By Caroline LaPorte, Senior Native Affairs Advisor, NIWRC
Each VAWA reauthorization creates the opportunity to further strengthen the tribal justice response to violence against Native women. In this context, it also challenges the movement to determine the priorities in our strategic reform efforts. This article analyzes the Tribal SAUSA program, an important program with significant benefits, within the tribal sovereignty framework and approach to ensuring safety for Indian women.
Given the current crisis facing Native women and the challenge Indian tribes face in protecting them, it is necessary to consider whether a proposed reform does one of the following:
- Strengthens the tribal government response, as sovereigns, in addressing gender-based violence; or
- Strengthens the federal response.
For example, the Violence Against Women Act of 2013 included historic amendments that recognized and restored the inherent power of tribal governments to exercise jurisdiction over certain non-Native defendants. This amendment clearly strengthened the tribal response. In fact, VAWA has specific findings that solidified this framework/approach. VAWA’s section 901 states:
“Congress finds that … the unique legal relationship of the United States to Indian tribes creates a federal trust responsibility to assist tribal governments in safeguarding the lives of Indian women.”1
This is why the fight over the “delegates” vs. “restores inherent” conversation with respect to language was so critical in the VAWA 2013 fight, proving that semantics were incredibly impactful with regard to lens.
Similarly, in looking to 2018 VAWA reauthorization, the legislative reforms are prioritized through the lens of what strengthens the tribal response vs. what strengthens the federal one. The Native Youth and Tribal Officer Protection Act, which expands special domestic violence criminal jurisdiction to include co-occurring instances of child abuse and assaults on tribal law enforcement, is a bill that strengthens the sovereign tribal response. The Justice for Native Survivors Act, which expands special domestic violence criminal jurisdiction to include sexual assault, sex trafficking and stalking, is a bill that strengthens the sovereign tribal response. The SURVIVE Act, which creates a permanent set-aside of 5% out of the Crime Victims Fund to tribal governments, strengthens the sovereign tribal response by creating a government-to-government funding stream on the basis of parity. Even increases to the Tribal Access Program can be viewed as strengthening the tribal response.
Consequentially, other reforms are viewed as strengthening only the federal response. For example, VAWA reauthorization bills that incorporate provisions like creating a federal penalty for violations of tribal exclusion orders, or that encourage increased federal prosecutions for gender-based violence in tribal communities, have to be viewed for how they strengthen the federal response vs. the tribal one. It’s not that these solutions do not help with respect to addressing violence, but rather that these solutions cannot be viewed as priority with regard to addressing violence in Indian country, where the long-term solution is to enhance tribal sovereignty and ensure safety for Indian women for generations to come.
This framework is essential in determining our VAWA 2018 tribal priorities. Is our priority proposed reforms such as the USDOJ focus on strengthening the Tribal SAUSA program, or the proposed reforms to strengthen the tribal justice response?
What is the Tribal SAUSA program?
SAUSA stands for Special Assistant United States Attorney. As of September 2016, there are 22 SAUSAs in Indian country.2
Essentially, under this program, tribal prosecutors are cross deputized to sit second chair in federal cases involving Indian country jurisdiction.
What authorized the Tribal SAUSA program?
The Tribal Law and Order Act of 2010, which was signed into law by President Obama, “authorized and encouraged” the Department of Justice to use tribal prosecutors as Special Assistant United States Attorneys to assist in the federal prosecution of crimes that occurred in Indian country. TLOA (2010) amended two statutes to do this: The Indian Law Enforcement Reform Act and Title 28 of the United States Code.3 Under these two amendments, each United States Attorney (in a district with Indian country) is “authorized and encouraged” to appoint SAUSAs in order to improve the administration of justice.4
25 U.S.C. §2810 directed United States Attorneys to 1) coordinate with applicable U.S. district courts regarding scheduling of Indian country matters and holding trials or other proceedings in Indian country as appropriate, 2) provide to SAUSAs appropriate training, supervision, and staff support, and 3) to provide technical and other assistance to tribal governments and tribal court systems to ensure that the goals of the relevant statute are achieved.5
28 U.S.C. §543 (a), entitled “Judicial Code and Judiciary,” was amended by TLOA so that the “Attorney General (could) appoint attorneys to assist United States Attorneys when the public interest so requires, including the appointment of qualified tribal prosecutors and other qualified attorneys to assist in prosecuting federal offenses committed in Indian country.”6
The Department of Justice allows each U.S. Attorney to decide whether to have a tribal SAUSA program.
