FAIRBANKS — Alaska Native tribes will no longer have to jump through extra hoops to have their domestic violence restraining orders enforced by the state.
A legal opinion issued by Alaska Attorney General Craig Richards ruled Alaska law was out of line with the federal Violence Against Women Act, clearing the way for a direct link between tribal courts and state troopers.
“This opinion provides clear direction to officers on the ground as well as the victims they seek to protect,” Richards said in a news release. “There should now be no doubt that these protection orders must be enforced.”
The legal opinion found an Alaska law requiring tribal court-issued restraining orders be registered with courts before they could be enforced was superseded by federal Violence Against Women Act.
The Violence Against Women Act specifically says protective orders issued by Alaska Native tribes, other tribes and other governments do not need to be registered to be enforced.
“The State should not enforce or apply the provisions of state law that conflict with VAWA,” the opinion said, “and should investigate and prosecute violations of tribal and foreign protection orders that meet the full faith and credit requirements set forth in VAWA.”
Tanana Chiefs Conference President Victor Joseph applauded the decision, saying it will help curb domestic violence and empower tribes.
“This will no doubt add to the protection of our Native women and children in our villages,” he said. “It is one less step victims will have to take in order to get the protection from law enforcement that they deserve. It is also a step in the right direction needed to lower the high rates of domestic violence as recognized by the Indian Law & Order Commission’s report.”
The protective orders must still comply with the guidelines set out in the Violence Against Women Act. Those include the tribe having the appropriate jurisdiction over the issue and provide due process.
The protection orders must be for “the protection of victims of domestic violence, sexual assault, dating violence, or stalking,” according to the federal law.
The order still encourages the tribes to register protection orders with the state court system.
“While not required for enforcement, registration of tribal and foreign protection orders helps officers to protect and serve the public,” the order explains.
The opinion was requested by Department of Public Safety Commissioner Gary Folger.
The jurisdiction of tribal courts is likely to continue to be an important issue in Alaska in coming years.
North Pole Republican Sen. John Coghill has introduced a bill that would give tribal courts jurisdiction over misdemeanor crimes. He said it not only lessens the cost for the state to enforce misdemeanor laws in rural Alaska, but importantly is a better tool to address problems in rural Alaska than the traditional court system.
“The tribal courts are using a restorative justice model that really suits many small villages,” he said. “To be fair, there are some that do it well and some that are not doing it as well as others, but the reality is something has got to happen in the rural communities to allow people to hold each other accountable.”
Granting tribes greater jurisdiction over criminal and civil issues has been a prickly issue for many legislators and administrations, but Coghill said there’s a compromise that can and should be struck.
“We have such a diversity in Alaska,” he said, “and if you can’t find a way to work in those diverse conditions, I think we’ve failed.”
Next week the Tanana Chiefs Conference will be hosting its annual Tribal Court Development Conference in Fairbanks.
Rashida Manjoo, UN Special Rapporteur on the Rights of Women presenting her report to the UN General Assembly in New York, 2011.
After decades of grassroots advocacy and calls to action, the Violence Against Women Act is putting justice back in the hands of tribal authorities in cases of abuse and violence against Native American women.
WASHINGTON — In March 2013, following nearly two decades of grassroots work and advocate work, President Barack Obama signed a reauthorization of the Violence Against Women Act that offers expanded protections for Native American women.
The reauthorized act extends tribal jurisdiction to non-Native Americans who commit acts of violence or sexual assault against their Native American spouse or partner. While such incidents often go unreported, the amount that are reported reflect a disproportionate number of Native American women will be raped, stalked or physically assaulted compared to their non-Native American peers.
“One of the most basic human rights recognized under international law is the right to be free of violence. While many in the United States take this right for granted, Native women do not,” –Jana Walker, senior attorney and director of Indian Law Resource Center’s Safe Women, Strong Nations.
Federal authorities currently maintain jurisdiction over offenses committed by non-Native Americans coming onto the territories, but with prosecuting attorneys often located hundreds of miles from these areas, reporting is infrequent. From October 2002 to September 2003, 58.8 percent of cases the Bureau of Indian Affairs referred for federal prosecution were declined, compared to the national average of 26.1 percent.
However, VAWA will now allow territories to impose a penalty on non-Native Americans married to a community member, as well as those living in the community or employed by the community. Many hope this newly granted authority will put an end to the notion of reservations as hunting grounds where offenders have impunity.
The initial Violence Against Women Act resulted from grassroots efforts that started in the late 1980s, with advocates from the battered women’s movement, law enforcement, victims services and prosecutor’s offices. It was signed into law in September 1994 as Title IV sec 4001-4073 of the Violent Crime Control and Law Enforcement Act to fund the investigation and prosecution of acts of violence against women and impose restitution. It also established the Office on Violence Against Women in the Department of Justice.
Throughout its 20 years of reauthorizations, tribal leaders had partnered with the advocacy groups, having to explain to many in Congress the realities of living on a reservation. Tribal jurisdiction continued to be debated last year — largely around questions of whether non-Native American offenders would be treated fairly in tribal judicial systems.
To be eligible, tribes must have a criminal justice system that provides representation for defendants, provide non-Native Americans in a jury, and inform defendants of their right to file federal habeas corpus petitions. The U.S. Attorneys, state and local prosecution offices continue to hold the same authority to prosecute crimes in Indian country if tribes cannot afford prosecution costs or if further charges are pending.
Native women
According to the Indian Law Resource Center: “One in three Native women will be raped in their lifetime, and three in five will be physically assaulted. Native women are more than twice as likely to be stalked than other women and, even worse, Native women are being murdered at a rate ten times the national average.”
These statistics only take reported cases into account, and they also fail to include data on violence against Native American girls, which is estimated to also be “disproportionately high.”
“Young women on the reservation live their lives in anticipation of being raped,” said Juana Majel Dixon, 1st vice president of the National Congress of American Indians and co-chair of the NCAI Task Force on Violence Against Women. “They talk about, ‘How will I survive my rape?’ as opposed to not even thinking about it. We shouldn’t have to live our lives that way.”
