JS: For this pilot program, three tribes were selected for the pilot program. The Pascua Yaqui in Arizona, the Tulalip in Washington and the Umatilla in Oregon. Why do you think these three tribes were specifically chosen out of the 566 federally recognized tribes to participate in this program?
BD: The legislation under the terms of the act, tribes had the leeway to submit to the Department of Justice a fairly detailed plan showing they have the infrastructure structure ready to go to provide comparable, or in excess, protections to what the Constitution requires, and have those protections already in place for any defendant who’s going to be prosecuted under this newly authorized power.
This means the tribe has to have judges who are trained with law degrees accredited by a U.S. law school. Not all tribes require their judges to have formal law training, some of them appoint elders who command a great deal of respect. Under this legislation, tribes have to have educated judges. They also have to provide counsel. They have to provide a lawyer and that lawyer has to be law-trained as well.
In some tribes, the person who represents a litigant may be a tribal advocate, a role that connotes somebody who’s familiar with tribal procedures but may not be necessarily law-trained. You don’t need to have a law degree to be a tribal advocate in many tribes.
The mode of protections, the jury system, basically all of the protections that you would have if this were a State or a Federal prosecution would have to be in place. There are not a lot of tribes with the economic wherewithal or the incentive to redesign their judicial system so that they are a replication of the state and federal systems. Some tribes may object to having to do that on ideological grounds. They may say that their judicial systems work just fine and they don’t need to replicate the U.S. system merely because that’s the mode the U.S. adopts for its definition of justice and due process.
For other tribes, they feel it is a necessary compromise to make sure that offenders, who are so often the people who escape prosecution because the states and the Feds have a poor record in bringing charges against these individuals, they at least feel this is something they can do for their communities. They’re willing to pay the price of revising their judicial systems to meet this challenge. Whether they do that for all their cases or just these cases, remains to be seen.
In other words, if I’m the Tulalip tribe, do I overhaul my entire judicial system for these cases and do whatever we were doing prior to VAWA for all the other cases or do we do it for all the cases? I don’t know what their plans are.
I do know this that the VAWA itself only provides a sliver of authority for tribes to exercise this added authority. It only covers cases of domestic violence, stalking and cases where an offender has violated a protection order. It does not allow the tribe to prosecute a stranger, rapist, someone who is not familiar to the victim or doesn’t have prior ties to the community. So there are still many, many cases that will go unprosecuted by the tribes.
This is a baby step in terms of giving the tribes or recognizing some authority on the part of tribes to participate in bringing to justice some of these offenders. Tribes are still going to have to rely on the states or the Federal government for the vast majority of sexual offenses. These are also fairly low-level crimes for the most part. You’ll see these prosecuted as misdemeanors and the felonies are going to be left for the state or the federal government, but there again, for many tribes, it at least represents some action against an offender for him to account for his actions.
This means the tribe has to have judges who are trained with law degrees accredited by a U.S. law school. Not all tribes require their judges to have formal law training, some of them appoint elders who command a great deal of respect. Under this legislation, tribes have to have educated judges. They also have to provide counsel. They have to provide a lawyer and that lawyer has to be law-trained as well.
In some tribes, the person who represents a litigant may be a tribal advocate, a role that connotes somebody who’s familiar with tribal procedures but may not be necessarily law-trained. You don’t need to have a law degree to be a tribal advocate in many tribes.
The mode of protections, the jury system, basically all of the protections that you would have if this were a State or a Federal prosecution would have to be in place. There are not a lot of tribes with the economic wherewithal or the incentive to redesign their judicial system so that they are a replication of the state and federal systems. Some tribes may object to having to do that on ideological grounds. They may say that their judicial systems work just fine and they don’t need to replicate the U.S. system merely because that’s the mode the U.S. adopts for its definition of justice and due process.
For other tribes, they feel it is a necessary compromise to make sure that offenders, who are so often the people who escape prosecution because the states and the Feds have a poor record in bringing charges against these individuals, they at least feel this is something they can do for their communities. They’re willing to pay the price of revising their judicial systems to meet this challenge. Whether they do that for all their cases or just these cases, remains to be seen.
In other words, if I’m the Tulalip tribe, do I overhaul my entire judicial system for these cases and do whatever we were doing prior to VAWA for all the other cases or do we do it for all the cases? I don’t know what their plans are.
I do know this that the VAWA itself only provides a sliver of authority for tribes to exercise this added authority. It only covers cases of domestic violence, stalking and cases where an offender has violated a protection order. It does not allow the tribe to prosecute a stranger, rapist, someone who is not familiar to the victim or doesn’t have prior ties to the community. So there are still many, many cases that will go unprosecuted by the tribes.
This is a baby step in terms of giving the tribes or recognizing some authority on the part of tribes to participate in bringing to justice some of these offenders. Tribes are still going to have to rely on the states or the Federal government for the vast majority of sexual offenses. These are also fairly low-level crimes for the most part. You’ll see these prosecuted as misdemeanors and the felonies are going to be left for the state or the federal government, but there again, for many tribes, it at least represents some action against an offender for him to account for his actions.
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