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Opinion Student Reflections

Reflection: Juvenile (in)Justice for Indigenous Youth

By: Brittany Dutton-Leyda

I spent last summer interning at the United States Attorney’s Office for the District of New Mexico. I have always had an interest in criminal law, specifically defense, but I couldn’t turn down the opportunity to experience complex criminal law in a federal setting. I figured it would give me an opportunity to make sure prosecution wasn’t for me. Although the experience didn’t turn me into a future prosecutor, it did give me a deep respect for the noble work the Assistant U.S. Attorneys do every day. I was impressed and thankful to see good, ethical prosecutors working diligently to help victims of horrible crimes. However, I was extremely disheartened to learn of how damaging federal laws can be when applied to Indigenous people, especially juveniles.

The Major Crimes Act provides the federal government jurisdiction over major felony crimes committed on tribal lands and along with the Juvenile Delinquency Act,[1] works to prevent tribes from adjudicating certain juvenile felony cases through tribal court. Accordingly, because of federal jurisdiction and these laws, a disproportionate number of Indigenous youth end up in the federal system and prisons. Even though the Indigenous population in the United States is only 1.5% of the total population, the disproportionate number of federally imprisoned Native American youth is staggering.[2] “Approximately 61% of youthful offenders incarcerated in the Federal Prisons are Native Americans . . .The high percentage is due to sentencing under the FJDA, Major Crimes Act, and General Crimes Act. These Acts subject youthful offenders to federal prosecution and federal criminal sentencing guidelines instead of tribal sentencing.”[3]

I witnessed this disparity firsthand when interning at the U.S. Attorney’s Office. I was assigned to Indian Country and was allowed to sit in on an armed robbery trial of a teenage Native American who was a first time offender and facing several years in federal prison.[4] I was shocked to hear that someone so young that hadn’t committed any other crimes was facing such a long sentence. When I asked why that was, I was informed that it was due to federal jurisdiction and federal laws that administer these harsh sentences disproportionately to Indigenous people. It made me sad and angry to hear that simply because of this young man’s status as a federally recognized tribal member, he was facing a sentence that was essentially three times longer than he would have received through state or tribal court.

Even in cases that potentially could or are adjudicated through tribal courts, federal jurisdiction, federal laws, and federal courts often take over and replace tribal court rulings, severely undermining tribal sovereignty. This is often motivated by political factors that federal actors argue is in support of tribal sovereignty but is actually rooted in racism, the patriarchy, power, and control. An example of this is in United States v. Male Juvenile, in which a fourteen-year-old Indigenous boy was sentenced in Fort Peck tribal youth court to 180 days for theft and burglary, but was then retried in federal court and sentenced instead to twenty four months in federal prison.[5] The court reasoned that because “the [Federal Juvenile Delinquency] Act limits the maximum term of official detention to the lesser of the period until the juvenile becomes 21 or the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult,” and considering the maximum sentence for burglary in Montana is twenty years, the sentence of two years was appropriate in this case.[6]

The fundamental problem with this type of reasoning, along with the fact that it extremely disadvantages Native American youth, is that it completely lacks any consideration for cultural methods of restorative justice which many tribes are rooted in. “American Indians draw strength from their traditions, cultures, kinship, other relationships, and ceremonies. . .Some tribes have focused their efforts to develop culturally appropriate healing methods for their youth. Since tribal youth offenders in the juvenile justice system have demonstrated better outcomes when they receive targeted, culturally-and community-based services.”[7]

Even the judiciary in New Mexico have expressed concerns about the problems with federal laws, federal jurisdiction, and how they negatively impact Native American youth. In United States v. Jerry Paul C., an Indigenous juvenile

…was convicted and sentenced as an adult on two counts of armed robbery with a firearm enhancement; conspiracy to commit armed robbery; and false imprisonment. He was sentenced to a prison term of ten years (one hundred twenty months). Under the Federal Sentencing Guidelines, he would have been subject to a sentence of approximately eighty-seven to one hundred and eight months, plus sixty consecutive months for use of a firearm during a crime of violence.[8]

The court recognized that Native American juveniles tried as adults in federal court were unable to earn “good time” at the same rate as juveniles in state court, causing them to “serve a substantially larger percentage of their originally longer sentences than non-Indian youths tried as adults in the State courts.”[9] Furthermore, the court acknowledged that this disparity is “because transfer to adult status in the federal system exposes them to far graver consequences than their non-Indian counterparts in the state system. This is especially ironic as one of the goals of the Federal Sentencing Guidelines was to address minority defendants receiv[ing] longer sentences than their White counterparts.”[10]