The Indian Law Resource Center, the NCAI Task Force on Violence Against Women, Clan Star, Inc., National Indigenous Women’s Resource Center, and other Native American women’s organizations have also turned to the international human rights community for help in the past.
In the summer of 2010, nearly 2,000 Indigenous representatives from around the world gathered at the Headquarters of the United Nations in New York for the ninth session of the Permanent Forum on Indigenous Issues.
Discussion turned to the issue of people from outside Indigenous communities entering these communities to commit abuses against Indigenous women, effectively making such behavior part of these women’s homes and communities. Speakers from Mexico, Kenya and New Zealand emphasized the necessity of Indigenous communities establishing programs relevant to them, as well as holistic approaches, environmental health and government policies to eliminate abuses such as genital mutilation.
Women of the Haudenosaunee, the Maori of New Zealand, Wara Wara of Australia, the peoples of the Lakota, Tibetan and Hawai’i nations came out of the shadows and spoke of disruptions to womanhood.
The U.N. and the Organization of American States began examining the situation of American Indian women. In 2011, Rashida Manjoo, U.N. Special Rapporteur on the Rights of Women, presented her report to the U.N. General Assembly in New York, telling the United States to “consider restoring, in consultation with Native-American tribes, tribal authority to enforce tribal law over all perpetrators, both Native and non-Native, who commit acts of sexual and domestic violence within their jurisdiction.”
After touring Native American territories for a month in the U.S., James Anaya, U.N. Special Rapporteur on the Rights of Indigenous Peoples, went before the U.N. Human Rights Council in Geneva in September 2012 and recommended that the U.S. put creating legislation to protect Native American women as an immediate priority.
The reality of the lives of women around the world started being documented in 1946, when the U.N. created a Commission on the Status of Women. At first focusing on the need for education and employment, by the spring of 2013 the theme of the 57th session of the commission was “Elimination and prevention of all forms of violence against women and girls.”
When it became clear that a cooperative environment could promote protections, space was made to include the Indigenous voice to the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child and the U.N.’s Declaration on the Rights of Indigenous People.
The 2013 report by the U.N.’s Permanent Forum on Indigenous Issues and the International Indigenous Women’s Forum was called “Breaking the Silence on Violence against Indigenous Girls, Adolescents and Young Women,” based on analysis of data from Africa, the Asia-Pacific region and Latin America. The Indigenous Women’s Rights, Violence and Reproductive Health forum, meanwhile, underlined the need for grassroots programs that reach community members and can set precedents.
In February 2013, Manjoo and Anaya urged the U.S. House of Representatives to approve a revised version of VAWA that would extend protections to not only Native American women, but also to immigrant and gay victims of violence and sexual abuse.
“Congress should act promptly to pass key reforms to the Violence Against Women Act that bolster indigenous tribes’ ability to prosecute cases involving violence against indigenous women,” Anaya said, urging the House to approve the version of the act already approved by the Senate that month.
The OAS’ 2011 Inter-American Human Rights Commission also produced a report, “Violence Against Native Women in the United States,” expressing concern about violence against women in Honduras, Nicaragua, Colombia and the U.S., urging laws, policies and programs in collaboration with the women.
Confederated Tribes of the Umatilla Indian Reservation in Oregon
Given the porous borders of reservations, there’s usually frequent interaction between Native Americans and non-Native Americans and a limited scope for ensuring public safety in Indian country.
“VAWA was really needed in Indian Country,” said M. Brent Leonhard, an attorney for the Confederated Tribes of the Umatilla who was instrumental in crafting the language of VAWA applied in the tribe. “Historically, the federal government didn’t prosecute and it didn’t get reported to them.”
According to statistics cited by the Indian Law Research Center, more than 88 percent of violent crimes committed against Native American women are committed by non-Native Americans over which tribal governments lack any criminal jurisdiction under U.S. law. In 66 percent of the crimes in which the race of the perpetrator was reported, Native Americans victims indicated that the offender was not Native American.
Leonhard told MintPress that the latest changes to VAWA will give communities more confidence in their tribe’s ability to deal with an assault and be more comfortable in reporting it.
“We’re seeing at least 80 percent of those who come to our family violence program have not reported incidents to the police,” he said. “They seek help here but they won’t go to outside systems.”
The Umatilla are located near the city of Pendleton, where the FBI is stationed and can respond quickly to crimes. But for other reserves, federal law enforcement bodies may be as many as four hours away. For example, in Alaska, Leonhard said, “the problem is horrendous.”
The act legislatively reversed the U.S. Supreme Court decision in Oliphant v.Suquamish Indian Tribe, 435 U.S. 191 (1978), which held that inherent tribal sovereignty did not exist and “Indian tribes do not have inherent jurisdiction to try and to punish non-Indians.”
Leonhard said the Obama administration has been supportive of issues in American Indian territory. On July 21, 2011, Ronald Weich, assistant attorney general for the Office of Legislative Affairs, wroteto Vice President Joseph Biden and proposed the amendment to VAWA thatwould create the pilot project.
Pascua Yaqui Tribe of Arizona
Since the pilot program began in March, the Pascua Yaqui Tribe has tried more than a dozen cases involving non-Indians abusing Native American women.
VAWA does not cover crimes committed against Native American women by strangers or those who may live or work on a reservation but are not considered to be dating or in relationship with a Native American woman.
There’s a lot being defined as the process moves forward. “Dating,” for instance, is being questioned: Can it apply to a chance meeting at a restaurant between two people who have just met?
“We’ve found most of our defendants have been in relationships,” Alfred Urbina, the tribe’s attorney general, told MintPress. “Most have been contacted by tribal police six to 10 times, already have felonies on their record or are unemployed.”
To exercise the authority, a tribe must guarantee that a defendant’s rights are similar to those guaranteed by the U.S. Constitution, such as the right to a public defender and effective assistance of counsel. Tribes must also include non-American Indians in jury pools. For tribes with many enterprises that employ non-Native Americans, this is not an issue, but for those without such enterprises, this presents a problem.
Meanwhile, tribes must provide a public defender only if the offender is indigent,which also raises questions regarding who pays the costs associated with probation or treatment, or if an offender is homeless or if an offender needs to be monitored in another town.
