Tribal governments can now prosecute non-Indians for some crimes - KPAX.com | Continuous News | Missoula & Western Montana

Tribal governments can now prosecute non-Indians for some crimes

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Non-Indians who commit domestic violence crimes on Indian reservations can no longer hide behind the limited jurisdiction of tribal governments.

The National Congress of American Indians announced a shift in tribes' ability to seek justice for victims of domestic violence, dating violence, or violation of a protection order against a Native American, when committed by a non-Indian. The change had previously been approved by the federal government.

The most recent data published by the Montana Tribal Nations government website shows there were 1,261 instances of domestic violence across Montana's seven tribes in 2008.

The report does not state how many of those crimes were committed by a non-Indian person against an Indian victim, however, the NCAI reports that 46 percent of people living on U.S. reservations in 2010 were non-Indian.

Supporters of the change in prosecution authority argued that Native American women and children would be better protected from domestic and sexual abuse.

According to the NCAI report, three out of five American Indian and Alaska Native women have been assaulted in their lifetime.

“Violence against Native women has reached epidemic proportions,” the NCAI report states. “The root cause is a justice system that forced tribal governments to rely on distant federal - and in some cases, state - officials to investigate and prosecute misdemeanor crimes of domestic violence committed by non-Indians against Native women.”

Until the announcement, tribal governments could not prosecute a non-Indian person.

In 1973, the U.S. Supreme Court overturned a decision made by a lower court to convict Mark David Oliphant, a non-Indian permanent resident on a Washington state Indian reservation, after he allegedly assaulted a tribal officer.

The Supreme Court stated in its decision that Indian tribal courts do not have the criminal jurisdiction to try and punish non-Indians.

That court ruling defined when tribal courts had jurisdiction over non-Indians, also know as the Criminal Jurisdiction Continuum created by the federal government.

When a defendant is Indian and the victim is Indian, the tribal and federal courts could have jurisdiction depending on the seriousness of the crime charged. 

A crime committed by an Indian against a non-Indian is also under both jurisdictions. But when the defendant is a non-Indian, regardless of who the victim is, the continuum reads that it is the state's jurisdiction, not federal or tribal.

A pilot project in 2014 was initiated for three American Indian tribes: The Confederated Tribes of the Umatilla Indian Reservation, the Pascua Yaqui Tribe, and the Tulalip Tribes.

To date, those three tribes have charged a total of 26 non-Indians, the NCAI reports.

As of Saturday, all American tribal governments have the ability to prosecute non-Indians for certain crimes under the Special Domestic Violence Criminal Jurisdiction. The Montana Fort Peck Indian tribe was approved to start the program a day earlier.

The Montana Tribal Nations, a state government agency, found that, on average, fewer than half of violent crimes against Indian women are reported to police.

That's because defendants previously had to be remanded by state government or else they were merely penalized by a fine, which the non-Indian person had little inclination to pay, the state agency reports.

“Jurisdictional complexities, geographic isolation, and institutional resistance can impede effective protection of women subjected to violence in Indian country,” the state agency states.

Tribes that choose to exercise the extended jurisdiction must provide the same rights guaranteed under the U.S. Constitution as in state and federal court, including the appointment of a public attorney for the defendant and a jury drawn from the entire reservation community.

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