of the Supreme Court’s 

decision in U.S. v. Castleman. 9 When Castleman was decided in March of 2014, it 

had an immediate impact on the tribal criminal charging decisions when evaluating 

misdemeanor arrests under SDVCJ authority. The Justices suggested in dicta in 

Castleman that the domestic violence crime in an SDVCJ case must involve actual 

‘‘violence,’’ which is not a defined term. As a result, some tribes have declined to 

prosecute certain offenses like emotional or financial abuse and harassment that 

would otherwise constitute ‘‘domestic violence’’ under tribal law, but may not be considered a ‘‘violent crime.’’ S. 2785 would make clear that tribes who are exercising 

SDVCJ are able to reach the full range of crimes that may occur within the domestic violence context. 

We appreciate Senator Franken and Senator Tester’s effort to advance legislation 

that will fill some of the gaps in jurisdiction that continue to leave women and children without adequate protection on tribal lands. As the Committee continues its 

work, we ask you to also consider some of the other gaps in jurisdiction that implementation of SDVCJ have brought to light: 

• Tribes have no criminal jurisdiction if a non-Indian commits an otherwise qualifying crime on tribal lands against an Indian woman from another tribe who 

is visiting the reservation. This is true even if the crime involved the violation 

of a protection order that was validly issued by the tribe. 

• Tribes have no criminal jurisdiction if an Indian person is raped on tribal lands 

by a non- Indian, even if the offender lives on tribal lands and is employed by 

the tribe. 

• Tribes have no criminal jurisdiction if an Indian person is stalked on tribal 

lands by a non-Indian, even if the offender lives on tribal lands and is employed 

by the tribe. 

• Tribes have no criminal jurisdiction if an Indian person is trafficked on tribal 

lands by a non-Indian, even if the offender lives on tribal lands and is employed 

by the tribe. 

• Tribes have no criminal jurisdiction if an Indian elder is assaulted by their nonIndian family member on tribal lands, even if the offender lives on tribal lands 

and is employed by the tribe. 

S. 2920, Tribal Law and Order Act Reauthorization 

We also extend great appreciation to Senator Barrasso for his leadership in introducing the reauthorization of the TLOA. Since 2010, NCAI has been deeply involved 

in the implementation of this critically important law. The TLOA is a comprehensive law designed to improve numerous facets of the public safety system in Indian 

Country: to increase coordination and communication among federal, state, tribal, 

and local law enforcement agencies; empower tribal governments with the authority, 

resources, and information necessary to safely and effectively provide public safety 

in Indian Country; reduce the prevalence of violent crime in Indian Country, combat 

sexual and domestic violence; prevent drug trafficking and reduce rates of alcohol 

62 

and drug addiction in Indian Country; and increase and standardize the collection 

of criminal data to and the sharing of criminal history information among federal, 

state, tribal, and local officials responsible for responding to and investigating 

crimes in Indian Country. The TLOA authorizes expanded sentencing authority for 

tribal justice systems, clarifies jurisdiction in P.L. 280 states, and requires enhanced 

information sharing. In addition, the law authorizes programs for alcohol and substance abuse and programs for at-risk youth. 

However, even when we began working on the law in 2007, tribal leaders knew 

that it wouldn’t resolve every issue. This is why we so greatly appreciate a reauthorization that continues to address the problems and concerns regarding public safety 

on tribal lands. The introduced legislation includes a number of important provisions, particularly for juvenile justice, and serves as a strong foundation for continued work with tribal governments. All authorized funding under the TLOA expired 

in 2015 and it is important that Congress reauthorize this funding. Tribal justice 

systems also have more than five years of experience with implementing the law, 

and that implementation has led to proposals to continue to improve the law. In the 

following two sections we include comments on the introduced bill, as well as additional suggestions. 

Section 101: Bureau of Indian Affairs Law Enforcement 

Under this section, if the Director of the BIA Office of Justice Services fails to 

submit two reports required by the original Act in 2010, administrative funds would 

be withheld so long as the withholding does not adversely impact the capacity to 

provide law enforcement services in Indian Communities. The two missing reports 

are (1) annual reports to the appropriations committees on unmet tribal law enforcement needs, and (2) annual reports summarizing technical assistance and training 

provided to tribal law enforcement and corrections agencies that operate pursuant 

to self-determination contracts or self-governance compacts. 

NCAI strongly supports the effort for completion of these vital reports. In particular, we need the annual report on unmet law enforcement needs in order to justify the deep need for increases in public safety funding. We have some concerns 

about withholding funds from the BIA as a mechanism to compel completion, because it seems likely that this will result in diminution of services. We urge communication with the Secretary of Interior, and that pressure be placed on the overall 

administrative budget. We believe this will lead more quickly to the desired result. 

Section 102: Integration and Coordination of Programs 

We appreciate the proposal to require consultation with tribes regarding the integration of diverse funding for law enforcement, public safety, and substance abuse 

and mental health programs. However, the DOJ has been under a similar consultation requirement in the Commerce, Justice, State appropriations reports for at least 

the last four funding cycles, and no consultation has been initiated. Instead, we encourage the Committee to move forward with legislation to accomplish this goal of 

funding integration and coordination. At the end of this testimony we attach a proposal for legislative language that would accomplish this goal, and we encourage the 

Committee to consult directly with tribal governments about it. 

Currently, base funding for law enforcement is provided through the BIA and is 

entirely inadequate. Additional funding is provided through the Departments of Justice and Health and Human Services under a series of grant programs that have 

the typical problems of competitive grant programs. Within the DOJ these funds are 

further divided into dozens of competitive grants for specific purposes. Moreover 

funding for prevention, rehabilitation, and treatment programs, which are key components of any community’s approach to reducing crime, are located at IHS, 

SAMHSA, and elsewhere withing the DHHS. In order to obtain this funding, tribes 

often must compete against each other under the priorities and guidelines set by 

the administering agency. These proposals are then peer reviewed by individuals 

who may or may not have experience with Indian tribes and tribal justice systems. 

In the end, the tribes that have the financial and human resources to employ experienced grant writers end up receiving funding, while the underresourced tribes may 

be left without. Moreover, tribes cannot count on funding continuing beyond the current grant period, and Indian Country has countless stories of successful programs 

disappearing at the end of a two- or three-year grant cycle. 

This system requires a large grant writing capability and a good bit of creativity 

in order to access the funds. Millions could easily be spent providing the technical 

assistance tribes need just to navigate this overly complex system. Under this ad 

hoc system, tribal law enforcement will receive vehicles, but no maintenance. They 

will get a detention facility, but no staff. They will receive radios, but no central 

dispatch. The system doesn’t make sense. We believe that tribal public safety fundVerDate Mar 15 2010 14:00 Sep 08, 2016 Jkt 021390 PO 00000 Frm 00066 Fmt 6601 Sfmt 6621 S:\DOCS\21390.TXT JACK
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ing should be streamlined into a single funding vehicle that would be negotiated on 

an annual basis and made more flexible to meet local needs. 

We hope to develop a streamlined and consistent funding mechanism supported 

by tribes that would be acceptable to Congress. A proposal for statutory text that 

could be the basis for a discussion among tribal stakeholders and Congress is included as an appendix. 

Section 103: Data Sharing with Indian Tribes 

We strongly support these provisions to improve criminal database information 

sharing with tribal governments. In addition, we urge that the legislation address 

a specific problem with access to background checks for non-law enforcement purposes. 

28 USC 534(d) authorizes release of criminal history information to tribal law enforcement agencies, but doesn’t allow release of criminal information to other tribal 

agencies for important purposes, like child welfare background checks on foster parents, or teachers or childcare workers. The DOJ interprets the appropriations rider 

language from P.L. 92–544 as a permanent statute that prevents sharing this information with tribal governments. In their view, criminal history for licensing of foster parents can only be shared ‘‘ if authorized by State statute and approved by the 

Attorney General, to officials of State and local governments for purposes of employment and licensing,’’ We suggest to add a subsection to 534(d): ‘‘If authorized by 

tribal law and approved by the Attorney General, the Attorney General shall also 

permit access to officials of tribal governments for non-criminal justice, non-law enforcement employment and licensing purposes.’’ 

Section 104: Judicial Administration in Indian Country 

This section extends the Bureau of Prisons Tribal Prisoner Program for seven 

years. This pilot project has already been successful as a temporary program, and 

then suddenly shut down. We urge the Committee to go further, and permanently 

authorize the program. 

Permanently extending the TLOA Federal Bureau of Prisons Pilot Program is an 

essential part of overcoming the many challenges facing tribal criminal justice agencies. The Pilot Program, which expired on November 24, 2014, gives tribes the option to send highly violent offenders to federal corrections facilities. Many tribes do 

not have the resources or personnel to adequately and safely house these types of 

offenders. The federal system also offers greater access to treatment, rehabilitation, 

and reentry programs. The Bureau of Prisons also strongly supports extending the 

program. 

When the BOP Pilot Project was authorized under the TLOA, NCAI believed that 

the program would be used sparingly for only the most violent offenders. However, 

some in Congress were concerned about costs, and imposed the limitations of only 

four years and up to 100 detainees. But in that short time the program had only 

begun to work. Tribal governments must develop new criminal codes and procedures 

and train staff to use the program, and generally take a steady approach to implementing change. Two tribes transferred a total of four prisoners to federal prisons, 

so it is clear that the floodgates are not a problem. 

We urge that the program is made permanent and tribes continue to have the opportunity to exercise this option. Tribal governments are increasingly seeking to enhance their sentencing authority under the TLOA. Providing tribes this flexibility 

to house violent offenders will allow tribal governments to concentrate their resources on other pressing criminal justice and public safety needs. The Federal Bureau of Prisons has echoed all of these recommendations in its report to Congress 

required by the TLOA. 

NCAI also supports the provision to require the Director of BIA, Director of Bureau of Prisons, Director of IHS, and the Administrator of the Substance Abuse and 

Mental Health Services Administration to consult with Indian Tribes regarding juvenile justice and incarceration. For decades tribal leaders have encouraged a more 

proactive and humane approach to juvenile justice that is focused on prevention and 

mentoring and rehabilitation rather than criminalization. Tribal leaders strongly believe that we owe it to our youth and future generations to focus resources on our 

young people right at the beginning, rather than waiting for them to go astray and 

then begin the cycle of institutionalization and incarceration that has proven to be 

so ineffective. 

Section 105: Federal Notice 

This section requires the Office of the United States Attorney’s that convict any 

enrolled member of a federally recognized tribe shall provide notice of that conviction to the appropriate tribe. NCAI supports this provision, but also encourages that 

the Bureau of Prisons be required to provide notice when any tribal member is reVerDate Mar 15 2010 14:00 Sep 08, 2016 Jkt 021390 PO 00000 Frm 00067 Fmt 6601 Sfmt 6621 S:\DOCS\21390.TXT JACK
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leased from federal prison. This is the time when the community needs to be aware, 

and services need to be provided to released inmates. 

Section 106: Detention Facilities 

Under these provisions, a tribe may request to use any available detention funding from a contract or compact for appropriate alternatives to detention. NCAI supports this provision but urges removal of the requirement that the tribe, Secretary, 

and Director of the Office Justice Services mutually agree. The requirement of 

agreement will add significant costs and delay and will undermine the intention. 

Tribal governments must be trusted to implement programs for alternatives to incarceration, just as tribal courts are trusted to make decisions regarding guilt or innocence. 

Section 108: Amendments to the Indian Civil Rights Act 

The right to a jury trial would be amended to include only those crimes where 

there is a possibility of imprisonment of 180 days or more. This would match the 

federal and state constitutional requirements, and relieve tribal courts of the obligation to provide a jury trial for misdemeanors. Tribal courts suffer from a significant 

lack of resources. On some reservations, defendants have learned to act collectively 

and request a jury trial for every misdemeanor, and have succeeded in forcing the 

dismissal of many cases because the tribal court cannot afford the time or money 

for a jury trial for every petty crime. This provision would bring the Indian Civil 

Rights Act jury requirements into line with the federal constitutional rule. 

Section 109: Special Assistant Public Defender Liaisons 

NCAI supports the purpose of this section to provide greater coordination on indigent defense in Indian Country. However, the truly great need is for funding for indigent defense services. As background, the Indian Civil Rights Act of 1968 requires 

that defendants in tribal courts have the right to counsel, but at their own expense. 

Our testimony suggests a mechanism for Congress to finally provide funding for indigent defense in Indian Country, which would come at no additional costs to the 

federal budget. 

First, tribes have strongly supported the provision of counsel to indigent defendants in tribal courts for many years, but have generally lacked adequate funding. 

Some tribes with greater resources provide indigent defense from their own funds, 

and have done so for many years. Tribes sought and welcomed the provision in the 

TLOA that although Legal Services Corporation grantees generally are prohibited 

from using federal funds to provide assistance in criminal proceedings, Congress 

specifically exempted tribal court proceedings from that ban. See 42 

U.S.C.§ 2996f(b)(2). As a result, indigent defendants often can obtain counsel. In addition, tribes sought the provision in the Indian Tribal Justice Act that seeks to enhance tribal courts’ capacity to provide indigent defense counsel. 25 U.S.C. § 3613(b). 

Tribes have also repeatedly urged Congress to appropriate the funds necessary to 

support indigent defense throughout Indian Country, as one component of support 

for tribal justice systems. See, NCAI Resolution #ABQ- 10–116, and NCAI Resolution SD–02–015. 

Second, under the TLOA and VAWA 2013, tribes can exercise greater criminal authority and better protect their communities with extended sentencing authority 

and jurisdiction over non- Indian domestic violence offenders, but only if they provide indigent defense. Thus, the lack of resources for indigent defense is a barrier 

to greater public safety on tribal lands. 

Third, at this moment the case of U.S. v. Bryant is pending before the Supreme 

Court. Mr. Bryant is challenging his conviction under 18 USC 117, Domestic Assault by an Habitual Offender, because he was not provided with indigent counsel 

in the tribal court convictions that serve as the predicate crimes. In passing Section 

117, Congress acted with the goal of ‘‘safeguarding the lives of Indian women.’’ Violence Against Women Reauthorization Act of 2005, Pub. L. No. 109–162, § 901, 119 

Stat. 2960, 3077–78 (2006). NCAI has urged the Supreme Court to uphold Mr. Bryant’s conviction, but this case once again sheds light on the direct relationship between public safety and the provision of indigent defense in tribal courts. We believe 

that this can be accomplished, and suggest the authorization of a set-aside of 3 percent of Defender Services program in the Financial Services and General Government (FSGG) Appropriations bill. This account funds the operations of the federal 

public defender and community defender organizations, and compensation, reimbursements, and expenses of private practice panel attorneys appointed by federal 

courts to serve as defense counsel to indigent individuals. The FY2016 request is 

$1,057.6 million, an increase of 4.0 percent over the FY2015 enacted level. A 3 percent set-aside would result in approximately $30 million annually for tribal court 

indigent defense. If combined with the 4 percent increase, the set-aside would result 

65 

in no diminution of funding for the Federal Public Defenders, and would establish 

a greatly needed source of funding for indigent defense in tribal courts. 

Section 110: Criminal Trespass on Indian Land 

Under Section 1165 of Title 18, the misdemeanor offense of hunting, trapping, or 

fishing would be expanded to include felony offenses for violations of a tribal exclusion order. NCAI greatly appreciates this section as it would address a great source 

of harm on tribal lands. Indian reservations are experiencing increasing problems 

with serious criminal trespass and a lack of deterrence. Tribes are unable to address 

problems with sexual assault and stalking offenders who continue to return to the 

reservation to harass victims. Drug dealers are a perennial problem. Violating a 

tribal protection order or exclusionary order should be subject to more serious federal penalties. Tribes also have difficulties with former lease tenants who overstay 

agricultural and residential leases for many years and refuse to leave or pay rent. 

Tribes are also experiencing problems with timber theft, repeated poaching, illegal 

mining and illegal marijuana operations, serious crimes that are infrequently enforced because there is no relevant criminal statute. There are also repeat offenders 

who dump hazardous waste and serious property crimes and are warned again and 

again but refuse to respect tribal property rights. 

Because of this, we would urge two amendments to this section to set an appropriate scale of criminal penalties for increasingly severe criminal trespass crimes. 

First, we suggest that an offense should be added for persons who commit serious 

property crimes on tribal lands with fines and penalties of up to $15,000 and three 

years imprisonment or both. We suggest consultation with the U.S. Attorneys to determine an appropriate range of penalties that will create deterrence for those who 

cause serious threats to persons or damage to property. 

Secondly, we urge that the provision should include violation of tribal protection 

orders as well as exclusionary orders. Protection orders are often issued against persons who commit crimes of domestic violence, sexual assault or stalking. There is 

an existing crime at 18 U.S. Code § 2262—Interstate violation of protection order. 

However, this crime is rarely enforced because it requires proof beyond a reasonable 

doubt of intent: that the person traveled into Indian country for the specific purpose 

of violating a protection order. This is very difficult to prove, so even if a perpetrator 

traveled into Indian country and beat up his former girlfriend in violation of a protection order, it is difficult to show that he had this specific intent when he set out 

on his journey. Instead, we propose that the provisions for exclusionary orders 

would also include protection orders. We also suggest consultation with the U.S. Attorneys to determine an appropriate range of penalties that will create deterrence. 

