Timothy Purdon and Janelle Moos, Published April 13 2013
Letter: New tools to reduce violenceThe alarming rate of domestic violence offenses against American Indian women should trouble all North Dakotans. According to a 2011 study from the Centers for Disease Control and Prevention, 46 percent of Native women surveyed have experienced rape, physical violence, and/or stalking by an intimate partner in their lifetime, a rate among the highest of any race or ethnicity surveyed. According to the U.S. Department of Justice, much of the violent victimization experienced by American Indian women is committed by non-Indians.
Contributing to this problem is the complicated jurisdictional tangle that arises when a non-Indian perpetrator commits an act of domestic violence against an American Indian victim on the reservation. Historically, these jurisdictional issues have too often advantaged offenders, while jeopardizing the safety of victims. The reauthorization of the Violence Against Women Act should give American Indian women reason to hope. It should also give domestic violence offenders pause, as VAWA provides more tools to bring them to justice.
VAWA will allow qualified tribal courts to exercise criminal jurisdiction over certain non-Indians who commit domestic violence offenses on reservation lands. By doing so, VAWA creates a clear path for law enforcement through the jurisdictional thicket on reservations. Because of VAWA, no more will a non-Indian perpetrator of domestic violence scoff in the face of a first-responding tribal police officer, “You have no jurisdiction – what are you going to do about it?”
The extension of tribal jurisdiction authorized by VAWA is limited and was crafted to protect the rights of the accused. First, exercise of this jurisdiction is limited to non-Indians who have chosen to make their lives in reservation communities. To be subject to this limited tribal court jurisdiction, the non-Indian offender must live or be employed on the reservation or be married to or dating an American Indian who lives on the reservation or is a tribal member. Further, before a tribal court can exercise the new limited jurisdiction, VAWA requires the tribal court to protect the rights of non-Indian defendants by, for example, ensuring access to licensed public defenders (if the defendant is indigent) and law-trained judges; making the tribe’s criminal laws publicly available; providing a record of the proceedings; and affording full due process to the accused.
Voluntary for tribes
VAWA also requires the jury pool for cases against non-Indian criminal defendants to include a fair mix of Indian and non-Indian jurors. Finally, any non-Indian defendant who alleges that the tribal court has not adequately protected these and other rights may seek relief in federal court by filing a writ of habeas corpus.
This enhanced jurisdiction under VAWA is voluntary for each tribe. Many tribes will enhance their court systems to meet VAWA’s requirements for protecting defendants’ rights in order to exercise this limited jurisdiction. Other tribes may choose not to implement this part of VAWA. Recognizing that there is work to be done before many tribes are in a position to meet its requirements, VAWA sets a two-year waiting period before the new tribal criminal provisions go into effect.
Domestic violence on the reservations in North Dakota is not simply a Standing Rock, Spirit Lake, Turtle Mountain, or Fort Berthold concern. The rates of abuse of American Indian women on reservations should be a shared concern for all North Dakotans. VAWA gives us new tools in our work to change the statistics and build a safe future for all women in North Dakota.
Purdon is U.S. attorney, District of North Dakota. He is chairman of the U.S. Department of Justice Native American Issues Subcommittee and helped draft VAWA tribal court provisions. Moos is executive director, North Dakota Council on Abused Women’s Services.