Testimony for January 13, 2012 Field Hearing
Law and Order Commission
Submitted by:
Sheri Freemont
Chief Prosecutor, Salt River Pima-Maricopa Indian Community
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Good Af ternoon Commissioners,
On behalf of the Communit y I ser ve, I would like to welcome you to the Salt
River Pima- Mar icopa Indian Communit y. I am the Chief Prosecutor here in Salt
River, and have been such f or the past seven years. In m y words to you today,
I hope to convey some recommendat ions that are shar ed by the other tribal
communit ies as it relates to some of the challenges of the Tribal Law and Order
Act.
My recommendat ions and comments cover three main points:
1) Funding and resources is the primar y barrier to the implementation of
the Tribal Law and O rder Act.
2) Cultural underst anding is crit ical in understanding why the
implementat ion of the TLOA and VAW A provisions is not only inhibited
by f unding issues.
3) The Major Cr imes Act should also be r eviewed and amended where
the off ense listed ar e not def ined by f ederal law.
1.
Funding and resources is the primary barrier for tri bes w ith t he
implementation of t he Tribal Law and Order Act.
Tribes lack funds and resources to implement the requirements.
I know that ever y tribal representative will likely be able to address t he
issues of f unding and how t he lack of f unds is the main barrier t o moving
f orward wit h the T ribal Law and Order Act. This new grant of authorit y,
loosening the handcuff s of a one year cap to a three year, is not without a lot of
challenges. W ithout a doubt, the f unding issue is the most signif icant barr ier.
Most tr ibes are sm all, and ar e more on par with a towns and cit ies than to
States as it relates t o size and government. In general, major crimes or f elony
off enses are handled by States who have bigger budgets and governments.
Building a criminal j ustice system that essentially must parallel that of a State,
to a communit y wit h extremely small populat ions is simply not pract icable.
Even the tribes who are arguably f inancially able to create such a system with
the enormous expense are struggling.
For the majorit y, SRPMI C is self -f unded. SRPMI C also has been
successf ul in secur ing grants to support the just ice system, including grant
money to build a detention f acilit y that would likely be able to house any
off enders convicted in the SRPMIC court, even f or three years. However, by
and large, the cost of the tribal justice system is bore by the tribal government.
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The law enf orcement f or this Communit y is ent irely operated by eh Communit y.
That is our of f icers are all employees of the SRPMI C gover nment SRPMI C
off icers are SLEC holders and can directly f ile cr iminal matters wit h the US
Attorney’s Off ice.
The abilit y to f und these types of officers undoubt edly
increases the abilit y of SPRMIC to keep the communit y saf e, but at quite a
budgetar y expense.
The eff ectiveness and the abilit y of tribes to successf ully implement the
TLOA will likely essentially break out int o two groups: the haves and the havenots. Tribes who ar e not able to employ a wide var iet y of pr of essionals, in all
disciplines, due to lack of f unds or based on locat ion, are a signif icant
disadvantage as it comes to grants. I would like to request support f or the
recommendat ions m ade by Chief Judge Pouley in his test imony in November,
regarding the grant process and the current process.
Tribes are now in a position to have to recruit attorneys. The ideal
candidat es, in addit ion to having the law degree and bar adm ission, understand
Indian countr y, the communit y they ser ve, and are competent in legal anlaysis
and cultur al applicat ion. All tribes will t ell you they pref er their own members
to apply the tribal laws and justice. The next best type of candidate is of ten
other Native Amer icans who understand the cult ure. The same is true of
judges. Most tribes are in rural setting s, and f ar f rom an employment pool of
qualif ied attorneys. SRPMI C has many advant ages that other tribes do not.
Based on locale, the Communit y has the abilit y t o recruit outside attorneys t o
work in the Justice System. SRPMIC is close to several law schools, who can
off er interns, prof essors, legal expert s, training and presentation. SRPMIC
assists its own members in obtaining educat ion, including law degrees a nd
other prof essional degrees.
W hile there are numerous qualif ied Native
American Attorneys who are committed t o ser ving Indian country, the demand
f ar outweighs the supply. Of course, the abilit y to pay a com petit ive wage is a
huge barrier as well.
