New tribal laws aim to empower victims, speed up justice
The $26 million Cherokee Justice Center opened in 2014. Holly Kays photo
Victims of crime on the Qualla Boundary will now have a defined list of rights to rely on as they navigate the legal process, following unanimous passage of an ordinance before Tribal Council Thursday, March 1.
The victims’ bill of rights
The law, since ratified by Principal Chief Richard Sneed, lists 19 separate protections for victims of crime, entitling them to information about assistance services, case progress, civil remedies, restitution options and the release or potential release of the perpetrator. It also delineates the victim’s right to confer with a prosecutor, testify in court, prepare a victim impact statement and have any stolen or personal property “expeditiously returned” when no longer needed as evidence.
The ordinance closely mirrors similar provisions in North Carolina state law, said Assistant Attorney General Hannah Smith. The tribe’s justice system leaders decided to write the legislation as the result of an initiative, funded through a grant from the U.S. Department of Justice, to look at ways to improve trauma-informed services for victims of domestic violence.
“Victims of specifically domestic violence are often not willing participants in the criminal prosecution of the violence against them,” Smith said. “We’re hoping that more victims will become empowered to recognize that the tribe and its services can assist them and help them and break these cycles of violence and improve the accountability portion of the prosecution of those crimes.”
Domestic violence is a pressing problem in many Native American communities, including the Qualla Boundary. In a recent interview , Police Chief Josh Taylor identified it, along with child molestation, as his department’s “number one problem.” The 2013 reauthorization of the federal Violence Against Women Act gave tribes the ability to prosecute domestic violence crimes perpetrated by non-Indians against tribal members in their own courts, and a new version of the law ratified last month expands the list of crimes that tribal courts can now handle on their own, though those changes have not yet been implemented in Cherokee.
Smith hopes that having a portion of the law dedicated to listing what victims can expect from the justice system as their case progresses will help them feel more empowered to pursue justice and participate in the prosecution of crimes against them.
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“It’s a little piece of the puzzle in terms of this big idea of justice and all the moving parts in that big idea of justice and how it works,” she said. “Hopefully we’ll see some good outcomes from this.”
The legislation is part of an ongoing cooperative effort between the tribe’s court, law enforcement and legal offices to make the draining prosecution process easier and less costly for victims — who, after all, are not the ones who committed a crime. Another solution now under discussion is formation of a Family Justice Center, a single location that would provide all the services necessary for the victim to move forward with the case and with their lives.
Many of the processes and programs needed to support the mandates in the victims’ rights legislation already exist, said Smith, so implementing it should not be difficult. Police officers are already trained to advise victims of their rights, and the prosecutor’s office already has the capacity to take information about victims and their contact information. Some new hires will be necessary, said Legal Assistance Office Program Manager Bonnie Claxton, but in the short-term the justice system can carry out the ordinance with existing personnel.
“Really, the bottom line with this is notice to victims of when their court dates are happening and all that kind of thing, and when plea deals are happening so they can come to court and say what they want to say,” she told Tribal Council. “I think we could all work together to push that even before we have full-time employees to do that all the time.”
Taking criminal defense in-house
A second ordinance change adopted March 3 — also by unanimous vote — aims to streamline the justice process by replacing an indigent criminal defense policy that was causing delays in trials and therefore delays in justice.
The new law, which Sneed has signed, adds criminal defense to the list of duties assigned the Legal Aid Office.
While the tribe has always provided an attorney to defendants unable to afford one, it currently uses a practice similar to that of the local state district court, Smith said. The 30th Judicial District relies on private attorneys to defend these clients. Names go in a pool, and when an attorney is assigned a case, they’re given a flat fee determined by the type of case rather than an hourly rate. The pay is far lower than what they make in private practice, so it’s challenging for attorneys to prioritize indigent defense cases.
Under the new law, the tribe will hire a full-time attorney to defend these cases, hopefully giving defendants higher-quality counsel and preventing case delays when something comes up in the private attorney’s schedule, preventing him or her from making the court date.
“We’ve been working together as a justice system to try to figure out how to get these criminal cases moving, how to get justice for these victims and also how to make sure we’re providing top-level legal service so people can’t appeal and sue us,” Associate Judge Barbara “Sunshine” Parker told Tribal Council.
“Thank you for the work you’re doing,” said Painttown Rep. Dike Sneed, who formerly served as Chief of Police. “When I was in law enforcement, I’ve had cases go over a year waiting to get them before a judge.”
The new ordinances are part of an ongoing effort to make a system that right now has “a lot of loops” instead “flow in a straight line,” Parker said.
To that end, the courts are now implementing a Tribal Council ordinance that allows all misdemeanor cases to go to a bench trial before a judge rather than requiring a more time-consuming jury trial, and jury sessions are being held every month. The tribal justice system is also partnering with the Capacity Building Center for Courts to assess the efficacy of Family Safety Court, and a justice committee including the tribe’s police department, prosecutor’s office, court and legal assistance office is forming. The group will meet regularly and deliver monthly reports to a committee of Tribal Council’s choosing, Parker said.
“We beg your patience,” she told Tribal Council. “It is a knot that we are untangling. It is a mess, and it is the first time in 20 years that all of these entities of the justice system have all come together and are sitting down at the table and making these decisions. We’re working hard at this.”