The following is a proposal for statutory text: 

18 U.S. Code § 1165—Hunting, trapping, or fishing on Indian land (to be retitled 

‘‘Criminal Trespass on Indian Lands,’’ the first section retained, and renumbered 

subsection (a) with additional subsections for escalating penalties for severe offenses). 

b) Repeated trespassing offenses and persons who commit crimes against persons or property on tribal lands shall be subject to fines and penalties of up 

to $15,000 and three years imprisonment or both. 

c) VIOLATION OF TRIBAL PROTECTION ORDER OR TRIBAL EXCLUSION 

ORDER— 

(1) IN GENERAL.-It shall be unlawful for any person to knowingly violate 

the terms of a tribal protection order or exclusion order that was issued by 

a court or other tribunal of an Indian tribe in accordance with the requirements of paragraph (4). 

(2) PENALTY.-Any person who violates paragraph (1) shall be guilty of a 

crime and fined up to $10,000, imprisoned for up to 5 years, or both. 

(3) DEFINED TERMS.-For the purposes of this subsection, the term- 

(A) ‘‘protection order’’ includes any order which 

(i) satisfies the definitions set forth in 18 USC 2266(5); 

(ii) satisfies the jurisdiction and notice provisions set forth in 18 USC 

2265(b); and 

(B) ‘‘exclusion order’’ means an order issued in a proceeding by a court or 

other tribunal of an Indian tribe which temporarily or permanently excludes 

a person from tribal land for violation of the criminal laws of the tribal government. 

(4) REQUIREMENTS FOR ORDERS.- 

(A) PROTECTION ORDERS—A violation of a protection order shall constitute an offense under paragraph (1) if the order includes a statement that 

66 

violation of the order will result in criminal prosecution under Federal law 

and the imposition of a fine, imprisonment, or both; and 

(B) EXCLUSION ORDERS—A violation of an exclusion order shall constitute 

an offense under paragraph (1) if the respondent was served with or had actual notice of— 

(i) a complaint setting forth a plain statement of facts which, if true, would 

provide the basis for the issuance of an exclusion order against the respondent; 

(ii) the date, time and place for a hearing on the complaint; and 

(iii) a statement informing the respondent that if he or she fails to appear 

at the hearing a order may issue, the violation of which may result in 

criminal prosecution under Federal law and the imposition of a fine, imprisonment, or both; 

(iv) a hearing on the complaint was held on the record at which the respondent was provided an opportunity to be heard and present testimony 

of witnesses and other evidence as to why the order should not issue; 

(v) the order temporarily or permanently excludes the respondent from Indian land under the jurisdiction of that Indian tribe; 

(viii) the order includes a statement that a violation of the order may result 

in criminal prosecution under Federal law and the imposition of a fine, imprisonment, or both; and 

(ix) the respondent was served with or had actual notice of the order. 

(5) NO LIMITATION ON TRIBAL AUTHORITY; EFFECT OF SUBSECTION.—Nothing in this subsection limits or otherwise affects the application of the Violence Against Women Act, (18 U.S.C. 2261–2266). 

Section 201: Federal Jurisdiction Over Indian Juveniles 

The words ‘‘Indian Tribe’’ and ‘‘tribal’’ are added to Section 5032 of Title 18 of the 

U.S. Code, so that federal offenses could be referred to tribal court. NCAI supports 

this provision, but also recognizes that there are a relatively small number of serious felonies committed by youth that could result in referral for federal prosecution. 

Section 203: Justice for Indian Youth 

This section improves justice for Indian youth under the Juvenile Justice and Delinquency Prevention Act (JJDPA) by requiring notice to tribes when a member 

youth enters a state or local justice system, requiring tribal participation on advisory groups, coordinating services for tribal youth, and including tribal traditional 

or cultural programs which reduce recidivism as authorized activities for federal 

funding. 

NCAI strongly supports these provisions, and particularly notice to tribes when 

a youth enters state or local justice system. In many cases, Indian tribes have developed programs and services for Native youth that are more culturally appropriate, 

and will be welcomed by county court judges as alternatives to incarceration. However, these programs and remedies cannot work unless the tribal government has 

notice and is able to communicate with the local court system. 

Although the above amendments and additions to the Reauthorization of TLOA 

set a strong foundation towards improving public safety in Indian Country, we 

would still like to request consideration that the following provisions be added to 

the reauthorization. 

1) Annual declination reporting. The TLOA was passed by Congress against a 

backdrop of criticism that far too many Indian Country crimes were never adequately investigated, and prosecution was too frequently declined. For many 

years, tribal leaders had raised the concern that the U.S. Attorneys did not 

consider Indian Country crimes a priority and declined to prosecute an extraordinary percentage of cases. A Denver Post investigative reporting series from 

November of 2007 raised these concerns: 

• Between 1997 and 2006, federal prosecutors rejected nearly two-thirds of the 

reservation cases brought to them by FBI and Bureau of Indian Affairs investigators, more than twice the rejection rate for all federally prosecuted crime. 

• Investigative resources spread so thin that federal agents are forced to focus 

only on the highest-priority felonies while letting the investigation of some serious crime languish for years. Long delays in investigations without arrest leave 

sexual assault victims vulnerable and suspects free to commit other crimes. 

• Many low-priority felonies never make it to federal prosecutors in the first 

place. Of the nearly 5,900 aggravated assaults reported on reservations in fiscal 

year 2006, only 558 were referred to federal prosecutors, who declined to prosecute 320 of them. Of more than 1,000 arson complaints reported last year on 

67 

10Mike Riley, ‘‘Principles and Politics Collide: Some U.S. Attorneys who emphasize fighting 

crime on Indian lands have seen themselves fall out of favor in D.C.,’’ DENVER POST, Nov. 14, 

2007. 

Indian reservations, 24 were referred to U.S. Attorneys, who declined to prosecute 18 of them. 

• From top to bottom, the Department of Justice’s commitment to crime in Indian 

Country was questionable. Former United States Attorney for the Western District of Michigan Margaret Chiara was quoted saying, ‘‘I’ve had (assistant U.S. 

attorneys) look right at me and say, ’I did not sign up for this’. . . .They want 

to do big drug cases, white-collar crime and conspiracy.’’ Comments from former 

United States Attorney for Arizona, Paul Charlton indicate that this attitude 

came from the top. Charlton has related a story where a high-level Department 

of Justice official asked him why he was prosecuting a doublemurder in Indian 

Country in the first place. 10

This dire and long-term institutional dysfunction required a response. Therefore 

a key feature of the TLOA requires both the FBI and the U.S. Attorneys to submit annual reports to Congress compiling information regarding decisions not 

to refer investigated cases, and all declinations to prosecute in Indian Country, 

including the types of crimes alleged and the reasons for declination. The law 

also requires coordination with tribal law enforcement if a federal law enforcement official terminates an investigation or declines to prosecute an alleged violation of Federal criminal law in Indian country. The annual reports to Congress are to be organized in the aggregate; and for the FBI, by Field Division; 

and for U.S. Attorneys, by judicial district; and including any relevant explanatory statements. 

In general, we believe that the annual reports have led to an increased awareness of responding to Indian Country crime within the DOJ. However, there are 

a number of aspects of the reporting system that should be improved. The first 

is straightforward. The TLOA requires annual declination reporting on a calendar year, but the existing reporting system at the DOJ is on a fiscal year 

basis. Our understanding is that this creates unnecessary difficulty. We recommend consultation with the U.S. Attorneys and the EOUSA and resolve this 

difference to improve reporting. 

Secondly, and more importantly, we recommend additional consultation with 

tribal leaders and prosecutors regarding specific improvements to the declination reporting system. For example, tribal prosecutors routinely request more 

case-specific and tribe-specific sharing of information between federal and tribal 

prosecutors so that they can use the data to allocate resources and prosecution 

efforts. In addition, the annual reports showed prosecution being declined in 50 

to 60 percent of reported crimes due to ‘‘insufficient evidence.’’ Although Congress has required the ‘‘reasons’’ for a declination, ‘‘insufficient evidence’’ is so 

broad as to provide little analytic value. Tribal leaders frequently describe cases 

with little or no investigation, or that occur many months after the crime. It 

is impossible to tell from the declination reports whether more robust investigations would have resulted in additional prosecutions. 

Another example is that many referred crimes are declined because they ‘‘are 

not a federal crime.’’ It is impossible to tell from the declination reports how 

often this designation is used for crimes such as theft, destruction of property; 

domestic violence and low-level gang activity that commonly involves both Indian and non-Indian defendants. We have also heard reports that many of these 

crimes are never compiled into the reports. In fact, these are federal crimes in 

Indian country under the Assimilative Crimes Act, 18 U.S.C. § 13, which makes 

state laws applicable to conduct occurring in federal territory. Despite this, the 

‘‘no federal offense evident’’ category is used in a discretionary and informal 

manner. However, the absence of tribal jurisdiction to deal effectively with nonIndians in these cases creates a perception that the likelihood of being caught 

and punished is low, and encourages a disregard for tribal law enforcement. 

Third, we urge greater engagement with the Federal Bureau of Investigations 

on its role in investigating Indian Country crimes. On May 30, 2013 the first 

report of statistics gathered under the Act was released by the DOJ. It covered 

2011 and 2012 and showed a 54 percent increase in prosecutions in 2012 as 

compared to 2008. However substantial problems remained with prosecution 

being declined in 60 percent of reported crimes due to ‘‘insufficient evidence,’’ 

which tribal leaders attribute, at least in substantial part, to inadequate and 

slow investigations. 

Prior to the 1980’s, the Bureau of Indian Affairs law enforcement had a significant budget for investigations, and they had their own investigators. In the late 

68 

1980’s responsibility for investigations in Indian country was transferred to the 

FBI, as well as the financial appropriations for that responsibility. We recall 

that approximately 90 million was transferred out of the Interior appropriations 

and into the FBI appropriations. At that time promises were made that the FBI 

would do far more professional work with investigations and it would result in 

greater public safety on Indian reservations. 

However, over time the FBI leadership has lost sight of this commitment, diminishing its Indian country responsibilities and staffing, while keeping all the 

funding. In 1993, the FBI entered a Memorandum of Understanding with the 

BIA, stating that investigations were a ‘‘shared’’ responsibility, and that ‘‘determining which law enforcement agency, federal or tribal, has primary responsibility for investigation of a particular crime may depend on the nature of the 

crime committed and any applicable local guidelines, which vary across jurisdictions.’’ A significant amount of resources were reprogrammed after 9/11, and 

smaller numbers of FBI agents have trickled away from Indian country on a 

continuous basis in almost every year. In May of 2008, FBI Director Mueller 

testified at a hearing of the House Judiciary Committee. In response to a question regarding the FBI’s role in and commitment to fighting crime in Indian 

Country, he stated his hope was that other agencies would grow to fill that need 

and that the FBI would no longer have to provide services in Indian country. 

More recently, in the FY2011 budget, 20 million was transferred from the BIA 

law enforcement budget to the FBI to improve resources for investigations. 

Then, in the most recent President’s budget, it initially included a proposed cut 

of seventeen FBI agents in Indian country. NCAI protested and it was quickly 

corrected, but the proposal demonstrates the lack of awareness among FBI leadership about their commitment to Indian country law enforcement. Meanwhile 

the declination data shows most federal declinations to prosecute are from insufficient evidence. While FBI agents are in short supply in Indian Country, the 

funds reprogrammed out of the BIA remain steadily in the FBI budget. 

2) Tribal Criminal Code Development Program, with focus on Juvenile Justice. 

NCAI encourages the authorization of $10 million annually for a program to 

update tribal criminal codes and justice systems. The Department of Interior 

recently published a new model tribal juvenile justice code. The Model Indian 

Juvenile Code 2015 Revision reflects a core commitment to providing tribes 

with juvenile statutes assuring the fundamental rights of children and their 

parents, guardians and custodians, and allowing opportunities for restorative 

diversions at each stage of the juvenile justice process. Too many juvenile codes 

are nearly indistinguishable from adult criminal codes and provide too few diversions to rehabilitative services, and rely too heavily on detention. Many 

judges have voiced frustration with the lack of a comprehensive and flexible 

code which encourages the development of alternatives to standard juvenile delinquency, truancy, and child in-need-ofservices systems. 

However, in general tribal governments lack the funding to go through the process of updating criminal codes. Most tribal criminal codes were developed by the 

BIA in the 1960’s and 70’s, and are growing painfully outdated. Tribal criminal 

codes need to be updated in many other areas, including domestic violence, sexual assault, protection of children, and a raft of procedural improvements needed to protect victims, improve rehabilitation and reduce recidivism. There have 

been many advances in criminal justice that need to be integrated into tribal 

codes, and that will not happen without some level of funding for code update 

projects. 

3) Access to Firearms for Tribal Police—NCAI Resolution ABQ–10–029—NCAI 

supports legislation to amend the National Firearms Act of 1934 and the Gun 

Control Act of 1968 so that Tribal Police Departments are recognized as governmental entities similar to agencies of the United States government, or of 

a state government, or a political subdivision thereof without the requirement 

of special law enforcement commissions so that Tribal Police Departments are 

exempt from payment of the transfer tax for NFA firearms, are eligible to receive firearms interstate, and can possess a machine gun manufactured after 

May 18, 1986. 

4) Alaska Native Villages—The legislation in its current form does not address the 

unique law enforcement issues in Alaska Native communities. Alaskan tribal 

lands are not considered ‘‘Indian country’’ after the Supreme Court’s decision 

in Alaska v. Native Village of Venetie. Tribal communities in Alaska experience 

high rates of domestic violence and sexual assault and significant problems 

with substance abuse. Most of the native communities are only accessible by 

plane or boat, and are completely dependent on state law enforcement. The VilVerDate Mar 15 2010 14:00 Sep 08, 2016 Jkt 021390 PO 00000 Frm 00072 Fmt 6601 Sfmt 6621 S:\DOCS\21390.TXT JACK
69 

lage Public Safety Officer program has had its budget slashed by the state, and 

many tribal communities in Alaska are terribly underserved by state police and 

other services. We know that the Committee is aware of these problems and 

would urge the Committee to reach out to Alaska tribal leaders to develop ways 

to improve law enforcement in Alaska. Our primary recommendations are that 

the federal government provide direct funding for rural law enforcement in 

Alaska, to strengthen victims services, to support the land to trust process in 

Alaska, to strengthen tribal courts, and that tribal communities in Alaska be 

given greater control over alcohol and substance abuse policies. 

5) Eliminate Requirement of ‘‘Indian’’ Status for Purpose of Major Crimes Act— 

In cases such as U.S. v. Zepeda, defendants have repeatedly challenged their 

status as an ‘‘Indian’’ under the Major Crimes Act. However, given that 1152 

covers non-Indian crimes, and 1153 covers Indian crimes, the provisions could 

be amended in a manner so that Indian status would be irrelevant for most 

crimes. Major crimes on tribal land are subject to essentially identical federal 

criminal prohibitions no matter the status of the defendant. The endless litigation over these common law definitions of Indian also pose a continuing threat 

to the political status of tribal citizens and threaten precedent such as Morton 

v. Mancari and U.S. v. Antelope. The following is an initial proposal for replacement language for 1153 that would eliminate the requirement of Indian 

status. 

18 U.S. Code § 1153—Major offenses committed within Indian country 

(a) Any person who commits against the person or property of another person 

any of the following offenses, namely, murder, manslaughter, kidnapping, 

maiming, a felony under chapter 109A, incest, a felony assault under section 

113, an assault against an individual who has not attained the age of 16 years, 

felony child abuse or neglect, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to federal law 

and penalties within the jurisdiction of the United States. 

(b) Any offense referred to in subsection (a) of this section that is not defined 

and punished by Federal law in force within the exclusive jurisdiction of the 

United States shall be defined and punished in accordance with the laws of the 

State in which such offense was committed as are in force at the time of such 

offense. 

Conclusion 

NCAI greatly appreciates the work of the Senators and the Committee on this important legislation. This is the stage in the process where we must listen to tribal 

leaders and other public safety professionals and take advantage of the insights 

they can provide. The proposed legislation was introduced recently so we will need 

time for response. In particular, we have found that the best information often 

comes from people who work in the criminal justice system—tribal police officers, 

tribal prosecutors, tribal judges and the like. I would encourage the Committee to 

make a special effort to reach out for their views on how the legislation can be 

strengthened. We urge continuing dialogue with tribal leaders on the proposals in 

this testimony, and those received from all tribal governments. 

Proposal to Integrate and Coordinate Public Safety and Justice System 

Funding Intended for the purpose of providing concepts for 

consultation with tribal governments 

Section 1. DEFINITIONS. 

The following definitions apply: 

(1) Indian tribe. The terms ‘‘Indian tribe’’ and ‘‘tribe’’ shall have the meaning 

given the term ‘‘Indian tribe’’ in section 4(e) of the Indian Self-Determination and 

Education Assistance Act. 

(2) Indian. The term ‘‘Indian’’ shall have the meaning given such term in section 

4(d) of the Indian Self-Determination and Education Assistance Act. 

(3) Secretary. Except where otherwise provided, the term ‘‘Secretary’’ means the 

Secretary of the Interior. 

Section 2. INTEGRATION OF SERVICES AUTHORIZED. 

The Secretary of the Interior, in cooperation with the Attorney General and the 

Secretary of Health and Human Services shall, upon the receipt of a plan acceptable 

to the Secretary of the Interior submitted by an Indian tribal government, authorize 

the tribal government to coordinate, in accordance with such plan, its federally 

funded law enforcement, public safety, justice systems, and substance abuse and 

mental health programs in a manner that integrates the program services involved 

70 

into a single, coordinated, comprehensive program and reduces administrative costs 

by consolidating administrative functions. 

Section 3. PROGRAMS AFFECTED. 

The programs that may be integrated in a demonstration project under any such 

plan shall include any program under which an Indian tribe is eligible for receipt 

of funds under a statutory or administrative formula for the purposes of funded law 

enforcement, public safety, justice systems and substance abuse and mental health 

programs. 

