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VAWA reauthorization expands tribe’s ability to hold abusers accountable

Since 2015, the Cherokee Tribal Court has been able to prosecute non-tribal members for domestic violence offenses, and new federal legislation will expand that ability to eight additional crimes. Holly Kays photo Since 2015, the Cherokee Tribal Court has been able to prosecute non-tribal members for domestic violence offenses, and new federal legislation will expand that ability to eight additional crimes. Holly Kays photo

On July 21, 2015, Cherokee resident John Michael Arkansas was convicted of violating a domestic violence protective order. He received a year of probation and $1,600 in fines and restitution, with a 75-day sentence hanging over his head should he violate the terms.

The conviction — which in most contexts would be considered a run-of-the-mill criminal proceeding — was a groundbreaking achievement  for the Eastern Band of Cherokee Indians. 

Arkansas was the first non-enrolled person to be charged, tried and sentenced before the Cherokee Tribal Court, a milestone made possible through the 2013 renewal of the Violence Against Women Act. The federal law created a pathway for Native American tribes  to gain jurisdiction over non-Indians who commit domestic violence against enrolled members on tribal land — a crime that is lamentably common and lamentably difficult to prosecute. 

“It really enhances an Indian tribe’s sovereignty, because an Indian tribe should be able to defend itself, carry out its own affairs,” Cherokee Chief Justice Kirk Saunooke said of the tribe’s powers under VAWA. 

Since 2015, the EBCI has pressed charges against non-Indians in 66 alleged incidents of domestic violence, convicting 34 of those cases in tribal court, with some cases still in progress. Domestic violence cases against non-Indians account for 10-20% of all domestic violence crimes charged in Cherokee each year, said Tribal Prosecutor Shelli Buckner, with 2017 and 2018 seeing the highest number so far. Those years also saw the highest overall number of domestic violence cases in Cherokee. Because the tribal court can sentence defendants to a maximum of only three years in prison per charge, with a cap of nine years spread across three charges, more serious cases still get sent to federal court. 

“Domestic violence should be addressed vigorously,” said U.S. Attorney Don Gast. “I’ve heard it said and I’ve used this line before, too, that domestic violence is murder on the installment plan. It’s important to attempt to intervene and prosecute domestic violence cases even at the misdemeanor level before it becomes a homicide.”

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Local prosecution easier on victims 

Prior to VAWA, those misdemeanor cases were simply not resulting in the sentences that victims, law enforcement and the legal community hoped to see. Saunooke’s predecessor Bill Boyum attributed that reality to overfull dockets forcing federal prosecutors to prioritize their efforts toward more egregious crimes, like murders and robberies. 

“They [federal prosecutors] have things that are higher on ‘things to do’ than a Friday night slapping of somebody,” Boyum told The Smoky Mountain News  in 2015. “It’s just a fact of life.”

Gast, who has been with the U.S. Attorney’s Office since 2001, said that’s not accurate, and that he’s never had to decline a case due to workload issues. In fact, he said, as a federal prosecutor, he has a smaller caseload than he did as an assistant district attorney working under state jurisdiction. 

“We handle all those cases with utmost care, seriousness and respect,” he said. 

Tribal and federal prosecutors and law enforcement have a positive relationship, all those interviewed for this story emphasized, and they all want to see justice for victims of crime. Dena J. King, now three months into her new job as U.S. attorney for the Western District of North Carolina, said that she too looks forward to strengthening that partnership — “especially when it comes to protecting Indian women and girls from the violence they face,” she said. 

But both federal and tribal officials acknowledge that there are benefits to prosecuting domestic violence crimes closer to home. 

In many such cases, the victim is the crime’s only witness, meaning that she or he must participate in the case to secure a conviction. It’s always difficult to convince somebody who has suffered abuse at the hands of a romantic partner to make a formal complaint, complete interviews with law enforcement and attorneys, and possibly even testify in a courtroom. When that courtroom is an hour away in Asheville — or even just 20 minutes away in Sylva — populated by strangers unfamiliar with the Cherokee culture, it’s even harder. 

“When you take them out of what they know is their tribal lands and where they feel safe, and stick them in another city, in another courtroom, with nobody they know, it did cause a lot of disconnect, and it still happens today sometimes,” said Cherokee Indian Police Department Chief Josh Taylor. 

Victims often need more than just legal services as they navigate the emotional, professional and financial aftermath of an abusive relationship — the Cherokee court system can connect them with local services more efficiently than the federal court in Asheville. 

“Asheville is only an hour away, but it’s still a long way to go for court hearings,” said Gast. 

Tribal prosecution powers expand 

Tribal officials believe that the last seven years have proven that the Cherokee court can prosecute non-Indians fairly and effectively, and the question’s been building — why should domestic violence be the only crime for which the tribe may hold non-Indians accountable? 

“Give us more jurisdiction,” said Saunooke. “Let us handle this.”

