Sharing Our Stories of Survival: Native Women Surviving Violence (45 page)

For purposes of this section, a tribal court shall have full civil jurisdiction to enforce protection orders, including authority to enforce any orders through civil contempt proceedings, exclusion of violators from Indian lands, and other appropriate mechanisms, in matters arising within the authority of the tribe.
¹⁷

In part, this section was added to respond to tribal concerns about the 1999 Justice Department report
¹⁸
that indicated that 70 percent of the domestic violence perpetrated on Native women was committed by non-Indians, persons over whom the tribe has no criminal jurisdiction. It is also recognition that tribal authority to combat domestic violence is broad even though it may not necessarily include criminal jurisdiction over all offenders. Tribes may use banishment of non-Indians from their communities if these people continually commit domestic violence against tribal members. Tribes may also penalize non-Indians by fines or other monetary penalties that do not involve incarceration. It is important that tribes not accept the commonly espoused view that they have no authority over non-Indians when it comes to domestic violence occurring within Native communities.

The U.S. Supreme Court restricted tribal criminal jurisdiction further in 1990 when it declared that Indian tribes lacked the jurisdiction to prosecute Indians from other tribes who commit crimes within a tribal community.
¹⁹
These persons, often referred to as nonmember Indians, were equated with non-Indians for purposes of tribal criminal jurisdiction. Congress reacted quickly to overturn this decision of the U.S. Supreme Court by restoring criminal jurisdiction over non-member Indians to the tribes.
²⁰
In 2004, the Supreme Court clearly stated that the tribes’ inherent jurisdiction over nonmembers had been restored by Congress’s action.
²¹

When an Indian tribe does have criminal jurisdiction over a particular crime and person, a federal law limits the possible penalties that the tribal court may impose. The Indian Civil Rights Act prevents an Indian tribe from imposing a penalty in excess of one-year incarceration and a $5,000 fine for any crime that it prosecutes. This does not mean that if a person has committed several domestic violence offenses within a tribe’s reservation that the tribe could not impose more of a jail sentence than one year for all the offenses combined, but only that the maximum punishment for each violation cannot exceed one year.

Conclusion

Jurisdiction is the combination of the power and obligation to respond to domestic violence in a tribal community. If jurisdiction exists, the appropriate criminal justice system must act to prevent future harm and to provide redress to a victim of domestic violence. Knowing the rules discussed in this chapter will aid in those goals.

Notes

1
  25 U.S.C.§1301.

2
  25 U.S.C.§1153.

3
  
Crow Dog, Ex parte,
109 U.S. 556 (1883).

4
  
Crow Dog, Ex parte,
109 U.S. 556 (1883).

5
  25 U.S.C.§1153.

6
  
U.S. v. Rogers,
45 U.S. 567 (1846). The definition of Indian has evolved through a number of federal cases. Enrollment in an official tribe has not been held to be an absolute requirement, at least where the Indian lived on the reservation and maintained tribal relations with the Indians thereon.
U
.
S
.
v. Antelope
, 430 US. 641, 647 (1977).

7
  18 U.S.C.§1152.

8
  18 U.S.C.§1152.

9
  
U.S. v. Lara,
541 U.S. 193 (2004).

10
  18 U.S.C.§1152.

11
  Lawrence A. Greenfeld and Steven K. Smith,
American Indians and Crime
(Washington, DC: Bureau of Justice Statistics, USDOJ, February 1999, NCJ 173386).

12
  
Oliphant v. Suquamish Tribe,
435 U.S. 191 (1978).

13
  18 U.S.C. § 13.

14
  H.R. 3402.

15
  18 U.S.C. §922(g)(8).

16
  
Alaska v. Native Village of Venetie,
522 U.S. 520 (1998).

17
  
Violence Against Women Act,
Title IV of the
Violent Crime Control and Law Enforcement Act of 1994
(Pub. L. 103-322) as amended by the
Victims of Trafficking Protection Act of 2000
(Pub. L. 106-386), as amended by the
Violence Against Women and Department of Justice Reauthorization Act of 2005
(Pub. L. 109-162).

18
  Greenfeld and Smith,
American Indians and Crime.
19
. Duro v. Reina,
495 US. 676 (1990).

19
  Violence Against Women Act, Title IV of the Violent Crime Control and Law Enforcement Act of 1994 (Pub. L. 103-322) as amended by the Victims of Trafficking Protection Act of 2000 (Pub. L. 106-386), as amended by the Violence Against Women and Department of Justice Reauthorization Act of 2005 (Pub. L. 109-162).

20
  The
Duro
fix amended the Indian Civil Rights Act to restore the inherent power of Indian tribes to exercise criminal jurisdiction over all Indians. 25 USC 1301(2).

21
  
U.S. v. Lara,
541 U.S. 193 (2004).

Questions

1. How can civil jurisdiction and civil remedies assist Native women to attain justice for the crimes perpetrated against them? How do civil penalties help tribes deal with non-Indian perpetrators?
   
2. Why is it important for federal prosecutors who work with tribal communities under the Major Crimes Act to be educated about the cycle of domestic violence?
   
3. Why is it important for tribes to prosecute and follow through with cases against Indian perpetrators without regard for federal prosecutions?
   
