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Tribe gains ability to prosecute non-Indians

Proponents of domestic violence prevention are cheering following the launch of a federal law that will allow tribal courts to prosecute non-Indians who commit domestic violence on tribal land.   

“It’s going to be a really good thing for the tribe,” said Bill Boyum, Chief Justice of the Cherokee Supreme Court.

Tribal courts haven’t had authority to prosecute non-Indians who commit crimes on their land since 1978, when the U.S. Supreme Court ruled in the Oliphant vs. Suquamish Indian Tribe case. 

If a non-Indian commits a crime on tribal land, the case goes to federal court, but federal court doesn’t prosecute all the cases referred it. Federal prosecutors already have overfull dockets, so while armed robberies and murders are likely to get their day in court, the patterns of lower-level violence that often show up in domestic violence cases don’t make the cut. In effect, these cases are unprosecutable. 

“They [federal prosecutors] have things that are higher on ‘things to do’ than a Friday night slapping of somebody,” Boyum said. “It’s just a fact of life.”

But those unprosecutable cases make up a large share of domestic violence situations. 

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Non-Indians are responsible for at least 70 percent of violent victimizations of Native Americans, according to a report by the U.S. Bureau of Justice Statistics, and Native Americans are more than twice as likely to be victimized than someone in the U.S. population as a whole. 

The new rules, stemming from the 2013 reauthorization of the Violence Against Women Act, went into effect March 7, but Cherokee still has some work to do before implementing them on the reservation. Mainly, they have to change their jury selection rules. 

“The jury selection process has to not exclude any particular group of people, and traditionally our tribal court system has only had tribal members on the jury pool,” Boyum explained. 

In other words, if you want to prosecute non-Indians, non-Indians have to be part of the decision-making process.

Boyum said he expects Tribal Council to approve those ordinances in April’s Tribal Council, and then they will have to sit for 30 days before going into effect. 

There are still some other details to work out, as well. For instance, once a non-Indian is tried and convicted, where will he serve his jail time? 

“At some point in time they’ll probably go in our jails, but I don’t think that time is here yet,” Boyum said. 

The new Cherokee Justice Center, which includes a jail, will open at the end of the month, but the Bureau of Indian Affairs will have to modify its guidelines before Cherokee can start housing non-Indians there. For the time being, non-Indians will likely serve time in the Swain County jail, with which Cherokee contracts. 

The new rules will also include an appeals process to federal court. 

“If somebody gets charged with domestic violence in our court system, they have the right to ask the chief District Court judge to hear the case,” Boyum explained. 

As to whether the Cherokee courts will have to up their staff to accommodate the new rule, Boyum has no idea, because there aren’t any numbers on how frequently these kinds of crimes happen on the Qualla Boundary. 

“Who knows how many cases we’ll have, because we don’t have any statistics to go by,” Boyum said. “I guess we’ll just have to play it by ear.”

This new authority is something to applaud, Boyum said, but he doesn’t want to see the tribe’s ability to prosecute non-Indians end with domestic violence crimes. 

“It’s a foot in the door to full jurisdiction over everybody who is on Indian trust property, the Qualla Boundary,” he said. “If you have people that come on your property and you can’t prosecute them in your own court system, that’s not fair. It doesn’t happen anywhere else in the world except on Indian reservations.”

That’s why Native American leaders have been working for the past decade to make these changes happen. Chief among Cherokee’s activists has been Terri Henry, Tribal Council chairwoman and former co-chair of the National Congress of American Indians’ Task Force on Violence Against Native Women. 

“The erosion of tribal government authority to address crimes committed by all persons within their jurisdictions, coupled with a shameful record of investigation, prosecution and punishment of these crimes by federal and state governments that do have jurisdiction, allows criminals to act with impunity in Indian country. This perpetuates an escalating cycle of domestic violence in Native communities,” Henry, who did not respond to a request for an interview, wrote in a 2012 op-ed for 

The VAWA reauthorization will be a big step toward righting some of those wrongs, tribal leaders say. 

“We’re not exactly there yet,” Henry said during the March Tribal Council meeting, “but we’re getting there.”

“The reservation has a tendency to attract some kind of wackos because they know they can’t be prosecuted in tribal court,” Boyum, said. “As long as they can stay under the radar and commit what they consider to be minor offenses, no one can prosecute them.”

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