Read Sharing Our Stories of Survival: Native Women Surviving Violence Online
Authors: Jerry Gardner
Sharing Our Stories of Survival: Native Women Surviving Violence (44 page)
Table 14.1. Criminal jurisdictional Chart
| Criminal jurisdictional Chart in Areas Where jurisdiction Not Conferred to State | ||
|---|---|---|
| Offender | Victim | Jurisdiction |
| Non-Indian | Non-Indian | State jurisdiction is exclusive of federal and tribal jurisdiction. |
| Non-Indian | Indian | Federal jurisdiction under 18 U.S.C. § 1152 is exclusive of state and tribal jurisdiction. |
| Indian | Non-Indian | If listed in 18 U.S.C. § 1153, there is federal jurisdiction, exclusive of the state, but probably not of the tribe. If the listed offense is not otherwise defined and punished by federal law applicable in the special maritime and territorial jurisdiction of the United States, state law is assimilated. If not listed in 18 U.S.C. § 1153, there is federal jurisdiction, exclusive of the state, but not of the tribe, under 18 U.S.C. § 1152. If the offense is not defined and punished by a statute applicable within the special maritime and territorial jurisdiction of the United States, state law is assimilated under 18 U.S.C. § 13. |
| Indian | Indian | If the offense is listed in 18 U.S.C. § 1153, there is federal jurisdiction, exclusive of the state, but probably not of the tribe. If the listed offense is not otherwise defined and punished by federal law applicable in the special maritime and territorial jurisdiction of the United States, state law is assimilated. See section 1153(b). If not listed in 18 U.S.C. § 1153, tribal jurisdiction is exclusive. |
Source:
U.S. Department of Justice, U.S. Attorneys, “Jurisdictional Summary,”
Criminal Resource Manual,
Title 9, p. 689.
If the crime of domestic violence is not serious enough to be included under the Major Crimes Act, and it is committed by one Indian against another Indian on an Indian reservation, the tribal courts have exclusive jurisdiction to prosecute the offender, unless the state has been given jurisdiction under PL 280, which is discussed later in this chapter.
Domestic Violence and Sexual Assault by Non-Indians Against Indians: Who Has Jurisdiction?
The General Crimes Act
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is extremely important for holding non-Indians who commit domestic violence against Native women legally accountable for their actions. According to a 1999 Department of Justice report,
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70 percent of the domestic violence committed against Native women was committed by non-Indians. Although this statistic may not be true for all Indian reservations, it does indicate that many Native women face great danger in interracial relationships and the legal system must be prepared to respond when such violence occurs. The obligation of the federal and state governments is especially pertinent because of a U.S. Supreme Court decision
Oliphant v. Suquamish Tribe
,
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which prohibits tribal criminal jurisdiction over non-Indians. In the absence of any criminal jurisdiction over non-Indians, tribes must rely upon their counterparts in the federal and state justice systems to assure protection for their members and accountability for non-Indian offenders. For example, if a non-Indian assaults a Native woman and seriously injures her on a reservation, the United States can prosecute the non-Indian under the General Crimes Act and use any federal law that exists that defines assault. Even if no federal law exists defining the crime, the United States could prosecute the non-Indian using state law under another federal law called the Assimilative Crimes Act.
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State law could be used by the federal government to prosecute violations of protection orders involving non-Indian offenders. The federal full faith and credit provision, passed as part of the Violence Against Women Act (see chapter 16), compels both states and tribes to punish persons who violate other court’s protection orders within their jurisdictions in the same manner as they would deal with a violation of their own protection orders. Because of the
Oliphant
decision, however, tribes cannot fully comply with this law, as they do not have the power to criminally prosecute non-Indians. However, the United States, through the General Crimes Act and Assimilative Crimes Act, could prosecute the non-Indian offender using state law relating to violation of protection orders. Similarly, if a non-Indian commits a crime such as simple assault against an Indian woman on a reservation, the United States should prosecute the case under the General Crimes Act. Even though the crime may appear minor to the United States, no crime of domestic violence is minor in the eyes of a victim who faces the daily perils of being in a violent relationship.
If a case is covered by the General Crimes Act, the state courts most likely lack the authority to prosecute the crime. This is especially true if the perpetrator is an Indian. If the perpetrator is a non-Indian and the victim is Indian, federal law seems to bar state court authority over that non-Indian, but many state criminal justice systems continue to punish non-Indians who commit domestic violence against Indian women on reservations. Although this practice is questionable, it should not be discouraged if the federal system is not responding to the types of crimes the state is prosecuting. There must be some blanket of security for a victim of domestic violence. The defendant who is prosecuted in state court can raise any defense he has through his attorney. Law enforcement officers, advocates, and others who strive to protect women from domestic violence in Indian Country should not be charged with resolving all the complicated jurisdictional scenarios that may arise in prosecuting domestic violence cases.
Domestic Violence and Sexual Assault Crimes Involving Crossing Indian Country Borders
Another type of case where the United States has jurisdiction over domestic violence crimes that occur on Indian reservations are those crimes that concern crossing Indian reservation borders with the intent to commit domestic violence or violate a domestic violence protection order. This category of crime was created as part of the Violence Against Women Act
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to deal with domestic violence offenders who cross from one state to another or from state to reservation to commit crimes of violence or to violate an existing protection order. Since these crimes involve more than one jurisdiction, the states and tribes could have problems apprehending the perpetrators or bringing them to justice. For example, if a tribal member of the Navajo nation receives a domestic violence protection order against her boyfriend in a state court in Tucson, Arizona, and returns to the Navajo reservation and then her former boyfriend follows her from Tucson to the Navajo reservation and violates the protection order, this would be a federal crime. However, advocates and others should be aware that these laws are rarely used because they require the United States to show that the person had the “intent” to commit acts of domestic violence or violate a protection order at the time that he crossed the reservation or state boundary. Although this may be difficult to prove, this should not deter an advocate from referring a case to the United States if the offender crosses a boundary. Unlike the Major Crimes Act and General Crimes Act, which do not apply in those states that were given jurisdiction over the Indian reservations, the Interstate Domestic Violence and Interstate Violation of Protection Order federal laws apply in all states and on all Indian reservations.
