Pascua Yaqui Tribe First to Use VAWA to Prosecute Non-Indian
Debra Utacia Krol
The Pascua Yaqui Tribal Court made history as the first tribal court to successfully prosecute a non-Indian in a trial by jury for committing an act of domestic violence on tribal lands. This came four years after the passage of the Violence Against Women Act (VAWA), which restored tribes’ right to deal out justice in all domestic abuse cases within their borders.
The non-Indian defendant, 19-year-old Frank Jaimez, was convicted of domestic violence and malicious mischief May 9 by a jury of both tribal and non-tribal members, a May 23 press release issued by the tribe says. Already on probation for a violation in which he pled guilty to strangling his wife, an enrolled Yaqui tribal member, Jaimez got into an argument with his wife over leaving the door open during a family visit, and smashing her property on the floor. Sentencing is set for June 7.
“This monumental criminal proceeding is an accomplishment not only for the Pascua Yaqui people, but for all of Indian country,” the tribe says in the May 23 statement.
In 2013, President Barack Obama signed S.47, the reauthorization of VAWA, which included a provision for tribal courts to prosecute domestic violence cases as criminal offenses. The legislation was sorely needed: The U.S. Department of Justice notes that “American Indians are 2.5 times more likely to experience sexual assault crimes compared to all other races, and one in three Indian women reports having been raped during her lifetime.” Before the new legislation was enacted, tribal police had no choice but to take suspects and drop them off at the reservation border, which allowed offenders to return home and continue to abuse family members.
The federal government, which still has jurisdiction over major criminal acts, declined to prosecute the majority of domestic violence cases, which further exacerbated the epidemic of violence against Native women. Pascua Yaqui Chief Prosecutor (now tribal attorney general) said in 2014, “The previous lack of tribal criminal jurisdiction over non-Indian spouses and intimate partners left a significant gap in the Pascua Yaqui criminal justice system.”
The Pascua Yaqui Tribal Court has been hailed as a model court, and was one of three tribal courts that engaged in a pilot program to demonstrate tribes’ ability to prosecute domestic violence cases against non-tribal members that also protected those suspect’s rights. The tribe also was a clear voice in the discussions that led to enhanced sentencing options incorporated into the Tribal Law and Order Act of 2010. While the new legislation is not perfect—for example, violence committed against tribal children by non-tribal members is still not covered under the statute—it’s considered a good first step toward tribal courts’ ability to protect their citizens from violent acts.
In addition to this case, the tribe’s statement indicated that the Pascua Yaqui court has conducted three other jury trials with non-Indian defendants, extradited two non-Indian defendants back to its tribal court from the state of Arizona on tribal court warrants, and convicted 14 non-Indian defendants of other offenses. “The Tribal Council has made stopping violence against Native American women a top priority issue,” said Pascua Yaqui Chairman Peter Yucupicio in a 2014 statement announcing the implementation of the domestic violence statute. And Urbina added that the VAWA tribal provisions are a “first step” in ensuring tribal resident’s safety.
“One of the most important changes when I worked to reauthorize VAWA in 2013 was to close the jurisdictional loophole that allowed non-Indian defendants who commit domestic violence in tribal communities to escape justice. Sen. Patrick Leahy (D-VT) chief sponsor of S. 47, said. “It is encouraging that tribes across the country, including the Pascua Yaqui Tribe, are using this new authority to protect victims who may not otherwise have seen any justice. We must support all victims and survivors of domestic and sexual violence. And it is vitally important that all tribes have the ability to keep their citizens and their communities safe.”
Cherokee attorney Keith M. Harper, former ambassador to the UN Human Rights Council and lead attorney in the landmark Native trust fund case Cobell v. Salazar, applauded the ruling.
“It is a very good thing, generally-speaking, to observe tribes exercise their recognized authority over criminal conduct of non-Indians, as applicable. This is especially true when doing so as a means to combat the scourge of violence against Native women and girls,” Harper says. “The fact is, tribal communities are in a better posture to address the challenges they face and this is a textbook example of enhancing recognized tribal authority in a manner to make safer and ultimately more prosperous communities.
“It is sovereignty in action.”