Unfortunately in the case of Jerry Paul C., and as in most of these federal juvenile cases, the court’s hands were tied due to these federal laws. Although the court was willing to acknowledge the severe consequences of this disparity, the court ultimately concluded that “the possibility of a disproportionately long, federal prison sentence is largely the unfortunate product of Jerry Paul C.’s jurisdictional status as a Native American.”[11]

Although the case I witnessed that sparked this outrage in me was not technically a juvenile case, it was the case of a young man who was facing the same issue due to federal jurisdiction, federal laws, and federal sentencing because of his status as a Native American. Thankfully in his case, he was acquitted of the charges and now has the opportunity at a second chance in life outside of the confinement of the walls of federal prison.

Who, if anyone, deserves a second chance at rehabilitation more than youth? Why should youth that don’t live on tribal lands be afforded a greater opportunity for rehabilitation than Indigenous juveniles? I certainly don’t know what the answer to this problem is, but I do know that a call to Congress in addressing and reforming federal laws and sentencing that severely disadvantage Native American youth could be a start in rectifying this gross injustice for Indigenous juveniles.


[1] 18 U.S.C. § 1153; 18 U.S.C. § 5031.

[2] LaTanya Gabaldon-Cochran, Federal and Tribal Court Jurisdiction Over Youthful Offenders in Indian Country, Tribal Judicial Institute, https://law.und.edu/npilc/tji/_files/docs/monograph-youthful-offenders.pdf.

[3] Id.

[4] United States v. Thompson, No. CR 19-1610-MV-4, 2021 WL 2530993, at *3 (D.N.M. June 22, 2021), as amended (June 22, 2021).

[5] Id. at 1021.

[6] Id. at 1021.

[7] National Congress of American Indians, Tribal Juvenile Justice, https://www.ncai.org/policy-issues/tribal-governance/public-safety-and-justice/Office_of_Juvenile_Justice_and_Dequincy_Prevention_Literature_Review_Tribal_Youth_in_the_Juvenile_Justice_System_-2016-.pdf, (last visited Nov. 17, 2021).

[8] United States v. Jerry Paul C., 929 F. Supp. 1406, 1408 (D.N.M. 1996).

[9] Id.

[10] Id.

[11] Id. at 1411.

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Commentary Criminal Law

The Violence Against Women Act and The Necessity to Protect Indigenous Women

By: Bree Barnett

Introduction

            The Violence Against Women Act (VAWA) is once again up for reauthorization in 2021. VAWA has been reauthorized only three times since its enactment in 1994, in hopes of combatting the pervasive crimes that were being committed against women. Since its original passage in the mid-nineties, the act has been somewhat successful, with the overall rate of domestic violence declining tremendously.[1] However, the problem is nowhere close to being eliminated, as one in three women will still experience domestic violence in their lifetime. The statistics for Indigenous women are even bleaker, with 4 in 5 experiencing domestic violence and more than 1 in 2 having experienced sexual violence.[2] Native American women continue to suffer the highest rates of forcible sexual assault and experience almost 10 times the rate of domestic violence compared to the rest of the United States.[3] This gap can be partially attributed to the historic failures of VAWA’s protections for Indigenous women. This paper will discuss these failures, the newest iteration of the bill, and how federal protections like VAWA could be strengthened to provide adequate protections for Indigenous women.

The History of VAWA and its Failure to Protect Indigenous Women

            The original version of VAWA was one of the first federal packages that was designed to end violent crimes that are often perpetuated against women like domestic violence and sexual assault. The bill was created to provide funding for victim services, strengthen criminal protections for these crimes, and also attempted to make the process of receiving a restraining order easier. While this bill felt like a victory to the many women’s rights activists who had lobbied tirelessly to implement this legislation, in many ways it fell short, especially for Indigenous women across America. Indigenous women were not even a group that was specifically named and targeted for help in the bill until its 2005 authorization, despite many statistical showings that they are one of the most vulnerable populations for these kinds of crimes.[4] It took a great deal of pushback for the 2005 reauthorization of the bill to implement provisions that would combat gender-based violence on tribal land.

