Originally Published: July 24, 2011 9:35 p.m.
FLAGSTAFF - The U.S. Department of Justice has unveiled a legislative proposal that would stiffen federal sentences for certain domestic violence crimes in Indian Country and expand tribes' authority to enforce protection orders against non-Indians living on reservations.
The proposal seeks to address crimes on tribal lands that officials say have reached epidemic rates. One-third of all American Indian women will be raped in their lifetime and nearly three of five have been assaulted by their partner, the Justice Department says. In addition, murder rates are 10 times higher than the national average for Native women.
"Not surprisingly, abusers who are not arrested are more likely to repeat and escalate their attacks," U.S. Associate Attorney General Tom Perrelli said.
Tribal leaders, police officers and prosecutors are all too familiar with this cycle of violence, and Justice Department officials say it's time to address it.
The agency is proposing fixes it hopes Congress will consider in reauthorizing the Violence Against Women Act first passed in 1994. Though no one has committed to sponsoring the proposed amendments, the U.S. Senate Indian Affairs Committee and other lawmakers say they're reviewing them.
Only federal prosecutions can lead to serious penalties for major crimes involving Native Americans on tribal lands.
Justice officials want to expand the types of reservation crimes over which the federal government has jurisdiction. They say doing so would bring sentences more in line with those faced by defendants in state courts who commit the same crimes, and give prosecutors better tools for deterring the offenses.
The crimes include assault resulting in substantial bodily injury, which would carry a five-year sentence. The maximum penalty for assault or an attempt to assault by strangulation or suffocation would increase from six months to 10 years. Anyone found guilty of assault by striking, beating or wounding could be imprisoned for a year.
Federal prosecutors have declined to pursue some assault cases committed against women on reservations because the injuries were not serious enough to constitute a felony.
Tribal officials say the authority they most look forward to acquiring is over non-Indians in domestic violence cases. According to Justice Department officials, tribal police often wrongly assume they cannot arrest a non-Indian suspect. The agency wants to clarify that an arrest should be made even if tribes cannot prosecute non-Indians in criminal cases.
The proposed amendments would give tribal courts the ability to enforce protection orders against non-Indians, regardless of where the order originates.
Lorena Halwood, who works with domestic violence victims on the Navajo Nation, said family abuse violates not only the law but the traditional Navajo way of life, which preaches harmony and talking with one another to mitigate problems. She stood with others in the Navajo Nation's capital this week, asking tribal lawmakers to support legislation that would specifically criminalize domestic violence for the first time on the reservation.
"A lot of the victims have come to accept there's nothing anybody can do," she said.
Halwood's work with domestic violence spans 16 years, creating a network of safe houses for victims awaiting transport to one of two shelters on the 27,000-square-mile reservation, the size of West Virginia. She's seen broken jaws and noses, sexual assault and rape cases, and has made 2 a.m. visits to the emergency room.
Tribal police often are late in arriving to the scene because of the remoteness of the reservation. Halwood said women's in-laws often blame them for the abuse, and women find it difficult to leave without transportation or a support system.
She welcomed any change that would make offenders realize they're not getting off with what she says commonly is a slap on the wrist and a warning not to hit a woman again.
"If we have harsher penalties, stiffer sentences, then maybe they'll see 'I'm not supposed to be doing this. The next time I might spend more time in jail away from my family, my children,'" she said.
The Justice Department's proposed amendments build on a sweeping piece of legislation passed last year to combat crime on tribal lands. The Tribal Law and Order Act revamped training for reservation police, expanded tribal courts' sentencing authority from one to three years, and aims to improve the collection and reporting of Indian crime data.
Department officials convene listening sessions every five years when the Violence Against Women Act is up for reauthorization. While provisions of the act are permanent, its grant programs expire. Agency officials say they're seeking a new grant program that would provide funding for tribes to ensure that defendants are appointed counsel when needed, realizing tribal resources are scarce.
If passed by Congress, the amendments to the Violence Against Women Act would take effect in two years, giving tribes time to amend their laws and ensure that defendants' rights are protected. A pilot project would allow any tribe that believes it has met the requirements to request an earlier start date.
Brent Leonhard, interim attorney general for the confederated tribes of the Umatilla Indian Reservation in Oregon, said the tribes' government has a comprehensive criminal code that covers family crimes. He said everyone there is entitled to a public defender regardless of whether they're indigent, courts conduct jury trials, and a judge who has been on the bench for 30 years is law-trained.
The only thing missing is a provision in tribal law that clarifies the rights of non-Indians.
"It allows us to ensure public safety for the entire reservation, Indian and non-Indian, and show we're going to hold people accountable. Period. Doesn't matter if they're Indian or non-Indian," Leonhard said Friday.