and Nika Bartoo-Smith, Underscore + ICT
Content warning: This story describes violence against women.
Editor’s note: This story is part of a series that illuminates the historical context of tribal law in the Pacific Northwest and examines cases where tribes and tribal members have used federal courts to secure recognition of their rights under federal law. The series also explores the growing authority of tribal courts and their role in exercising the inherent rights of sovereign Indigenous nations, as well as the way federal and state laws restrict tribal courts’ operation. Read the entire series here.
In August, former WNBA star and Umatilla tribal citizen Shoni Schimmel will plead guilty and be sentenced in a domestic violence case stemming from her arrest in 2021.
Schimmel is charged with felony assault and assault by strangulation, federal charges that carry a maximum sentence of 15 years in prison, plus three years of supervised release and a $250,000 fine. Schimmel initially pleaded not guilty to both charges.
Schimmel caught the attention of Indian Country and the basketball world after she helped lead the University of Louisville to the NCAA women’s basketball championship game. She was drafted by the WNBA's Atlanta Dream in 2014 where she was named Most Valuable Player as a rookie in the All-Star game. Schimmel last played a WNBA game for the Las Vegas Aces in 2018.
In April 2022, U.S. Magistrate Judge Jeffrey Armistead scheduled a two-day jury trial, set to begin June 14, 2022. Over the next year, the court rescheduled Schimmel’s trial four times.
Now, it seems the delays may have been due to negotiations between Schimmel and federal prosecutors.
Earlier this month, Schimmel asked the court to again delay her jury trial set for June 13. This time, she requested a combined change of plea and sentencing hearing, which the court set for Aug. 18. There, Schimmel will plead guilty to one or both charges, according to someone with knowledge of the matter.
Court documents do not refer to a plea agreement, or spell out any terms. Prosecutors in the case didn’t respond to requests for comment. Nor did Schimmel’s attorneys.
But a previous case in federal court against another Umatilla tribal member suggests one possible outcome for Schimmel.
In similar case, tribal member was sentenced to 37 months
In November 2019, Umatilla tribal citizen Jared Case appeared in federal court for a sentencing hearing on charges identical to those Shimmel is facing. U.S. District Judge Michael W. Mosman sentenced Case to 37 months in federal prison, plus three years of probation. Among the conditions of his release was a ban on entering the Umatilla Indian Reservation.
Like Schimmel, Case was accused of assaulting and strangling his girlfriend. And like Schimmel’s, Case’s girlfriend was also a Umatilla tribal citizen. Tribal citizenship of the perpetrator and victim of a crime, combined with where the crime took place, determines whether the state, the tribe and/or the federal government have jurisdiction over the crime.
In both Case and Schimmel’s cases, those particulars meant federal prosecutors have concurrent jurisdiction alongside the Umatilla Tribal Court. But the reasons behind the decision to prosecute the cases in federal court, rather than in tribal court, remain unclear.
On July 23, 2018, the Umatilla Tribal Court issued a Domestic Abuse Protection Order against Case, after he broke his girlfriend’s nose a few days earlier, according to his sentencing memorandum. One month later, he went to a party where the same woman was also in attendance, in violation of the protection order. Then, in the early morning of Aug. 23, 2018, Case strangled her until she lost consciousness.
The next day, he turned himself in to the Umatilla Tribal Police Department, according to court documents. But, like Schimmel, Case faced charges in federal court.
In April 2021, Judge Mosman ordered Case released to a supervised living facility. At that point, he had been in prison for nearly two-and-a-half years, including pre-trial detention. For close to two years after that, Case was in and out of federal custody on various violations of his supervised release.
On Feb. 10, 2023, Mosman sentenced Case to time served. The federal court order banning him from the reservation was in place until March, effectively nearly five years. The Umatilla Tribal Court did not say whether the tribe had issued its own ban.
Indigenous defendants face stiffer penalties in federal court
The details of Schimmel’s alleged assault against her former partner are not included in court documents. But any sentence she receives will likely hinge on those specifics, along with the fact that she has no prior criminal history, either in federal court or in state courts in Oregon. Officials at Umatilla Tribal Court also confirmed that she does not have a prior criminal history there.
Case did have a prior conviction: in Umatilla County Circuit Court in nearby Pendleton. The case was over a domestic violence incident the same month as the one he was convicted of in federal court. Umatilla County Circuit Court Judge Christopher R. Brauer, a former prosecutor for the county, sentenced Case to 180 days in jail. Brauer suspended the sentence, meaning he did no jail time.
That’s typical of domestic violence cases in county courts in Oregon, according to Kent Fisher, public defender for the Umatilla Tribal Court. Before his current job, Fisher spent 14 years as a public defender in Umatilla County Circuit Court.
“Depending on the circumstances, for example, if it was a first time assault it could be a probationary sentence with any jail time suspended,” Fisher said.
In Schimmel’s case, she was originally booked into Umatilla County Jail on charges of felony assault, felony criminal mischief and four misdemeanors: menacing, reckless endangerment, harassment and domestic abuse, according to a June 14, 2021 announcement by the Umatilla County Sheriff’s Office.
There’s no record of those charges in the public database for Umatilla County Circuit Court.
But if the case had proceeded there, and if Schimmel was convicted, it’s likely that she would have faced an outcome similar to the one Case got there: a short, suspended sentence and no jail time.
Instead, she’s facing a maximum sentence of 15 years.
Schimmel’s case is an example of the inequities that Native American defendants face when federal prosecutors have jurisdiction over crimes committed on their reservation, according to veteran criminal defense attorney Lisa Ludwig. Federal charges generally come with dramatically increased sentences, when compared to identical crimes prosecuted in state courts.
