Cherokee court hands out first-ever sentence to non-Indian
What in most courts would have been a simple case of violating a domestic violence protective order was a landmark moment for the Cherokee Tribal Court.
John Michael Arkansas, 55, lives on the Qualla Boundary but is not an enrolled member of the tribe. Until this year, that meant that any crime he committed on Cherokee land would have to go to federal, rather than tribal, court. But when the newly reauthorized version of the Violence Against Women Act went into effect this spring, it gave tribal courts the authority to prosecute cases of domestic violence against their own members — even when the perpetrator was not Indian.
According to the Cherokee court’s July 21 decision, that category includes Arkansas. Judge Kirk G. Saunooke sentenced him to 75 days in prison, suspended for one year; placed him on probation; and required he pay a total of $1,600 in fines and restitution. Cherokee was the first tribe outside of the three that piloted the act to obtain a conviction under VAWA.
“It’s a great thing for the tribe,” said Bill Boyum, chief justice of Tribal Court. “It’s the first step toward full territorial jurisdiction, which every sovereign has to have to really be a government.”
For many in the tribal government and justice system, that is the ultimate goal. But VAWA offered a first step, giving tribal governments the authority to deal with cases that had previously been, in effect, not prosecutable. Federal prosecutors have full plates, often full of extremely serious crimes. Dealing with domestic violence issues that anywhere else would go through a lower court is simply not a priority. In all likelihood, a case like Arkansas’ would never be heard if still under federal jurisdiction.
The tribe had to do more to get the benefits of VAWA than simply sign on the dotted line, however. It had to rewrite whole sections of its laws to make the new rules work within the legal framework.
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The most significant change is probably the redefinition of the jury pool. Before, only enrolled members could sit on the jury in Tribal Court. Now, anyone who lives on tribal land — regardless of race — is eligible.
That’s because, previously, the only people who could be defendants in Tribal Court were enrolled members, so it made sense that the people deciding their fate be Cherokee as well.
But once VAWA opened the doors for non-Indians to be prosecuted in Tribal Court, that had to change. The new list of potential jurors will include anyone who lives on the Qualla Boundary and has registered to vote or gotten a state-issued ID like a drivers license in the last eight years.
Tribal Council could have passed rules that had the wider jury pool kick in only when dealing with cases in which a non-Cherokee defendant could be tried — that is, domestic violence cases.
But according to Tribal Prosecutor Jason Smith, that option could have raised legal issues.
“Our collective opinion on the matter was that it would raise problems with equal protection issues,” he said, meaning that having different jury configurations for different crimes could be interpreted as treating defendants in similar situations differently.
And besides, like Boyum, Smith is hoping that the limited scope of cases in which tribal courts can try non-Indians will eventually widen. When that happens, he doesn’t want to have to reinvent the wheel.
“The ultimate goal throughout Indian country is full criminal jurisdiction for all courts,” he said. “If we ever get there, we won’t have to reinvent the jury yet again.”
Who is Indian?
The legislation also seeks to give a final answer to a potentially tricky question — what, exactly, qualifies someone as an Indian in the court’s eyes?
“There’s kind of a gray area,” Boyum explained. “There’s no definition of who’s an Indian, so for different purposes different people are Indians.”
Most of the time, it’s pretty cut and dry.
“Probably 99 out of a hundred people, it’s easy to determine if they’re an Indian or not, but it’s that one person that nobody can agree on,” Boyum said.
George Lee Nobles, a Cherokee resident being prosecuted for first-degree murder, is one such person. According to court documents, in September 2012 Nobles allegedly shot Indiana resident Barbra Preidt in the parking lot of the Fairfield Inn & Suites in Cherokee during a robbery. According to court documents, Preidt, who died from the injury, was carrying somewhere between $4,000 and $5,000 cash in her purse, an amount intended to fund the trip she and her husband John were taking to visit her sister in Florida.
Nobles was arrested by the Cherokee Indian Police Department but then taken to the Jackson County magistrate, where state charges were pressed against him. Two others who had allegedly assisted in the robbery — Dewayne Swayney, a member of the Eastern Band of Cherokee Indians, and Ashlyn Carothers, a member of the Cherokee Nation of Oklahoma — were taken to Cherokee Tribal Court.
Nobles’ lawyer had filed a motion to dismiss the case on the grounds that because he was an Indian and the alleged crime had occurred on the Cherokee reservation, the state had no jurisdiction over him. The case, which dealt with a “major crime” whose potential sentence would be greater than the maximum allowed in tribal court, should go to federal court, the motion said.
Nobles was not a member of the Eastern Band of Cherokee Indians, but his mother was. He grew up on the Cherokee reservation, intermittently attended its schools and sought the limited amount of free health care available to the non-enrolled children of enrolled members on five occasions. He had two tattoos that attested his identification with Cherokee culture, the motion said.
But in a 42-page opinion, Superior Court Judge Brad Letts — himself an enrolled member of the tribe — determined that Nobles did not qualify as Indian and was under state jurisdiction. He’d identified himself as white on myriad legal documents before the incident at Fairfield Inn, had never sought to formalize his status as the child of an enrolled member, had not participated in cultural events such as dance competitions or the annual fall festival and was not actually born on the Cherokee reservation. The tattoos were generic Native American symbols and not specific to Cherokee, Letts wrote. These and other considerations led to the decision, but it was not an easy call.
“Deciding who is Indian has proven to be a difficult question,” Letts wrote in his opinion.
To avoid such complications in tribal court, the new Cherokee legislation simply states that a person must be a member of a federally recognized tribe to qualify as Indian in Tribal Court.
“Everyone agrees that if you are a member of a federally recognized tribe, you are an Indian,” Boyum said.
Still work to do
The legislation, which Cherokee Tribal Council enacted unanimously, is an important step for the tribe. But it’s not the end of the road in the quest for full jurisdiction. Though such a development is years down the road, Boyum said, he’s hopeful that it will eventually happen.
“In my opinion, the DOJ (Department of Justice) will set out standards and at some point in time Congress will say, ‘That’s good enough, and you can prosecute,’” he said.
Even then, the jurisdiction might not be unlimited. Currently Tribal Court has a three-year cap on the penalty it can hand out for an individual charge, and while the tribe just opened a new jail — the first it’s ever had — in December, it’s not set up to keep people for the long periods of time necessary for perpetrators of more serious crimes.
And though the new VAWA rules are expected to go a long way toward giving legal recourse to women embroiled in violent home situations, gaps still exist, particularly where child victims are concerned. VAWA covers crimes against women, but not against children.
“In those situations, we are forced to push for prosecution in federal or state courts or are left without recourse where those gaps exist,” Smith said. “I am hopeful that as we continue to successfully implement the provisions of VAWA ‘13, we will gain support for future amendments which will remedy these gaps affecting child victims.”