Section 4. PLAN REQUIREMENTS. 

For a plan to be acceptable pursuant to section 4, it shall - 

(1) identify the programs to be integrated; 

(2) be consistent with the purposes of this Act authorizing the services to be integrated in a demonstration project; 

(3) describe a comprehensive strategy which identifies the full range of law enforcement, public safety, justice systems and substance abuse and mental health 

program needs; 

(4) describe the way in which services are to be integrated and delivered and the 

results expected from the plan; 

(5) identify the projected expenditures under the plan in a single budget; 

(6) identify the agency or agencies of the tribal government to be involved in the 

delivery of the services integrated under the plan; 

(7) identify any statutory provisions, regulations, policies, or procedures that the 

tribal government believes need to be waived in order to implement its plan; and 

(8) be approved by the governing body of the affected tribe. 

Section 5. PLAN REVIEW. 

Upon receipt of the plan from a tribal government, the Secretary of the Interior 

shall consult with the Secretary of each Federal department providing funds to be 

used to implement the plan, and with the tribal government submitting the plan. 

The parties so consulting shall identify any waivers of statutory requirements or of 

Federal departmental regulations, policies, or procedures necessary to enable the 

tribal government to implement its plan. Notwithstanding any other provision of 

law, the Secretary of the affected department shall have the authority to waive any 

regulation, policy, or procedure promulgated by that department that has been so 

identified by such tribal government or department, unless the Secretary of the affected department determines that such a waiver is inconsistent with the purposes 

of this Act or those provisions of the statute from which the program involved derives its authority which are specifically applicable to Indian programs. 

SEC. 6. PLAN APPROVAL. 

Within 90 days after the receipt of a tribal government’s plan by the Secretary, 

the Secretary shall inform the tribal government, in writing, of the Secretary’s approval or disapproval of the plan. If the plan is disapproved, the tribal government 

shall be informed, in writing, of the reasons for the disapproval and shall be given 

an opportunity to amend its plan or to petition the Secretary to reconsider such disapproval. 

SEC. 7. FEDERAL RESPONSIBILITIES. 

(a) Responsibilities of the Department of the Interior. Within 180 days following 

the date of enactment of this Act, the Secretary of the Interior, Attorney General, 

and the Secretary of Health and Human Services and the Secretary of Education 

shall enter into an interdepartmental memorandum of agreement providing for the 

implementation of the demonstration projects authorized under this Act. The lead 

agency for a demonstration program under this Act shall be the Bureau of Indian 

Affairs, Department of the Interior. The responsibilities of the lead agency shall include— 

(1) the use of a single report format related to the plan for the individual project 

which shall be used by a tribal government to report on the activities undertaken 

under the project; 

(2) the use of a single report format related to the projected expenditures for the 

individual project which shall be used by a tribal government to report on all project 

expenditures; 

(3) the development of a single system of Federal oversight for the project, which 

shall be implemented by the lead agency; and 

(4) the provision of technical assistance to a tribal government appropriate to the 

project, except that a tribal government shall have the authority to accept or reject 

the plan for providing such technical assistance and the technical assistance provider. 

71 

(b) Report Requirements. The single report format shall be developed by the Secretary, consistent with the requirements of this Act. Such report format, together 

with records maintained on the consolidated program at the tribal level shall contain such information as will allow a determination that the tribe has complied with 

the requirements incorporated in its approved plan and will provide assurances to 

each Secretary that the tribe has complied with all directly applicable statutory requirements and with those directly applicable regulatory requirements which have 

not been waived. 

SEC. 8. NO REDUCTION IN AMOUNTS. 

In no case shall the amount of Federal funds available to a tribal government involved in any demonstration project be reduced as a result of the enactment of this 

Act. 

SEC. 9. INTERAGENCY FUND TRANSFERS AUTHORIZED. 

The Secretary of the Interior, Attorney General, and Secretary of Health and 

Human Services, as appropriate, are authorized to take such action as may be necessary to provide for an interagency transfer of funds otherwise available to a tribal 

government in order to further the purposes of this Act. 

SEC. 10. ADMINISTRATION OF FUNDS AND OVERAGE. 

(a) Administration of Funds.— 

(1) In general. Program funds shall be administered in such a manner as to allow 

for a determination that funds from specific programs (or an amount equal to the 

amount attracted from each program) are spent on allowable activities authorized 

under such program. 

(2) Separate records not required. Nothing in this section shall be construed as 

requiring thetribe to maintain separate records tracing any services or activities 

conducted under its approved plan to the individual programs under which funds 

were authorized, nor shall the tribe be required to allocate expenditures among such 

individual programs. 

(b) Overage. All administrative costs may be commingled and participating Indian 

tribes shall be entitled to the full amount of such costs (under each program or department’s regulations), and no overage shall be counted for Federal audit purposes, 

provided that the overage is used for the purposes provided for under this Act. 

SEC. 11. FISCAL ACCOUNTABILITY. 

Nothing in this Act shall be construed so as to interfere with the ability of the 

Secretary or the lead agency to fulfill the responsibilities for the safeguarding of 

Federal funds pursuant to the Single Audit Act of 1984. 

SEC. 12. REPORT ON STATUTORY OBSTACLES TO PROGRAM INTEGRATION. 

(a) Preliminary Report. Not later than two years after the date of the enactment 

of this Act, the Secretary shall submit a preliminary report to the Select Committee 

on Indian Affairs of the Senate and the Committee on Interior and Insular Affairs 

of the House of Representatives on the status of the implementation of the demonstration program authorized under this Act. 

(b) Final Report. Not later than five years after the date of the enactment of this 

Act, the Secretary shall submit a report to the Committee on Indian Affairs of the 

Senate and the Committee on Natural Resources on the results of the implementation of the demonstration program authorized under this Act. Such report shall 

identify statutory barriers to the ability of tribal governments to integrate more effectively their services in a manner consistent with the purposes of this Act. 

SPECIAL DOMESTIC VIOLENCE CRIMINAL JURISDICTION PILOT PROJECT REPORT— 

OCTOBER 29, 2015 

‘‘The first responsibility of any government, tribal or otherwise, is the safety 

and protection of its people, for there can be no security or freedom for all, if 

there is insecurity and fear for any of us. Pascua Yaqui tribal officials no longer 

have to simply stand by and watch their women be victimized with no recourse.’’ 

— The Honorable Peter Yucupicio Chairman, Pascua Yaqui Tribe of Arizona 

This project was supported by Grant # 2013–TA–AX–K011 awarded by the Office on Violence Against Women. The opinions, findings, and conclusions or recommendations expressed in this publication are those of the author and do not 

necessarily reflect the view of the Department of Justice. 

72 

1Pub. L. No. 113–4, 127 Stat. 54 (2013). 

2Oliphant v. Suquamish, 435 U.S. 191 (1978). 3 25 U.S.C. 1304. 

4Pub L. No. 113–4, 127 Stat. 54 (2013), Sec. 908(b). 

5 78 Fed. Reg. 35,961 (June 14, 2013); 78 Fed. Reg. 71,645 (Nov. 29, 2013). 

6 25 U.S.C. 1304; see also id. at 1304 note. 

7 25 U.S.C. 1304(b)(4). 

8 25 U.S.C. 1304(a)’s protections include: freedom of speech and religion; freedom from illegal 

or warrantless search or seizure; a prohibition on double jeopardy; the right not to be compelled 

Introduction 

On March 7, 2013, President Obama signed the Violence Against Women Reauthorization Act of 2013 (VAWA 2013) into law. 1 For the first time since the U.S. 

Supreme Court stripped tribal governments of their criminal authority over non-Indians in Oliphant v. Suquamish Tribe (1978), 2 VAWA 2013 recognized and reaffirmed the inherent sovereign authority of Indian tribes to exercise criminal jurisdiction over certain non-Indians who violate protection orders or commit dating violence or domestic violence against Indian victims on tribal lands. 3 Known as Special 

Domestic Violence Criminal Jurisdiction (SDVCJ), this limited tribal criminal jurisdiction over non-Indians has fundamentally changed the landscape of tribal criminal 

jurisdiction in the modern era. Communities currently exercising SDVCJ have increased safety and justice for victims who had too often slipped through the cracks. 

Although the law did not take general effect until March 7, 2015, VAWA 2013 

created a ‘‘Pilot Project’’ that enabled Indian tribes who received prior approval from 

the United States Department of Justice (DOJ) to exercise SDVCJ on an accelerated 

basis. 4 After consultation with tribal governments, DOJ established a process for 

interested tribes to submit applications demonstrating that the tribe was in compliance with the federal law and afforded adequate due process to non-Indian defendants. 5 DOJ approved three tribes—the Confederated Tribes of the Umatilla Indian 

Reservation (CTUIR) in Oregon, the Pascua Yaqui Tribe in Arizona, and the Tulalip 

Tribes of Washington—to implement SDVCJ in February 2014. Two additional 

tribes—the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation in 

Montana and the Sisseton-Wahpeton Oyate of the Lake Traverse Reservation in 

North and South Dakota—were approved to exercise SDVCJ on March 6, 2015, the 

last day of the pilot project period. 

All five of the pilot project tribes participated along with 40 other tribes in an 

Inter-Tribal Technical- Assistance Working Group on SDVCJ Intertribal Working 

Group (ITWG), which is composed of tribes who expressed preliminary interest in 

exploring implementation of SDVCJ to DOJ and agreed to work peer-to-peer to answer questions about implementation of SDVCJ and develop best practices. 

Tribes currently exercising SDVCJ have increased safety and justice for victims 

who have too often slipped through the cracks. 

This report provides a brief report on activities during the Pilot Project period 

(February, 2014 through March 6, 2015) and shares recommendations for next 

steps. 

Overview of Special Domestic Violence Criminal Jurisdiction 

As of March 7, 2015, two years after Violence Against Women Reauthorization Act 

of 2013 (VAWA 2013) was enacted, Indian tribes across the country can exercise 

criminal jurisdiction over non-Indians for certain acts of domestic violence or dating 

violence and protection order violations so long as the statutory requirements of 

VAWA 2013 are met. 6 The full text of the statute is included as Appendix A to this 

report. In summary, for a tribe to exercise jurisdiction over a non-Indian offender: 

• the victim must be Indian; 

• the crime must take place in the Indian country of the participating tribe; and 

• the non-Indian defendant must have ‘‘ties to the Indian tribe,’’ which means the 

defendant: 

—resides in the Indian country of the participating tribe; 

—is employed in the Indian country of the participating tribe; or 

—is a current or former 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. 7

VAWA 2013 requires that any tribe exercising SDVCJ must provide certain due 

process protections to defendants. Specifically, the tribe must provide all of the protections that have long been guaranteed by the Indian Civil Rights Act, many of 

which mirror the U.S. Bill of Rights. 8 In addition, VAWA 2013 requires impleVerDate Mar 15 2010 14:00 Sep 08, 2016 Jkt 021390 PO 00000 Frm 00076 Fmt 6601 Sfmt 6621 S:\DOCS\21390.TXT JACK
73 

to be a witness against oneself; the right to a speedy trial and to confront witnesses; the right 

to a jury trial; and the right not to be subjected to cruel or unusual punishment, excessive fines, 

or excessive bail. 9 25 U.S.C. 1302(c)(1). 

10 25 U.S.C. 1302(c)(2). 11 25 U.S.C. 1302(c)(3). 12 25 U.S.C. 1302(c)(4). 13 25 U.S.C. 1302(c)(5). 14 25 U.S.C. 1304(d)(3). 15 25 U.S.C. 1304(d)(4). 16Pub. L. No. 113–4, 127 Stat. 54 (2013), Sec. 908(b)(1). 17Pub. L. No. 113–4, 127 Stat. 54 (2013), Sec. 908(b)(2). 18 Although completing the Application Questionnaire is no longer required for a tribe who 

wants to implement SDVCJ, it is a useful guide for a tribe to conduct a self-assessment prior 

to implementing SDVCJ. In addition, the completed Application Questionnaires from the Pilot 

Project tribes provide helpful information about options for meeting the requirements of the 

statute. The completed questionnaires can be found at www.ncai.org/tribalvawa. 19Fed. Reg., vol. 78, no. 230, p. 71645, Nov. 29, 2013. 

menting tribes, in any SDVCJ case where a term of imprisonment may be imposed, 

to provide a number of additional rights. Many of these rights are the same as those 

that were required of tribes in order to exercise felony jurisdiction under the Tribal 

Law and Order Act of 2010: 

• ‘‘provide to the defendant the right to effective assistance of counsel at least 

equal to that guaranteed by the United States Constitution’’; 9

• ‘‘at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the 

United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed 

attorneys’’; 10

• ‘‘require that the judge presiding over the criminal proceeding has sufficient 

legal training to preside over the criminal proceedings and is licensed to practice law in any jurisdiction in the United States’’; 11

• make publicly available the tribe’s ‘‘criminal laws (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure (including rules governing the recusal of judges in appropriate circumstances)’’; 12

and 

• ‘‘maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding.’’ 13

VAWA 2013 also guarantees a defendant in a SDVCJ case: 

• ‘‘the right to a trial by an impartial jury that is drawn from sources that reflect 

a fair cross section of the community and do not systematically exclude any distinctive group in the community, including non-Indians’’; 14 and 

• ‘‘all other rights whose protection is necessary under the Constitution of the 

United States in order for Congress to recognize and affirm the inherent power 

of the participating tribe to exercise SDVCJ over the defendant.’’ 15

Overview of the Pilot Project 

Although the tribal criminal jurisdiction provision of VAWA 2013 was generally 

not effective until March 7, 2015, 16 tribes could implement SDVCJ on an accelerated basis before that date with approval from the Attorney General during a ‘‘Pilot 

Project’’ period. 17 The DOJ developed a Pilot Project Application Questionnaire, 

which interested tribes used to request that the Attorney General designate them 

as ‘‘participating tribes’’ and approve their accelerated implementation of SDVCJ. 18

This Application Questionnaire was DOJ’s final notice and solicitation of applications for the pilot project, which was published in the Federal Register on November 

29, 2013. 19

Five tribes received approval to implement SDVCJ during the Pilot Project Period 

Three tribes received approval to implement SDVCJ in February 2014—the 

CTUIR in Oregon, the Pascua Yaqui Tribe in Arizona, and the Tulalip Tribes in 

Washington. These tribes exercised SDVCJ for a little more than a year during the 

Pilot Project period before the law took general effect on March 7, 2015. Two additional tribes’ applications were approved during the Pilot Project period on March 

6, 2015—the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, and 

the Sisseton-Wahpeton Oyate of the Lake Traverse Reservation. Since these tribes 

74 

received approval the day before VAWA 2013 took general effect nationwide, these 

tribes did not have any SDVCJ cases during the Pilot Project period. 

Exercise of Special Domestic Violence Criminal Jurisdiction during Pilot 

Period 

While ultimately five tribes were approved to exercise SDVCJ during the pilot period, only the first three tribes were approved early enough to have any SDVCJ 

cases before the conclusion of the Pilot Project on March 7, 2015. During the first 

year of SDVCJ implementation, the three original pilot tribes had a total of 27 

SDVCJ cases involving 23 separate offenders. Of the 27 cases, 11 were ultimately 

dismissed for jurisdictional or investigative reasons, 10 resulted in guilty pleas, 5 

were referred for federal prosecution and 1 offender was acquitted by a jury. None 

of the SDVCJ non-Indian defendants have petitioned for habeas corpus review in 

federal court. All of the Pilot Project tribes have had additional cases since the conclusion of the Pilot Project period. This report, however, only discusses those cases 

that occurred between February 20, 2014 and March 7, 2015. 

Pilot Project Statistics: 

• 28 arrests of 24 offenders 

• 13 guilty pleas 

• 2 referrals for federal prosecution 

• 1 acquittal 

• 11 dismissals 

• 1 outstanding warrant 

• No habeas corpus appeals 

Pascua Yaqui Tribe 

The Pascua Yaqui Tribe submitted its final Pilot Project Application Questionnaire to DOJ on December 30, 2013. The Tribe received approval to begin exercising 

SDVCJ on February 6, 2014, and jurisdiction went into effect on February 20, 2014. 

The Tribe immediately issued a press release and formal notice to the community 

regarding implementation of the new law. After the Pilot Project concluded, the 

Tribe released an Implementation Timeline and comprehensive Pilot Project Summary of SDVCJ implementation at Pascua Yaqui. All of these materials are available online at www.ncai.org/tribal-vawa. 

The Pascua Yaqui Tribe is located on a 2,200-acre reservation in southwest Arizona near Tucson, Arizona, approximately 60 miles north of the United States-Mexico border. The Tribe has approximately 19,000 members, with 4–5,000 members 

living on the reservation. Approximately 90 percent of the reservation population is 

American Indian and the most common household demographic on the reservation 

is single-mother households, which account for nearly 43 percent of all Pascua Yaqui 

households. The vast majority of criminal cases filed in the Pascua Yaqui Tribal 

Court are domestic-violence related offenses. Several of the Pascua Yaqui prosecutors are designated as Special Assistant United States Attorneys (SAUSAs), which 

allow them to also serve as prosecutors in federal court. The Tribe funds a fullfledged Public Defenders Office (originally opened in 1995) with four licensed defense attorneys who represent those accused of crimes. The Tribe also funds four 

private contracted defense attorneys for those cases where a conflict of interest exists. The Tribe has employed law-trained judges and recorded its court proceedings 

since long before VAWA 2013. 