Yet what are the choices that tribes have? Forego the chance to seize
this gif t of Congress which begins to allow tr ibes to exercise sovereignt y and
self -regulate and to protect their members we know that t he reliance on the
f ederal government t o prosecute cr imes is has been inef f ective. Tribes need to
be able to handle these matters, but it is not going to happen without more
f unding.
The Lack of Resources and Funding Inhibits Federal Init iatives from
Being Effective.
W e,
and Order
example,
Attorneys i
as tribal prosecutors wer e excited with the passing of the Tribal Law
Act, and especially some of the initiat ives that were born of it. For
the use of tribal attorneys as Special Assistant United States
and the creation of the Att orney General’s Federal and Tribal
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Prosecution Task Force f or Violence Against W omen are both great initiat ives
that could signif icantly improve saf ety in Indian Countr y if they are supported
ad f ollow-through.
Here in Arizona, the Unit ed States’ At torney’s Off ice is making good
progress on implem enting the SAUSA program. Several of the tribes have had
their prosecutors designated as Special Assistant Untied States Attorney’s,
including SRPMIC. However, the training of those prosecutors, getting the
necessar y background checks and developing processes f or this program has
been t ime intensive. The Deput y United States Attorneys who work on this
project still carr y their own heavy case loads and in addition to those dut ies,
must f ind time and ways to assist the SAUSAs. Good intentions and dedicated
personnel only go so f ar. One benef it I anticipated of the SAUSA program was
that by the f ederal prosecutors working closely with t he tribal prosecutors who
work with these com munit ies ever y day on an int imate basis, would be that the
f ederal prosecut ors would gain cultural understanding and appreciat ion f or the
tribes they ser ve. Such an understanding of the cultural nuances by the
prosecut ors
is
key
to
helping
vict ims
and
com munit ies
impr ove
saf ety. However, such a result would take time that the federal prosecutors
simply do not have.
W e are very pleased with the program and are especially thankf ul to the
United Stat es Attor ney’s off ice in Arizona f or the dedicat ed staff here. W e
know that all that has been achieved is due to t heir willingness to go above and
beyond their assigned duties. W e know, f rom the limited time with the program
we have had, that we as tribal prosecut ors have benef itted f rom having two of
our own tr ibal prosecutors being trained on the f ederal practices and helping
our own law enf orcement improve wit h this knowledge. Yet, if Congress wanted
this program to have real teeth, there must be support f or resources to get
these init iat ives moving in a meaningf ul and ongoing way.
Another development out of the implem entation of the Tribal Law and
Order Act was the creat ion of the Attorney General’s Federal and Tribal
Prosecution Task Force f or Violence Against W omen. I am honored to be a
member of this Task Force. However, t he barr ier here is lack of resources, just
as it is f or tribes. The Task Force has met only once since it f ormed. The Task
Force has a lot of work to do that could be of great impact in Indian Countr y,
yet it is supported b y virtually no resour ces. The Chair of the Task Force, as a
Deput y United States Attorney has her own dut ies and her own responsibilities
that the Task Force must be a second prior it y, which is true f or the other
members as well. There is no pract ical way f or this committee to be product ive
without support of the f ederal agencies, by making the t ime and r esources
available. W hat I believe would encourage progress in t hese initiatives is a
continued mandat e f rom the leaders of the Administration, congress and the
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Department of Justice to communicate the importance to all the departments
and divisions f ind ways to support them with f unds and resour ces.
2.
Cultural under standing is critical in understanding w hy the
implementation of the TLO A and V AWA provisions is not onl y inhi bited by
funding issues
One particular challenge is to implement Communit y values and tradition
within t he just ice system. Cult ural sovereignt y and f airness and just ice are not
mutually exclusive concepts, yet it seem s that the draf ters of the TLOA view
them as such. I respect those who lobby f or the protection of civil liberties, and
accept that they are committed to ensur ing that all persons are able to enjoy
the Constitut ional protections.
Yet, these same people of ten lack a f ull
appreciat ion of the histor y and the trust responsibilit y of the f ederal
government to tribes. Tribes, as sovereigns, should not be f orced to f ollow all
f ederal and stat e pr actices.
Fairness and justice are not only achievable by
processes and met hods derived f rom the United States Const itut ion and
judicial interpretat ion of such through the western perspective.
