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 PROBLEMAccording 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

JURISDICTIONWhen addressing incidents of DV/SA perpetrated

against Native women there are jurisdictional gaps within the justice system

Jurisdictional ComplexitiesOne of three sovereign entities may be vested

with jurisdictional authorityTribalStateFederal

Determining jurisdiction varies depending upon: whether the action is criminal or civilthe political affiliation of the parties involvedthe location of the incident underlying the cause of

action

Tribal JurisdictionTribes 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, 6th ed.)

What makes the question of determining jurisdiction so complex are:United States Supreme Court cases Legislative Acts of the United StatesTreaties

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/ SADefining 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; or2) conduct threatens the general health, welfare or

political integrity of the tribe

DV/SANon-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 GAPIt 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 playOffending party is a non-IndianWe don’t know whether the Tribal Code defines

“consensual relationship”

HENCE THE GAP!

Criminal Jurisdiction in DV/SATribes may exercise criminal jurisdiction:

The accused is an Indian and the victim is IndianThe accused is an Indian and crime is victimless

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

State may exercise criminal jurisdiction:The accused is a non-Indian and victim is non-IndianThe 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 GAPThis 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 2005Contained 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 counselConcerns about jury process (peers)Concerns about appeals process from tribal courts

(federal oversight is limited to habeas review)

Recognition v. DelegationRecognition 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 GAPAuthorizes 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 QuestionsShould 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?