Tribal authority to prosecute domestic violence cases could be expanded

Under a bill introduced in the U.S. Senate, tribes would also see funding to pursue cases where children or officers are harmed

By: - December 22, 2021 7:41 am

Navajo Nation Police Chief Phillip Francisco in September 2021. (Photo by Arlyssa Becenti for Source NM)

Navajo Nation Police Officer Dwayne Hogue arrived at the domestic violence call from a woman who reported she was struck by her husband and pushed down on the coffee table while she held her 4-month-old baby. 

When he saw her, he could see the swelling on her face, and he asked if the child was hurt and whether they needed medical attention, he said, but thankfully, both weren’t injured to the extent of needing an ambulance. There was another child who was between 7- and 9-years old, Hogue said, but he wasn’t hurt.

“What gets to me is when the children witness and actually see everything, because I’ve been raised in that environment before,” Hogue said. “Seeing children involved has a big impact on their life mentally, and they start questioning things. When it comes to kids, they’re really open about things.”

The older child and his mom have an escape plan when things get scary at home, Hogue explained. The child already knows that once it gets violent, he has to pack up, get out first and wait in the truck — all while mom keeps his dad busy. 

“Dad pushed mom down. Mom fell on the coffee table with my brother,” Hogue recalled of what the child said. “I asked, What did you do? He said, I went outside and waited because my mom tells me I go first.”

Earlier this month, U.S. Sen. Ben Ray Luján introduced The Native Youth and Tribal Officer Protection Act. This piece of legislation would expand on the 2013 renewal of the Violence Against Women Act and is meant to strengthen the ability for Indigenous tribes to prosecute violence against children or law enforcement in connection with domestic violence incidents. That would include violence that is threatened, attempted or committed. The bill is co-sponsored by Sen. Tina Smith (D-Minn.) and has been referred to the Indian Affairs Committee.

The effects of violence

Trauma associated with violence against children, dating violence and domestic violence can affect health outcomes, education, economic growth and public safety. 

Childhood exposure to violence has immediate and long-term effects, including increased rates of altered neurological development, poor physical and mental health, poor school performance, substance abuse and overrepresentation in the juvenile justice system, according to the legislation.

Hogue said he’s seen it firsthand. 

Like Hogue, Navajo Nation Police Officer Fred Peters was also partially raised in a tumultuous home until he was taken in and raised by his grandmother and aunt, he said. 

“I grew up around domestic violence and alcohol abuse. I saw my parents go through domestics. … Mom and dad would be in town all the time and wouldn’t come home until 3 or 4 in the morning. So me and my sisters would be sleeping on the porch waiting for them to come back. That’s some of the stories I share with the people I encounter, my own experience and how they should be taking care of their families.”

When it comes to him as an officer responding to calls of domestic violence involving children, he said there have been so many he wouldn’t know where to start.

“I worry about the children being affected,” Peters said.

Domestic violence calls and safety

In 2021, the Navajo Nation Police had 1,475 calls from its seven districts — Window Rock, Shiprock, Crownpoint, Tuba City, Chinle, Kayenta and Dilkon — for aggravated assault of a family member, battery of a family member, aggravated battery of a family member, and threatening a family member. Hogue and Peters are both from the Crownpoint, N.M. district. 

On the New Mexico side of the Navajo Nation, from 2018 to 2020, there were a total of 3,074 domestic violence cases that have been brought before the courts in the Alamo Judicial District, Crownpoint Judicial District, Pueblo Pintado Circuit Court, Ramah Judicial District, Shiprock Judicial District and To’hajiilee Judicial District.

Within these same courts and same time frame of 2018 to 2020, there were a total 732 child abuse cases brought to court. 

When Hogue responds to a domestic violence call, “The biggest concern for my safety is I don’t know if he has a weapon or if there is anyone else inside the home,” he said. “I don’t know how irate he is, if he’s on any substance, or if it’s only alcohol itself.”

Not only that, Hogue said he has to consider the space inside the room or house, because if officers get into an altercation, the homeowner knows the house better than he does and can have hidden weapons Hogue doesn’t know about. Another concern is family members turning on the officers, outnumbering them. This has happened to officers, he said.

“Domestic violence calls are among the most dangerous calls that law enforcement receives, and the Federal Bureau of Investigation’s Uniform Crime Report shows that police officers, including tribal police officers, are assaulted when responding to disturbance calls more often than under any other circumstances,” according to the Senate bill. 

With fewer than 200 Navajo Nation officers patrolling the span of the 27,413 square miles of the reservation, an injured officer heavily debilitates the small force. In 2021, the Navajo Nation Police reported 79 calls from all seven districts about some form of assault to an officer, whether by fists, guns or other weapons. 

Jurisdictional problems

Since Navajo Nation spans three states, jurisdictional problems pervade these cases, making it harder to get help from neighboring non-tribal law enforcement. 

As things stand, depending on the severity of the violence against a child on tribal land, the FBI or U.S. Attorney’s Office may have to take the lead on prosecution. 

And when it comes to prosecuting anyone who has assaulted a Navajo Nation police officer, jurisdiction also factors into penalties. 

Outgoing Navajo Police Chief Phillip Francisco explained that when someone is violent with police, that person can be charged with a specific crime such as assault or battery on an officer. Most times, those are felony charges that will go through district courts in the states to ensure a longer sentence. But courts on Navajo have limited jurisdiction and can only hold a person for a maximum 18 months if found guilty for assault or battery on a police officer.

“There’s been debate and discrepancy if we are seen as federal officers in the light of the U.S. federal courts,” Francisco said. “Officers can get a special law enforcement commission card which makes them basically BIA federal officers.” That clears up some of the discrepancy, he said.

But for those who do not hold these special commission cards — or who’ve maybe let it lapse —  if they happen to get assaulted or killed while not being federally commissioned, there’s debate of whether the U.S. Attorney’s Office will handle the case, because the officer was not a federal officer. If the case is denied by the U.S., it will have to go to tribal court. 

“That’s where protecting our tribal law enforcement comes in,” said Francisco. “Because we don’t have the same opportunities to charge people like in the state district courts, which have a lot of sentencing ability, versus tribal courts that have limited jurisdiction.”

Funding for Tribes

The Native Youth and Tribal Officer Protection Act also authorizes $15 million for fiscal years 2023 through 2027 for training, technical assistance, data collection and evaluation of the criminal justice systems of participating Tribes. Also, under the bill, Tribes can be reimbursed for costs incurred while making arrests, apprehending, detaining and prosecuting offenders, among other things. 

Hogue said he wants to see changes in the community. “Yes, we have repeat and constant offenders, but it doesn’t mean that at one point in their lifetime, they won’t change. There’s always that hope instilled that things will get better on the Navajo Nation.”

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Arlyssa Becenti
Arlyssa Becenti

Arlyssa Becenti is a Diné journalist with 10 years experience reporting on Navajo Nation. She recently placed first for Arizona Press Club’s community investigating reporting for her series on the illegal hemp and marijuana farms in Shiprock, N.M. She was also awarded Arizona Press Club’s 2020 Nina Mason Pulliam Environmental Journalism Award for community reporting. She has reported for the daily Gallup Independent and weekly Navajo Times. She is pursuing her masters in investigative journalism at Arizona State University’s Walter Cronkite School of Journalism.