Douglas Payne, Benewah County Prosecutor, responds to the notion that non-Indians can get away with crime in Indian country because no one will prosecute them in his short paper, “Criminal Jurisdiction in Indian Country: Complicated by Design, but Not Lawless.” It’s available on page 48 here.
He is responding to Brian McClatchey’s paper in the August issue — “The Tribal Law and Order Act of 2010: Toward Safe Tribal Communities” — available on page 24 here.
SENATOR DANIEL K. AKAKA INTRODUCES BILL TO PROTECT NATIVE WOMEN AGAINST DOMESTIC VIOLENCE AND SEXUAL ASSAULT
The Stand Against Violence and Empower Native Women (SAVE Native Women) Act would empower Tribes to prosecute violent crimes and improve prevention programs
WASHINGTON, D.C. – U.S. Senate Indian Affairs Committee Chairman Daniel K. Akaka (D-Hawaii) today introduced S.1763, the Stand Against Violence and Empower Native Women (SAVE Native Women) Act. The bill would provide Indian Country with jurisdiction over non-Indians who commit crimes on Indian lands, improve the Native programs under the Violence Against Women Act (VAWA), and improve data gathering programs to better understand and respond to sex trafficking of Native women.
Senators Al Franken (D-Minnesota), Tom Udall (D-New Mexico), Daniel K. Inouye (D-Hawaii), Mark Begich (D-Alaska), Patty Murray (D-Washington), TimJohnson (D-South Dakota), Jeff Bingaman (D- New Mexico), Jon Tester (D-Montana) and Max Baucus (D-Montana) are cosponsors of the bill.
“According to a study by the Department of Justice, two-in-five women in Native communities will suffer domestic violence, and one-in-three will be sexually assaulted in their lifetime. To make matters worse, four out of five perpetrators of these crimes are non-Indian, and cannot be prosecuted by tribal governments. This has contributed to a growing sense of lawlessness on Indian reservations and a perpetuation of victimization of Native women,” said Senator Akaka.
“American Indian women suffer disproportionately from domestic violence and sexual assault, and the Violence Against Women Act must be updated to more effectively address their unique needs,” said Senator Franken.
“This legislation works to ensure services are available to survivors of assault in native communities, repair a fragmented criminal justice system, and give tribes more power to prosecute those who are committing such heinous crimes against women,” said Senator Udall.
“By strengthening tribal jurisdiction we are empowering our Native communities with the tools they need to fight back against instances of violence,” said Senator Begich.
“We cannot let the next generation of young Native women grow up as their mothers have-in unbearable situations that threaten their security, stability, and even their lives,” said Senator Akaka.
“With the introduction of this legislation, the sponsors are sending a clear message that Congress intends to build on the incredible momentum of VAWA to ensure that the epidemic of violence against Native women will end in our lifetime,” said Sarah Deer, Amnesty International’s Native American and Alaska Native Advisory Council Member.
“Senator Akaka’s SAVE Native Women Act has the potential to restore safety and justice for American Indian and Alaska Native women. It offers American Indian tribes the opportunity to increase life-saving protections for women living within tribal jurisdiction,” said Terri Henry, Co-chair of the National Congress of American Indians (NCAI) Task Force on Violence Against Women.
“This is an epidemic. It is unacceptable. And, we must stand against it,” said Senator Akaka. “I am committed to working with the co-sponsors, tribal leaders, NCAI and others who diligently work to protect at-risk Native women, to pass this much needed legislation.”
Senator Akaka’s floor statement introducing the bill today is available here:
http://akaka.senate.gov/statements-and-speeches.cfm?method=releases.view&id=28f371bf-c01f-4ea5-a42b-72359ea839e7
Audio file of Senator Akaka’s comments are available here:
http://demradio.senate.gov/actualities/akaka/103111_AKAKA_1_RADIO.mp3
Here is the court’s opinion in United States v. Boneshirt.
A lengthy excerpt from the dissent:
As a longtime federal judge, I have seen and reviewed scores of cases in which Indian males have been convicted of assaultive crimes, including murder. Alcohol has played a substantial role in the crime in almost every one of those cases. See, e.g., United States v. Jensen, 423 F.3d 851, 853 (8th Cir. 2005), United States v. LeClair, 338 F.3d 882, 884–85 (8th Cir. 2003), United States v. Emeron Taken Alive, 262 F.3d 711, 712 (8th Cir. 2001). And alcohol obviously played a major role in the unfortunate homicide of Ms. Walking Eagle. Yet the sentencing judge chose a sentence well above the average sentence for murder when, in context, the circumstances were not outside of the usual, serious crime by an adult male Indian, particularly on a reservation.
In addition, the district court did not take into consideration Boneshirt’s life expectancy. The sentencing judge specifically expressed the desire to protect the public by ensuring that Boneshirt would be an old man when he was released: “the Court believes that there is just too much of a risk with Mr. Boneshirt being a part of society before the point where he’s of a very mature age.” However, the district court did not properly consider Boneshirt’s background as a Native American male, who has a life expectancy of fifty-eight years. See Christopher J. L. Murray et al., Eight Americas: Investigating Mortality Disparities across Races, Counties, and RaceCounties in the United States, 3 PLoS Med. 1513, 1514 (2006) “Native American males in the cluster of Bennet, Jackson, Mellette, Shannon, Todd, and Washabaugh Counties in South Dakota had a life expectancy of 58 [years] in 1997–2001 . . . .”). Even if he earns all of his good time credit, which the district court was not optimistic about, he will still serve more than forty years in prison. The district court anticipated Boneshirt would be an old man when he was released, but in reality he may be a dead man.