Of the three original Pilot Project tribes, Pascua Yaqui has had the highest number of SDVCJ cases. Between February 20, 2014 and March 6, 2015, the Tribe handled 18 SDVCJ cases, involving 15 separate offenders. Four of these cases resulted 

in guilty pleas, four were referred for federal prosecution due to the seriousness of 

the violence, 10 cases were declined for jurisdictional, investigative, or evidentiary 

problems, and one resulted in an acquittal. Significantly, the 18 cases at Pascua 

Yaqui involved 18 children as either witnesses or victims. In the four-year period 

prior to their arrest, the 15 non-Indian defendants charged under SDVCJ had more 

than 80 documented tribal police contacts, arrests, or reports attributed to them. 

In the four-year period prior to the implementation of the VAWA Pilot Project 

and during the Pilot Project period, the 15 non-Indian defendants charged 

under SDVCJ had more than 80 documented tribal police contacts, arrests, or 

reports attributed to them. 

Because of jurisdictional limitations in place at the time under federal law, the 

tribal court could not prosecute any of these prior incidents that involved criminal 

violations. 

75 

20 As of the date of this report, the Pascua Yaqui case discussed here is still the only jury 

trial in a SDVCJ case. 21 25 U.S.C. 1304(a)(2). 

Pascua Yaqui is the only tribe to have had a jury trial for a SDVCJ case during 

the Pilot Project period. 20 The case was a domestic violence assault involving two 

men allegedly in a same-sex relationship. The defendant was acquitted by the jury. 

Interviews with the jurors suggest that the jury was not convinced that the two individuals had a relationship that would meet the requirements for tribal jurisdiction 

under VAWA 2013, which limits tribal jurisdiction to ‘‘domestic violence’’ defined as 

‘‘violence committed by a current or former spouse, or intimate partner of the victim, by a person with who the victim shares a child in common, by a person who 

is cohabitating or has cohabitated with the victim as a spouse or intimate partner, 

or by a person similarly situated to a spouse of the victim under the domestic or 

family violence laws of an Indian tribe that has jurisdiction over the Indian country 

where the violation occurs.’’ 21 There was no question that the assault occurred. In 

fact, if the defendant had been an Indian, the prosecutor would not have had to 

prove any particular relationship between the offender and the victim. But because 

SDVCJ is limited to the specific crimes of domestic or dating violence, both of which 

require a particular relationship, that was not an option in this case. The non-Indian defendant was subsequently extradited to the State of Oklahoma on an outstanding felony warrant. 

Pascua Yaqui: Pilot Project Stats-at-a-Glance 

• 18 SDVCJ cases, involving 15 separate offenders. 

—1 jury trial resulted in an acquittal and subsequent extradition to Oklahoma 

—5 guilty pleas 

—1 referral for federal prosecution 

—10 dismissals 

—1 defendant on warrant status 

• The 15 non-Indian defendants had over 80 documented tribal police contacts, 

arrests, or reports attributed to them over the past 4 years. 

• 11 defendants had criminal records in Arizona. 

• 2 of the defendants had outstanding felony arrest warrants. 

• 18 children involved as witnesses and/or victims. 

PASCUA YAQUI: CASE STUDY

Defendant, a non-Indian, Hispanic male, was charged with Domestic Violence Assault and Domestic Violence Threatening and Intimidating. On March 4, 2015, Defendant was arrested for threatening to harm his live-in girlfriend and mother of 

his six children. This was Defendant’s third VAWA arrest. In this instance, a relative of the victim witnessed the Defendant dragging the victim by her hair across 

the street back towards their house. Defendant pled guilty to Domestic Violence Assault and was sentenced to over two months of detention followed by supervised probation and domestic violence counseling. 

Defendant had at least 7 prior contacts with Pascua Yaqui Law Enforcement and 

3 felony convictions out of Pima County, Arizona. This was the defendant’s second 

domestic violence conviction, and the first on the Pascua Yaqui Reservation. Because of the tribal conviction, if the defendant reoffends, he will now be eligible for 

federal domestic violence prosecution as a habitual offender. 

TULALIP TRIBES

The Tulalip Tribes submitted their final Pilot Project Application Questionnaire 

to the DOJ on December 19, 2013. The Tribes received approval to implement 

SDVCJ on February 6, 2014, and jurisdiction took effect on February 20, 2014. The 

Tribes issued a press release regarding implementation of the new law on February 

6, 2014. All of these materials are available online at www.ncai.org/tribal-vawa. 

The Tulalip Tribes are located on a 22,000-acre reservation in western Washington State, approximately 30 miles north of Seattle. The Tribes have 4,533 members, about 2,500 of whom live on the reservation. The Tulalip Tribal Court operates 

a separate Domestic Violence Court docket and SDVCJ cases are handled there. The 

Tribe also employs a specialized domestic violence and sexual assault prosecutor, 

who was approved as a Special Assistant United States Attorney (SAUSA) at the 

beginning of the Pilot Project. The Tribes obtained retrocession in 2001 and created 

a police department and criminal court shortly thereafter. 

76 

The Tribes implemented the Tribal Law and Order Act enhanced sentencing provisions prior to the passage of VAWA 2013 and have provided indigent defense, included non-Indians in the jury pool, recorded court proceedings, and employed lawtrained judges in the criminal court since 2002. 

Between February 20, 2014 and March 6, 2015, the Tulalip Tribes had a total of 

six SDVCJ cases. Four cases resulted in guilty pleas, one was dismissed for insufficient evidence, and one was transferred for federal prosecution because the injuries 

were so severe and children were also involved as victims. All of the SDVCJ offenders are ordered to undergo tribally-certified batterer’s intervention programs. 

Tulalip Tribes: Pilot Project Statistics At-A-Glance 

• 6 SDVCJ cases 

—4 cases resulted in guilty pleas. 

—1 referral for federal prosecution because the injuries were so severe and children were involved as victims 

—1 dismissal 

• Those who have been convicted are subject to tribal probation, including the requirement to undergo batterer intervention programming. 

• The 6 non-Indian defendants had over 88 documented tribal police contacts, arrests, or reports attributed to them in the past. 

• 4 defendants had criminal records in Washington. 

• 6 children involved as witnesses and/or victims 

TULALIP TRIBES: CASE STUDY

Defendant was charged with Assault in the First Degree Domestic Violence and 

Rape Domestic Violence, but was not immediately apprehended. Based on the conduct alleged, victim/wife petitioned for a civil Order for Protection, which was granted. Prior to defendant’s arraignment on the violent crimes, he was served with, and 

twice violated, the Order for Protection. At the scene of these violations, the defendant was taken into custody. Defendant had nineteen contacts with Tulalip Police 

prior to these incidents, however, after the implementation of VAWA 2013 SDVCJ 

the defendant was held accountable for his crimes. Defendant served a significant 

jail sentence, and is now supervised by Tulalip Probation. He is getting the treatment intervention he needs. The victim and her children were finally able to make 

a life for themselves away from the violence and abuse. 

CONFEDERATED TRIBES OF THE UMATILLA INDIAN RESERVATION

The Confederated Tribes of the Umatilla Indian Reservation (CTUIR) submitted 

their final Pilot Project Application Questionnaire to the DOJ on December 19, 

2013. The Tribes received approval to implement SDVCJ on February 6, 2014, and 

jurisdiction went into effect on February 20, 2014. In conjunction with the U.S. Attorney’s Office for the District of Oregon, the Tribes issued a press release regarding 

implementation of the new jurisdiction on February 6, 2014. All of these materials 

are available online at www.ncai.org/tribal-vawa. 

The CTUIR are located on a land base of 173,470 acres in southeast Oregon with 

a population of approximately 3,280 people, 46 percent of whom are non-Indian. The 

Confederated Tribes have exercised expansive criminal jurisdiction since the State 

of Oregon retroceded Public Law 280 criminal jurisdiction in 1981. The CTUIR implemented felony sentencing under Tribal Law and Order Act (TLOA) in 2011, and 

the tribal prosecutor serves as a SAUSA. CTUIR has provided indigent counsel, recorded tribal judicial proceedings, employed law-trained judges, and included nonIndians on tribal juries since long before VAWA 2013 was enacted. The Tribes report that in 2011, over 60 percent of the cases seen by the Umatilla Family Violence 

Program involved non-Indian. 

Between February 20, 2014 and March 6, 2015, there were four SDVCJ cases involving 3 defendants filed in the CTUIR court. The Tribes report that this is double 

the amount ever prosecuted by the U.S. Attorney’s Office. All four cases resulted 

in guilty pleas. Those who have been convicted are subject to tribal probation, including the requirement to undergo batterer intervention treatment, which the 

CTUIR provide free of charge. The CTUIR Court issues an automatic protection 

order in every pending domestic violence criminal case. 

Confederated Tribes of Umatilla Indian Reservation: Pilot Project Statistics At-AGlance 

• 4 SDVCJ cases involving 3 offenders 

77 

—4 guilty pleas 

—Those who have been convicted are subject to tribal probation, including the 

requirement to undergo batterer intervention treatment provided by the Tribes. 

—At least 3 children involved as witnesses. 

CONFEDERATED TRIBES OF UMATILLA INDIAN RESERVATION: CASE STUDY

On October 21, 2014, during an argument with his girlfriend, a male non-Indian 

defendant ripped her clothes off, pushed her to the bed, and strangled her while a 

comforter was over her face, all while repeatedly delivering death threats. All of this 

occurred in front of their infant child. The police found the victim with scratch 

marks on her neck and in such fear that she was only partially dressed, 

hyperventilating, and unable to maintain balance. The defendant is an Iraq war veteran who suffers from PTSD, and he reportedly missed taking his medication immediately preceding the assault. He wished to take responsibility at arraignment; however, the Tribe suggested that they appoint him an attorney. After being appointed 

an attorney, the defendant ultimately pled guilty to felony DV assault with terms 

consistent to what he would see if prosecuted in the State. Specific terms include 

compliance with his VA treatment recommendations and completion of a tribally 

funded 12-month batterer’s intervention program. He is currently on track to graduate from the batterer’s program in February and will be the first tribal VAWA defendant to graduate, while otherwise remaining under tribal supervision for another 

2 years. 

ASSINIBOINE AND SIOUX TRIBES OF THE FORT PECK INDIAN RESERVATION

The Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation submitted 

their initial Pilot Project Application Questionnaire to the DOJ on December 26, 

2013. After amending their application, the Fort Peck Tribes received approval to 

implement SDVCJ on March 6, 2015. Jurisdiction took effect on March 7, 2015. Articles have appeared in tribal and county newspapers explaining the jurisdiction. All 

of these materials are available online at www.ncai.org/tribal-vawa. 

The Fort Peck Indian Reservation is home to the Assiniboine and Sioux Tribes, 

which are two separate Nations comprised of numerous bands and divisions. Located in northeast Montana, the Reservation extends over four counties and is the 

9th largest Indian reservation in the United States. The Assiniboine and Sioux 

Tribes of Fort Peck have an estimated 10,000 enrolled members with approximately 

6,000 members living on the Reservation. The population on the reservation is 60 

percent Indian and 40 percent non-Indian. The Fort Peck Tribal Court operates a 

domestic violence docket. The Tribes implemented felony sentencing under TLOA in 

2012. The Tribes did not have any SDVCJ cases prior to the end of the Pilot Project 

period on March 7, 2015. 

SISSETON-WAHPETON OYATE OF THE LAKE TRAVERSE RESERVATION

The Sisseton-Wahpeton Oyate of the Lake Traverse Reservation submitted its 

final Pilot Project Application Questionnaire to DOJ on March 4, 2015. The Tribe 

received approval to implement SDVCJ on March 6, 2015. All of these materials are 

available online at www.ncai.org/tribal-vawa. 

The Sisseton-Wahpeton Oyate is comprised of two subdivisions of Dakotah Indians that reside on the Lake Traverse Reservation, established by treaty in 1867. 

This reservation extends into five counties in northeast South Dakota and two counties in southeast North Dakota. The Tribe has 13,177 enrolled members with approximately 9,894 members living on the Reservation. According to the 2010 Census, more than 6,000 non-Indians also reside on the Lake Traverse Reservation. The 

Tribe has implemented felony sentencing under TLOA. The Tribe did not have any 

SDVCJ cases prior to the end of the Pilot Project on March 7, 2015. 

Comparing the Implementing Codes of the Five Pilot Tribes 

Each of the five Pilot Project tribes submitted an application to the DOJ demonstrating how they met the statutory requirements of VAWA 2013 and subsequently received approval from the Attorney General to implement SDVCJ. Because 

the tribal codes, policies, and procedures from the Pilot Project tribes had the benefit of review by DOJ, they provide particularly instructive examples of how other 

Indian tribes can implement the statutory requirements in VAWA 2013. This section analyzes the codes and procedures of the five Pilot Project tribes and highlights 

areas of major difference. Two primary areas of difference that emerge are how each 

78 

22 25 U.S.C. 1304(d)(3). 23This process is set out in the Fort Peck Tribes’ Comprehensive Code of Justice (CCOJ) at 

Title 6, Section 507, available at http://www.fptc.org/ccoj/titlel6/titlel6.html. 24SWO Codes of Law, Chapter 23, Sections 23–10–01 through 23–10–10, available at http:// 

www.swonsn.gov/departments/justice-department/legal-department/. 25Pascua Yaqui Tribe, SDVCJ Application Questionnaire, available at http:// 

www.justice.gov/sites/default/files/tribal/legacy/2014/02/06/appl-questionnaire-pascuayaqui.pdf. 

tribe has approached the jury pool and indigent defense requirements of VAWA 

2013. 

JURY POOLS 

In order to exercise SDVCJ, a tribe must ensure that non-Indian defendants have 

the right to a trial by an impartial jury that is drawn from sources that— 

1. reflect a fair cross section of the community; and 

2. do not systematically exclude any distinctive group in the community, including non-Indians. 22

Both the Tulalip Tribes and CTUIR included non-Indians in their jury pools for 

a number of years prior to the passage of VAWA 2013. For the other Pilot Project 

tribes, implementation of VAWA 2013 required them to change their tribal codes 

and procedures to include non-Indians in their jury pools. Pascua Yaqui chose to include non-Indians in their jury pool for all cases. The Fort Peck Tribes and Sisseton 

Wahpeton, in contrast, include non-Indians in the jury pool only for SDVCJ cases. 

Although VAWA 2013 requires the jury pool to reflect a ‘‘fair cross section of the 

community,’’ it is left to the tribe to define their ‘‘community’’ for these purposes. 

There are slight variations in the approaches taken by the Pilot Project tribes. All 

of the Pilot Project tribes include non-Indian residents on the reservation in the jury 

pool. Some also include, non-Indians employed by the tribe, non-Indian spouses of 

tribal members, or non-Indian leaseholders. These differences are discussed below. 

Fort Peck Tribes: The Fort Peck Tribes have devised two separate jury pools, utilizing a process that incorporates non-member residents of the reservation for 

SDVCJ cases only. 23 The Tribes’ Jury Management Plan for SDVCJ cases states 

that the jury pool will be drawn from a master juror list utilizing the list of enrolled 

members of the Tribes and a jury source list prepared by the clerk of the 15th Judicial District of Montana, which comprises 98 percent of the Reservation. In order 

to avoid underrepresentation of non-Indians, who make up 40 percent of the reservation population, the Tribes will select 50 non-Indian residents for the jury pool 

and 50 enrolled members. The Tribes will randomly summon 21 people from each 

list for each jury trial, and then choose six persons to serve on each jury. The tribal 

code requires unanimous verdicts for six person juries. 

The tribal code sets out a process to issue subpoenas for jurors in order to compel 

non-member resident attendance. Jurors will be compensated at the rate paid by 

Roosevelt County, which overlays a significant portion of the reservation. The presiding judge has discretion to compensate jurors for mileage. 