4. Why are the General Crimes Act and the Assimilative Crimes Act so important for domestic violence and sexual assault cases in Indian Country? What jurisdictional gap do they fill? Why was there a need to pass these acts?
   
5. What laws are in place through the Violence Against Women Act that assist tribal nations and the federal government in prosecuting domestic violence or sexual assault on reservations? What are some of the realities of these laws in tribal communities? Why do tribes need to look to federal law in drafting protection orders?
   
6. Why is state and tribal cooperation so important for domestic violence and sexual assault victims in PL 280 states? What happens if there is a lack of cooperation?
   

In Your Community

1. What are creative ways that your tribe works within the legal systems and restrictions placed on tribal jurisdiction to punish non-Native perpetrators? What are some ideas that you have to deal with non-Native people who assault women in your community?
   
2. Jurisdiction is confusing and difficult to understand in Indian Country; however, it is important for fighting domestic violence and sexual assault in tribal communities. How would you explain jurisdiction to your family, friends, community?
   
3. What ideas do you have for getting federal prosecutors to understand and better work with your tribal community to prosecute domestic violence and sexual assault? If you are in a PL 280 state, what ideas do you have for state law enforcement to better cooperate with your community?
   

Terms Used in Chapter 14

Enumerate:
To name a number of things on a list.

Inherent rights:
Refers here to the rights that a tribe or government has because it is a tribe or government. Rights are not given by another.

Preponderance:
The lower burden of proof in a civil case; more probably than not.

Restitution:
Restoring a person to their original position prior to the loss or injury.

Trust relationship:
A relationship in which the U.S. government has certain duties or obligations to look after and care for tribes. These fiduciary duties are defined by case law, statute, and treaty.

Suggested Further Reading

Fletcher, Matthew L. “Affirmation of Tribal Criminal Jurisdiction Over Nonmember American Indians.”
Michigan Bar Journal
(July 2004).

Garrow, Carrie E., and Sarah Deer.
Tribal Criminal Law and Procedure.
Walnut Creek, CA: AltaMira Press, 2004.

Radon, Amy. “Tribal Jurisdiction and Domestic Violence: The Need for Non-Indian Accountability on the Reservation.”
University of Michigan Journal of Law Reform
(Summer 2004).

Richland, Justin B., and Sarah Deer.
Introduction to Tribal Legal Studies.
Walnut Creek, CA: AltaMira Press, 2004.

Ritcheske, Kathryn A. “Liability of Non-Indian Batterers in Indian Country: A Jurisdictional Analysis.”
Texas Journal of Women and Law
14 (2005): 201.

Free Man Walking

I ignored the voice
that told me I was in danger.
And he showed up,
with a gleam in his eye.
Wrenched me in half,
and planted his seed.
As I swallowed my tears,
not wanting to wake his angel.
Have her come down
and see the monster that her master was.
So I stayed quiet,
and held his secret.
Afraid.
Ashamed.
Alone.
When I finally spoke,
society blamed me.
His family told me to hush,
not to repeat those words.
So I was left,
with his venom,
and his sentence.
While he walked
and lived,
happy
and free.

Mary BlackBonnet (Sicangu Lakota)

Chapter 15

Representing Native American Victims in Protection Order Hearings

KELLY GAINES STONER

D
omestic violence
¹
is a pervasive problem in today’s society.
²
Native American women are battered at a higher rate than any other group.
³
Research indicates that Native Americans are less likely to report assaults, leading to the conclusion that they are victimized at an even greater rate than already reported. Domestic violence incidents involving Native Americans involve more severe physical violence and often include deadly weapons.
⁴
One of the most common methods for obtaining court ordered protection from domestic violence is known as the protection order.
⁵

The Violence Against Women Act (VAWA) sets forth that a protection order is any injunction or other order issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to, another person. According to VAWA, the order must be issued in response to a complaint, petition, or motion filed by, or on behalf of, a person seeking protection. Protection orders may also be called “restraining orders” or “injunctions” as well as a variety of other names.
⁶
Each jurisdiction may have its own definition and/or terminology regarding protection orders and the practitioner should consult jurisdictional statutes for those definitions.

Protection orders provide court ordered protections that are specifically set out in the order language itself. In addition, various jurisdictions make it a crime to violate the terms of a protection order, signaling criminal sanctions such as jail time for violations. Finally, protection orders may create a special relationship with the state or issuing jurisdiction, enhancing the duty to protect. Failing to protect the recipient of a protection order may give rise to a cause of action in federal and/or state law or a tort claims action.
⁷

Native American women
⁸
face unique obstacles as they attempt to obtain a protection order in a state court, tribal court, or a Court of Indian Offenses (hereafter referred to as CFR courts.) These women must cope not only with the ravages of the violence, but may also face a court system that is uneducated regarding the dynamics of domestic violence or is unwilling to hold the batterer accountable. In fact, some of these women will face a court system that is engaged in institutional racism or ignores the culture and traditions that are critical to the victim’s healing.

This chapter describes many of the challenges that attorneys and victim advocates face as they represent Native American victims of domestic violence. We address victim characteristics and safety issues, followed by the behaviors and manipulations of the batterer. This section sets forth how to prepare your case and what to expect at the protection order hearing. Since we are a mobile society and victims move readily across jurisdictional lines with their protection orders, this section details how to craft a protection order that is enforceable in other jurisdictions.