What can a Tribal SAUSA do?
Essentially cross deputized, a tribal SAUSA can perform all the functions that an Assistant United States Attorney can perform, or specific limited actions, as desired by the United States Attorney.7 Their appointment can last two years (and is thus, temporary), but can be extended indefinitely.8
What are the benefits of a Tribal SAUSA program?
In each report and article analyzed for the purposes of this opening conversation, most recognized that the most significant benefit from a Tribal SASUA program was the increased communication and information sharing between USAOs and participating tribes. Tribal SAUSAs serve a “critical case screening role and regularly forward cases to the USAO for prosecution.”9 Tribal prosecutors receive training that many in the federal system consider to be incredibly beneficial to those same prosecutors.
Additionally, if we think about Tribal SAUSA as a way to address federal declination rates, especially in cases of gender-based violence, it is easy to imagine why Tribal SAUSA is seen as a positive response with respect to the high rates of violence in Indian country.
What are the practical limitations of the Tribal SAUSA program?
The same reports and articles that recognize increased communication and information sharing between USAOs and tribes as a benefit of a Tribal SAUSA also recognize the practical limitations of the program itself.
Essentially, the practical limitations boil down to three major problems:
- The absence of written eligibility criteria;
- Inconsistent/inadequate funding; and
- Most USAOs do not maintain updated and comprehensive operational plans to ensure a coordinated approach to guide their work in Indian country.10
Again, and perhaps most significantly, as of September 2016, there were only 22 Tribal SAUSAs serving 9 of the 49 USAO districts with Indian country jurisdiction.11 For the program to fulfill the intended purposes under TLOA, all the Indian tribes served by these 49 districts require a Tribal SAUSA. To this point, the OIG found that “program participation is low, in part due to tribal sovereignty, conflicts of interest with other tribal duties, and a lack of tribal prosecutors with the appropriate skill sets and experience. Also, despite the potential benefits, there are no written Tribal SAUSA guidelines to establish criteria for applicants and the program lacks consistent funding.” Addressing violence against Native women must not be selective or restricted to only those federal districts choosing to address this crisis.
The funding limitations prove to be most restrictive. The OIG report found that OVW provided grant funding for Tribal SAUSA positions as a pilot program, including $1.7 million in Fiscal Year (FY) 2012 for four positions, $890,000 for FY 2014 for two positions, and $300,000 in FY 2016 for (for four positions).12 The report stated that, “(t)he remaining 19 SAUSAs without consistent DOJ funding are tribe-funded or unpaid volunteer positions.”
Does the Tribal SAUSA program strengthen the tribal or the federal response?
While the Tribal SAUSA program strengthens the federal response, is it a viable solution to addressing violence against Indian women? Does it help to address violence in Indian country? Yes, but in a limited capacity. On the other hand, it is evident the program is aimed away from increasing tribal authority over certain crimes and certain defendants.
This is highly relevant in today’s VAWA reauthorization climate. Certain members of Congress have uplifted the Tribal SAUSA program and support strengthening the program as a possible priority in legislative reform efforts with respect to VAWA reauthorization. These reforms are focused primarily on addressing the practical limitations as outlined above (the absence of written eligibility criteria, inconsistent/inadequate funding, lack of updated and comprehensive operational plans).
At tribal consultation this past August 21, 2018, Acting Associate Attorney General Jesse Panuccio delivered a keynote address, which in part centered on increased prosecutions.
“One of the primary challenges in this area is ensuring that we have enough prosecutors to hold perpetrators accountable. To that end, the Department’s Office on Violence Against Women is funding Tribal Special United States Attorneys (known as Tribal SAUSAs). These prosecutors are able to bring cases in both tribal and federal courts, and their addition to our law enforcement community are meant to help ensure that cases do not fall through the cracks. Every single woman who has been a victim of domestic or sexual violence deserves to have her assailant brought to justice.