Sisseton-Wahpeton Oyate: The Sisseton-Wahpeton Oyate Codes of Laws also creates two separate jury pools. For cases outside of SDVCJ, jurors must be an adult 

resident member of the Tribe. For SDCVJ cases, potential jurors may be selected 

from a variety of sources including but not limited to enrolled members of the 

Sisseton-Wahpeton Oyate, residents within the jurisdiction of the Lake Traverse 

Reservation, full-time employees of the Tribe or its entities, and persons leasing 

lands from the Tribe. A list of at least 21 potential jurors is prepared and maintained by the Clerk. Each voting district on the Reservation is to be represented on 

the list. Defendants have the right to a trial by a jury made up of at least six persons. 24

Pascua Yaqui: Pascua Yaqui uses the same jury pool for all crimes, and empanels 

its juries using enrolled members, spouses of tribal members, employees of the 

Tribe, and permanent residents of the reservation. In order to qualify for jury duty, 

enrolled members must be residents of Arizona, with preference given to those living in nearby counties. The Tribe draws its jury pools from the Tribal Census Roll, 

Housing Department records, and Human Resources records of the Tribe. Failure 

to appear for jury duty constitutes contempt of court and every jury summons includes a warning to this effect. The Tribe also incorporates a ‘‘severe hardship’’ exception for jury duty and jurors may be excused from service for limited reasons, 

including having to travel more than 150 miles one-way. 25

Tulalip Tribes: The Tulalip Tribes use the same jury pool for all crimes. The 

Tribes include tribal members living on or near the reservation, residents within the 

boundaries of the reservation, and employees of the Tulalip Tribes. The Tribes deVerDate Mar 15 2010 14:00 Sep 08, 2016 Jkt 021390 PO 00000 Frm 00082 Fmt 6601 Sfmt 6621 S:\DOCS\21390.TXT JACK
79 

26Tulalip Tribal Code, Title 2, Sec. 2.05.110 available at http://www.codepublishing.com/wa/ 

tulalip/. 27 CTUIR, SDVCJ Application Questionnaire, available at http://www.justice.gov/sites/default/files/tribal/legacy/2014/02/06/appl-questionnaire-vawa.pdf. 28 25 U.S.C. 1302(c)(1) and (2). 29 25 U.S.C. 1302(c)(2). 30Ft. Peck Tribes, SDVCJ Application Questionnaire, submitted Dec. 26, 2013, available at 

http://www.justice.gov/sites/default/files/tribal/pages/attachments/2015/03/13/ 

fortpeckapp322015.pdf. 31Ft. Peck Tribes, SDVCJ Application Questionnaire, submitted Dec. 26, 2013, available at 

http://www.justice.gov/sites/default/files/tribal/pages/attachments/2015/03/13/ 

fortpeckapp322015.pdf. 32Pascua Yaqui Tribal Code, Title 3, Part II, Ch. 2–2, Sec. 310 available at http:// 

www.pascuayaquinsn.gov/—staticlpages/tribalcodes/. 

vise the juror list from the tribal Enrollment Department and the Human Resources 

departments of the Tulalip Resort Casino and Quil Ceda Village. The Tribes then 

compare these numbers with census data to ensure the jury pool reflects a fair cross 

section of the community. The Tribes randomly select 25 names from the jury pool 

and issue a jury summons by mail or personal service. Those who fail to appear for 

jury duty are held in contempt of court. 26

Confederated Tribes of the Umatilla Indian Reservation (CTUIR): The CTUIR 

Court uses the same jury pool for all crimes. Even before SDVCJ implementation, 

CTUIR had incorporated non-Indians in tribal jury pools by including residents 

within the boundaries of the reservation. The Court empanels all tribal juries from 

a voter registration list provided by the local county, which represents a rough overlay of the reservation boundaries. The judge chooses 50 names per year to serve as 

prospective jurors and 18 names are summoned per trial. 27

Jury Pools 

Same Jury Pool For All Crimes Non-Indians Included Only In Special Domestic 

Violence Criminal Jurisdiction Cases 

Confederated Tribes of Umatilla Indian Reservation Fort Peck Tribes 

Pascua Yaqui Tribe Sisseton-Wahpeton Oyate 

Tulalip Tribe 

Indigent and Effective Assistance of Counsel 

Under VAWA 2013, tribes must afford non-Indian offenders with effective assistance of counsel and pay for defense counsel for indigent offenders whenever a term 

of imprisonment may be imposed. 28 Such counsel must be ‘‘licensed to practice law 

by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility 

of its licensed attorneys.’’ 29 All of the Pilot Project tribes were providing indigent 

counsel before VAWA 2013 was enacted. In the case of Ft. Peck, the tribal public 

defender office was staffed by experienced lay advocates and a licensed attorney was 

hired to comply with VAWA 2013’s requirements. 

Fort Peck Tribes: The Fort Peck Tribes guarantee indigent counsel for any person 

charged with the following three separate offenses: special domestic violence criminal offense, severe physical domestic abuse, and domestic abuse. 30 The Tribes 

screen for indigence, with a presumption of indigence if the defendant’s household 

income is less than 125 percent of the federal poverty guidelines. The Tribal Public 

Defender Office is staffed both by a licensed attorney and by experienced lay advocates. If the Public Defender is not available, a licensed attorney will be hired on 

contract. All SDVCJ defendants will be represented by a licensed attorney. 31

Pascua Yaqui: The Tribe affords state-licensed indigent defense in all SDVCJ 

cases, as well as to indigent Indian offenders in ‘‘any criminal proceeding in which 

the Tribe is seeking punishment by loss of liberty.’’ 32 Representation is generally 

provided by the Pascua Yaqui Public Defender Office. The Tribe also provides for 

contract attorneys in cases where a conflict of interest arises. All such attorneys 

must also be barred in the Pascua Yaqui Tribal Court. The Tribe screens for indigence, with a presumption of indigence if the defendant’s household income is less 

than 125 percent of the federal poverty guidelines. 

Confederated Tribes of the Umatilla Indian Reservation(CTUIR): The Tribes appoint state-licensed public defenders to any criminal defendant that requests one, 

including on appeal. Although the Tribes’ indigence standard is set at 150 percent 

80 

33 CTUIR, SDVCJ Application Questionnaire, available at http://www.justice.gov/sites/default/files/tribal/legacy/2014/02/06/appl-questionnaire-vawa.pdf. 34SWO Codes of Law, Chapter 23, Section 23–08–02, available at http://www.swo-nsn.gov/ 

wpcontent/uploads/2015/03/law3.pdf 35Tulalip Tribal Court, Rule 6. 36 25 USC 1302(c)(3). 

of the federal poverty guidelines, as a matter of practice the Tribes provide indigent 

counsel regardless of income to anyone who requests it. 33

Sisseton-Wahpeton Oyate: The Tribe does not distinguish between Indians and 

non-Indians, or between those who are indigent or not, for purposes of representation by the Tribal Public Defender’s Office, which was first established in 2000. The 

tribal code states that all defendants will be provided ‘‘with assistance of counsel 

if requested and if available.’’ 34

Tulalip Tribes: The Tribes provide indigent defense to all criminal defendants, regardless of race. Defense services are primarily provided by the Tribal Court Public 

Defense Clinic at the University of Washington Native American Law Center. The 

clinic has handled over 2000 cases in Tulalip Tribal Court since 2002. All clinic advocates must pass the Tulalip Court Bar Exam and be admitted to practice by the 

Tribal Court. The Tribes also hire attorneys on contract when the clinic is not available because of a conflict. Such attorneys must also be barred in the Tulalip Tribal 

Court. The Tribes screen for indigence, with a presumption of indigence if the defendant’s household income is less than 200 percent of the federal poverty guideline. 35

Right to Counsel 

Indigent Counsel For All Confederated Tribes of the Umatilla Indian 

Reservation; Pascua Yaqui Tribe; Tulalip 

Tribe 

Counsel Guaranteed for SDVCJ and Domestic 

Abuse 

Fort Peck Tribes 

Indigent Counsel for all ‘‘If Available’’ but 

Guaranteed for SDVCJ 

Sisseton-Wahpeton Oyate 

Court Processes & Reforms 

VAWA 2013 requires that a tribal judge overseeing a SDVCJ case has: 

1. ‘‘sufficient legal training to preside over criminal proceedings’’; and be 

2. ‘‘licensed to practice law by any jurisdiction in the United States.’’ 36

All five of the Pilot Project tribes have at least one state-barred judge. Although 

the Fort Peck Tribes hired a state-barred judge to meet this requirement, the longtime chief judge of the Fort Peck Tribal Court is not state-barred. Instead, this 

judge has an undergraduate degree, is licensed in tribal court, and has two certificates from judicial college for ‘‘Tribal Judicial Skills’’ and ‘‘Special Court Trial 

Skills.’’ This judge also completes 40 hours of annual training and presides over 

criminal trials on a weekly basis. 

Victim’s Rights & Safety 

The Pascua Yaqui, Confederated Tribes of the Umatilla Indian Reservation 

(CTUIR), and Tulalip Tribes have comprehensive codes that account for victims’ 

rights and promote victims’ safety. The CTUIR Court issues automatic protection 

orders in all pending criminal domestic violence cases. The Tulalip and Fort Peck 

Tribes have instituted a domestic violence docket to handle all cases involving domestic violence, dating violence, or violation of protection orders. This domestic violence docket is separate from the existing criminal docket and allows the court to 

have an increased focus on victim safety and offender accountability. 

The five Pilot Project tribes also have a host of other programs aimed at ensuring 

the rights and safety of victims. For example, the Umatilla Family Violence Program provides community-based advocacy to domestic violence victims. The Fort 

Peck Tribes also have a well-established Family Violence Resource Center that provides comprehensive services to domestic violence and sexual assault victims. This 

program offers a court advocate, housing, counseling and other support services for 

any victim. The Fort Peck Tribal Court issues a ‘‘Hope Card’’ in conjunction with 

any orders of protection it grants. This card is wallet-sized and allows the person 

81 

37Ft. Peck Tribal Code, Title 7, Sec. 249(c), available at http://www.fptc.org/ccoj/titlel7/ 

titlel7.html. 38Pascua Yaqui Tribal Code, Title III, Part I, Ch. 1–1, Sec. 20 available at http:// 

www.pascuayaquinsn.gov/lstaticlpages/tribalcodes/. 39 CTUIR Criminal Code, Sec. 1.01, available at http://ctuir.org/criminal-code. 40SWO Codes of Law, Chapter 52, Section 52–01–04, available at http://www.swo-nsn.gov/ 

wpcontent/uploads/2015/03/law3.pdf. 41Tulalip Tribal Code, Title 4, Sec. 4.25.050 available at http://www.codepublishing.com/wa/ 

tulalip/. 42 78 Fed. Reg. 35,961 (June 14, 2013). 

who has been granted an order of protection to easily prove this in other jurisdictions. 

Definition of Offenses 

The Pilot Project tribes have chosen slightly different ways to define VAWA 2013’s 

covered offenses. 

Fort Peck Tribes: The Tribes incorporate the VAWA 2013 statutory definitions of 

domestic violence and dating violence, but the tribal code also includes two other 

offenses of ‘‘severe physical domestic abuse’’ and ‘‘domestic abuse’’ as domestic violence. 37

Pascua Yaqui: The Tribe does not use VAWA 2013’s definitions of domestic and 

dating violence in its tribal code. These offenses are defined by language devised by 

the Tribe. The tribal code includes a maximum statement of jurisdiction that it has 

authority over ‘‘all subject matters which, now and in the future, are permitted to 

be within the jurisdiction of any Tribal Court of any Indian tribe recognized by the 

United States of America.’’ 38

Confederated Tribes of the Umatilla Indian Reservation (CTUIR): The Tribes incorporate the VAWA 2013 statutory definitions to define offenses of domestic violence, dating violence and violations of protection orders. 39

Sisseton-Wahpeton Oyate: The Tribe does not use VAWA 2013’s definitions of domestic and dating violence or protection order violations in its tribal code. These offenses are defined by language devised by the Tribe. 40

Tulalip: The Tribes largely track the federal statutory definitions of domestic and 

dating violence. However, the tribal code provides illustrative examples of behaviors 

that constitute domestic violence under tribal law. 41

Intertribal Technical-Assistance Working Group 

All five of the tribes that were approved to exercise SDVCJ during the Pilot 

Project period participated in the ITWG on SDVCJ. In its June 14, 2013 Federal 

Register Notice, the DOJ asked tribes to indicate interest in joining the ITWG, 

which is a voluntary working group of designated tribal representatives intended to 

help exchange views, information, and advice, peer-to-peer, about how tribes may 

best implement SDVCJ, combat domestic violence, recognize victims’ rights and 

safety needs, and safeguard defendants’ rights. 42

This peer-to-peer technical assistance covers a broad set of issues, from drafting 

stronger domestic violence codes and victim-centered protocols and policies, to improving public defender systems, to analyzing detention and correctional options for 

non-Indians, to designing more broadly representative jury pools and strategies for 

increasing juror compliance with a jury summons. The objective of the ITWG is to 

develop not a single, one-size-fits-all ‘‘best practice’’ for each of these issues, but 

rather multiple successful examples that can be tailored to each tribe’s particular 

needs, preferences, and traditions. 

Tribes participating in the ITWG have also had opportunities to engage with DOJ 

and the Department of Interior (DOI), both of whom have made key staff available 

to provide technical advice to the working group as a whole and work with individual tribes to address specific issues or concerns as needed. 

ITWG TRIBES: 

1. Cherokee Nation 

2. Cheyenne River Sioux Tribe 

3. Chickasaw Nation 

4. Colorado River Indian Tribes of the Colorado River Indian Reservation 

5. Confederated Tribes of the Umatilla Indian Reservation 

6. Eastern Band of Cherokee Indians 

7. Eastern Shawnee Tribe of Oklahoma 

8. Fort Peck Assiniboine & Sioux Tribes 

9. Gila River Indian Community 

82 

43 A 5th in-person meeting will be held November 2–3, 2015 at the Squaxin Island reservation in Washington. 

10. Hopi Tribe of Arizona 

11. Iipay Nation of Santa Ysabel 

12. Kickapoo Tribe of Oklahoma 

13. Little Traverse Bay Band of Odawa Indians 

14. Menominee Indian Tribe of Wisconsin 

15. Mississippi Band of Choctaw Indians 

16. Muscogee (Creek) Nation 

17. Nez Perce Tribe 

18. Nottawaseppi Huron Band of Potawatomi 

19. Oneida Tribe of Indians of Wisconsin 

20. Pascua Yaqui Tribe of Arizona 

21. Passamaquoddy Tribe 

22. Pauma Band of Mission Indians 

23. Pawnee Nation of Oklahoma 

24. Penobscot Nation 

25. Pokagon Band of Potawatomi Indians 

26. Port Gamble S’Klallam Tribe 

27. Prairie Band Potawatomi Nation 

28. Pueblo of Isleta 

29. Pueblo of Laguna 

30. Pueblo of Santa Clara 

31. Quapaw Tribe of Oklahoma 

32. Quinault Indian Nation 

33. Sac and Fox Nation 

34. Salt River Pima-Maricopa Indian Community 

35. Sault Ste. Marie Tribe of Chippewa Indians 

36. Seminole Nation of Oklahoma 

37. Sisseton-Wahpeton Oyate 

38. Spokane Tribe of Indians 

39. Standing Rock Sioux Tribe 

40. Suquamish Indian Tribe 

41. Swinomish Indian Tribal Community 

42. Three Affiliated Tribes of the Fort Berthold Reservation 

43. Tulalip Tribes of Washington 

44. White Earth Nation 

45. Winnebago Tribe of Nebraska 

The ITWG has met in-person four times 43 and has also participated in a series 

of teleconferences and webinars and produced white papers and other resources on 

a range of topics. As of August 2015, 45 tribes participate in the ITWG (see column). 

The first formal in-person meeting of the ITWG was hosted at DOJ’s National Advocacy Center in Columbia, South Carolina on August 20–21, 2013. The ITWG divided into topical breakouts on: code development and publication; jury selection, judicial requirements, and recording proceedings; and victims’ rights, law enforcement 

training and detention. Defender issues and defendants’ rights were focused into a 

‘‘Tribal Defender Advisory Group.’’ The ITWG also divided into tracks based on 

readiness: getting started; ramping up; and final stages. Tribal participants from 

justice systems that were already equipped to implement SDVCJ readily shared information with others who were in more preliminary stages of planning. 

The second formal in-person meeting of the ITWG was held on October 29–30, 

2013, in Bismarck, North Dakota. The Bismarck meeting included a round-robin 

from ITWG tribes of their implementation updates; a habeas corpus response panel; 

a panel on improving communication and coordination with U.S. Attorneys; discussion of arrest authority and detention issues; and a discussion on access to the federal criminal information databases. 

The third formal in-person meeting of the ITWG was held on May 28–29, 2014, 

on the Pascua Yaqui reservation in Arizona. The meeting included a panel discussion from the three approved Pilot Project tribes as well as updates from ITWG 

tribes on their implementation efforts; a discussion of jurisdictional requirements 

and habeas responses; a session on prosecution best practices in domestic violence 

cases; a discussion of access to federal criminal information databases; and a mock 

first appearance at the Pascua Yaqui Justice Center. 

The fourth in-person meeting of the ITWG was held on December 9–10, 2014 on 

the Agua Caliente reservation in California. The meeting included an update from 

the two tribes with pending applications for Pilot Project approval; an update from 

83 

44www.ncai.org/tribal-vawa. 45http://www.tribal-institute.org/lists/vawal2013.htm 

the three Pilot Project tribes; an update from the Bureau of Indian Affairs on law 

enforcement arrest authority and detention guidance; an update and discussion on 

access to the National Crime Information Center; and a presentation on risk assessment and lethality in domestic violence cases. The meeting also included in-depth 

discussion sessions on complaint drafting and jury instructions; jury selection and 

composition; pleas agreements; data collection; and code development. 

Intertribal Technical-Assistance Working Group Resources 

In conjunction with a team of technical assistance providers, the ITWG has produced a number of resources to aid tribes seeking to implement SDVCJ. Many of 

these resources are maintained on the National Congress of American Indians 

(NCAI) VAWA Implementation website. 44 Additional implementation resources can 

also be found on the Tribal Law and Policy Institute’s (TLPI) VAWA website. 45 The 

ITWG has produced a ‘‘Code Development Checklist,’’ which is designed as a tool 

to assist tribal governments seeking to develop tribal codes that comply with VAWA 

2013’s statutory requirements. It includes citations to existing tribal codes implementing the new law. The ITWG has also produced a sample tribal code, sample 

complaints, sample jury instructions, a sample law enforcement pocket card, a sample press release for community notification, training materials, and papers on the 

following topics: 

• Jury Issues 

—Fair Cross Section Requirement 

—Jury size & unanimity 

—Constitutionality of maintaining two jury systems 

—Practical Considerations for Jury Selection in SDVCJ 

*Creating a master jury list 

*Selecting the Jury Pool 

*Summoning Jurors/Venire 

*Terms of Service & Paying for Juries 

• Tribal Court Exhaustion 

• Habeas Corpus 

• Ideas for implementing SDVCJ cost efficiently 

The ITWG has also facilitated an ongoing webinar series on key areas of SDVCJ 

implementation, including defendants’ rights issues; VAWA 2013’s fair cross-section 

requirement and jury pool selection; and victims’ rights. The full webinar series includes the following topics: 

• Jury Pools & Selection 

—Part I—Developing an Effective and Defensible Jury Plan for Tribal Courts 

—Part II—Jury Selection Plans 

• Defendants’ Rights 

—Part I—Competency of Defenders & Timing of Appointment 

—Part II—Use of Contract Attorneys for Primary and Conflict Counsel 

—Part III—Indigency 

• Victims’ Rights 

—Part I—Victims’ Rights Overview 

—Part II—Confidentiality and Privilege 

• Protection Orders 

—Crafting, Serving, and Enforcing Protection Orders 

• Prosecution Skills 

—Jury Instructions 

—Improving Victim Participation While Preparing for Non-Participation 

• Pilot Project Application Questionnaire 

—Application Questionnaire Overview (VAWA Pilot Project) 

• Lessons Learned 

—Lessons Learned from the VAWA Pilot Period 

• Code Revision and Drafting 

—VAWA Code Drafting 

—Law School Clinical Assistance: Tribal Violence Against Women Act 

84 

46Tribal Law and Policy Institute, ‘‘Tribal Legal Code Resource: Tribal Laws Implementing 

TLOA Enhanced Sentencing and VAWA Enhanced Jurisdiction,’’ (2015), available at http:// 

www.tribalinstitute.org/download/codes/TLOAlVAWAl3–9-15.pdf. 47See Attorney General’s Advisory Committee on American Indian and Alaska Native Children Exposed to Violence, U.S. Department of Justice, Report of the Advisory Committee on 

American Indian and Alaska Native Children Exposed to Violence: Ending Violence so Children 

Can Thrive (November 2014). 