            However, VAWA has continuously fallen short due to the complications and conflicts presented by criminal jurisdiction on tribal lands. Criminal jurisdiction in Indian country has long been divided amongst federal, tribal, and state governments; a determination that is largely dependent upon the facts of the case. The race of the perpetrator, the seriousness or the type of crime, and the race of the victim all influence which governmental body will have jurisdiction to try the case.[5] These issues are further compounded by a Supreme Court case which severely limited the ability of tribal governments to prosecute non-native offenders for crimes committed in Indian country. In the 1978 case, Oliphant v. Suquamish Indian Tribe, the Supreme Court held that tribal courts could not exercise criminal jurisdiction over non-native defendants.[6] This case has created distinct issues for victims of sexual assault and domestic violence, as a majority of the crimes against Native American women are perpetuated by non-native men.[7] Oliphant disempowered tribal governments and revoked their ability to pursue justice for the women in their communities who are suffering domestic violence and sexual assault at the hands of non-native men. Congress’s failure to include the necessary provisions to further expand the jurisdiction of tribes and provide a safe harbor for Native American women meant that VAWA was largely useless to tribes and the women in their communities.

            It has taken Congress many years and several reauthorizations to create even a partial fix to the limitations created by Oliphant. In 2013, Congress amended VAWA and the Indian Civil Rights Act [8] to authorize “special domestic violence criminal jurisdiction,” which granted tribal courts oversight of criminal cases against non-native offenders who commit domestic violence related offenses under some very limited circumstances.[9] Importantly, the “special domestic violence criminal jurisdiction” did not grant jurisdiction over many of the crimes that VAWA intended to protect women from. Tribal courts still lack the authority to hear cases involving sexual assault, sex trafficking, and stalking. Additionally, while this provision did grant tribes the authority to oversee domestic violence cases occurring within the context of a romantic relationship between the victim and the perpetrator, tribal authority does not apply if the non-native defendant lacks sufficient ties to the tribe.[10] For tribes to benefit from this jurisdictional expansion, the defendant must reside on tribal lands, be employed on tribal lands, or be the spouse of a tribal member who resides on tribal land. Therefore, if the crime did not take place on tribal land, or the defendant lacked sufficient ties to the tribe, the tribal court still did not have jurisdiction to oversee the case. Additionally, for Tribes to even be eligible to utilize the jurisdictional expansion granted in this amendment, Tribal nations have to agree to uphold many of the enumerated rights of the non-native defendants and ensure that they are afforded the due process rights that exist under the United States Constitution..[11] Therefore, Indigenous women who are assaulted outside of their tribe’s territory, belong to a tribe who did not implement VAWA’s special jurisdiction, or have been assaulted by a defendant with insufficient ties to the tribe cannot turn to their own tribal government to pursue justice.

            The 2013 version of the bill stands as the most current rendition, due to the inability of Congress to reauthorize an updated version in 2018, after numerous disputes around what protections should be amended. Although VAWA has technically expired, funding for the programs remains in effect and continues to provide support for women across the United States. Ultimately, no new provisions or expansions in funding can take place unless Congress can successfully agree on the amendments this year.

The Proposed 2021 Legislation

            The 2021 amendments seek to maintain and expand many of the existing protections that were later included for Indigenous women. For example, new provisions of this bill seek to restore tribal jurisdiction over non-native perpetrators for crimes of sexual assault, stalking, child abuse, elder abuse, assault against law enforcement officers, and trafficking if they are committed on tribal lands, eliminating the earlier mentioned caveats.[12] The proposed amendments also aim to create a pilot project for up to five tribes in Alaska to implement special criminal jurisdiction. This is important because Alaska Native lands were not included as part of Indian country within any prior enactments of this bill and were therefore afforded no protections under VAWA.[13]

Additional portions of this bill also seek to support tribes in combating the human rights crisis of missing and murdered Indigenous women. As it stands, Indigenous women and girls are disproportionately impacted by homicide and sexual assault. As of 2016, the National Crime Information Center reported almost 6,000 cases of missing Indigenous women, and by comparison the U.S. Department of Justice only showed 116 missing Indigenous women.[14] The jurisdictional issues between state, local, federal and tribal law enforcement, combined with a lack of communication between the authorities responsible for tracking missing persons, make it nearly impossible to investigate cases of missing Indigenous women, thereby creating a legal vulnerability. [15] Section 901 of the 2021 bill clarifies the responsibilities of federal, state, tribal and local governments when responding to cases of missing and murdered Indigenous women, in the hopes that Congress can facilitate a path forward in facing the epidemic of these crimes.[16]

