Civil & Criminal Responses to DV in Indian Country - PowerPoint Presentation

Slide1

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 ParksSlide2

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 raceSlide3

JURISDICTION

When

addressing incidents of DV/SA perpetrated against Native women there are

jurisdictional gaps

within the justice system Slide4

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 actionSlide5

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.)Slide6

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 sameSlide7

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.Slide8

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 tribeSlide9

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

P

rotection Order Slide10

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!Slide11

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 victimlessSlide12

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?Slide13

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

w

ould 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 listSlide14

VAWA

A means to bridge the Jurisdictional Gaps???Slide15

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 victimsSlide16

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

analysisSlide17

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)Slide18

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)Slide19

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) Slide20

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 victimSlide21

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?