The requirement that tribal
licensed in any j urisdiction
licensing.
judges
should
for three-year offenses be
be clear to include tribal-
W hile there has been no f ederal judicial review of the requirements f or
due process as to the judicial requir ements under TLOA, there remains
signif icant concern among tribes and their justice syst ems that the language of
the TLOA may be interpreted to requir e the tribal judges to be licensed only in
State or Feder al court. iiIf the TLOA is interpr eted as such, this requirement
could potent ially require many tr ibes, including SRPMIC to br ing in outsiders, or
non-tribal members to preside over these matters.
As judges are t he ones who ult imately impose sentence, a non-member
who may have no cultural connect ion to t he Communit y or tribe may be required
to determine to what extent the off ense and the of f ered evidence meet the
Communit y’s st andard f or what is egregious behavior. These persons who will
sit in judge met as to the ultimate disposit ion of the off ender will of ten have
only written tribal code to guide their decision.
Current ly, the judg es of the SRPMI C are Communit y members or
members of related tribes, who share a histor y and culture. These judges use
their own personal lif e exper ience and cultural values when they apply the tr ibal
laws. How can someone be trained in culture and values? W hile is of ten
attempted, it is dif f icult to achieve. Tribal communit ies should not have to
compromise being judged by their own communit y or tr ibal m embers simply due
to a lack of tribal member attorneys.
This vagueness in TLOA is overly
paternalistic and seems almost paranoid, that even wit h the appellate process
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of tribes, the habeas review availabilit y, and being represent ed by lawyer s, the
persons accused in t ribal courts are still at risk of violations of due process. As
a tribal prosecutor, I strongly recommend that this section of TLOA be clarif ied
to permit tr ibal-licensing, theref ore leaving more room f or Communit y to tribal
members to be judged by one another.
TLOA and VAWA amendments coul d be better drafted to support
cultural sovereignt y and self-determination.
The tribal nations ar e now home t o many non-Indian of f enders (including
a growing number of tribal descendants who are culturally Native Amer ican, but
do not meet blood q uantum) and yet the tribes remain handcuff ed to protect the
communit ies f rom those who off end in Indian Countr y.
Domest ic violence
continues to dominate Indian countr y, and tribal prosecutors handle these
matters with a dist inct understanding of the communities they serve.
One other challenge f or tribes to overcome bef ore they can implement
TLOA is tribes will be educating their own communit y members about the
eff ects of such changes, both as a f inancial burden but also as an explanat ion
as to why their tribal courts may end up looking dif f erent then they are used to.
There may even be some resistance on behalf of the tribal members based on
complicat ed reasons. A phenomenon that I have obser ved that is of ten har d to
articulate, is the attit ude that just ice equates to a f ew months jail or none at all.
W hile it is true t hat many tribal communit ies tradit ionally f ocused on
f orgiveness and making one whole, there are possibly other explanations. I
believe that in the f orty plus years since the enactment of the Indian Civil
Rights Act, the tribal peoples have only seen such m inor punishments and even
when they don’t’ lik e it, they have grown accustomed to these punishments. I
think this is most common in domest ic violence of f enses. Victims have adopted
a need to f orgive and f orget, to move on, and to achieve har mony again. Not
always as a tradit ional value, but as a matter of necessity. If no justice is
coming, the abused learn to sur vive, toler ate, and accommodate the off enders.
Of course there are count less victims who can explain the im pact that the
insuff icient punis hments have been, those are of ten on the off enses that give
rise to f elony prosecution. But there ar e so many of f enses, such as dom estic
violence where repeat off enders are in t he tribal revolving door. It is from this
practice I think some communities have developed an acceptance of this justice
system. Finally, I suggest that with the requirement of legally-trained attorneys
f or def ense and judges, the odds are t hat tribal courtroom s will look less like
the Communit y court s and the communit y members may lack faith in such.
Tribal prosecutors understand the r ecanting vict im dynamic as it lives in
Indian Countr y. We see the eff ect of a closed community and the strong
connectedness communit y members have.