“These are all questions we’re running into,” Urbina said. “We’re near Tucson and able to draw on defense attorneys and other resources. But for others who are remote from metropolitan areas, for instance the Diné, this will be difficult.”
Under the Indian Civil Rights Act, nations are limited to the amount of time they can sentence an offender to prison. The Yaqui constitution currently limits sentences to one year, while other tribes can sentence offenders to up to three years. For a case involving strangulation or another form of attempted murder, these sentencing limitations often mean that the cases are sent to U.S. Attorneys for further prosecution.
Meanwhile, some opt to leave criminal matters to the Bureau of Indian Affairs or FBI. The federal government deals with regional problems, so one reservation may be just a small part of an agent’s 100-mile radius. “It could be days before a person gets out to investigate a crime,” said Urbina.
While it’s brought benefits to those under the three pilot projects, Urbina said most reserves won’t have resources to put the program in place. (He estimated that about 30 would have adequate resources for implementing the program.)
The number of Native American women reporting abuse represents just small percentage of the reality, he added.
“If you don’t have jurisdiction over these crimes, you’re not going to collect data,” he said. “It can be decades a community puts up with rape and violent cases. You’re not going to find trust.”
Most tribes have victims services and access to federal grants to fund help for victims, and VAWA strengthens the trust Urbina mentioned by putting the response back into the hands of the nation’s people.
The 2013 reauthorization of the Violence Against Women Act was heralded by President Barack Obama as a significant step for Native American women because it allows tribal courts to prosecute certain crimes of domestic violence committed by non-Native Americans and enforce civil protection orders against them.
Before the bill passed the Senate, however, Sen. Lisa Murkowski, R-Alaska, added Section 910, known as the “Alaska exception,” that exempted Alaska Native tribes. Murkowski argued that her provision did not change the impact of the bill since even without it, the bill pertained only to “Indian country,” where tribes live on reservations and have their own court systems. As defined by federal law, there is almost no Indian country in Alaska.
Now, after pressure from Alaska Natives, Murkowski is reversing her position and trying to repeal the provision she inserted.
The senator’s change of mind is the subject of much debate in Alaska, with state officials saying that ending the exception won’t make any difference for Alaska Natives because it only applies to Indian country and the state already takes action to protect Native women and children. Tribes and the Justice Department, on the other hand, argue that repealing the provision will have a significant impact.
Associate Attorney General Tony West, who called for the repeal of the “Alaska exemption,” says that the state needs to enforce tribal civil protection orders in cases of domestic violence and that the legislative change would send a strong message about tribal authority.
“It’s important to send a very clear signal that tribal authority means something, that tribal authority is an important component to helping to protect Native women and Native children from violence,” said West, who testified in June before a hearing in Anchorage of the Task Force on American Indian and Alaska Native Children Exposed to Violence. “Those civil protective orders can help to save lives.”
Murkowski’s provision, which was originally an amendment she co-sponsored with Sen. Mark Begich, D-Alaska, in 2012, was supported by state officials. Begich has also changed his position since then.
Alaska Attorney General Michael Geraghty and Gary Folger, commissioner of the Department of Public Safety, have said that Alaska is already enforcing civil protection orders issued by tribes to try to keep one person from stalking or committing abuse or violence against another person.
But Murkowski’s “Alaska exception” reopened a contentious debate surrounding criminal jurisdiction over Alaska Native villages, and it has created confusion among law enforcement officials.
Alaska Native women protested Murkowski’s exception, and the Indian Law and Order Commission called it “unconscionable.”
“Given that domestic violence and sexual assault may be a more severe public safety problem in Alaska Native communities than in any other tribal communities in the United States, this provision adds insult to injury,” the commission said.
Troy Eid, a former U.S. attorney and chairman of the commission, said that only one Alaska Native village has a women’s shelter. He and the other commissioners were stunned by what they heard in remote Alaska Native communities, he said.
“We went to villages where every woman told us they had been raped,” Eid said. “Every single woman.”
On her Facebook page last year, Murkowski wrote: “It hurts my heart that some Alaskans may think I do not fully support protecting Native women from violence with every fiber of my being.”
“In Alaska, we have one, and only one reservation: Metlakatla,” Murkowski wrote. “The other 228 tribes have been described by the U.S. Supreme Court as ‘tribes without territorial reach.’ The expansion of jurisdiction over non-members of a tribe is a controversial issue in our state, and what works in the Lower 48, won’t necessarily work here.”
Murkowski said she still has concerns about repealing the exemption but said in a statement: “We must turn the tide of the rates of sexual assault, domestic violence, and child abuse in our state.”
Jacelle Ramon-Sauberan Pascua Yaqui Tribe Attorney General Amanda Lomayesva and Pascua Yaqui Tribe Chief Prosecutor Alfred Urbina are working to improve the Pascua Yaqui community through the Violence Against Women Act.
By Jacelle Ramon-Sauberan, Indian Country Today
The Pascua Yaqui Tribe is making progress in Southern Arizona after being chosen to take early advantage of the Violence Against Women Act (VAWA). “So far VAWA is helping us analyze our own process and the Pascua Yaqui Tribal Council is really interested in how this is going to work out,” said Amanda Lomayesva, Attorney General for the Pascua Yaqui Tribe.
On February 6, the Pascua Yaqui Tribe, the Tulalip Tribes of Washington and the Umatilla Tribes of Oregon were chosen by the Obama Administration to exercise criminal jurisdiction over certain crimes of domestic and dating violence, regardless of the defendant’s Indian or non-Indian status, under the 2013 VAWA law.
Lomayesva (Lumbee) said the Pascua Yaqui Tribe became interested in VAWA when they wanted to expand their tribal jurisdiction. “I think it really started to gain steam in 2007 when people started talking about problems in Indian Country –about crimes that were reoccurring and not being taken care of,” said Chief Prosecutor for the Pascua Yaqui Tribe, Alfred Urbina.
Not to mention, the Domestic Violence is the main crime on the Pascua Yaqui reservation, he said.
Prior to the assertion of VAWA, when a non-Native American committed a crime on the Pascua Yaqui reservation, the Pascua Yaqui Police officers would drop them off on the edge of the reservation, Lomayesva said.