“It’s an ordinary domestic violence case that went to federal court,” Ludwig said. “Of course it’s going to get way more attention and a much harsher sentence than it would get compared to other people that did the exact same conduct 10 miles away on non-tribal land.”
Restorative justice common in tribal court
It’s also unclear why federal prosecutors took the case, instead of prosecutors at Umatilla Tribal Court. Both the Umatilla Tribal Police Department and the FBI investigated the case against Schimmel, according to the U.S. Attorney’s Office for the District of Oregon. Officials at the Umatilla Tribal Court declined to comment for this story, but have shared information with Underscore about the procedures and philosophy that animate the court’s work.
The Umatilla Tribal Court has worked to regain jurisdiction over as many types of cases as possible. In the 40 years since Umatilla Tribal Court Chief Judge William Johnson helped set up the court system for the Confederated Tribes of the Umatilla Reservation, it has shaken off the constraints of state jurisdiction on its lands and taken on the most comprehensive criminal jurisdiction allowed under federal laws that restrict tribal court activity.
The Umatilla Tribal Court has jurisdiction over all criminal cases against tribal members. And, under the most recent reauthorization of the Violence Against Women Act, the court has taken on expanded criminal jurisdiction over cases against non-tribal members as well.
Judge Johnson says Umatilla, Cayuse and Walla Walla people, who together make up the Confederated Tribes of the Umatilla Indian Reservation, share the desire to operate the systems that make their nation run, rather than allowing the federal or state government to do so on their behalf.
“If it’s going to happen, we want to do it,” Judge Johnson, himself a tribal member, told Underscore last summer. “And we’ll do it our way, for the benefit of our people.”
Since the Violence Against Women Act took effect in 2014, the Umatilla Tribal Court has prosecuted 14 people on 22 counts under its special jurisdiction, according to information provided by Umatilla Tribal Court Director Matthew Johnson, Judge Johnson’s son.
Those defendants pleaded guilty to 13 counts. Four of the counts were dismissed through plea negotiations and four charges were dismissed with deference to ongoing cases in federal court over the same incident.
Overall, the Umatilla Tribal Court heard 338 cases in 2019, and 98 of those were criminal cases. The court did not provide total case numbers for 2022, but its volume dropped by nearly a third during the Covid-19 pandemic, with 250 total cases in 2021, including 79 criminal cases.
Umatilla extended its own constitutional protections to anyone who steps foot on its reservation. The Umatilla Tribal Court is run only by law-trained judges and provides defendants with court-appointed attorneys. For these reasons, the court can impose a maximum sentence of three years for each crime and up to a total of nine years for cases with consecutive sentences on multiple crimes.
According to Umatilla Tribal Code, any assault involving strangulation is a felony, punishable by up to three years.
However, the court often takes an approach that emphasizes restorative justice. The court encourages negotiations that will reconcile community members in the wake of a crime and prioritizes keeping families together in both criminal and juvenile cases. Johnson said that approach is vital among a tight-knit populace.
“We give people chances to try to work their way back into the community’s good graces, because when we get done with people in our courtroom, we still have to live with them,” Johnson said. “So we use concepts of restorative justice all the time.”
In cases involving Native American defendants, Umatilla has a lot of leeway on the types of charges it can file. That’s because Umatilla has worked to build its justice system and gain expanded jurisdiction.
“They have the ability to prosecute those individuals for crimes committed within their reservations for any crime at all,” said Matthew Fletcher, Harry Burns Hutchins Collegiate Professor of Law, professor of American Culture at the University of Michigan and a member of the Grand Traverse Band of Ottawa and Chippewa Indians. “Anything from criminal jaywalking to mass murder.”
“We exercise jurisdiction over anybody who even thinks they’re Indian,” Johnson said.
Schimmel’s case appears to be squarely within the jurisdiction of the Umatilla Tribal Court. But as Umatilla tribal Prosecutor Kyle Daley explained to Underscore in 2022, the tribe often negotiates with the U.S. Attorney’s Office on which cases each office will prosecute.
The U.S. Department of Justice has concurrent jurisdiction over some cases under the Major Crimes Act. Daley, a citizen of the Confederated Tribes of Umatilla, said Umatilla has a good relationship with the Department of Justice, one that allows the two sovereign entities to collaboratively decide which government should prosecute individual crimes.
“As independent sovereigns we could both prosecute to the end, but it's more likely that the tribe and the feds will work in a partnership,” Daley said. “The tribe has its own sense of justice, particularly in a homicide case where someone is going to be released someday and they are going to come back to the community.”
Both the U.S. Attorney’s Office and the Umatilla Tribal Court declined to answer questions about why Schimmel’s case is proceeding in federal court, instead of tribal court.
Fisher, the public defender for the Umatilla Tribal Court, said some cases involving tribal members go to federal court because of the seriousness of the crime.
“Sometimes the U.S. Attorney decides to pick up a case off the reservation because three years isn’t going to cut it in a death case,” Fisher said.
In other instances, the tribal court prosecutes cases over the same incidents that have already been resolved in federal court. Fisher said he has one client whose case in tribal court was set for Thursday. But the client is currently in federal custody on federal charges for the same events.
“Basically, I was just circling the airport here, waiting to see what happens,” Fisher said.
In such cases, he said, the tribal case is “just sitting in the pending pile, awaiting a federal outcome.”
“Right now I have four clients in custody that have charges pending here in tribal court that all got scooped up and charged first with federal allegations,” Fisher said. “Maybe the U.S. Attorney’s Office thinks tribal punishments aren’t good enough.”
Lead photo: Schoni Schimmel in 2016. (Photo courtesy of the WNBA)