Members of Indian countr y ar e
much less likely to “ex- patriate” than it appears is of ten assumed. Leaving a
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communit y can mean turning away f rom your culture, your histor y, your f amily,
and much more. As a f ormer domestic violence prosecutor of a state system, I
have seen the dif f erence bet ween a vict im who can move acr oss town, or even
to another state and not f ace the same sorts of “loss” that a tribal victim does if
that vict im chooses t o leave the tr ibal communit y. This dynamic is not one that
can be overcome, but rather it must be understood. For many Indian people, to
be a member of their tribe, or nat ion, or f amily, or clan, is to be with those other
members, even when someone in that Communit y has violated them.
Yet,
of ten we rely on the majority soc iet y’s solut ions f or victims, such as advising
vict ims to move away to an undisclosed/hidden shelter where no one can no
where you are. A common truth of tribal members is that even when they have
committed cr imes and harms, in the end, those of f enders all come home. W hile
some communit ies banish or exclude these people, such actions are not
universally done and are usually reser ved f or the worst of the worst. W hat this
translat es to f or the majority of domestic violence off enses, is that the vict im
knows where both t he victim and the off ender ar e likely to be f or the rest of
their lives, and the probabilit y of wanting to just move beyond the of f ense is
more common. Tribal prosecutors understand this, and t he communit y that they
ser ve. For these reasons, tribal prosecutors and tr ibal just ice syst ems are best
equipped to truly f ind remedies to protect thru tribal members.
W ithout the amendments to VAW A allowing the tr ibal pr osecutors to
handle this area, the continued system of the exclusive jurisdict ion of the
f ederal prosecutors f or non-Indian of f enses against Indian vict ims in Indian
countr y will cont inue to threaten tribal communities, by resulting in f ewer
prosecut ions. The tribal prosecutors’ abilit y to under stand the dynamics and
create systems to address those is the best solut ion
Proving Indian st atus as a VAWA requi rement is impracticable.
The requirement that the bill includes that tribes prove Indian status of
the off ender and the victim is yet another example of the f ederal system leaking
into t he tr ibal systems. Functionally, t o make a domestic violence arrest, the
arresting of f icer establishes probable cause.
I n today’s wor ld, when that
off ender is believed to be a non-Indian, the police agent will need to validat e
the victim ’s st atus as an Indian t o invoke f ederal jurisdict ion. For major
off enses, the off icers need Cert if icates of Indian Blood and/or Enrollment to
seek charges in the f ederal courts. In t ribal courts, as a m atter of policy and
practice, most tr ibes trust that anyone who holds themselves out as an Indian is
consenting to jurisdiction, or that jur isdiction exists based on Indian stat us.
Since many I ndians who live in tribal communit ies belong t o other tribes, the
abilit y f or the investigating off icer to investigate wit h all other tribes in the
middle of the night, is not practicable. Tribes, as sover eign nation, should have
the presumpt ion of jursidict ions, and the lack of Indian stat us should be treat ed
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as an af f irmative def ense.
new VAW A requirements.
I recommend this requirement be deleted f rom the
3. The Major Crimes Act should also be revi ew ed and amended w here the
offense listed are not defined b y federal law .
25 U.S. C. § 1302 (b) should be amended or delet ed. Congress shoul d
enact a definition for federal child abuse or neglect, or permit the
tribal definitions of child abuse or neglect to be applied f or the Major
Crimes Act.
In most Indian Com munit ies, one of the most egregious off enses is that of
child abuse. To violate a child, t o breach the dut y of caring and pr otecting that
child and to willf ully abuse a child, is one of the most reviled acts a person can
do. If anything is to warrant severe punishment, it is inf licting pain to a child
without justif icat ion. Of course, child rearing and the car e of children are
greatly subjective to cultur al norms. No two cultures agree exactly as t o what
good parent ing looks like. It seems Congress accepted this premise with the
enactment of ICW A. W hile TLOA allows f or an increased f elony sentencing f or
some off enses, ther e is a limitat ion in that the only of f enses that are eligible f or
more than one year are when those off enses are subject to more than one year
by a state or by the f ederal government iii.
Felony child abuse or neglect was added to the Major Cr imes Act in 2006.
Since child abuse is not def ined by f ederal law, each District of the United
States Attorney’s Off ice must apply the state law wherever t hat may be. iv. For
f ederal prosecut ion, this means Native American child vict ims are only victims
of the f elony child abuse if the State they live in agrees, not their communit y or
their tribe.
