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Chapter 3 Supplement Specific Justice Systems

and Victims' Rights

Collaborative initiatives between state and federal agencies and tribal courts are taking a serious look at crime, delinquency, and abuse in Indian Country to develop judicial procedures and interventions addressing criminal activity that merge the Native American and the criminal justice approaches to dispute resolution and sentencing. An integral part of the programs is the investigation into the cultural and economic conditions that give rise to higher than average levels of alcoholism and other substance abuse, child abuse, and other violent crimes in Indian Country.

PROTOCOLS FOR THE DISPOSITION OF CHILD SEXUAL ABUSE CASES

IN INDIAN COUNTRY

The investigation and prosecution of child sexual abuse in Indian Country are complicated by multi-jurisdictional issues that create confusion among victim service providers and conflicts among tribal and state and federal law enforcement and prosecutors. Victim service providers are frustrated by overlapping investigations and repeat interviews of child victims. The lack of clear jurisdictional protocols that cause an overlapping of responsibilities among criminal justice professionals and tribal leaders also negatively affects the well-being of the victim and the victim's nonoffending family.

Factors that lead to confusion over criminal jurisdiction in Indian Country are:

• The location of the act--whether or not it has occurred in Indian Country, on public lands, or both.

• The type of crime. Sixteen major criminal offenses (one of which is child abuse) establish federal jurisdiction in Indian Country. In incidents of child sexual abuse committed by Indians against Indian children within Indian country, there is a shared federal and tribal jurisdiction.

• The race of the alleged offender and the child victim. Tribal courts have only civil jurisdiction over non-Indian alleged offenders who commit child sexual abuse in Indian Country.

Furthermore, the U.S. Supreme Court has ruled that charging a defendant in both federal court and tribal court does not amount to double jeopardy, a ruling which provides greater flexibility to tribal and federal courts in the handling of child sexual abuse cases (United States v. Wheeler, 435 U.S. 313 (1978)). Because the tribal court is in a better position to proceed quickly with an investigation and intervention into the abuse, they frequently make the first move to punish the offender. Nevertheless, investigations may eventually be carried out by federal, tribal, and even state agents, leading to multiple interviews and a longer, more frustrating process for the victim. Clear written protocols clarifying agency roles for the coordinated investigation of child abuse cases in Indian Country, agreed upon by the participating agencies, are essential to minimize further trauma to the child victim and the victim's nonoffending family.

The Office for Victims of Crime (OVC) has moved to address unnecessary trauma to child victims of sexual abuse during investigation and prosecution through the Children's Justice Act (CJA) Partnerships for Indian Communities Program. The goal is to facilitate the better coordination of the investigation and prosecution procedures. The creation of multidisciplinary teams comprised of law enforcement, social services, medical, child welfare, victim assistance, and judicial agencies with tribal representation on state- and federal-based teams, and federal and state criminal justice representation on tribal-based teams, is an approach that can minimize onerous investigative and prosecutorial procedures.

In addition, the U.S. Department of Justice has implemented several programs to improve coordination between federal and tribal courts:

• The Tribal Courts Project created to strengthen tribal courts' ability to respond to family violence and juvenile issues.

• The addition of criminal lawyers with expertise in child sexual abuse in Indian Country.

• The creation and awarding of grants under the Violence Against Women Act for improved domestic violence programs.

• A demonstration project that will become a model for Tribal Children's Advocacy Centers.

• Programs that provide training and technical assistance to facilitate the development of the above programs.

(Portions of the preceding section are summarized from Improving Tribal/Federal Prosecution of Child Sexual Abuse Cases Through Agency Cooperation, U.S. Department of Justice, Office for Victims of Crime, Washington DC, June 1999).

THE TRIBAL DRUG COURT INITIATIVE: HEALING TO WELLNESS COURTS

A high rate of violent crime and victimization committed by Native Americans under the influence of alcohol prompted the U.S. Department of Justice, Drug Courts Program Office (DCPO) to launch the Tribal Drug Court Initiative in 1997. Research has shown that in tribal communities, alcohol is the most abused substance by both adults and juveniles (the use of the term "drug" for purposes of the initiative includes alcohol). Planning and implementation and, later, continuation and enhancement grants have been awarded to tribal governments through applications to the DCPO. Specialized training and technical assistance programs assist tribal communities with the development drug court programs that work effectively within tribal justice systems and tribal culture (Tribal Law & Policy Institute and DCPO July 1999).

There are currently twelve operational Native American and Alaska Native tribal drug courts, and thirty-three are in pilot or planning stages. There is a special name for the program within each tribal court, but they are referred to generally throughout Indian Country as the Healing to Wellness Courts. Their challenge has been to merge the traditional, sociocultural, restorative aspects of the American Indian justice system with the criminal justice model for drug courts that helps offenders achieve abstinence and alter criminal behavior through a combination of judicial supervision, treatment and drug testing, incentives, sanctions, and case management. Each tribe attaches its unique interpretation to the program. For example, one Indian chieftain described the drug court as a "council of responsible professional elders and their warriors of both genders coming together in harmony to do battle against both a visible and an invisible enemy--the disease of alcohol and drug abuse. The tactic that the team/council/war party takes is to act as a legal and culturally sanctioned authority that meets the patient/client/tribal member where he or she is at in relation to his or her abusive relationship with the mood and behavior altering chemical" (Ibid.).