Also, prior to 2010, tribal members accused of a crime would only be incarcerated for one year and the Pascua Yaqui jail was not fit for anyone. The office was in a house and the jail was a cage, said Urbina (Pascua Yaqui).
In 2010, the Tribal Law and Orders Act changed that allowing the tribe to sentence criminals up to three years of incarceration per offense with a maximum of nine years.
And the tribe was able to have a multi-purpose justice complex built through a $20 Million American Reinvestment Recovery Act in 2010. “There has been a real tribal effort to address these problems and a challenge to not only our courts, but all tribal courts to protect tribal members,” said Lomayesva.
The tribe currently has 12 VAWA investigations that have lead to arrests of non-Native Americans, said Urbina. “We had two individuals that were wanted felons by the State of Arizona hiding out on the reservation,” he said. “This happens on our reservation a lot, and other surrounding reservations.”
Also, they are finding that majority of the women involved in the cases are single, young females with children. Typically, both parties are unemployed, alcohol is involved and the accused are repeat offenders.
Urbina admits it is too early to start drawing conclusions. But he’s beginning to see what some of the key issues are, and is asking questions. “VAWA is giving us an opportunity to do an assessment and look into bigger problems,” he said.
Lomayesva admits that a couple of the VAWA cases have fallen apart, and it has led them to question what the tribe can do to help support domestic violence victims.
Tribal members Lourdes Escalante and Feliciano Cruz Sr. both believe VAWA will have a positive effect on their community. “As a community member I think it is about time the tribe start prosecuting non-Natives,” Cruz said. “If they live on our reservation they should abide by our laws.”
Cruz believes that domestic violence on the Pascua Yaqui reservation has gone on long enough and is happy to see that non-Native Americans who are accused won’t be “slapped on the back of the hands anymore. They commit the crime, they go to do the time.”
As for Escalante, a law student at the University of Arizona, is interested to see what VAWA does for her tribe. “I like that my tribe was one of the first to take this on,” she said. “Hopefully, it makes a huge difference; but since it is still kind of new, we will have to wait and see.”
Courtesy Sen. Heidi Heitkamp’s Office Sen. Heidi Heitkamp, right, was in attendance for the Champions for Change ceremony in Washington, D.C. recently. Heitkamp is pictured with office intern and one of the five Champions for Change Danielle Finn.
U.S. Senator Heidi Heitkamp is the first female elected from North Dakota. Since taking the oath of office on January 3, 2013, Heitkamp has shown herself to be a strong advocate fighting for the needs of Indian country as she has been since her role as state Attorney General beginning in 1990.
As a member on the Senate Committee on Indian Affairs, Heitkamp has pledged to stand for Native American families and has worked to ensure the U.S. government lives up to treaty and trust responsibilities.
Last October, Heitkamp introduced a bill to improve the lives of Native American children that has received bipartisan support as well as another bill with Republican Senator Moran that would end the IRS’ practice of taxing crucial programs and services that aim to support the health and safety of Native families. Additionally she is an advocate for the Violence Against Women Act and better transportation and infrastructure on reservations.
In a conversation with ICTMN, Heitkamp shared her stance on the importance of working for the betterment of Indian country and why we should all fight for the needs of our children.
Can you tell us about your bill regarding the Commission on Native Children?
I don’t think there’s any aspect of Indian country that would be left untouched as we talk about children. It really comes to me from the words of Sitting Bull, who said “Let us now sit down and decide what kind of life we can make for our children,” I am paraphrasing, but if we stay focused on kids and our children we will make good choices and we will hopefully get better attention to the challenges for Native American families.
The important part of this commission is that we need to be looking at it from a holistic standpoint. You see people talk about Indian education or protection of our children or health care for our children or making sure that we have good transportation so that our kids can get to school. All of these things have a direct effect, but we worry about the programs and not about the outcomes.
For instance, I feel that Native languages are a huge component of the child bill because I think it is a way that we begin to grasp that cultural connection to heal families to provide the pride to move forward.
You played a key role in the Violence Against Women Act, you specifically pushed for tribal governments to gain authority to prosecute non-Native perpetrators, how are things going?
Currently three tribal courts have been selected as a sort of first pass – from there we will learn what tribal courts need to do as a court that has the authority and the jurisdiction to act over non-Native offenders.
We are taking those first steps but it is not enough to pass legislation. We have to be vigilant about making sure that that legislation is given its full effect. I think at this point, We are all grateful this is on track but we need to make sure that these test pilot tribal courts work.
None of these courts are in my state, I am really looking forward to seeing this implemented in my state so that Native American women do not and are not treated as second class citizens as it relates to the pursuit of justice.
I spent a lot of my time as Attorney General with domestic violence programs and it was one of the reasons why I ran for AG.
Can you speak on transportation infrastructure on reservations?
Obviously we are always road challenged in North Dakota. It doesn’t matter if you are at Township – We have issues with roads just given our weather patterns. One of the concerns that I have, Are the stories such as roads not getting plowed so that children cannot go to school or maybe grandma needs to get in for her diabetes treatment, but she cannot get out for groceries.
The frustration that I have is that we probably could see better cooperation between County and State officials along with tribal authorities – but the federal highway folks need to step up and do a better job allocating resources.
There is a great deal of concern about retention of overhead costs, so that these dollars don’t actually go back to the tribes, but are retained within the programs in Washington, D.C.
I realize that when we talk about roads, it is not going to fill up the room, but it might be (what is) most important to a Native American family. It is so important that we talk about this now as we’re looking at, again, reauthorizing the Highway Bill.
You are working to end the taxation of tribal programs through the IRS with Sen. Moran, can you explain?
We are very concerned about an IRS agent questioning the judgment of a sovereign entity as they relate to what constitutes general welfare. I think there’s a fair amount of a lack of understanding as to what tribal governments do and how culturally significant a lot of this is. To suggest that a family who receives funeral dinner and funeral services aught to be taxed on those services is to ignore the pervasive poverty on a reservation, but also it ignores the cultural significance of that expenditure.