In OVW’s pilot project, Tribal SAUSAs reported a wide range of successes, including: prosecution of cases that otherwise would not have been brought; increased trust and better relationships among tribal law enforcement, victim services, victims, and the participating United States Attorney’s Office; and greater accountability for violence-against-women-related crimes in Indian country. Tribal SAUSAs have also been able to serve as advocates for their tribe’s perspectives and needs, which helps the tribe have more input into successful prosecutions.”
Based on this, Panuccio announced that OVW would be relaunching the Tribal SAUSA program with improvements based on feedback from tribes and USAOs. To this end, Panuccio stated that OVW intends to use a “fellowship model to help attract qualified attorneys who will make a three-year commitment to prosecute crimes of sexual assault, domestic violence, dating violence, and stalking in both tribal and federal courts.”
In our study and consideration of these possible reforms as suggested by members of Congress and OVW, we necessarily must return to our sovereignty framework and remind ourselves of the long-term strategic solution to this crisis: completely restored inherent tribal authority to prosecute crimes committed in Indian country regardless of defendant or crime.
The Tribal SAUSA program does not restore inherent tribal authority to prosecute. It simply allows a tribal prosecutor, who may or may not be funded by federal dollars, to sit second chair in a criminal case that (under the current legal/jurisdictional framework) a federal prosecutor has the responsibility to prosecute. The flame thrower amongst us will say that Tribal SAUSAs essentially do the work for the federal government, albeit paid for by limited tribal funds. The diplomat will say that Tribal SAUSAs serve the important role of increasing communication and information sharing amongst tribal governments and the USAOs.
Either way, neither analysis says, “Tribal SAUSAs strengthen the tribal response.”
There is an additional, but less important issue to consider, which is that the Tribal SAUSA program trains tribal prosecutors to be “better” western criminal prosecutors. The mind-set that tribal prosecutors need this training is found throughout the OIG reports. Citing “a lack of tribal prosecutors with the appropriate skill sets and experience,” bolstering is found for the program where it increases the tribal prosecutor’s skill level to try federal cases.
As an attorney myself, I can see why the Tribal SAUSA program is attractive. After all, even attorneys who work for national Native advocacy organizations, are in fact still trained in the western legal approach. We are molded and conformed to fit into the western legal system. It was hard, it was an accomplishment, which makes swallowing the fact that it may not the best umbrella approach to addressing violence in our tribal communities particularly difficult. What the Tribal SAUSA program does, then, is tell the tribal prosecutor, and the tribe, “This is how you try a case. This is what your legal system should look like. This is the standard.” It’s a reality of the current limitations in Indian country, one in which we are often found looking for stopgaps to help address violence in our communities until we can find solutions that are not only sovereign but also practical and sustainable.
But does the western prosecution approach fit into the tribal justice approach? Is it better for our tribal legal systems to assimilate to western standards? Is it a reality that we have to accept? Or is it for our tribal prosecutors or our law-trained American Indian and Alaska Native sisters and brothers to use the tools they received in their legal training toward a bigger goal: strengthening the sovereign response? Can we do both? Are both beneficial? These are questions we have to explore.
Until we have those sovereign and sustainable solutions, the Tribal SAUSA program may prove to be a significant stopgap in addressing violence in our communities. There are important questions around how this program will be relaunched by OVW. However, regardless of how those questions are answered, it is critical to evaluate whether or not the program fits into our sovereignty framework and whether or not the program represents a priority that we view as being part of long-term strategic reform efforts.
 2005 VAWA § 901 Findings
 Tribal SAUSA’s: A Force Multiplier, Leslie Hagan, August/September 2018 Domestic Violence Report starting on page 83.
 Id., 25 U.S.C. ^2810
 28 U.S.C. ^543(a)(2015).
 Tribal SAUSA’s: A Force Multiplier, Leslie Hagan, August/September 2018 Domestic Violence Report starting on page 95.