• The Tribal Law and Policy Institute is an Indian owned and operated non-profit corporation that designs and delivers education, research, training, and technical assistance programs that promote the health, well-being, and culture of Native peoples. Its goal is to facilitate the sharing of legal resources among Indian Nations and tribal justice systems that can be adapted to the individual needs of their communities, by linking tribal justice systems with other academic, legal, and judicial resources such as law schools, Indian law clinics, tribal colleges, Native American Studies programs, Indian legal organizations and consultants, tribal legal departments, other tribal courts, and other judicial/legal institutions. Among their many programs that address the needs of Indian offenders and victims are:

- Project Peacemaker, a collaboration with the UCLA American Indian Studies Center and tribal colleges, develops, pilots, and implements Tribal Legal Studies curricula for tribally controlled colleges.

- The Tribal Law and Policy Institute provides technical assistance to the Tribal Drug Courts in developing tribal court specific resource materials and also serves as the training and technical assistance provider for OVC's CJA program.

- The Tribal Law and Policy Institute collaborates with Tribal Court CASA and the National Court Appointed Special Advocate Association (CASA) for training and technical assistance in the development and enhancement of tribal court CASA programs.

Tribal Law and Policy Institute, P.O. Box 460370, San Francisco, CA 94146 (415-647-1755) <http://www.tribal-institute.org>.

• Collaboration in Services Among Tribal and County Victim/Witness Professionals. To enhance collaboration and increase understanding between county and tribal victim/witness professionals in Santa Fe, Los Alamos, and Rio Arriba Counties in New Mexico, the Domestic Violence Unit at the District Attorney's office applied for and received a VAWA grant for victim services in the county that they share with pueblo victim advocates. Eight different tribal nations dwell within the county, each with different customs and often conflicting procedures for dealing with victimization within their pueblos. In addition, while a misdemeanor domestic violence incident in the pueblo is treated as a family matter in tribal court and the judgment in punitive terms tends to be mild, the disposition of a similar incident committed by a Native American off reservation and prosecuted in county courts may result in jail time. Confusion develops when victim/witness professionals from the District Attorney's office deliver services to Native American victims of domestic violence and advise them of their rights. Native American crime victims often initially rejected help from prosecutor-based victim services as an invasion of privacy, and Native American pueblo-based victim advocates resented the presence of outsiders. It has been important that all parties give up the idea of "ownership" of the victim as a piece of evidence and find the best way in each circumstance to respond to the victim's needs. Furthermore, a three-year-old program for state certification of victim advocacy through Western New Mexican University has created a neutral environment for Native American victim advocates and prosecutor-based victim advocates to overcome territorial disputes. Networking through the university program has contributed to greater communication and healthier relationships. Native American and prosecutor-based advocates welcome calls from each other to come to the assistance of a victim, whether it be an Anglo involved in a pueblo based-crime or a Native American victim involved in a county-based crime. Domestic Violence Unit, District Attorney's Office, P.O. Box 2041, Santa Fe, New Mexico, 87504 (505-827-1881).

• The Tucson Restorative Justice Program is an effort by the U.S. Attorney's Office in Tucson to improve services for victims of violent crime, increase their meaningful participation in the criminal and juvenile justice system, and assist them and their communities in healing from their victimization. The Project focuses on two Southern Arizona Indian reservations: the Pascua Yaqui, a small urban reservation, and the Tohono O'Odham Nation, a rural area with many small isolated villages and the second largest Indian reservation in the country.

Tribal prosecutors, officials, and elders work with law enforcement, probation, and victim service providers to make a concerted effort to understand the needs of the victim, the victim's family, and the community. Victim impact statements are obtained in person through a team member's visit to the victim's home on the reservation. In juvenile cases, they seek the court's permission for victims and their families to participate in the hearings and sentencing. Efforts are made to see that restitution is ordered appropriately and routinely, including payments for traditional healing ceremonies, death anniversary ceremonies, and third-party reimbursement for tribal costs incurred for counseling or other services to crime victims. U.S. Attorney's Office, District of Arizona, 110 S. Church Street, Suite 8310, Tucson, AZ 87501.

• CJA Program at Salt River. The Salt River Pima-Maricopa Indian Community is located east of Phoenix, in south-central Arizona, adjacent to the cities of Scottsdale, Tempe, Mesa, and Fountain Hills. The CJA program at Salt River has developed strong services for victims of child abuse. Through the efforts of the CJA program, there are services in place that protect and serve children who are victims of child abuse, including child sexual abuse. The services include the special child abuse prosecutor, child victim witness advocates, victim assistance information disseminated at schools, a child interview-room at the police department, a children's waiting room at the prosecutor's office, and a codified children's Bill of Rights. An interagency protocol has been developed at Salt River that can be useful to other tribes. This protocol represents the culmination of long-term efforts to establish tribal victim services in the midst of a metropolis with agencies once reluctant to work with tribal service providers. Over the past six years, Salt River service providers have gathered the resources and experience to stand alongside state service providers and work together for victims of crime at Salt River.
• Volunteer Program: Confederated Tribes of Warm Springs, Oregon. The Confederated Tribes of the Warm Springs Reservation are comprised of numerous bands of three different tribes: the Sahaptin-speaking Warm Springs Tribe, the Upper Chinook-speaking Wascos, and the Northern Paiute. The volunteer program at the Warm Springs Reservation defies prevailing attitudes concerning the difficulties of getting Indians to volunteer on reservations, environments that are usually laden with poverty and unemployment. Volunteers were recruited through the tribal newspaper and the tribal radio station, utilizing pleas that not only asked for volunteers but also provided information about the victim assistance program and the needs of the community. During the interview process, volunteers were assured that they would be fully trained and would apprentice with a staff member or experienced volunteer. Volunteers are treated with great appreciation and respect by staff members. They have lunches and annual banquets to honor the volunteers and the work they do, furthering the objectives of community outreach as well. The training is ongoing for the volunteers, both in-service and training away from the reservation.

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