I think that this is a great bipartisan effort. We hope that the IRS is starting to get it, but it is more important that we are not fighting this fight a year from now or two years from now and that we get some federal legislation that makes the intent of Congress clear in that it respects tribal sovereignty as it relates to their expenditure decisions.
One of the 2014 Champions for Change is your intern Danielle Finn.
She is a star! We are a little biased in that she is an intern in our office. She is going off to law school; she has tons of options. We are so proud of her and her family is so proud of her. We are just excited to see across the board that these champions for change are part of a hopeful program.
We see all of this wonderful opportunity for expansion of tribal leadership and it really makes us hopeful that there are so many people. I think we need to remember that there are some kids who are getting left behind. We need to celebrate these superstars and amazing kids, but we also need to know there are also very many students And young people who with the right set of circumstances could have equal achievement.
That motivates me as well. When you see these Champions For Change and think that it is not just them but there are probably hundreds of champions for change when given an opportunity.
We just need to keep that in mind and this is what my child’s commission bill is all about.
Diane Millich, Southern Ute, shared her story of surviving domestic violence, at the signing of the reauthorization of the Violence Against Women Act on March 7, 2013. Photo from National Congress of American Indians
By indianz.com
A survivor of domestic violence has shut down her operation due to a loss of federal funds from the Department of Justice.
Diane Millich, a member of the Southern Ute Tribe of of Colorado, made national news a year ago at the signing of S.47, a reauthorization of the Violence Against Women Act that recognizes tribal jurisdiction over non-Indian offenders. She shared her story of surviving abuse and a near-fatal shooting at the hands of her non-Indian former husband.
Millich created a non-profit called Our Sister’s Keeper Coalition to help other survivors. But DOJ’s Office on Violence Against Women cut off all federal funds in 2012 and the group shut its doors in September, The Durango Herald reports.
“We were serving a lot of women,” Dedra White, the group’s former director and Millich’s sister, told the paper. “A lot.”
According to DOJ’s Office of Inspector General, Our Sister’s Keeper Coalition received $570,000 in federal funds between 2007 and 2011. Of that amount, auditors found problems with about $200,000 in spending that were considered “unsupported” and “unallowable.”
“We found that, OSKC did not comply with essential grant conditions in the areas of internal controls, grant drawdowns, grant expenditures, budget management and control, grant reporting, and grant goals and accomplishments,” the March 5 report stated. “Most significantly, OSKC commingled the OVW grant funds with funding from other sources, did not consistently identify funding sources for expenditures, made drawdowns in excess of grant expenditures, charged unallowable and unsupported costs to the grant, did not submit accurate or timely grant reports, and did not meet grant goals and objectives.”
Millich did not talk to the paper about the audit.
Deborah Parker, vice chair of the Tulalip Tribes of Washington state, reacts to President Barack Obama signing the Violence Against Women Act in 2013 in Washington. Manuel Balce Ceneta/AP
By Hansi Lo Wang, from NPR All Things Considered show
This Thursday, three Native American tribes are changing how they administer justice.
For almost four decades, a U.S. Supreme Court ruling has barred tribes from prosecuting non-American Indian defendants. But as part of last year’s re-authorization of the Violence Against Women Act, a new program now allows tribes to try some non-Indian defendants in domestic abuse cases.
It will be another year before the program expands to other eligible federally-recognized tribes around the country in March 2015. But the Department of Justice has selected three tribes to exercise this authority first, including the Pascua Yaqui Tribe of Arizona, the Confederated Tribes of the Umatilla Indian Reservation in Oregon, and the Tulalip Tribes, located north of Seattle.
‘Going To War’
Deborah Parker serves as the Tulalip Tribes’ vice chair. For three years, she flew back and forth between Washington state and Washington, D.C., giving speeches and knocking on doors — an experience that she says felt like “going to war.”
“You got to go to battle,” Parker says, “and you have to convince a lot of people that native women are worth protecting,”
And that protection, Parker was convinced, had to come from Congress. So she pushed for legislation allowing American Indian tribes to prosecute non-Indian defendants in domestic violence cases.
About four out of every ten women of American Indian or Alaskan Native descent have “experienced rape, physical violence or stalking by an intimate partner,” according to the Centers for Disease Control and Prevention. It’s an alarming statistic that Parker knows all too well from growing up on the reservation.
“We didn’t have a strong police presence when I was younger. Even [if you called] the police, often they didn’t respond,” she says. “When they did, they would say, ‘Oh, it’s not our jurisdiction, sorry.’ [And] prosecutors wouldn’t show up.”
A Question Of Jurisdiction
Jurisdiction is the key word in this discussion.
In 1978, the Supreme Court ruled in Oliphant v. Suquamish Indian Tribe that tribal governments have no jurisdiction over crimes committed by non-Native Americans on tribal land.
Instead, tribes have to rely on federal prosecutors to take on such cases, and prosecutors have not always been able or willing to consistently pursue reports of domestic violence.
Deborah Parker and other advocates pushed to address this issue — and some lawmakers in Congress pushed back.
One of the most vocal opponents of the new program was Republican Sen. Charles Grassley of Iowa. He voiced his concerns about the constitutionality of the program during a Senate debate last February, weeks before the Violence Against Women Act was reauthorized.
“The key stumbling block to enacting a bill at this time is the provision concerning Indian tribal courts,” Grassley said, referring to a provision that allows American Indian tribal courts to have jurisdiction over non-Indians accused of domestic violence.
Stepping Towards A Solution
But Fred Urbina, chief prosecutor for the Pascua Yaqui Tribe, says the provision that passed is fairly complicated and narrow. “This basically helped it pass through Congress and get approval, so everybody’s describing this as a first step,” he says.
The “special domestic violence criminal jurisdiction” program is limited to certain domestic violence cases involving non-Native American defendants who are in existing relationships with Native Americans and living or working on the reservation. In Alaska, it only applies to the Metlakatla Indian Community of Annette Islands Reserve.
Still, the Pascua Yaqui Tribe’s Attorney General Amanda Sampson Lomayesva says the program will offer a new route for justice.
“It is a ray of hope,” she says “Maybe we can start protecting people and having the tribal members who live here on the reservation feel like something will be done.”