The United States may also have authority to prosecute firearms violations on Indian reservations. Firearms laws prevent any person who has been convicted of a misdemeanor (state or tribal) crime of domestic violence or who has a protection order in place against him that expressly prevents acts of violence, from possessing a firearm.
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However, the language of the protection order must comply with the federal law (showing that the person represents a threat of harm to the victim or the order explicitly prohibits the use of force). Again, just as with the interstate laws, the firearms laws apply on all Indian reservations regardless of whether the state has been given jurisdiction over the particular reservation.
State Court Jurisdiction
Understanding Public Law 280
The federal laws giving the United States jurisdiction over certain crimes that occur on Indian reservations do not apply to all Indian reservations in this country. In 1953, Congress passed a law called Public Law 280 (PL 280) that gave certain states criminal jurisdiction over Indian reservations. Those states include: Minnesota (except the Red Lake Reservation and Bois Forte Reservation), Wisconsin (except the Menominee Reservation), California, Alaska, Oregon (except the Warm Springs Reservation), and Nebraska. (The Omaha, Winnebago, and Santee Sioux reservations have regained their criminal jurisdiction in Nebraska.) Other states were given the option to assume jurisdiction over reservations within their borders and many states have done so, including Montana (over the Flathead Reservation) and Washington (over certain types of offenses). In those states where PL 280 applies, state domestic violence laws apply to Indian reservations and the state courts have jurisdiction over all offenders, Indian and non-Indian. Just as it is important for tribes to develop a positive relationship with federal law enforcement and federal courts on reservations where federal jurisdiction may exist, it is equally important for state and tribal officials on reservations to collaborate where states can prosecute domestic violence crimes.
Can Tribal Courts Exercise Jurisdiction Over Domestic Violence Crimes and Civil Remedies in PL 280 States?
The fact that an Indian tribe is located in a PL 280 state does not prevent the tribe from developing its own justice system to combat domestic violence within its community. So, for example, if a member of a tribe in California needs a domestic violence protection order for her own safety against another tribal member, she may file in either the state or tribal court. The tribe may also exercise criminal jurisdiction over Indians who commit domestic violence within their reservations, although the state may also prosecute the crime. Most tribes rely upon state courts to prosecute most domestic violence violations within their reservations, especially when the violation is serious and warrants a jail or prison sentence. Some tribes in these states have developed their own law enforcement departments and tribal courts to collaborate with state and county officials to patrol and regulate criminal activity within their reservations. The important thing to remember about domestic violence under PL 280 is that both the state government and the tribal government can exert authority over offenders.
On PL 280 reservations both tribes and states can use civil jurisdiction to protect victims of domestic violence. A civil case is one filed by a private person or entity against another person or entity that does not involve an allegation of a crime. For example, a domestic violence protection order is a type of civil proceeding because the victim of domestic violence files her action against the perpetrator. The perpetrator does not face the possibility of a jail sentence in a civil protection order hearing, although he may be subject to a criminal prosecution if he violates a civil protection order. An Indian tribal court has the authority to issue a civil protection order against a person, even a non-Indian, although it may not have the criminal jurisdiction to put a non-Indian in jail if he violates the order. Obviously, a civil protection order that does not have the backing of a criminal justice system to prosecute violations is not going to deter a person from continuing to harass or annoy a partner. Therefore, it is extremely important for an Indian tribe that issues civil protection orders on PL 280 reservations to assure that the state will enforce protection orders and prosecute those persons who do violate these orders. This requires effective state-tribal collaboration to provide a necessary safety net for victims.
Tribal Authority over Domestic Violence
Tribal governments are restricted in their authority over persons within their territories. If these restrictions did not exist, the simple solution to domestic violence in Indian Country would be to support and strengthen the over 260 tribal criminal justice systems that exist in this country to bolster their efforts to protect the women within their communities. Due to the restrictions on tribal authority, tribes must use creative methods to protect women within their communities from both Indians and non-Indians. At present, Indian tribes have authority to criminally prosecute any Indian that commits domestic violence within Indian Country. The U.S. Supreme Court has declared that no Indian Country exists in Alaska, except the Metlakatla Indian community,
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and therefore it is very unlikely that Alaska tribes can exercise criminal jurisdiction even over their own community members. This does not prevent them from granting civil protection orders to their own members against other members. A recent case from Alaska also demonstrates that these tribes can banish persons from their communities who represent a danger to the community (see chapter 4).
The U.S. Supreme Court has decided two cases that have restricted tribal court criminal jurisdiction over nonmembers of an Indian tribe. In
Oliphant v. Suquamish Tribe
the Supreme Court declared in 1978 that Indian tribes could not criminally prosecute non-Indians because such authority was inconsistent with their status in the American legal system. The court seemed concerned that non-Indians have no political voice in the tribal political systems and believed that tribes did not need to have authority over non-Indians to preserve the peace of their communities. This decision does not prevent Indian tribes from using other, noncriminal, methods to prevent non-Indians from committing domestic violence within their communities. When the full faith and credit provisions of the Violence Against Women Act were amended in 2001, Congress recognized broad tribal authority over all persons to assure that domestic violence protection orders were enforced. Congress declared that:
