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For decades, a loophole in federal law has made it difficult for Native Americans to seek justice for many crimes on tribal lands. A 1978 Supreme Court ruling found that tribal courts did not have jurisdiction to prosecute non-natives, meaning that tribes could do little about crimes committed on their reservations when the offender was not a member of their tribe.
Tribal leaders say when allegations are forwarded to off-reservation jurisdictions, they have been mostly ignored.
“Ninety-nine percent of the time, they’re too busy to prosecute the case, and most of the crimes go unprosecuted,” said Jeff Warnke, director of government and public relations for the Chehalis Tribe.
In 2013, Congress made a first step toward addressing that issue, including a measure in the Violence Against Women Act to allow tribes to earn criminal jurisdiction for domestic violence offenses, one of the most pressing concerns for tribes.
“Especially domestic violence cases, there’s a whole lot of folks who are non-tribal members (living on the reservation),” Warnke said. “They will marry native women, and what we found out is that they can beat up their wives, and nobody can do anything about it. … We think this is a pretty important issue for the safety of tribal women.”
Tribal Court Administrator Jerrie Simmons said such situations have been frustrating.
“It was hard to deal with,” she said. “There’s been instances of this kind of situation on this reservation that we haven’t been able to prosecute. I know that our current judge has had some cases before her whereby this was the exact situation. She would feel very frustrated, because there was not much the tribe could do except refer out. It makes the tribal government and the tribal members unhappy. They don’t feel safe and protected. The perpetrators can’t be prosecuted, and often it’s very threatening to them to go into a county or state court.”
Since 2016, the Chehalis Tribe has been working to comply with Department of Justice requirements to earn jurisdiction. Using grant funding, leaders rewrote the tribe’s criminal code to comply with federal civil rights law.
The process involved many other requirements as well. The tribe had to create a process for seating non-tribal jurors. It needed to ensure it provided public defenders and trained judges – requirements it already met. It needed to install an appeals process to federal court and provide medical care in its jail.
“It’s a pretty rigorous deal,” Warnke said. “A lot of it is policing regulations, courtroom regulations, record-keeping. Then there’s certainly liability issues, like if you arrest a non-tribal member and they get sick in your jail, you have to provide health care for them.”
In March, the tribe was determined to have met all of DOJ’s requirements, clearing the way for it to prosecute future domestic violence offenses committed on the reservation. For those who worked on earning that status, the long process was worth it.
“The tribe feels very good and very positive about having this jurisdiction and having gone through all the steps to regain it,” Simmons said. “We say we’ve always had it, but it was just removed from us. We’re all comfortable, and we know we can do this and we can do it fairly and justly.”
The Chehalis Tribe is just the 24th of nearly 600 federally-recognized Indian tribes who have earned clearance to regain domestic violence jurisdiction. Leaders hope that by demonstrating success with this program, they’ll open up more opportunities for justice on the reservation.
“If you assault a police officer on the reservation, we don’t have jurisdiction to do anything about it,” Warnke noted.
In a release noting the the tribe’s approval, Janet Stegall, who was responsible for writing the initial grant, said the decision was a sign of progress.
“I am overwhelmed with the relief that an unforgivable injustice is going to be able to be brought to justice in the future,” she said.