Brent Leonhard, an attorney for the Confederated Tribes of the Umatilla Indian Reservation, also sees the program as a partial solution to “a mess created both by a Supreme Court decision and by federal law and policy.”
“This is a step towards trying to improve that,” he says.
Parker acknowledges that the program “doesn’t answer all the questions” about how tribal governments can play a more direct role in addressing crime by non-Native Americans.
“But it allows us to exert jurisdiction and arrest those who violate protection orders [and commit] dating violence [or] domestic violence,” says Parker, who adds that she hopes the program will give a stronger voice to more Native American women
In WHITE EARTH NATION, Minn. — Lisa Brunner remembers the first time she saw her stepfather beat her mother. She was 4 years old, cowering under the table here on the Ojibwe reservation, when her stepfather grabbed his shotgun from the rack. She heard her mother scream, “No, David! No!”
“He starts beating my mother over the head and I could hear the sickening thud of the butt of the shotgun over her head,” Brunner said. “Then he put the gun back on the rack and called her a bitch. He slammed the bedroom door and sat down on the squeaky bed. And then I heard the thud-thud of his cowboy boots as he laid down, squeaking again, and he went to sleep.”
There were many more beatings over the years, Brunner said. Twenty years later, she said, she was brutally assaulted by her own husband on this same Indian reservation, an enormous swath of Minnesota prairie that has seen its share of sorrow for generations.
An estimated one in three Native American women are assaulted or raped in their lifetimes, and three out of five experience domestic violence. But in the cases of Brunner and her mother, the assailants were white, not Native American, and that would turn out to make all the difference.
President Obama, joined by Vice President Biden, members of women’s organizations, law enforcement officials, tribal leaders, survivors, advocates and members of Congress, signs the Violence Against Women Act in March. (Manuel Balce Ceneta/Associated Press)
For decades, when a Native American woman has been assaulted or raped by a man who is non-Indian, she has had little or no recourse. Under long-standing law in Indian country, reservations are sovereign nations with their own police departments and courts in charge of prosecuting crimes on tribal land. But Indian police have lacked the legal authority to arrest non-Indian men who commit acts of domestic violence against native women on reservations, and tribal courts have lacked the authority to prosecute the men.
Last year, Congress approved a law — promoted by the Obama administration — that for the first time will allow Indian tribes to prosecute certain crimes of domestic violence committed by non-Indians in Indian country. The Justice Department on Thursday announced it had chosen three tribes for a pilot project to assert the new authority.
While the law has been praised by tribal leaders, native women and the administration as a significant first step, it still falls short of protecting all Indian women from the epidemic of violence they face on tribal lands.
The new authority, which will not go into effect for most of the country’s 566 federally recognized Indian tribes until March 2015, covers domestic violence committed by non-Indian husbands and boyfriends, but it does not cover sexual assault or rape committed by non-Indians who are “strangers” to their victims. It also does not extend to native women in Alaska.
Proponents of the law acknowledge that it was drawn narrowly to win support in Congress, particularly from Republican lawmakers who argued that non-native suspects would not receive a fair trial in the tribal justice system.
For their part, native women say they have long been ill-served by state and federal law. U.S. attorneys, who already have large caseloads, are often hundreds of miles away from rural reservations. It can take hours or days for them to respond to allegations, if they respond at all, tribal leaders say. Native women also have to navigate a complex maze of legal jurisdictions.
“There are tribal communities where state police have no jurisdiction and federal law enforcement has jurisdiction but is distant and often unable to respond,” said Thomas J. Perrelli, a former associate attorney general who was one of the administration’s chief proponents of the amendment. “There are tribal communities where the federal government has no jurisdiction but state law enforcement, which has jurisdiction, does not intervene. And there are still other tribal lands where there is a dispute about who, if anyone, has jurisdiction. All of this has led to an inadequate response to the plight of many Native American women.”
More than 75 percent of residents on Indian reservations in the United States are non-Indians. In at least 86 percent of the reported cases of rape or sexual assault of American Indian and Alaska native women, both on and off reservations, the victims say their attackers were non-native men, according to the Justice Department.
Main Street in Mahnomen, Minn. (Linda Davidson/The Washington Post)
Heavy snow slides off grain and seed storage units on the White Earth Nation reservation. (Linda Davidson/The Washington Post)
‘Not enrolled’
The loophole in the American Indian justice system that effectively provides immunity to non-
Indians is the story of a patchwork of laws, treaties and Supreme Court decisions over generations.
At the root of the confusion about Indian jurisdiction is the historical tension over Indian land. As American settlers pushed Native Americans off their tribal lands and then renegotiated treaties to guarantee tribes a homeland, large areas of the reservations were opened for white families to homestead.
That migration led to the modern-day reservation, where Indians and non-
Indians often live side by side, one farm or ranch home belonging to a white family, the next one belonging to an Indian family. It is a recipe for conflict over who is in charge and who has legal jurisdiction over certain crimes.
“The public safety issues in Indian country are so complicated,” said Deputy Associate Attorney General Sam Hirsch, one of the Justice Department officials who focus on tribal justice issues. “No one would have ever designed a system from scratch to look like the system that has come down to us through the generations.”
Over the past 200 years, there have been dramatic swings in Indian-country jurisdiction and the extent of tribal powers.
In 1978, in a case widely known in Indian country as “Oliphant,” the Supreme Court held that Indian tribes had no legal jurisdiction to prosecute non-
Indians who committed crimes on reservations. Even a violent crime committed by a non-Indian husband against his Indian wife in their home on the reservation — as Brunner said happened to her on the White Earth Nation reservation — could not be prosecuted by the tribe.
The court said it was up to Congress to decide who had that authority.
“We are not unaware of the prevalence of non-Indian crime on today’s reservations, which the tribes forcefully argue requires the ability to try non-Indians,” the court said. “But these are considerations for Congress to weigh in deciding whether Indian tribes should finally be authorized to try non-Indians.”
Congress took no action for 35 years.
As a result, native women who were assaulted were often told there was nothing tribal police could do for them. If the perpetrator was white and — in the lingo of the tribes — “not enrolled” in the tribal nation, there would be no recourse.