TLPI, one of the technical assistance providers supporting the work of the ITWG, 

has also developed an in-depth guide for implementation of Tribal Law and Order 

Act and VAWA 2013. 46 In addition, representatives of the Pilot Project tribes and 

the technical assistance team have presented at numerous conferences and meeting 

across Indian country with the goal of educating other tribes about implementation 

of VAWA 2013. 

Lessons Learned from the Pilot Project & Recommendations 

The Pilot Project proved incredibly successful in allowing the participating tribes 

to prosecute many long-time repeat offenders who had threatened the tribal community. At the same time, however, the Pilot Project revealed a number of inherent 

limitations in SDVCJ, as well as unforeseen obstacles in implementation. These 

issues are discussed in more detail below. 

1. Non-Indian domestic violence is a significant problem in tribal communities 

When VAWA 2013 was pending before Congress, many policy-makers and commentators questioned whether the tribal jurisdiction provision was needed and 

whether a significant number of non-Indians were committing domestic violence 

crimes in Indian country. The experience of the three original Pilot Project tribes 

provides an unequivocal answer to that question. Since beginning to exercise 

SDVCJ, Pascua Yaqui has found that 25 percent of its domestic violence caseload 

involves non-Indians. The statistics collected by Pascua Yaqui and Tulalip about the 

prior police contacts of their SDVCJ offenders demonstrate that the non-Indian offenders menaced the tribal community for years and had been a drain on the tribes’ 

law enforcement resources. Where SDVCJ was implemented during the Pilot Period, 

impunity has ended for non-Indian domestic abusers. 

2. Most Special Domestic Violence Criminal Jurisdiction defendants have significant 

ties to the tribal communities 

Most SDVCJ offenders had established themselves in the tribal community. For 

example, Pascua Yaqui reports that at least 9 of the SDVCJ offenders were living 

on the reservation in tribal subsidized housing; two of the incidents involved married couples who lived on the reservation; four incidents involved children who belonged to the non-Indian offender. At least two of the SDVCJ arrests involved 

unenrolled Indians from either the U.S. or Canada. 

3. Children are impacted by non-Indian domestic violence at high rates All three of 

the Pilot Project tribes report that children are usually involved as victims or 

witnesses in SDVCJ cases. A majority of SDVCJ incidents involved children who 

were at home during the domestic violence that occurred. These children have 

been assaulted or have faced physical intimidation and threats, are living in 

fear, and are at risk for developing school related problems, medical illnesses, 

post-traumatic stress disorder (PTSD), and other impairments. 47 Although children are frequently witnesses to domestic violence or victims themselves, SDVCJ 

currently only applies to crimes committed against romantic or intimate partners 

or persons covered by a qualifying protection order. The implementing tribes are 

unable to prosecute non-Indians for many of the crimes against children that cooccur with domestic violence. Instead, they are left to refer these cases to state 

or federal authorities, who may not pursue them. 

Case Study: A non-Indian boyfriend, engaged in a 3-day methamphetamine 

bender, refused to let his Indian girlfriend and her children leave the home. The 

non-Indian forced both the woman and her child to sit in a chair while he threw 

knives at them. Because of the severity of the violence, and because SDVCJ 

does not provide accountability for the crimes committed against the child, the 

case was referred to the U.S. Attorney for prosecution. 

4. Training is critical for success 

While much of the work as tribes prepare to implement SDVCJ focuses on revising tribal codes, policies, and procedures, the Pilot Project tribes all devoted considerable resources to training for tribal law enforcement officers, prosecutors, judges, 

and other key stakeholders. Oftentimes the need for training became evident as the 

85 

48The National Congress of American Indians and the National Center for Juvenile and Family Court Judges have been supporting the work of the ITWG and providing technical assistance 

to implementing tribes through grants from the Office on Violence Against Women. The Tribal 

Law and Policy Institute has also partnered in this effort with support from the Bureau of Justice Assistance 49We note that there are many crimes, in addition to the ones discussed in this section, that 

also fall outside the scope of SDVCJ and leave tribal victims without access to justice in too 

many cases. Sexual assault committed by a stranger or acquaintance and elder abuse, for example, are also not covered by SDVCJ. 

tribes encountered an unexpected obstacle of one kind or another. For example, the 

day after SDVCJ was enacted on one reservation, a non-Indian offender was arrested and delivered to the county authorities where he was promptly released. 

That incident served as a reminder that tribal and Bureau of Indian Affairs (BIA) 

officers needed to be fully trained about the scope of the tribe’s authority. Similarly, 

Pascua Yaqui’s experience with its jury trial demonstrated the importance of training law enforcement about how to properly investigate whether there is a qualifying 

relationship sufficient to trigger SDVCJ in a particular case. 

5. Federal partners have an important role 

The implementing tribes have worked closely with Bureau of Indian Affairs (BIA) 

and DOJ officials to address challenges that have come up as a result of the complicated and fragmented criminal justice system at work in Indian Country. It has 

been important, for example, to clarify that BIA detention facilities are permitted 

to house non-Indian SDVCJ offenders and that tribes can use their 638 contract 

funds to pay for costs associated with housing non-Indian SDVCJ offenders. Likewise, the Pilot Project tribes have all worked closely with their local U.S. Attorney’s 

Offices to make decisions about which jurisdiction is most appropriate to prosecute 

a particular case. 

6. Peer-to-Peer learning is important 

The ITWG has proven to be an incredibly productive and useful mechanism for 

tribes to share information and best practices among themselves, to discuss challenges, and to jointly strategize about how to overcome obstacles. With the logistical 

support and substantive expertise of a group of DOJ funded technical assistance 

providers, 48 the tribes participating in ITWG have tackled many difficult questions 

and have developed a collection of resources that will make it easier for tribes who 

wish to implement SDVCJ in the future. The ITWG continues to serve as an important resource for the implementing tribes as they encounter new questions and challenges. 

The success of the ITWG has been driven by the engagement of dedicated and 

knowledgeable attorneys and tribal representatives from across Indian country. This 

engagement has been possible because of the travel support provided by DOJ, which 

allowed many of the members to participate in productive in-person meetings. The 

engagement and expertise of the technical assistance team has provided important 

coordination and leadership to the ITWG, while also helping the ITWG to track 

issues as they arise and to connect with necessary resources. 

7. Special Domestic Violence Criminal Jurisdiction is too narrow 

One area of major concern among the Pilot Project tribes is the narrow class of 

crimes covered under SDVCJ. 49 The limitations with regard to children who are victimized by domestic abusers was discussed above. Additionally, since tribal jurisdiction is limited to domestic violence, dating violence, and protection order violations, 

any other attendant crimes that occur also fall outside the scope of the tribe’s jurisdiction. The Pilot Project tribes reported, for example, cases where the offender also 

committed a drug or alcohol offense or a property crime that the tribe was unable 

to charge. There is also uncertainty about a tribe’s authority to charge an offender 

for crimes that may occur within the context of the criminal justice process, like resisting arrest, assaulting an officer, witness tampering, juror intimidation, or obstruction of justice. Because tribal prosecutors are unable to charge the full range 

of criminal conduct that may occur in a domestic violence incident, they may be 

more dependent on victim cooperation and the offenders’ criminal history may not 

accurately reflect the severity of his actions. 

Case Study: At 2:00 am, the tribal police were called to a domestic violence incident involving a non-Indian man. Methamphetamines were found on the premises, and tribal police requested an oral search warrant from the tribal judge 

to perform a urine analysis on the non-Indian. While being under the influence 

could be relevant to a DV investigation, the tribal judge ruled against issuing 

the search warrant. Some state case law has held that tribal police lack the auVerDate Mar 15 2010 14:00 Sep 08, 2016 Jkt 021390 PO 00000 Frm 00089 Fmt 6601 Sfmt 6621 S:\DOCS\21390.TXT JACK
86 

50For purposes of SDVCJ, VAWA defines domestic violence as ‘‘violence committed by a current or former spouse or intimate partner of the victim, by a person who is cohabitating with 

or has cohabitated with the victim as a spouse or intimate partner, or by a person similarly 

situated to a spouse of the victim under the domestic- or family- violence laws of an Indian tribe 

that has jurisdiction over the Indian Country where the violence occurs.’’ 25 U.S.C. 1304 (a)(2). 51 United States v. Castleman, 134 S. Ct. 1405 (2014) 52 25 U.S.C. 1304(h) 

thority to investigate crimes where they do not have jurisdiction, and the judge 

did not want to compromise a potential state case for drug possession. 

8. There is confusion about the statutory definition of ‘‘domestic violence′′ 

Tribal prosecutors from the Pilot Project tribes also report uncertainty regarding 

the definition of ‘‘domestic violence’’ 50 in the wake of the Supreme Court’s decision 

in United States. v. Castleman. 51 When Castleman was decided in March of 2014, 

it had an immediate impact on the three original Pilot Project tribes’ criminal charging decisions when evaluating misdemeanor arrests under SDVCJ authority. 

The Justices suggested in dicta in Castleman that the domestic violence crime in 

an SDVCJ case must involve actual ‘‘violence,’’ which is not a defined term. As a 

result, the original Pilot Project tribes have declined to prosecute certain offenses 

like offensive touching, harassment, or interference with domestic violence reporting 

that would otherwise constitute ‘‘domestic violence’’ under tribal law, but do not include an element of ‘‘offensive touching’’ or may not be considered a ‘‘violent crime.’’ 

DOJ and the technical assistance team have provided guidance to the ITWG about 

what type of conduct likely constitutes ‘‘violence’’ for SDVCJ purposes, but confusion 

persists. 

The prosecutors for the Pilot Project tribes report that SDVCJ will be more effective if it is amended to (1) clarify that Indian tribes possess the authority to prosecute a non-Indian for the types of offenses that often occur in the cycle of domestic 

abuse that might not qualify as ‘‘violence’’ in isolation; (2) reaffirm tribal jurisdiction 

over crimes that frequently co-occur with domestic violence; (3) reaffirm tribal jurisdiction over all crimes of violence against women or that occur within the family, 

including child abuse. 

Case Study: A woman called the police to remove her highly intoxicated partner 

from her home. The defendant returned an hour later. He was so intoxicated that 

when he swung to punch the victim, he missed and fell to the ground. The tribal 

prosecutor declined to prosecute because there was no actual physical contact, and 

they were concerned the incident did not meet the definition of domestic violence 

in the federal law. The defendant subsequently assaulted the victim again and was 

arrested. 

9. Tribes need resources for SDVCJ implementation 

VAWA 2013 authorized $5,000,000 for each of fiscal years 2014 through 2018 for 

SDVCJ implementation. 52 Unfortunately, Congress has not appropriated these 

funds and no resources have been made available specifically for tribal implementation of SDVCJ. While 45 tribes have been actively participating in the ITWG, as 

of the date of this report, only 8 tribes have implemented the law. The primary reason tribes report for why SDVCJ has not been more broadly implemented is lack 

of resources. During and beyond the implementation phase, Tribes need funding and 

access to resources and services to support implementation. 

SUMMARY OF 9 LESSONS LEARNED

1. Non-Indian domestic violence is a significant problem in tribal communities 

2. Most Special Domestic Violence Criminal Jurisdiction defendants have significant ties to the tribal communities 

3. Children are impacted by non-Indian domestic violence at high rates 

4. Training is critical for success 

5. Federal partners have an important role 

6. Peer-to-peer learning is important 

7. Special Domestic Violence Criminal Jurisdiction is too narrow 

8. There is confusion about the statutory definition of ‘‘domestic violence′′ 

9. Tribes need resources for Special Domestic Violence Criminal Jurisdiction implementation 

87 

APPENDIX A 

Indian Civil Rights Act, 25 U.S.C.§ § 1301–1304, as amended by VAWA 2013: 

§ 1301. Definitions: For purposes of this subchapter, the term 

1. ‘‘Indian tribe’’ means any tribe, band, or other group of Indians subject to the 

jurisdiction of the United States and recognized as possessing powers of selfgovernment. 

2. ‘‘powers of self-government’’ means and includes all governmental powers 

possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inherent power of Indian tribes, 

hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians; 

3. ‘‘Indian court’’ means any Indian tribal court or court of Indian offense, and 

4. ‘‘Indian’’ means any person who would be subject to the jurisdiction of the 

United States as an Indian under section 1153, title 19, United States Code, 

if that person were to commit an offense listed in that section in Indian country to which that section applies. 

§ 1302. Constitutional Rights: No Indian tribe in exercising powers of selfgovernment shall: 

(a) In general 

No Indian tribe in exercising powers of self-government shall— 

1. make or enforce any law prohibiting the free exercise of religion, or abridging 

the freedom of speech, or of the press, or the right of the people peaceably 

to assemble and to petition for a redress of grievances; 

2. violate the right of the people to be secure in their persons, houses, papers, 

and effects against unreasonable search and seizures, nor issue warrants, but 

upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized; 

3. subject any person for the same offense to be twice put in jeopardy; 

4. compel any person in any criminal case to be a witness against himself; 

5. take any property for a public use without just compensation; 

6. deny to any person in a criminal proceeding the right to a speedy and public 

trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance 

of counsel for his defense; 

7. 

(A) require excessive bail, impose excessive fines, or inflict cruel and unusual 

punishments; 

(B) except as provided in subparagraph (C), impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for a term 

of 1 year or a fine of $5,000, or both; 

(C) subject to subsection (b), impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for a term of 3 years or 

a fine of $15,000, or both; or 

(D) impose on a person in a criminal proceeding a total penalty or punishment greater than imprisonment for a term of 9 years; 

8. deny to any person within its jurisdiction the equal protection of its laws or 

deprive any person of liberty or property without due process of law; 

9. pass any bill of attainder or ex post facto law; or 

10. deny to any person accused of an offense punishable by imprisonment the 

right, upon request, to a trial by jury of not less than six persons. 

(b) Offenses subject to greater than 1-year imprisonment or a fine greater 

than $5,000 

A tribal court may subject a defendant to a term of imprisonment greater than 

1 year but not to exceed 3 years for any 1 offense, or a fine greater than $5,000 

but not to exceed $15,000, or both, if the defendant is a person accused of a criminal 

offense who— 

1. Has been previously convicted of the same or a comparable offense by any 

jurisdiction in the United States; or 

88 

2. Is being prosecuted for any offense comparable to an offense that would be 

punishable by more than 1 year of imprisonment if prosecuted by the United 

States or any of the States. 

(c) Rights of defendants 

In a criminal proceeding in which an Indian tribe, in exercising powers of selfgovernment, imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall— 

1. provide to the defendant the right to effective assistance of counsel at least 

equal to that guaranteed by the United States Constitution; and 

1. at the expense of the tribal government, provide an indigent defendant the 

assistance of a defense attorney licensed to practice law by any jurisdiction 

in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility 

of its licensed attorneys; 

3. require that the judge presiding over the criminal proceeding— 

(A) has sufficient legal training to preside over criminal proceedings; and 

(B) is licensed to practice law by any jurisdiction in the United States; 

4. prior to charging the defendant, make publicly available the criminal laws 

(including regulations and interpretative documents), rules of evidence, and 

rules of criminal procedure (including rules governing the recusal of judges 

in appropriate circumstances) of the tribal government; and 

5. maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding. 

(d) Sentences 

In the case of a defendant sentenced in accordance with subsections (b) and (c), 

a tribal court may require the defendant— 

1. to serve the sentence— 

(A) in a tribal correctional center that has been approved by the Bureau of 

Indian Affairs for long-term incarceration, in accordance with guidelines 

to be developed by the Bureau of Indian Affairs (in consultation with Indian tribes) not later than 180 days after July 29, 2010; 

(B) in the nearest appropriate Federal facility, at the expense of the United 

States pursuant to the Bureau of Prisons tribal prisoner pilot program described in section 304(c)[1] of the Tribal Law and Order Act of 2010 

(C) in a State or local government-approved detention or correctional center 

pursuant to an agreement between the Indian tribe and the State or local 

government; or 

(D) in an alternative rehabilitation center of an Indian tribe; or 

2. to serve another alternative form of punishment, as determined by the tribal 

court judge pursuant to tribal law. 