Here are the materials in Los Coyotes Band of Cahuilla and Cupeno Indians (S.D. Cal.):
DCT Order Granting Los Coyotes Motion
Here is the full press release (PDF). An excerpt:
Minnesota Indian Women’s Sexual Assault Coalition
and Prostitution Research & Education
Release Landmark Report on Native Women in Minnesota
Garden of Truth: The Prostitution and Trafficking of Native Women in MinnesotaSt. Paul, Minnesota – The Minnesota Indian Women’s Sexual Assault Coalition and Prostitution Research & Education have released the landmark report, Garden of Truth: The Prostitution and Trafficking of Native Women in Minnesota, the first study to detail the personal experiences of Native women who have been prostituted and trafficked in the state, as well as the specific resources and support they need to escape prostitution and trafficking. The report follows on earlier studies by Amnesty International and the US Justice Department which found that Native women experience the highest rates of sexual assault in the US.
Garden of Truth is based on interviews with more than 105 Native women in the Twin Cities, Duluth, and Bemidji, and finds a common thread of poverty and extreme and frequent violence throughout these women’s lifetimes, including child sexual abuse, rape, and beatings and traumatic brain injuries obtained during prostitution. A majority of the women experience symptoms of post-traumatic stress disorder. 98% have been homeless at some point during their lives, and 92% say they want to escape prostitution but believe they have no other options. About half of the women interviewed met a conservative legal definition of sex trafficking, which involves third-party control by pimps or traffickers.
“Native women are at exceptionally high risk for poverty and sexual violence, which are both elements in the trafficking of women,” says report co-author Nicole Matthews, Executive Director of the Minnesota Indian Women’s Sexual Assault Coalition. “The specific needs of Native women are not being met. Our goal was to assess the life circumstances of Native women in prostitution in Minnesota, a group of women not previously studied in research such as this.”
Garden of Truth calls prostitution a sexually exploitive, often violent economic option most often entered into by those with a lengthy history of sexual, racial, or economic victimization. “Prostitution is only now beginning to be understood as violence against women and children,” says report co-author Melissa Farley, founder of Prostitution Research & Education. “It has rarely been included in discussions of sexual violence against Native women. It is crucial to understand the sexual exploitation of Native women in prostitution today in its historical context of colonial violence against Native nations.”
Barbara Creel (who will be one of our distinguished speakers this weekend) has posted her paper, “Tribal Court Convictions and the Federal Sentencing Guidelines: Respect for Tribal Courts and Tribal People in Federal Sentencing,” on SSRN. It is forthcoming in the USF Law Review.
Here is the abstract:
This article critiques a proposal to include tribal court criminal convictions and sentences in the federal sentencing scheme. The proposal, as articulated by Kevin Washburn, calls for an amendment to the Federal Sentencing Guidelines to count tribal court convictions in calculating an Indian defendant’s criminal history score to determine a federal prison sentence. Currently, tribal court convictions are not directly counted in criminal history, but may be used to support an “upward departure” to increase the Native defendant’s overall federal sentence.
Washburn’s proposal seeks to gain “respect” for tribal courts, based upon a premise that tribal convictions must be afforded the same weight and treatment as federal and state criminal convictions under the Federal Sentencing Guidelines. This Article explores the idea of respect for tribal courts and convictions in the context of their history and connection to tribal peoples and communities. Ultimately, this Article concludes that respectful treatment would not tolerate placing a tribal defendant in such a powerless position within the federal sentencing hierarchy.
A proposal that would negatively impact only Native American defendants in a foreign justice system in the name of respect warrants critical review. As an Assistant Federal Public Defender, I had the opportunity to view the application of federal criminal laws from the front and the back end of the criminal justice system, from trial to post-conviction. As a Native woman, I have seen the impact of crime, justice, and federal sentencing on tribal people, families, and whole communities.
It is from this perspective that I focus the lens of respect on the work of tribal courts and criminal justice in Indian Country, and ultimately oppose any amendment in federal sentencing to count tribal court convictions to increase federal sentences for Native criminal defendants. A review of the historical diminishment of tribal authority over crime and punishment on the reservation, as well as the disparate impact of crime and punishment on Native peoples, leads to a rejection of counting tribal court convictions in federal sentencing. This Article proposes an alternative view that both respects Native American individuals caught in the criminal justice system and elevates tribal sovereignty.
Here is the unpublished opinion.
WASHINGTON, D.C. — The epidemic proportions of violence against Native women in the United States continues to gain global attention. The Inter-American Commission on Human Rights will hold a hearing on Oct. 25, 2011 at 10:15 a.m. at the General Secretariat Building of the Organization of American States (OAS) in Washington, D.C. The Commission is an autonomous organ of the OAS, created by countries to protect human rights in the Americas.
Here:
LaBuff Petition for Certiorari dated August 26, 2011
Lower court materials here.
Here are the questions presented:
1. Has the Ninth Circuit, contrary to United States v. Rogers, erroneously minimized consideration of the undisputed facts that petitioner is not socially recognized as an Indian, does not participate in Indian social life, and does not hold himself out as an Indian and thereby created a conflict with the Eighth Circuit?
2. Did the government prove beyond a reasonable doubt that petitioner is an Indian person where he is not a member of a tribe, is not socially recognized as an Indian, does not participate in Indian social life, and does not hold himself out as an Indian?
Turtle Talk 
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