“Over the years, what happened is that white men, non-native men, would go onto a Native American reservation and go hunting — rape, abuse and even murder a native woman, and there’s absolutely nothing anyone could do to them,” said Kimberly Norris Guerrero, an actress, tribal advocate and native Oklahoman who is Cherokee and Colville Indian. “They got off scot-free.”
In 2009, shortly after taking office, Attorney General Eric H. Holder Jr. was briefed by two FBI agents on the issue of violence on Indian reservations.
They told him about the soaring rates of assault and rape and the fact that on some reservations, the murder rate for native women is 10 times the national average.
“The way they phrased it was, if you are a young girl born on an Indian reservation, there’s a 1-in-3 chance or higher that you’re going to be abused during the course of your life,” Holder said in an interview. “I actually did not think the statistics were accurate. I remember asking, ‘check on those numbers.’ ”
Officials came back to Holder and told him the statistics were right: Native women experience the highest rates of assault of any group in the United States.
“The numbers are just staggering,” Holder said. “It’s deplorable. And it was at that point I said, this is an issue that we have to deal with. I am simply not going to accept the fact it is acceptable for women to be abused at the rates they are being abused on native lands.”
Measuring tape
Diane Millich, left, joins Attorney General Eric H. Holder Jr. and Deborah Parker, vice chairwoman of the Tulalip Tribes of Washington state, at the bill-signing ceremony in March. (Alex Wong/Getty Images)
Diane Millich grew up on the Southern Ute Indian reservation, nestled in the mountain meadows of southwestern Colorado. When she was 26, she fell in love and married a non-Indian man who lived in a town just beyond the reservation.
Not long after they were married, Millich’s husband moved in with her and began to push and slap her, she said. The violence escalated, and the abuse, she said, became routine. She called the tribal police and La Plata County authorities many times but was told they had no jurisdiction in the case.
One time after her husband beat her, Millich said, he picked up the phone and called the sheriff to report the incident himself to show that he couldn’t be arrested, she said. He knew, she said, there was nothing the sheriff could do.
“After a year of abuse and more than 100 incidents of being slapped, kicked, punched and living in terror, I left for good,” Millich said.
The brutality, she said, increased after she filed for a divorce.
“Typically, when you look backwards at crimes of domestic violence, if less serious violence is not dealt with by the law enforcement system, it leads to more serious violence, which eventually can lead to homicide,” said Hirsch, the deputy associate attorney general.
One day when Millich was at work, she saw her ex-husband pull up in a red truck. He was carrying a 9mm gun.
“My ex-husband walked inside our office and told me, ‘You promised until death do us part, so death it shall be,’ ” Millich recalled. A co-worker saved Millich’s life by pushing her out of the way and taking a bullet in his shoulder.
It took hours to decide who had jurisdiction over the shooting.
Investigators at the scene had to use a measuring tape to determine where the gun was fired and where Millich’s colleague had been struck, and a map to figure out whether the state, federal government or tribe had jurisdiction.
The case ended up going to the closest district attorney. Because Millich’s husband had never been arrested or charged for domestic abuse on tribal land, he was treated as a first-time offender, Millich said, and after trying to flee across state lines was offered a plea of aggravated driving under revocation.
“It was like his attempt to shoot me and the shooting of my co-worker did not happen,” Millich said. “The tribe wanted to help me, but couldn’t because of the law. In the end, he was right. The law couldn’t touch him.”
Section 904
Last year, Millich and other American Indian women came to Washington to tell their stories to congressional leaders. They joined tribal leaders in lobbying for the passage of the 288-page reauthorization of the Violence Against Women Act, which included language proposed by the Justice Department that for the first time would allow tribal courts to prosecute non-
Indians who assaulted native women on tribal lands. It would also allow the courts to issue and enforce protective orders, whether the perpetrator is Indian or non-Indian.
Opponents of the provision, known as Section 904, argued that non-native defendants would not be afforded a fair trial by American Indian tribes. In the case of Alaska, the Senate excluded Native Alaskan women because of especially complicated issues involving jurisdiction.
At a town hall meeting, Sen. Charles E. Grassley (R-Iowa) said that “under the laws of our land, you’ve got to have a jury that is a reflection of society as a whole.”
“On an Indian reservation, it’s going to be made up of Indians, right?” Grassley said. “So the non-Indian doesn’t get a fair trial.”
Sen. John Cornyn (R-Tex.), another opponent, said the Violence Against Women Act was “being held hostage by a single provision that would take away fundamental constitutional rights for certain American citizens.”
The bill passed the Senate last February but was held up by House Republicans over Section 904. They argued that tribal courts were not equipped to take on the new responsibilities and non-Indian constituents would be deprived of their constitutional rights without being able to appeal to federal courts.
“When we talk about the constitutional rights, don’t women on tribal lands deserve their constitutional right of equal protection and not to be raped and battered and beaten and dragged back onto native lands because they know they can be raped with impunity?” Rep. Gwen Moore (D-Wis.) argued on the floor.
Underlying the opposition, some congressmen said, was a fear of retribution by the tribes for the long history of mistreatment by white Americans.
With the support of Rep. Tom Cole (R-Okla.), a member of the Chickasaw Nation, the House accepted the bill containing Section 904 on a vote of 229 to 196. On March 7, President Obama signed the bill with Millich, Holder and Native American advocates at his side.
The Justice Department has chosen three Indian tribes — the Pascua Yaqui Tribe of Arizona, the Tulalip Tribes of Washington state and the Umatilla tribes of Oregon — to be the first in the nation to exercise their new criminal jurisdiction over certain crimes of domestic and dating violence.
“What we have done, I think, has been game-changing,” Holder said. “But there are still attitudes that have to be changed. There are still resources that have to be directed at the problem. There’s training that still needs to go on. We’re really only at the beginning stages of reversing what is a horrible situation.”
Lisa Brunner and her daughter, Faith Roy, fold clothes at home on the White Earth Indian reservation in Minnesota. (Linda Davidson/The Washington Post)
‘Sliver of a Full Moon’
Last summer, several Native American survivors of domestic violence from around the country put on a play, “Sliver of a Full Moon,” in Albuquerque. The play documented the story of the abuse and rape of Native American women by non-Indians and the prolonged campaign to bring them justice.
