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, 6th
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
• Would require tribal/federal
authority without consultation with
consultation prior to prosecution to
Feds
avoid double jeopardy (see U.S. V.
• Would enable the Feds to exercise
Lara, 541 U.S. 193 (2004)
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)
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?