A Leader Emerges: Hopi Tribe Adopts New Criminal Code According to Tribal Law and Order Act Standards

Anne Minard
9/3/12

The Hopi Tribal Council voted to adopt a new criminal code on August 28, thereby scrapping a 1970s version that all but failed to punish sex crimes and limited tribal prosecutors to one-year terms, even for murder.

In doing so, the small Arizona tribe emerged as a leader in Indian country when it comes to criminal prosecution.

The new Hopi code incorporates standards outlined in the Tribal Law and Order Act, approved by Congress in 2010. For tribes that will adopt it, the Act offers new tools for addressing crimes, especially violent felonies, which have been on the rise in Indian country and far exceed the national average. It gives more authority to tribal prosecutors – and more flexibility to tribal judges – when it comes to sentencing offenders.

The U.S. Government Accountability Office issued a report in May noting that no tribes in a wide survey had yet adopted the new sentencing guidelines. Tuesday, August 28’s 16-2 vote, which followed a highly emotional, three-hour hearing about the systemic effects of unpunished crime in the reservation’s villages, may signal a change. Two other tribes – the St. Carlos Apache and the Pascua Yaqui, also in Arizona – have made similar governmental nods to the new guidelines set forth in the Act. But Arizona assistant U.S. Attorney Patrick Schneider, who attended the council meeting, said Hopi is the only tribe so far to have all the necessary elements in place, including a full court staff, to actually implement the guidelines.

“They’ll be able to move forward with this pretty quickly,” he said.

Following the affirmative vote, a beaming Hopi Tribal Chairman LeRoy Shingoitewa said he was proud of the council, as well as members of a committee that has been drafting the new code for the past year.

“This strengthens our ability to protect the victims of crimes on Hopi,” he said.

Unreported Atrocities

Carlton Timms is the youth coordinator in his Hopi village, Tewa, and president of the Hopi Alliance Against Substance Abuse (HAASA). Speaking in the days leading up to Tuesday’s vote, he said he was aware of some tribal members’ fears that the new code wasn’t polished enough to pass – or that tribal members didn’t know enough about it. But action to update criminal laws on Hopi has been long overdue, he said.

“The old ordinance is so outdated and so behind the times as far as addressing the crimes that are committed on the reservation,” he said. “The trends on the reservation are like what they’re dealing with in the cities now. I think we can’t wait any more.”

Timms says he’s intimately familiar with the impact of crime through both his work and his personal journey.

“I’m a recovering alcoholic,” he said. “I committed crimes when I was younger. That’s what I knew. That’s what I witnessed as a child. I didn’t know any other way of coping with what I was experiencing. It’s a cycle.”

Timms has argued that the new code presents a key part of the solution: “We really need to do something about holding people accountable,” he said.

At least a dozen impassioned community members spoke during the meeting. Because it is unusual for a non-Hopi reporter to attend Hopi council meetings – and the nature of the testimony was so personal – most of it will be reported anonymously. Young women spoke of being sexually molested as girls, and never telling because they knew their perpetrators would be free to retaliate. Teachers described their frustration and sadness at knowing their students were cowering from drunken violence by night, and expected to sit still and pay attention in class by day. Arlene Honanie, wife of the Hopi tribal vice chairman who has served as a speech pathologist educator in schools, said up to 90 percent of girls in Hopi villages can be expected to suffer sexual molestation, partly because offenders are so seldom prosecuted.

Perhaps the most surprising testimony came from a somewhat disheveled young man in jean shorts from the village of Oraibi who told the council he’d been released from jail hours before – and wandered into the wrong meeting. He’d been sitting and listening, he said, and he was incensed because he remembered a friend who had been raped and murdered; her perpetrator continues to walk free. His mother, too, was beaten years ago, and he still harbors anger against the unpunished man responsible for that. Although he hadn’t laid eyes on the new criminal code, he urged the council to pass it – which, moments later, they did.

Latitude and Power

In terms of sentencing, the 2010 Tribal Law and Order Act amends terms in the 1968 Indian Civil Right Act, which has limited tribal courts to punishments fitting misdemeanor crimes. In theory, more serious crimes were to be tried in federal courts, but a litany of disconnects have often prevented that from happening. And that’s frustrating for tribal judges like Richard Trujillo, chief judge at Hopi, who has been a major proponent of the new code.

“Today if you commit homicide or rape on a reservation and a federal court doesn’t pick up the case, the most the tribal court can punish is up to one year,” he said.