(e) Definition of offense 

In this section, the term ‘‘offense’’ means a violation of a criminal law. 

(f) Effect of section 

Nothing in this section affects the obligation of the United States, or any State 

government that has been delegated authority by the United States, to investigate 

and prosecute any criminal violation in Indian country. 

§ 1303. Habeas corpus 

The privilege of the writ of habeas corpus shall be available to any person, in a 

court of the United States, to test the legality of his detention by order of an Indian 

tribe. 

§ 1304. Tribal Jurisdiction over Crimes of Domestic Violence 

(a) Definitions.—In this section: 

1. Dating Violence.—The term ‘dating violence’ means violence committed by a 

person who is or has been in a social relationship of a romantic or intimate 

nature with the victim, as determined by the length of the relationship, the 

type of relationship, and the frequency of interaction between the persons involved in the relationship. 

89 

2. Domestic Violence.—The term ‘domestic violence’ means violence committed 

by a current or former spouse or intimate partner of the victim, by a person 

with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, or by a person similarly situated to a spouse of the victim under the 

domestic- or family-violence laws of an Indian tribe that has jurisdiction over 

the Indian country where the violence occurs. 

3. Indian country.—The term ‘Indian country’ has the meaning given the term 

in section 1151 of title 18, United States Code. 

4. Participating tribe.—The term ‘‘participating tribe’ means an Indian tribe 

that elects to exercise special domestic violence criminal jurisdiction over the 

Indian country of that Indian tribe. 

5. Protection order.—The term ‘protection order’— 

(A) means any injunction, restraining order, or other order issued by a civil 

or criminal court for the purpose of preventing violent or threatening acts 

or harassment against, sexual violence against, contact or communication 

with, or physical proximity to, another person; and 

(B) includes any temporary or final order issued by a civil or criminal court, 

whether obtained by filing an independent action or as a Pendente lite 

order in another proceeding, if the civil or criminal order was issued in 

response to a complaint, petition, or motion filed by or on behalf of the 

person seeking protection. 

6. Special domestic violence criminal jurisdiction.—The term ‘special domestic 

violence criminal jurisdiction’ means the criminal jurisdiction that a participating tribe may exercise under this section but could not otherwise exercise. 

7. Spouse or intimate partner.—The term ‘spouse or intimate partner’ has the 

meaning given the term in section 226 of title 18, United States Code. 

(b) Nature of Criminal Jurisdiction.— 

1. In general.—Notwithstanding any other provision of law, in addition to all 

powers of self-government recognized and affirmed by sections 201 and 203 

[25 USC § 1301 and 1303, respectively], the powers of self-government of a 

participating tribe include the inherent power of that tribe, which is hereby 

recognized and affirmed, to exercise special domestic violence criminal jurisdiction over all persons. 

2. Concurrent jurisdiction.—The exercise of special domestic violence criminal 

jurisdiction by a participating tribe shall be concurrent with the jurisdiction 

of the United States, of a State, or of both. 

3. Applicability.—Nothing in this section— 

(A) creates or eliminates any Federal or State criminal jurisdiction over Indian country; or 

(B) affects the authority of the United States or any State government that 

has been delegated authority by the United States to investigate and 

prosecute a criminal violation in Indian country. 

4. Exceptions.— 

(A) Victim and defendant are both non-Indians.— 

i. In general.—A participating tribe may not exercise special domestic violence criminal jurisdiction over an alleged offense if neither the defendant 

nor the alleged victim is an Indian. 

ii. Definition of victim.—In this subparagraph and with respect to a criminal proceeding in which a participating tribe exercises special domestic 

violence criminal jurisdiction based on a violation of a protection order, 

the term ‘victim’ means a person specifically protected by a protection 

order that the defendant allegedly violated. 

(B) Defendant lacks ties to the Indian tribe.—A participating tribe may exercise special domestic violence criminal jurisdiction over a defendant only 

if the defendant— 

i. 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— 

1. a member of the participating tribe; or 

2. an Indian who resides in the Indian country of the participating tribe. 

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(c) Criminal Conduct.—A participating tribe may exercise special domestic violence criminal jurisdiction over a defendant for criminal conduct 

that falls into one or more of the following categories: 

1. Domestic violence and dating violence.—An act of domestic violence or dating 

violence that occurs in the Indian country of the participating tribe. 

2. Violations of protection orders.—An act that— 

(A) occurs in the Indian country of the participating tribe; and 

(B) violates the portion of a protection order that— 

i. prohibits or provides protection against violent or threatening acts or harassment against, sexual violence against, contact or communication with, 

or physical proximity to, another person; 

ii. was issued against the defendant; 

iii. is enforceable by the participating tribe; and 

iv. is consistent with section 2265(b) of title 18, United States Code. 

d) Rights of Defendants.—In a criminal proceeding in which a participating tribe exercises special domestic violence criminal jurisdiction, the 

participating tribe shall provide to the defendant— 

1. all applicable rights under this Act; 

2. if a term of imprisonment of any length may be imposed, all rights described 

in section 202(c) [25 USC 1302(c)]; 

3. 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 

4. all other rights whose protection is necessary under the Constitution of the 

United States in order for Congress to recognize and affirm the inherent 

power of the participating tribe to exercise special domestic violence criminal 

jurisdiction over the defendant. 

(e) Petitions to Stay Detention.— 

1. In general.—A person who has filed a petition for a writ of habeas corpus 

in a court of the United States under section 203 [25 USC § 1303] may petition that court to stay further detention of that person by the participating 

tribe. 

2. Grant of stay.—A court shall grant a stay described in paragraph (1) if the 

court— 

(A) finds that there is a substantial likelihood that the habeas corpus petition 

will be granted; and 

(B) after giving each alleged victim in the matter an opportunity to be heard, 

finds by clear and convincing evidence that under conditions imposed by 

the court, the petitioner is not likely to flee or pose a danger to any person 

or the community if released. 

3. Notice.—An Indian tribe that has ordered the detention of any person has 

a duty to timely notify such person of his rights and privileges under this 

subsection and under section 203 [25 USC § 1303]. 

APPENDIX B 

Helpful Resources 

Resource Center for Implementing Tribal Provisions of VAWA 2013 was developed 

and is maintained by the National Congress of American Indians (NCAI) to provide 

information, news, resources, notice of events, and funding opportunities on the implementation of tribal provisions of VAWA 2013. It also contains information on the 

Intertribal Technical-Assistance Working Group (ITWG), a group of tribal representatives that met to discuss issues and best practices relative to tribal VAWA 2013 

implementation. See: www.ncai.org/tribal-vawa 

Tribal VAWA Resource Page is housed on the Tribal Court Clearinghouse website. 

This page contains the language of VAWA, videos from the VAWA signing ceremony, publications, reports, articles and other important resources on VAWA’s 

SDVCJ, as well as relevant upcoming and past events focusing on SDVCJ. See: 

http://www.tribal-institute.org/lists/vawal2013.htm 

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Tribal Protection Order website was developed and is maintained by TLPI. It is 

a clearinghouse of information and resources on tribal protection orders and tribal 

enforcement. See: www.TribalProtectionOrder.org 

Federal Register, vol. 78, no. 115, p. 35961, June 14, 2013 This notice proposes 

procedures for an Indian tribe to request designation as a participating tribe under 

section 204 of the Indian Civil Rights Act of 1968, as amended, on an accelerated 

basis, pursuant to the voluntary pilot project described in section 908(b)(2) of the 

Violence Against Women Reauthorization Act of 2013 (‘‘the Pilot Project’’), and also 

proposes procedures for the Attorney General to act on such a request. This notice 

also invites public comment on the proposed procedures and solicits preliminary expressions of interest from tribes that may wish to participate in the Pilot Project. 

Federal Register, vol. 78, no. 230, p. 71645, Nov. 29, 2013 This final notice establishes procedures for Indian tribes to request designation as participating tribes 

under section 204 of the Indian Civil Rights Act of 1968, as amended, on an accelerated basis, under the voluntary pilot project described in the Violence Against 

Women Reauthorization Act; establishes procedures for the Attorney General to act 

on such requests; and solicits such requests from Indian tribes. 

The U.S. Supreme Court in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 

(1978), held that tribal sovereignty does not extend to the exercise of criminal jurisdiction over a non- Indian for crimes committed in Indian country. 

Public Law 113–4, 127 Stat. 54 (2013) The Violence Against Women Reauthorization Act of 2013 (VAWA 2013), recognized and reaffirmed the inherent sovereign authority of Indian tribes to exercise criminal jurisdiction over certain non-Indians 

who violate protection orders or commit dating violence or domestic violence against 

Indian victims on tribal lands. 

25 U.S.C. 1304 Tribal jurisdiction over crimes of domestic violence. 

The Tribal Law and Order Act (Public Law 111–211, Congress passed the legislation as part of another bill regarding Indian Arts and Crafts. See Title II.) enhanced 

tribal authority to prosecute and punish criminals. However, tribes are required to 

provide certain due process requirements. The requirements are listed in the 

amended Indian Civil Rights Act (25 U.S.C.§ § 1301–1304). 

Tribal Law and Order Act Resource Center is a website specifically developed by 

NCAI to share information and resources relative to TLOA. It contains many of the 

resources described in this resource sections and many more, as well as news, 

events, webinars, and other helpful information. See: tloa.ncai.org 

The five tribes’ applications to participate in the pilot project permitting early use 

of jurisdiction over non-Indians may also be helpful, as the applications look for 

compliance with the VAWA 2013 requirements and provide the tribes examples of 

their compliance. The applications are publically available: Confederated Tribes of 

the Umatilla Indian Reservation application, Pascua Yaqui Tribe application, 

Tulalip Tribes application, Assiniboine and Sioux Tribes of the Fort Peck Indian 

Reservation application and Sisseton-Wahpeton Oyate of the Lake Traverse Reservation application. See: www.justice.gov/tribal/vawa-2013-pilot-project 

’’Considerations in Implementing V AWA’s Special Domestic Violence Criminal Jurisdiction and TLOA ’s Enhanced Sentencing Authority—A Look at the Experience 

of the Pascua Yaqui Tribe,’’ compiled by Alfred Urbina, Attorney General, Pascua 

Yaqui Tribe and Melissa Tatum, Research Professor of Law, The University of Arizona James E. Rogers College of Law. See: indianlaw.org/safewomen/resources 

28 U.S.C. 543(a) Special Assistant United States Attorneys (SAUSAs), appointed 

by the Attorney General, who assist in prosecuting Federal offenses committed in 

Indian country. 

The five pilot project codes: http://ctuir.org/criminal-code 

Two articles by M. Brent Leonhard, Attorney in the Office of Legal Counsel for 

the Confederated Tribes of the Umatilla Indian Reservation, on implementing 

VAWA 2013. The Federal Lawyer, October/November 2015 and ABA Human Rights 

Magazine Volume 40 Number 4. 

Tulalip Tribal Court Rules including rules regarding indigency standards and 

rights afforded under VAWA special domestic violence criminal jurisdiction. See: 

www.codepublishing.com/wa/Tulalip/ITWG Code Development Checklist for implementing VAWA 2013. This checklist is designed as a tool to assist tribal governments seeking to develop tribal codes that comply with VAWA 2013’s statutory requirements. It includes citations to existing tribal codes implementing the new law. 

See: www.ncai.org/tribal-vawa 

Simple checklist for Law Enforcement Officers. Implementation of VAWA 2013 

may require changes in law enforcement policies and procedures. Training for law 

enforcement officers will be an important part of implementation. See: 

www.ncai.org/tribal-vawa requirement and jury pool selection; and victims’ rights. 

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The full webinar series can be found on the NCAI website Resource Center for Implementing Tribal Provisions of VAWA 2013. See www.ncai.org/tribal-vawa. 

TLPI, one of the technical assistance providers supporting the work of the ITWG, 

has also developed an in-depth guide for implementation of Tribal Law and Order 

Act and VAWA 2013, which includes a model code that the ITWG tribes developed. 

See: www.tlpi.org and www.Home.TLPI.org. 

The final report of the Attorney General’s Task Force on American Indian and 

Alaska Native Children Exposed to Violence—’’Ending Violence So Children Can 

Thrive,’’ US Senator Byron Dorgan et al. The task force is part of Attorney General’s 

Defending Childhood Initiative, a project that addresses the epidemic levels of exposure to violence faced by our nation’s children. The task force was created in response to a recommendation in the Attorney General’s National Task Force on Children Exposed to Violence December 2012 final report. The report noted that American Indian and Alaska Native children have an exceptional degree of unmet needs 

for services and support to prevent and respond to the extreme levels of violence 

they experience. See: www.justice.gov/defendingchildhood 

PREPARED STATEMENT OF THE CENTRAL COUNCIL OF TLINGIT AND HAIDA INDIAN

TRIBES OF ALASKA

Dear Senate Select Committee on Indian Affairs: 

The Central Council of Tlingit and Haida Indian Tribes of Alaska (‘‘Central Council’’) offers written comments to supplement the hearing held on May 18, 2016 on 

Senate Bills 2920 and 2785. We are appreciative that the Senate Select Committee 

on Indian Affairs is proactively looking at reauthorization of Tribal Law and Order 

Act (TLOA) and also to close jurisdictional gaps of 25 USC 1304, the Special Domestic Violence Court Jurisdiction over non-Indians section. 

This letter will begin with a brief overview of our Tribe, followed by general comments about the unique legal issues to Alaska, and specific recommendations about 

the proposed bills. It is worth stating upfront that the Supreme Court case in the 

Native Village of Venetie, along with the Alaska Native Claims Settlement Act 

(ANCSA) have created a challenging situation for Alaska Native Villages and Tribes 

to address village safety issues, especially as it relates to accountability of criminal 

defendants and domestic violence perpetrators. We ask that the Senate consider a 

legislative fix to these jurisdictional issues. 

Who We Are 

Central Council is a federally recognized Tribal government for Alaska’s Tlingit 

and Haida population, with more than 30,000 tribal citizens worldwide. Central 

Council is one of approximately 229 federally recognized tribes in the State of Alaska. Alaska tribes comprise nearly 40 percent of all federally recognized tribes in the 

United States. 

On September 4, 2007, Central Council began operating a formal, regional tribal 

court, located in Juneau, Alaska, to provide child support services to 20 villages and 

communities that are spread over 43,000 square miles within the Alaska Panhandle. The region encompasses a 525-mile strip of coastline and interior waterways, bordered by Canada on the north, south, and east, with the Gulf of Alaska 

on the west. There is no road system linking Southeast Alaska communities; therefore, communities can only be reached by airplane, boat or ferry. 

Prior to 2007, the tribal court had elected judges but no budget for staffing or operation of tribal court. This all changed when the Tribe applied for and received 

Title IV–D funding to open a tribal child support agency. This funding source allowed the tribe to hire one judge and one court clerk to hear paternity, child support 

order establishment and enforcement for cases involving children enrolled or eligible 

for enrollment with the tribe. Since that time, despite continued limited grant funding, the tribe has expanded its services to include domestic violence, child custody, 

divorce, guardianship, adoption and is currently in the process of expanding services 

to include juvenile justice and child welfare cases. 

Central Council’s tribal court is located in Juneau, as part of a tribal government 

office building. Juneau has the highest concentration of tribal citizens in Alaska, but 

Central Council has citizens all across Southeast, and out of state. Central Council 

compacts with a few Southeast Tribes for social services, such as Indian Child Welfare Act (ICWA). 

Unique Status of Alaska Tribes 

Historically, Alaska tribes, for various reasons, have been treated differently than 

lower 48 tribes, often making fundamentals of tribal court jurisdiction difficult to 

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ment settled its land claims with the aboriginal people of Alaska not by compensating the tribal governments of the aboriginal people, but rather by establishing 

corporations whose shareholders would be the aboriginal people and bestowing on 

those corporations the goal of leveraging the land and money received in compensation to operate for-profit businesses. With the passage of the ANCSA in 1971. the 

only remaining reservation in the state is the Annette Island Reserve in Southeast 

Alaska. Rather than recognize sovereign tribal lands, ANCSA tasked the for-profit 

corporations to manage more than 40 million acres of fee land. ANCSA divided the 

state into 12 regional corporations and over 200 village corporations that would 

identify with their regional corporation. Many of these villages had corresponding 

tribal village governments. but with the passage of ANCSA. no meaningful land 

base. As a result, unlike most court systems that have defined territorial jurisdiction and personal jurisdiction. Alaska Tribal courts generally exercise jurisdiction 

through tribal citizenship. and not through a geographic space defined as ‘‘Indian 

Country’’ because of ANCSA and in part due to a United States Supreme Court 

case. 

As a result of the United States Supreme Court’s unfavorable decision in Alaska 

v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998), most of the 

Tribe’s traditional territory is not considered ‘‘Indian Country’’. Without the ability 

to tax. without Indian gaming, and without consistent and predictable tribal court 

appropriations. Alaska Tribes lack the revenue typically available to other tribal 

governments to fund and sustain essential governmental programs. All Alaska 

Tribes are in a similar position. and must find innovative ways to raise governmental revenue and to leverage other resources to sustain their Tribal Courts and 

public safety programs. As a result of this resource dilemma, available grants for 

developing and sustaining programs are incredibly important for Alaska Tribes. 

As mentioned, Alaskan tribal governments are not positioned to take advantage 

of the traditional tools local governments use to generate revenue. Except for 

Metlakatla, Alaskan tribal governments have no taxable land base and subsistence 

economies—also known as non-cash economies—are unable to generate strong 

steady revenues in the form of a sales tax. property tax, or other taxes. 