Continued Obstacles to Justice

            Despite the fact that each reiteration of VAWA has sought to improve upon the legislation and expand the availability of justice to Indigenous victims, the 2021 version of the bill falls short in its protections. An overarching theme present in federal legislation is that many politicians lack respect for and trust in the tribal court system, which is apparent in VAWA’s issues surrounding special criminal jurisdiction. One of the reasons many limitations exist to prevent tribes from holding jurisdiction over non-native defendants is because many elected officials and United States’ courts are concerned that tribal courts would not provide sufficient constitutional protections to non-native offenders accused of crimes and are simply not trusted enough to oversee the prosecution of these defendants.[17] These concerns infringe on tribal sovereignty and prevent tribal nations from being able to protect their members from serious violent crime. Congress must recognize the legitimacy of tribal courts and implement legislation that overturns the limited tribal jurisdiction established in Oliphant. If an individual commits a crime on tribal lands and victimizes a member of that tribal nation, the individual should be held liable to the justice system and codes of that tribe.

However, due to the historical limitations on tribal court systems, tribal nations would likely need a great deal of support to create and accommodate to taking on the prosecution of crimes that target Indigenous women. As it currently stands, many tribal codes do not contain laws against severe and violent offenses because these kinds of crimes have always fallen underneath the purview of the federal codes. Other obstacles may depend on the specific tribe, as some nations may have small-scale or limited funding for police forces, which pose issues in terms of the time and manpower available to take over the prosecution of offenses against women. Therefore, the road to tribal empowerment will not be accomplished overnight and is not a simple fix. The government must authorize tribal nations to protect their people and provide adequate funding so that they are actually equipped to develop strong codes, appropriate police forces, and effective judicial systems. Otherwise, simple reauthorizations of federal policies like VAWA will only be small steps in the right direction. To truly protect Indigenous women, Congress must uphold and support tribal sovereignty. Until then, the impact of VAWA will be severely limited and its true purpose will continue to be undermined.


[1] See generally Jennifer L. Truman and Rachael E. Morgan, Nonfatal Domestic Violence, 2003-2012, Bureau of Justice Statistics (2014), https://bjs.ojp.gov/content/pub/pdf/ndv0312.pdf.

[2] Ending Violence Against Native Women, Indian Law Resource Center, https://indianlaw.org/issue/ending-violence-against-native-women (last visited Nov. 4, 2021).

[3] Id.

[4] Sheena L. Gilbert, Emily Wright, and Tara Richards, Federal Policy has Failed to Protect Indigenous Women, The Conversation (June 18, 2021, 8:32 AM), https://theconversation.com/federal-policy-has-failed-to-protect-indigenous-women-159679.

[5] Introduction to the Violence Against Women Act, Tribal Court Clearinghouse, https://www.tribal-institute.org/lists/title_ix.htm (last visited Oct. 23, 2021).

[6] See generally Oliphant v. Suquamish Indian Tribe,435 U.S. 191 (1978).

[7] Lyndsey Gilpin, Native American Women Still Have the Highest Rates of Rape and Assault, High Country News (June 7, 2016), https://www.hcn.org/articles/tribal-affairs-why-native-american-women-still-have-the-highest-rates-of-rape-and-assault.

[8] The Indian Civil Rights Act of 1968, 25 U.S.C. §§1301-1304 (2013).

[9] Tribal Court Clearinghouse, supra note 5.

[10] Id.

[11] Special Domestic Violence Criminal Jurisdiction, The National Congress of American Indians, https://www.ncai.org/tribal-vawa/sdvcj-overview/due-process-requirements (last visited Nov. 1, 2021).

[12] Violence Against Women Act of 2021, H.R. 1620, 117th Cong. § 903 (2021). Available at https://www.congress.gov/bill/117th-congress/house-bill/1620/text.

[13] Charlene Koski, Reauthorization Efforts Continue, Including Focus on Expanding Jurisdiction for Alaska Native and Other Tribes, The National Law Review (Aug. 6, 2021), https://www.natlawreview.com/article/vawa-reauthorization-efforts-continue-including-focus-expanding-jurisdiction-alaska.

[14] Murdered Missing and Indigenous Women, Native Women’s Wilderness, https://www.nativewomenswilderness.org/mmiw (last visited November 1, 2021).

[15] Id.

[16] Violence Against Women Act of 2021, H.R. 1620, 117th Cong. § 901 (2021). Available at https://www.congress.gov/bill/117th-congress/house-bill/1620/text.

[17] Maura Douglas, Sufficiently Criminal Ties: Expanding VAWA Criminal Jurisdiction for Indian Tribes, 166 U. Pa. L. Rev. 745, at 774-775 (2018).