The federal Tribal Law and Order Act sets out new terms, which can be adopted by tribes to apply to crimes they’re facing: “A tribal court may subject a defendant to a term of imprisonment greater than 1 year but not to exceed 3 years for any 1 offense, or a fine greater than $5,000 but not to exceed $15,000,” it states. And a new provision allowing judges to stack terms for multiple offenses means that they can put violent criminals or repeat offenders away for up to nine years.

A year ago, the Hopi Tribe created a Law Enforcement Task Team and tasked it with updating the criminal code. The Team included council members representing multiple villages, Trujillo, Hopi Chief Prosecutor Jill Engel and various agency representatives. It was headed up by Wayne Kuwanhyoima, who spent most of his career in law enforcement.

Kuwanhyoima told the council that even while they were working on the code, events came to pass that inspired some of its elements. The Hopi Tribe created its own version of the Sex Offender Registration and Notification Act, so that was included in the code. And a jailbreak at the tribe’s only detention facility led to the inclusion of new language about extraditions and arrest warrants.

Overall, definitions of crimes became more inclusive. The former code included just one statute dealing with sexual assault: a prohibition against non-consensual sexual intercourse between a man and a woman. The new code bans more forms of molestation and specifically addresses the abuse of children and the elderly, as well as same-sex sexual assaults. It also acknowledges a greater variety of illegal drugs that have emerged on the reservation since the 1970s, including methamphetamines and synthetics, and addresses a pervasive bootlegging issue.

Not Finished Yet

Many speakers at August 28’s Hopi Council meeting acknowledged that a new criminal code is a start – not a silver bullet. They pointed out the need for ongoing substance abuse education in the schools, services to help people addicted to alcohol and drugs, and aggressive law enforcement action to enforce the new codes and investigate crimes when they happen. In many cases, inadequate funding cripples key ingredients in the mix.

The Tribal Law and Order Act acknowledges that too. Besides expanding sentencing latitude for judges, the Act “encourages the hiring of more law enforcement officers for Indian lands … expands efforts to recruit, train and keep Bureau of Indian Affairs (BIA) and Tribal police officers; and provides BIA and Tribal police officers with greater access to criminal information sharing databases.” It also authorizes training for sexual response assault teams and allows for resources to improve criminal investigation and coordination between tribal and federal courts.

Engel, the Hopi chief prosecutor, is a recent graduate of one of the new programs, having just become a Special Assistant U.S. Attorney (SAUSA).

“I’m trained to appear on cases from reservations in federal court,” Engel explained, adding that she’s now one of eight such tribal prosecutors in the state of Arizona. She said that’s helpful to tribal criminal prosecution on multiple levels.

By the time a crime gets to federal court, “in a lot of cases I’ve gotten to know the victims,” she said. “It could help victims be more willing to work with the prosecutor. There’s increased communication, making sure cases are submitted to the U.S. Attorney’s Office.” And because she has FBI clearance and access to information from investigations, she can monitor their progress.

John Tuchi, tribal liaison for the U.S. Attorney’s Office in the District of Arizona, said many more challenges remain in law enforcement among Arizona’s 22 tribes.

For example, “with very few exceptions, most of them do not have adequate jail space,” he said. The Navajo Nation, for example, maintained 40-80 beds in various facilities before building two new jails earlier this year. Even its contracts with off-reservation facilities didn’t adequately address the need. The Hopi jail, in a converted building originally built as a drug and alcohol rehabilitation facility, has even less space.

“That is a very common experience in many tribes is that they’ll have to contract out,” he said. “If they don’t have the money they won’t get the beds.“ In one provision of the Act, the federal Bureau of Prisons has been enlisted to help fill the need, but funding has to be pulled from a variety of sources for tribes that propose new jails.

As for the disconnect between crimes and federal trials, he said, “it’s not for an arbitrary reason or because we’re busy,” he said. “It’s either not been presented to not been presented to our office for a prosecution decision, or the evidence is insufficient to sustain a federal charge.” That’s often a resource issue too, he said – tribes often can’t afford the manpower for successful investigations.

Some help on these fronts is available in provisions in the Tribal Law Enforcement Act, but tribal action will be required to take advantage of it.

At Hopi, the next big step may fall to the law enforcement branch. Mervin Yoyetewa, a tribal council representative from the Village of Mishognovi, levied a challenge on Tuesday along with his “yes” vote on the new criminal codes: “Is law enforcement going to enforce them?” he asked. “How do me make them accountable?”

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