Making matters worse, in 2003, Alaska’s own Senator Ted Stevens singled out 

Alaska Tribes for exceptionally harsh financial restrictions through legislative riders 

to the FY 04 Consolidated Spending Bill (Sec. 1 12 of HR 2673). The riders eliminated funds to tribal courts and tribal law enforcement programs in Alaska Native 

Villages, and specifically excluded certain Southeast Alaska communities from receiving any Department of Justice funding. Although Congress recently eliminated 

these restrictions, they set back Alaska Tribes even further while they were in 

place. Without adequate resources, tribal court jurisdiction and law enforcement 

floundered. 

All told, these funding restrictions have severely hindered the approximately 78 

tribal justice systems in Alaska from developing. The vast majority of Alaska tribal 

courts are not able to operate on a full-time basis or hire full-time employees. Central Councirs tribal court staff are funded by a delicate balance BIA compact funds 

and temporary grants. 

Against the backdrop of this funding desert, Alaskan tribal citizens are suffering. 

The absence of an effective justice system has disproportionately harmed Alaska 

Native women who are continually targeted for all forms of violence. Alaska Natives 

comprise only 15.2 percent of the state’s population, but make up 47 percent of victims of domestic violence and 61 percent of victims of sexual assault are Alaska Native. And among other Indian Tribes, Alaska Native women suffer the highest rates 

of domestic and sexual violence in the country. 

Although, in a PL 280 state, Alaska tribal communities should have access to 

state justice services, those services are centered in a handful of Alaskan urban 

areas, making them often more theoretical than real. Many communities have no 

law enforcement, no 91 1, no state official they could conceive of raising a complaint 

to, given the separation of geography, language, and culture. Also, because Alaska 

is a mandatory PL 280 state and because of other factors identified below, jurisdictional issues in Alaska create extremely dangerous conditions for our small, remote 

communities. The TLOA of 2010 created the Indian Law and Order Commission and 

authorized the Commission to conduct an extensive study of jurisdictional issues in 

Alaska. The Commission devoted an entire chapter to Alaska and found that: 

‘‘The strongly centralized law enforcement and justice systems of the State of 

Alaska . . do not serve local and Native communities adequately, if at all. The 

Commission believes that devolving authority to Alaska Native communities is 

essential for addressing local crime. Their governments are best positioned to 

effectively arrest, prosecute, and punish, and they should have the authority to 

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1 A Roadmap for Making Native America Safer: Report to the President and Congress of the 

United States (November 2013), available at http://www.aisc.ucla.edu/iloc/report/. 2 18 U.S.C. § 1 151. Section 1151 provides in pertinent part that: ‘‘Except as otherwise provided in sections 1154 and 1156 of this title, the term ‘Indian country’, as used in this chapter, 

means (a) all land within the limits of any Indian reservation under the jurisdiction of the 

United States Government. notwithstanding the issuance of any patent. and, including rightsof-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, 

and whether within or without the limits of a state, and (c) all Indian allotments, the Indian 

titles to which have not been extinguished, including rights-of-way running through the same.’’ 3 A federal regulation was developed after the U.S. District Court for the District of the Columbia held that exclusion of Alaska tribes from the land-into-process was not lawful. See 

Akiachak Native Community v. Salazar, 935 F. Supp. 2d 195 (D.D.C. 2013). The State of Alaska 

has appealed the decision and its motion to stay was granted to prevent the Interior Department from considering specific applications or taking lands into trust in Alaska until resolution 

of the appeal. On December 18, 2014, the Interior Department published its final rule rescinding 

the ‘‘Alaska Exception,’’ which became effective on January 22, 2015. 79 Fed. Reg. 76888. This 

regulatory change could help some Alaska tribes exercise local governance to address violence 

against Native women. 

do so-or to work out voluntary agreements with each other, and with local governments and the State on mutually beneficial terms.’’ 1

While there have been recent gains that benefited Alaska, we still have laws and 

policies that make support for strong Alaska Native Judicial systems erratic. if not 

impossible. For example, the U.S. Department of Justice’s support for repeal of the 

Special Rule for the State of Alaska included in section 910 of VAWA 2013 was applauded in Alaska. but the issue of Indian Country, described further below, remains. The Obama administration has supported our tribal governments in ways 

not seen for years. In a July 28, 2014, letter from Associate Attorney General Tony 

West to the Alaska state Attorney General, West reminded him of the State’s obligation to give full faith and credit to tribal court orders of protection. Prior to this 

time, enforcement and recognition of Alaska tribal court orders was essentially nonexistent. Basically, Alaska law required orders of protection issued by tribal courts 

to be registered with the state before enforcement would be available. As a result 

of Associate Attorney General West’s assistance, the State of Alaska has recently 

evaluated its role in supporting Alaska Native protection orders. While still encouraging registration of tribal and foreign protection orders, in 2015, the State recognized that it must enforce unregistered Alaska tribal orders. 

Senate Bill 2920 

We greatly appreciate the introduction of this bill. We ask that the Senate look 

to recent studies such as the newly released, National Institute of Justice. Research 

Report on the Violence Against American Indian and Native Women and Men, that 

document the dire safety circumstances that Alaska native villages are in as a result of their unique geographic situation, the 229 tribes state wide and the inability 

for the state to address the public safety state of emergency for Alaska Tribes. 

Solutions to Solve the Jurisdictional Quagmire 

The repeal of section 910 of VAWA 2013 was a victory as it was a necessary step 

towards removing a discriminatory provision in the law that excluded all but one 

Alaska tribe from ever being able to enhance their response to violence against Native women in ways afforded all other federally recognized tribes. Nevertheless, because of the Venetie decision, additional reforms are needed before Alaska tribes will 

be able to increase safety for Alaska Native women and hold all offenders accountable. This is because section 904 of VAWA 2013 limits the exercise of the special 

domestic violence criminal jurisdiction restored to tribes to certain crimes committed 

in ‘‘Indian Country.’’ Yet, at the same time, the State does not have the resources 

to provide the level of justice needed in our communities. A legislative fix is necessary to address this injustice. Such a fix could be inserted in the Tribal Law and 

Order Act, or the next reauthorization of VAWA, or as an amendment to ANCSA, 

which recognizes a tribe’s territorial jurisdiction equivalent to the corresponding Village Corporation’s land base and traditional territory, or to other federal laws such 

as the statute defining Indian Country, 2 or accomplished through other changes in 

federal policy allowing the Department of the Interior to accept land into trust for 

all federally recognized Alaska tribes. 3

We fully support the recommendations of the Tribal Law and Order Act Commission and ask that they all be priorities for inclusion in the reauthorization of TLOA. 

Specifically, we ask that the Senate Select Committee on Indian Affairs: 

• Craft a legislative fix for the U.S. Supreme Court’s Venelle decision. 

95 

• Amend the definitions of Indian Country- to include Alaska native allotments 

and native owned town sites. 

• Support land into trust applications by Alaska Native Tribes. 

• Channel more resources directly to Alaska Native Tribal governments for the 

provision of governmental services. 

• Support Alaska Native Tribes and Villages with the exercise of criminal jurisdiction within their communities. 

As described by the TLOA Commission: 

‘‘problems in Alaska are so severe and the number of Alaska Native communities affected, so large, that continuing to exempt the State from national policy change is wrong.’’ 

We ask that the Commission’s specific recommendation to the federal government 

‘‘to channel more resources directly to Alaska Native Tribal governments for the 

provision of governmental services in those communities’’ be supported in legislation 

and through appropriations. We further ask that S. 2920 include specific findings 

by the Law and Order Commission that demonstrates the vast uniqueness of our 

communities as well as the dire circumstances we find ourselves in. We ask for specific findings within the Bill unique to Alaska’s public safety crisis. 

Indian Country in Alaska 

Sprinkled throughout the TLOA Reauthorization, is the reference to ‘‘Indian 

Country.’’ As mentioned with the Native Village of Venetie case, there is virtually 

no ‘‘Indian Country’’ in Alaska to be afforded the advantages intended within this 

bill. We need a legislative fix to this issue. 

‘‘Alaska’s approach to providing criminal justice services is unfair. Alaska Natives, especially those living in rural areas of the State, have not had access to 

the level and quality of public safety services available to other State residents 

or that they should rightly expect as U.S. citizens. Given the higher rates of 

crime that prevail in Alaska Native communities, the inequities are even greater in relative terms. The State of Alaska’s overarching lack of respect for Tribal 

authority further magnifies fairness concerns.’’ 

But yet without a meaningful and identifiable land base, jurisdictional boundaries will prevent a meaningful solution to solving the public safety crisis in our 

villages. 

The TLOA commission’s first recommendation is: 

2.1: Congress should overturn the U.S. Supreme Court’s decision in Alaska v. Native Village of Venetie Tribal Government, by amending ANCSA to provide that 

former reservation lands acquired in fee by Alaska Native villages and other lands 

transferred in fee to Native villages pursuant to ANCSA are Indian country. 

We need to begin a dialogue that gets at the heart of community safety issues 

and concerns. We ask that a commission or task force be created to develop a solution to the jurisdictional issues found in Alaska. 

Data Sharing With Indian Tribes 

We need a legislative fix that addresses the concerns of the Criminal Justice Information System (CJIS) about tribal access to federal databases for governmental 

purposes. Currently access is piecemeal, with federal statutes providing some access 

to tribes and then deferring to state law to define and provide access. Such checkerboard access places some of our most vulnerable citizens in jeopardy. 

28 USC 534(d) authorizes release of criminal history information to tribal law enforcement agencies, but doesn’t allow release of criminal information to other tribal 

agencies for important purposes, Emergency Placement of Children, or ‘‘Purpose 

Code X,’’ employees that work with elders and vulnerable adults, etc. 

CJIS interprets the appropriations rider language from 92–544 (and in the notes 

of 28 USC 534) as a permanent statute that prevents sharing this information with 

tribal governments. In their view, criminal history for licensing of foster parents can 

only be shared ‘‘if authorized by State statute and approved by the Attorney General, to officials of State and local governments for purposes of employment and licensing,’’ 

We need to amend federal law to authorize the sharing of this information with 

tribal governments for any legitimate purpose. 

One solution is to renumber 534(d) and add a new subsection: ‘‘If authorized by 

tribal law and approved by the Attorney General, the Attorney General shall also 

permit access to officials of tribal governments for non-criminal justice, non-law enVerDate Mar 15 2010 14:00 Sep 08, 2016 Jkt 021390 PO 00000 Frm 00099 Fmt 6601 Sfmt 6621 S:\DOCS\21390.TXT JACK
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1 INDIAN LAW AND ORDER COMMISSION, A ROADMAP FOR MAKING NATIVE AMERICA SAFER: REPORT TO THE PRESIDENT & CONGRESS OF THE UNITED STATES, RECOMMENDATION 1.1 (2013). 2 ATTORNEY GENERAL’S ADVISORY COMMITTEE ON AMERICAN INDIAN AND ALASKA NATIVE CHILDREN EXPOSED TO VIOLENCE, U.S. DEP’T OF JUSTICE, REPORT OF 

THE ADVISORY COMMITTEE ON AMERICAN INDIAN AND ALASKA NATIVE CHILDREN 

EXPOSED TO VIOLENCE: ENDING VIOLENCE SO CHILDREN CAN THRIVE 38 (November 

2014). 

forcement employment, licensing purposes or any other legitimate government purpose identified in tribal legislation.’’ 

We ask that Civil authority be included to so that once and for all the piecemeal 

inefficient barriers to full legitimate access is resolved. 

Senate Bill 2785 

While we appreciate that the Senate recognizes the gaps in the Special Domestic 

Violence Court Jurisdiction (SDVCJ) of VAWA 2013. in that crimes against children 

and drug crimes attendant to the SDVCJ crimes remained unpunishable, until the 

issues of ‘‘Indian Country’’ in Alaska are addressed, we are largely left without inclusion in this important legislation that recognizes the inherent authority of a tribe 

to prosecute violent crimes against women. Again, we ask that a Commission or 

Task Force be created to provide a meaningful solution. This situation is especially 

dire with the economic strain the state of Alaska is currently in. As Senator Murkowski noted during the hearing, we need to look at ‘‘new jurisdictional definitions’’ 

or some other remedy to include Alaska villages. The state lacks resources to address the concerns of the village. The federal government needs to step in through 

the trust relationship to address these catastrophic issues that leave our communities unsafe. Again as Senator Murkowski noted, it’s time to explore different avenues to address the public safety issues and empower tribes to protect their communities. 

Summary 

Alaska tribal governments are unique among indigenous American tribes in their 

lack of access to the same type of government revenues available to nearly every 

other sovereign entity in the country. We ask that the Senate Select Committee on 

Indian Affairs take this disadvantage into account to get Alaskan Tribes on an 

equal playing field, and to make a truly meaningful investment in tribal justice by 

including the jurisdictional challenges that have plagued meaningful justice to Alaska Native communities. 

PREPARED STATEMENT OF JERRY GARDNER, EXECUTIVE DIRECTOR, TRIBAL LAW AND

POLICY INSTITUTE

I write on behalf of the Tribal Law and Policy Institute to support the two Senate 

bills, S. 2785, The Tribal Youth and Community Protection Act; and S. 2920, The 

Tribal Law and Order Reauthorization Act of 2016. 

S. 2785, The Tribal Youth and Community Protection Act 

The extension of tribal criminal jurisdiction to prosecute all persons for crimes 

committed in Indian country is a much needed fix to the jurisdictional maze, and 

was called for by the Indian Law and Order Commission. 1 S. 2785 is a welcome 

step in the right direction. Since tribal criminal jurisdiction was abruptly curtailed 

in 1978 in the U.S. v. Oliphant decision, tribes have been without the means to hold 

non-Indians accountable for their criminal behavior on Indian lands. VAWA 2013 

was the first partial-Oliphant fix, finally acknowledges the devastating realities of 

violence being committed against Native women by non-Indians. S. 2785 is the natural extension, acknowledging tribal sovereignty, the horrific nature of crime in Indian country and its under-prosecution, and the plain-sense approach of enabling 

local criminal justice systems to respond to their communities. 

S. 2785 most notable affirms tribal criminal jurisdiction to include crimes committed against Native children. As the Attorney General’s Advisory Committee on 

American Indian and Alaska Native (AI/AN) Children Exposed to Violence noted, 

‘‘it is troubling that tribes have no criminal jurisdiction over non-Indians who commit heinous crimes of sexual and physical abuse of [AI/AN] children in Indian country.’’ 2 After enacting the special domestic violence criminal jurisdiction (SDVCJ) of 

VAWA 2013, the pilot project tribes experienced first-hand the cruel absurdity of 

prosecuting offenders for their crimes against their domestic partners, but not for 

97 

3 National Congress of American Indians, ‘‘Special Domestic Violence Criminal Jurisdiction 

Pilot Project Report,’’ 28 (Oct. 29, 2015). 4Tribal Law and Order Act of 2010, H. R. 725, Sec. 202(5)(B)–(C). 

5 Amnesty International USA, Maze of Injustice: The Failure to Protect Indigenous Women 

From Sexual Violence in the USA (2007). 6 Id. at 4. 7 Id. at 90. 

the crimes committed against children. 3 Like Native women, Native children are 

deserving of protection and the reliability that their offenders will be held accountable. 

S. 2785 additional reaffirms tribal criminal jurisdiction over drug offenses and 

over crimes that may occur within the context of the criminal justice process. VAWA 

2013 has been a unique lesson in limited jurisdiction, such that lesser included 

crimes and attendant crimes are not included. Jurisdiction over such attendant 

crimes, including resisting arrest, assaulting an officer, witness tampering, and obstruction of justice are necessary components of the criminal justice and will greatly 

empower tribes to effectively hold offenders accountable. 

However, through our lessons learned since VAWA 2013, there are other significant gaps in jurisdiction for which S. 2785 is primed to fill. Most significantly, tribes 

still lack jurisdiction over all persons for the crime of sexual assault. SDVCJ was 

originally conceived to include sexual assault. The disturbing Congressional findings 

within the Tribal Law and Order Act of 2010, including that 34 percent of AI/AN 

women will be raped in their lifetimes and 39 percent of AI/AN women will be subject to domestic violence, 4 stem from the Amnesty International report, Maze of Injustice. 5 In analyzing the devastating nature of sexual violence committed against 

AI/AN women, the report specifically identified sexual assault, including its finding 

that 86 percent of reported cases of rape or sexual assault against AI/AN women 

were perpetrated by non-Native men. 6 The report called for a full Oliphant fix. 7

SDVCJ has proven to be an effective tool against offenders. It is critical, however, 

that tribes are empowered to respond to all sexual violence, and not just violence 

perpetrated by offenders in a domestic or dating relationship with their victim. Reaffirming jurisdiction over sexual assault will provide a much needed tool, and end 

a bizarrely cruel distinction between offenders that sexually assault their victims. 

S. 2920, The Tribal Law and Order Reauthorization Act of 2016 

The Tribal Law and Order Act (TLOA) of 2010 was a paramount, comprehensive 

law designed to improve numerous facets of the public safety system in Indian country, including by expanding sentencing authority for tribal justice systems, clarifying jurisdiction in P.L. 280 states, and requiring enhanced information sharing 

across jurisdictions. The Tribal Law and Policy Institute thanks Senator Barrasso 

for his leadership in introducing this reauthorization, and strongly support its passage. The National Congress of American Indians has developed extensive comments regarding the TLOA reauthorization, including recommendations for amendments and expansions based on experience with tribes. We strongly support their 

comments, including their recommendations, and urge Congress to implement their 

suggested changes. 

Thank you for your consideration of TLPI’s views. 

98 

PREPARED STATEMENT OF HON. MELVIN R. SHELDON, JR., CHAIRMAN, TULALIP

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