When President Joe Biden signed a bipartisan omnibus bill  that includes VAWA renewal legislation (see VAWA, page 10), Saunooke got his wish. The bill expands tribal jurisdiction over non-Indians to include assault of tribal justice personnel, child violence, dating violence, obstruction of justice, sexual violence, sex trafficking, stalking and violation of a protective order — in addition to domestic violence. 

“The historic tribal provisions in this bill attest to years of powerful, collaborative efforts between survivors, tribal leaders and allies across Indian Country,” National Congress of American Indians President Fawn Sharp said in a statement . “We commend Congress’ momentous action to reauthorize the Violence Against Women Act and now, by exercising our inherent sovereignty and jurisdiction, Tribal Nations will continue to increase safety and justice for victims who had previously seen little of either.”

The expanded authority in VAWA covers crimes that commonly co-occur with domestic violence incidents, but, under the current structure must be split off as separate state or federal cases. 

As an example of a domestic violence case resulting in additional charges, Saunooke pointed to the 2017 case of Howell Clinkscales, a non-enrolled man who, according to an affidavit filed by CIPD Investigator William Ferguson, was attacking his girlfriend, an enrolled member of the EBCI, when police arrived on the scene Feb. 8, 2017 — strangling her and punching her in the face and body. The victim allegedly told Ferguson that Clinkscales threatened to kill her, and on the same date he allegedly threatened to kill officers and investigators from the CIPD, responders from tribal EMS, and staff at the Cherokee Hospital emergency room, the affidavit states. 

In federal court, Clinkscales faced five charges, related both to the assault of his girlfriend and to the alleged assault and threats against law enforcement and first responders. He ultimately pleaded guilty to just one count — assault of an intimate partner by strangulation — and in Feb. 2018, was sentenced to three years in prison. However, court records indicate he was released early, because in March 2020 he was convicted of violating the terms of his release in October and November 2019. He was given two more years of supervised release as punishment, but mere months later, in August 2020, Clinkscales came before a judge for once more violating the terms of his release. This time, he received four months in jail. 

Help the victim, help the case 

Ultimately, the EBCI’s justice and law enforcement leaders want the tribe to have jurisdiction over all crimes committed within its boundaries. It’s a sovereignty issue, and it’s also a victim’s rights issue. Due to the complexities of jurisdictional boundaries between state, federal and tribal court, it’s feasible that a single incident could result in cases filed in all three courts. 

“It’s an inefficient system of justice in a way that is particularly hurtful to victims who’ve already been hurt,” said Tribal Prosecutor Shelli Buckner. 

Testimony is not transferrable between jurisdictions, even if the set of facts for two cases are nearly identical. So split jurisdiction requires victims of domestic violence to tell an already-painful story multiple times, and to incur expenses by doing so due to missed work and fuel costs. Domestic violence victims are often in a poor position to foot the bill. 

“Let’s say that a survivor has left his or her abuser and gone from a two-income household to one income, so they’re already facing some additional financial hardship,” said Buckner. “And then we’re going to put demands on them that are going to require them to suffer even more financial hardship. It shouldn’t be necessary to get justice for somebody.”

Even if charges are filed in only one jurisdiction, the victim may still be required to show up at a flurry of appointments —medical exams, meetings with social workers, debriefing with police officer — to move the case forward.  

Tribal departments are collaborating to address that challenge with an effort to create a “one stop shop” for crime victims — a Family Justice Center providing a single location with all the services necessary for the victim to move forward with the case, and with their lives. The project, tribal officials hope, will result not only in convenience for crime victims, but also in improved conviction rates due to fewer victims dropping out of the legal process. 

“When they are forced to go different places, at any one of those stops they could fall off, because it is hard to tell that story and have to tell it over and over,” EBCI Legal Assistance Program Manager Bonnie Claxton said while discussing the concept with Tribal Council March 3

The Family Justice Center concept would bring all the professionals that victims are currently forced to seek out at separate locations and often on separate days to a single location, making the most of the victim’s time and emotional capital. 

“A lot of the people who face domestic violence, they have more mental abuse than they do physical abuse, so they feel like they’re doing the wrong thing anyway,” said Taylor. “They’re dependent on that person’s income usually. So, the cards are stacked against them from day one. We’re trying to make the process better, where we can make it more easy and safer for them to actually make changes in their life and get help.”

Many times, said Taylor, victims are wary of uniformed officers. 

“Not everybody wants to talk to the police officers,” he said. “So, if you build up a good team of people that they trust and know close to their home, where they don’t have to go 50 million different places, it makes it easier for them not to back out or be scared.”

Streamlining that process is more important now than ever, with a global pandemic exacerbating domestic violence issues even as it complicates conventional forms of justice delivery, such as jury trials. In 2019, the tribe convicted 22 domestic violence defendants, both enrolled and non-enrolled. In 2020, despite pandemic-induced court closures, that number increased to 30. In 2021 convictions had almost doubled from 2019, rising to 42. 

“I think it (the pandemic) is going to cause there to be a more consistent increase in domestic violence, because there will just be more opportunity in that people are around each other more in their homes,” Buckner said. “Time will tell, and I hope that I’m wrong.” 

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