Under the TLOA, tribes can now exercise f elony jurisdict ion over off enses
when those of f enses are subject to f elony treatment by another stat e or the
f ederal government v. This means to tr ibes that regardless of what the tr ibes f ind
to be morally inexcusable and egregious enough to be given f elony treatment is
meaningless, unless by chance another state or the f ederal government agrees
and has such a law. Such a system does not support tribal sovereignty or
cultural dist inct ions. Theref ore, we recommend that the ref erence to another
state law or f ederal law be omitted, or a f ederal child abuse def inition be
adopted.
Ever y state def ines child abuse dif f erently. The conduct that gives rise to
child abuse of f enses is greatly disparate across the country. In Ar izona, in
order f or a person t o be eligible f or more than one year of jail when abusing a
child a person has to cause a physical injury, or cause or permit the child to be
endangered (at risk of death or serious physical injur y). vi Theref ore, as an
example, a child who is kept naked a closet, and who is given minimal amounts
8
of f ood and water, and a bucket to use as a toilet, but who doesn’t actually
have evidence of injury cannot be pr osecuted but the State of Arizona, or the
Distr ict of Arizona f or that conduct as a f elony. Such con duct may be eligible
in other States, but based on the complicated web of laws that exist, a child in
SPRMI C who suf f ers this treatment cannot acquire just ice in the f ederal syst em.
For the Communit y t o address this treat ment with a f elony child abuse law, the
Communit y would need to adopt a law f rom some other state that may def ine
child abuse in a way t hat covers this tr eatment.
W ith the enactment of this
portion of the TLOA, the children of this communit y will only be as prot ected as
some other State determines by def init ion, and not by their own cultural
understanding. By f orcing the tribes to limit to f ederal or state laws,
assim ilation lives on.
Since the addit ion of the f elony child abuse and neglect to the Major
Crimes Act in 2006, it is my understanding that only a handf ul of these cases
have been pr osecuted by the District of Arizona. Yet, we know in the tribal
communit ies, the incidence rate of cases where the tribes would view t he f acts
as “f elony” off enses is much higher. Tribes theref ore need to be able to
determine f or themselves what const itut es f elony child abuse, and not be f orced
to f ind a state that agrees.
A communit y who addresses its own crim e, by its own cultural standards,
with a review by peers, is what was intended by t he Unt itled States
Const itution. Just ice is achieved when t he evidence is presented in a st yle that
is consistent with t he communit y under standing. Persons accused of crimes
should be judged by the f acts and the communit y understanding of the cultural
values when they are tried. The Communit y should decide if the conduct is
below what is acceptable, by the values and culture of that communit y, not by
the State they happen to be locat ed within, or by some other state that has no
cultural ties to the tribe. If this is not the goal, then Congress may as well have
enacted PL 280 across the boar d. Theref ore, out of respect f or cultural
sovereignty, I again recommend that the TLOA requirement that requires
off ense eligible f or three years mirror t hat of a St ate or the f ederal gover nment
be amended or delet ed.
Of course, tribes ar e still lim ited to only prosecut ing Nat ive Americans,
and all persons who are detained by a tribe are able to seek f ederal habeas
review. Theref ore, there is no just if iable need to lim it a tr ibes’ def ining of their
laws to that of States or the f ederal government.
Conclusion,
The Tribal Law and Order act, while greatly needed and acknowledged has
some sect ions that are not in line with r espect f or cultural and tribal sovereignt y
and needs to be am ended. W e are gratef ul that you all have been selected to
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ser ve on this important Commission and trust that you will make the appropr iate
recommendat ions.
i
H er e i n af ter r ef er r ed t o as S A U S As .
S e e 2 5 U. S .C . § 1 30 2 ( b) ( 3) .
iii
2 5 U. S .C .§ 13 0 2 ( b) ( 1 ) .
iv
“ M aj or c r im es no t d ef i ne d b y f e der a l l a w s ha l l b e “ def i ne d a nd pu n i s he d i n
ac c or d a nc e wi th t h e l a w of t h e St a te in wh ic h s uc h of f ens e was c o m m itte d.” S e e 18
U. S. C. A . § 1 1 53( b) .
v
2 5 U. S .C .§ 13 0 2 ( b) ( 1 ) ..
vi
A .R . S. § 13- 3 62 3 .
ii
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