Using the technique of traditional Indian storytelling, Mary Kathryn Nagle, a lawyer and member of the Cherokee Nation in Oklahoma, wove together their emotional tales of abuse with the story of their fight to get Washington to pay attention.
Millich and Brunner played themselves, and actors played the roles of members of Congress, federal employees and tribal police officers who kept answering desperate phone calls from abused native women by saying over and over again, “We can’t do nothin’, ” “We don’t have jurisdiction,” and “He’s white and he ain’t enrolled.”
Lisa Brunner, seated, with her daughters Samantha, left, and Faith Roy. (Linda Davidson/The Washington Post)
Brunner portrayed herself in a play that told the story of the abuse and rape of Native American women by non-Indians and the campaign to bring them justice. (Linda Davidson/The Washington Post)
By that time, Brunner’s intergenerational story of violence and abuse had taken a painful turn. Her youngest daughter, 17, had been abducted by four white men who drove onto the reservation one summer night. One of them raped her, Brunner said.
It was the real-life version of author Louise Erdrich’s acclaimed fictional account of the rape of an Ojibwe woman by a non-Indian in her 2012 book, “The Round House.” In both the real and the unrelated fictional case, the new congressional authority would not give the tribe jurisdiction to arrest and prosecute the suspects, because they were not previously known to the victim.
Last week, inside her home on the frigid White Earth Nation, which was dotted by vast snowy cornfields and hundreds of frozen lakes, Brunner brought out a colorful watercolor she had painted of three native women standing in the woods under a glowing full moon. The painting was the inspiration for the title of Nagle’s play, she said, but it’s also a metaphor for the new law.
“We have always known that non-
Indians can come onto our lands and they can beat, rape and murder us and there is nothing we can do about it,” Brunner said. “Now, our tribal officers have jurisdiction for the first time to do something about certain crimes.”
“But,” she added, “it is just the first sliver of the full moon that we need to protect us.”
On January 22, 2013, Senators Patrick Leahy (D-VT) and Michael Crapo (R-ID) reintroduced bipartisan legislation to reauthorize the Violence Against Women Act (VAWA). The legislation closely mirrors their bipartisan bill that passed the Senate with a significant (68-31) margin last spring.
Thanks to the hard work of advocates across the country, the Senate’s VAWA bill (S. 47) already has 49 additional co-sponsors. Our goal is to get 60 co-sponsors by January 31st so that VAWA can move to the Senate floor for a bipartisan victory – and we need your help! If your Senator has not yet signed on to VAWA, call them now and urge them to join as a co-sponsor. If they are already a co-sponsor, call to say thanks. You can access an updated list of S. 47’s current co-sponsors here.
Action Item:
Call the Capitol switchboard at 888.269.5702 and ask the operator to connect you to your Senators. If you don’t know who your Senators are, you can look them up here. When you’re connected to their offices, tell the person who answers the phone:
1) I am a constituent from (city and state) and my name is _________.
2) I urge Senator____ to co-sponsor the S. 47, a strong, bipartisan bill that would reauthorize the Violence Against Women Act.
3) Thank you and I look forward to hearing that the Senator is a co-sponsor.
Background on VAWA:
The Senate could vote on VAWA as early as next week. When that happens, we want to ensure that the bill has the broad, bipartisan support it needs to pass swiftly.
VAWA is the cornerstone of our nation’s response to domestic violence, dating violence, sexual assault and stalking, and because of VAWA, millions of victims have received lifesaving services and support. Despite VAWA’s proven ability to substantially improve lives, it has not reached all victims. VAWA’s reauthorization provides an opportunity to build upon the successes of the current law by including key improvements to protect and provide safety and access to justice for Native American, immigrant, and LGBT victims, as well as victims on college campuses and in communities of color. Additionally, a reauthorized VAWA must include strengthened housing protections that provide emergency housing transfer options for survivors, as well as implementation of transparent and effective accountability measures that support and strengthen, rather than endanger, those programs that assist victims.
First Nations Development Institute
351 Coffman St. • Suite 200 • Longmont, CO 80501
Phone: (303) 774-7836 • Fax: (303) 774-7841
Jan. 22, 2013, U.S. Sens. Patrick Leahy (D-VT) and Michael Crapo (R-ID) introduced S. 47, a strong, bipartisan bill that would reauthorize the landmark Violence Against Women Act (VAWA). This bill closely mirrors the bipartisan legislation that was introduced by Sens. Leahy and Crapo in the last Congress and which would improve VAWA programs and strengthen protections for all victims of violence, including Native American women.
Please take action today by contacting your senators and asking them to co-sponsor S. 47. The National Task force to End Sexual and Domestic Violence Against Women’s goal is to get 60 co-sponsors by January 31 so that VAWA can get to the Senate floor for a bipartisan victory.
So far, the bill has the following co-sponsors in addition to its chief sponsor, Senator Leahy (D-VT): Senators Ayotte (R-NH), Bennet (D-CO), Cantwell (D-WA), Casey (D-PA), Collins (R-ME), Coons (D-DE), Crapo (R-ID), Durbin (D-IL), Hagan (D-NC), Kirk (R-IL), Klobuchar (D-MN), McCaskill (D-MO), Mikulski (D-MD), Murkowski (R-AK), Murray (D-WA), Shaheen (D-NH), Tester (D-MT), Udall (D-CO), and Whitehouse (D-RI).
Also yesterday, in the U.S. House, Reps. Gwen Moore (D-WI) and John Conyers (D-MI) introduced H.R. 11, a House companion identical to the bipartisan Senate bill.
Call the Capitol switchboard at (202) 224-3121 and ask the operator to connect you to your senators. If you don’t know who your Senators are, you can look them up here. When you’re connected to their offices, tell the person who answers the phone:
1) I am a constituent from (city and state) and my name is _________.
2) I urge Senator____ to co-sponsor S. 47, a strong, bipartisan bill that would reauthorize the tttttttt Violence Against Women Act.
3) Thank you, and I look forward to hearing that the Senator is a co-sponsor.
If you prefer to e-mail, you can do so through the web forms for each Senate office provided here.
