The University of Arizona

UA Alums Involved in Effort to Legally Prosecute Non-Indians on Pascua Yaqui Tribe

By Amanda Ballard, University Relations - Communications | April 21, 2014

Southern Arizona's Pascua Yaqui tribe is one of three selected in the nation to legally prosecute outsiders for violent crimes against Native American women.

University of Arizona alumnus Alfred Urbina, chief prosecutor for Southern Arizona's Pascua Yaqui tribe, has sat in front of families whose loved ones have been victims of violent crimes, only to say there is nothing that can be done.

"I have had to face whole families and explain that we could not provide the full measure of justice that their loved ones deserved," he says. "I have watched mothers and grandmothers cry and I could do little to help them."

Now there is something that can be done.

On Feb. 6, the Department of Justice announced that it had selected three Native American tribes in the United States for a pilot project in which they will be allowed to prosecute non-Indians facing charges of domestic violence against Native American women. The provision is part of the 2013 Violence Against Women Act, also called VAWA, and will take effect for all tribes in the lower 48 states starting next year.

One of those tribes is the Pascua Yaqui nation, where several UA alumni hold leadership positions. They include Urbina, Mercedes Garcia, assistant prosecutor, Fred Lomayesva, assistant prosecutor, Johanna Shortbull, juvenile justice advocate, and Wenona Benally Baldenegro, assistant attorney general. Their responsibilities include providing legal advice and representation within the tribal criminal justice system, which will be essential for response to crimes and prosecution of offenders, said Melissa Tatum, director of the Indigenous Peoples Law and Policy Center at the UA James E. Rogers College of Law and research professor of law.

"It's a huge victory to have the powers restored to tribes," said Tatum, who played a key role in the effort to train key members of the tribe's law enforcement units.

It's the first time tribes have had authority to prosecute non-Indians, for any crime, in tribal courts since 1978, when the Supreme Court ruled that tribes do not have jurisdiction over non-Indians in the case of Oliphant v. Suquamish Tribe.

According to a report issued in February by the National Congress of American Indians Policy Research Center (PDF), 61 percent of American Indian and Alaska Native women have been assaulted in their lifetimes. Among Native women who have been victims of rape or sexual assault, an average of 67 percent describe the offender as non-Native, according to the report. In addition, the report claims that American Indians and Alaska Natives are at least two times more likely to experience rape or sexual assault crimes compared with all other races.

Of the 566 federally recognized tribes in the U.S., the three tribes selected for the pilot project were the Pascua Yaqui of Arizona, the Tulalip of Washington and the Umatilla of Oregon.

The Pascua Yaqui tribe was selected as one of the first pilots after demonstrating that it had a well-established law enforcement infrastructure in place. Some of those elements include a two-tiered court system, new court facilities, a public defender's office, and a police department in which officers are certified on the tribal, state and federal levels.

"Without my legal training or my current connections to the UA school of law, I would not be in this position to help my tribe," Urbina said. "VAWA, an important endeavor, is more than just protecting individual women from violence. For Indian Country, it is literally about protecting, strengthening and healing whole communities."

During the month of February, Tatum and Urbina coordinated interactive workshops to train Pascua Yaqui police officers, the victim service's office, the prosecutor's office, the public defender's office, the attorney general's office, and court staff.

"In two weeks, we had everybody trained," Tatum said. "I helped develop the materials and provided some outside expertise in doing the interactive workshops, but they had the necessary infrastructure in place."

VAWA represents a huge victory for many, and the Pascua Yaqui will become the first to exercise authority under the law when it attempts to prosecute three non-Native Americans at a hearing this Friday. According to Tatum, the Pascua Yaqui experience high numbers of non-Native American crime due to the tribe's location near the U.S.-Mexico border.

Still, the law is fairly limited, Tatum said.

For one, it only applies to cases of domestic violence or dating violence to prosecute non-Native Americans who live on tribal lands, are employed within tribal boundaries, or are married to or in a relationship with a partner who is a tribal member. The law does not cover those who are "strangers" to the victims.

Another shortcoming is that the law only applies to the lower 48 U.S. states and not to Alaska, where 40 percent of federally recognized tribes exist. Tatum explained that among other issues, this stipulation is likely due to questions about what constitutes tribal land in the state and complicated issues related to jurisdiction.

VAWA "is also bittersweet, because we know that other tribal communities are still suffering," Urbina said. "What we are doing now is assessing the damage, evaluating how to clean up after the storm and rebuilding. In order for the sun to shine across Indian Country, there will have to be more resources and more law changes."

Tatum added that it also will be necessary to wait and see how the law is upheld by federal courts, which retain rights to overturn tribal courts' verdicts.

"The Pascua Yaqui is, in my experience, one of the best places to take this because of the investment they've made and the robust criminal justice infrastructure they have," Tatum said. "But it also means they're the first, and there's going to be a lot of scrutiny on what they do. There's always risk in being the first, but still, someone had to be first. It's a huge win for tribes to have this victory."