Civil & Criminal Responses to DV in Indian Country

ND Law Review Domestic Violence & Sexual Assault Symposium Thursday November 8, 2012 Materials & Presentation By: Michelle Rivard Parks

The PROBLEM

 According to the United States Department of Justice (BJS)  Native American women are the most victimized group in the United States in terms of DV, SA and stalking  Native American women experience domestic violence and dating violence at a rate that is more than double that of non-Native women  NCAI reports that among Native American victims of violence 75% of the intimate victimizations and 25% of the family victimization involved an offender of a different race

JURISDICTION

When addressing incidents of DV/SA perpetrated against Native women there are jurisdictional gaps within the justice system

Jurisdictional Complexities

 One of three sovereign entities may be vested with jurisdictional authority  Tribal   State Federal  Determining jurisdiction varies depending upon:  whether the action is criminal or civil   the political affiliation of the parties involved the location of the incident underlying the cause of action

Tribal Jurisdiction

 Tribes are “domestic dependent nations” possessing all attributes of a sovereign that have neither been divested nor delegated

(See Marshall trilogy)

 What this means:   Tribes retain “inherent” sovereign authority “inherent”—an authority possessed without it being derived from another…Powers originating from the nature of government or sovereignty

(Black’s Law Dictionary, 6 th ed.)

 What makes the question of determining jurisdiction so complex are:  United States Supreme Court cases   Legislative Acts of the United States Treaties  In other words to understand jurisdiction in these cases you must understand tribal inherent authorities and the numerous federal laws that impact the same

Civil Jurisdiction in DV/ SA

 Defining civil jurisdiction oftentimes involves an analysis of inherent tribal sovereignty, existing tribal law, existing federal statutory law and existing federal common law 

In a basic context tribes have retained subject matter and personal jurisdiction in most civil cases.

 Determining jurisdiction may require the tribal court to consider:  Minimum contacts or residency  The existence of substantive laws    The nature of the cause of action Where the cause of action arose Land Status etc.

 Although Tribes have retained fairly broad authority in civil cases increasingly land status and political/ racial affiliations have played a role:   See

Montana v. US, 450 U.S. 544 (1981)

non member conduct on “fee lands” –generally Tribes cannot regulate such conduct UNLESS   1) consensual relationship; or 2) conduct threatens the general health, welfare or political integrity of the tribe

DV/SA

 Non-member married to a member  They reside on the reservation on fee lands  Member goes to Tribal Court and files a petition seeking protection from her spouse claiming that he has repeatedly physically and verbally attacked her for more than a year. They have a small child.  She fears for her safety and that of her child and feels she needs protection ? – can the Tribal Court issue the Protection Order

THE GAP

 It is unclear whether the victim in this case can seek protection in tribal court because:  Incident arose on “fee lands”  Montana v. US comes into play   Offending party is a non-Indian We don’t know whether the Tribal Code defines “consensual relationship”  HENCE THE GAP!

Criminal Jurisdiction in DV/SA

Tribes may exercise criminal jurisdiction:  The accused is an Indian and the victim is Indian  The accused is an Indian and crime is victimless Feds may exercise criminal jurisdiction :  Major Crime 18 USC 1153 or General Crime 18 USC 1152    The accused is an Indian and victim is Indian The accused is Indian and the victim is non-Indian The accused is a non-Indian and victim is Indian State may exercise criminal jurisdiction:  The accused is a non-Indian and victim is non-Indian  The accused is a non-Indian and crime is victimless

 Non-member married to a member  Member went to State Court and received an Order of Protection a month prior. Member lives on the reservation on trust lands. She calls tribal police and reports that her spouse has been to her home and has been pounding on her door yelling that he is going to kill her.  She fears for her safety and that of her child and wants the police to enforce the protection order ? – Can the Tribe Enforce the State Order? Can they hold the offender criminally accountable? Are they restricted to civil remedies?

THE GAP

 This is a very common gap that arises  Tribes have NO criminal jurisdiction over non-Indians (

see Oliphant v. Suquamish, 435 US 191 (1978)

 Often Tribes must employ civil remedies to provide a measure of accountability when non-Indians violate or perpetrate against members  Technically speaking the state would not have jurisdiction (unless PL 280) so the prosecuting authority would be with the Feds  Problem is that the feds must prioritize their cases as well and often these types of violations do not top the list

VAWA

A means to bridge the Jurisdictional Gaps???

VAWA 2005

 Contained enforcement of provisions for “qualifying orders of protection”  Failed to specify whether the intent of VAWA was to expand criminal enforcement authorities for Tribes in domestic violence cases  Failed to address tribal criminal jurisdiction in these cases  Realities….lack of clarity led to distinct differences in interpretation and application…more importantly a lack of clarity led to safety concerns for victims

The Senate FIX

 S. 1925 (passed the Senate)  Special Domestic Violence (and dating violence) criminal jurisdiction would be afforded to Tribes if:  Non-Indian voluntarily and knowingly established significant ties to the Tribe  Victim has significant ties   Case involves and Indian If the foregoing do not exist the defendant can file a pretrial Motion for dismissal  Would include criminal jurisdiction for incidents of DV, dating violence and enforcement of PO’s  Adds some Constitutional safeguards for non Indian Defendant’s  Takes DV, dating violence cases out of the of

Montana

analysis

So What’s the big deal???

 Major hurdle is opposition to Tribes exercising criminal jurisdiction over non-Indians because:  Tribes are not subject to the Bill of Rights but rather they are subject to the ICRA    Concerns about right to counsel Concerns about jury process (peers) Concerns about appeals process from tribal courts (federal oversight is limited to habeas review)

Recognition v. Delegation

Recognition of Inherent Authority Delegation of Authority

• • Would enable Tribes to exercise authority without consultation with Feds • Would enable the Feds to exercise authority without consultation with the Tribe • Was done by Congress following the U.S Supreme Court case of

Duro v. Reina, 495 U.S. 676 (1990)

Was reaffirmed by the U.S. Supreme Court in the case of

U.S. v Lara, 541 U.S. 193 (2004)

• Would require tribal/federal consultation prior to prosecution to avoid double jeopardy (see

U.S. V. Lara, 541 U.S. 193

(2004)

The House FIX?

 H.R. 4970  Expands research initiatives  To BRIDGE THE GAP  Authorizes the U.S. Attorney General to expand duties of existing AUSA Tribal Liaisons to afford more attention to DV related crimes  Would create an avenue for Native victims to seek orders of protection in federal court (violations of such an order would therefor become a federal crime)

So What’s the big deal???

 Adds another layer to federal crimes without providing additional manpower or funds to federal US Attorney’s offices  Strays from victim autonomy principles by providing that Tribes can petition on behalf of a victim  Investigation for alleged violations is likely to be problematic due to limited resources and case prioritization  Accessibility to federal courts is a big issue:  Will tribal victims need a lawyer    Doesn’t take into account extreme poverty Victims will need to travel to a federal courthouse Places burdens on the victim

Lingering Questions

 Should tribes be granted “special domestic violence prosecution” authority over non-Indians? Or are the Feds in a better position to prosecute?

 If Tribe has special prosecution authorities, what special rights should be afforded to defendants under a special DV prosecution authority  What is the best way to go about such authority?

 Delegation?

 Affirmation?