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Tribes now free to choose whether to prosecute non-Indians for domestic violence crimes

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FLAGSTAFF, Arizona — American Indian tribes that meet certain criteria now have the authority to prosecute non-Indians for a limited set of domestic violence crimes, a shift supporters hope will reduce the high rate of violence on reservations.

Three tribes in Arizona, Oregon and Washington state have exercised that power for more than a year under a pilot project approved by the U.S. Department of Justice. Together, the tribes have brought more than two dozen domestic violence cases against non-Indians who live or work on their reservations, according to the National Congress of American Indians.

That authority — extended Saturday to all tribes — seeks to close a gap in jurisdiction that meant many non-Indian suspects who committed less-serious acts of violence never were prosecuted.

"On most reservations there are a handful of bad actors who have figured out how to slip between jurisdictional boundaries," Juana Majel, chairwoman of the NCAI Task Force on Violence Against Women, said in a news release. "They need to get the message. If they continue to assault our women, we will prosecute and put them in jail."

A 1978 U.S. Supreme Court ruling stripped tribes of any criminal jurisdiction over non-Indians on their reservations. But the reauthorization of the Violence Against Women Act in 2013 allowed tribes to charge non-Indians who are married to or in a partnership with a tribal member for domestic violence crimes and violations of protection orders. The Justice Department has said that American Indian women suffer from domestic violence at rates more than double national averages.

Critics say the tribes' increased authority is sure to be challenged in federal courts.

To ease concerns from some members of Congress, tribes have to ensure that jury pools include non-Indians and that their court systems afford defendants the same rights as state and federal courts do. The changes to the Violence Against Women Act also allow defendants to seek review of a tribal court decision in federal court.

The Confederated Tribes of the Umatilla Indian Reservation in Oregon, the Pascua Yaqui Tribe in southern Arizona and the Tulalip Tribes in Washington state were approved as part of the pilot project in February 2014.

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 joined in the pilot project Friday, a day before all tribes were given the go-ahead. Plans from the large, rural tribes can serve as a model for similarly situated tribes whose resources often are stretched thin, said NCAI general counsel John Dossett said.

"We can now show five different ways that tribes have successfully updated their laws and procedures to do implementation," he said.

Brent Leonhard, an attorney in the Office of Legal Counsel for the Confederated Tribes of the Umatilla Indian Reservation, said prosecution has gone up and more people are willing to report crimes. In the past year, his office has filed four cases with three ending in guilty pleas.

"That is double the highest rate ever prosecuted by the feds out of Umatilla," Leonhard said.

Federal authorities have jurisdiction over major crimes like homicide and assault resulting in serious bodily injury on reservations when the victim, suspect, or both, is American Indian. But not all domestic violence on reservations rises to the level of a federal crime.

Tribes have civil authority over non-Indians but often are reluctant to go forward with a case when the penalty amounts to a fine and offenders have little incentive to pay.

Alfred Urbina, attorney general for the Pascua Yaqui Tribe, wants Congress to expand the number of crimes covered, revise the definition of domestic violence and extend prosecutorial authority to protect children. But some tribes might not have the financial resources to enforce prosecution of all crimes.

"It is bittersweet, because we know that women will still be suffering and there will simply be no recourse in some places," Urbina said. "The tribes who choose to implement despite the challenges will strain their budgets."

Justice Department spokesman Wyn Hornbuckle said the department will continue to collaborate with tribal prosecutors and law enforcement through training and consultation.

"Together we will work to end the scourge of violence against women in Indian country, and this day marks a significant step forward," Hornbuckle said.

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