Oregon Court of Appeals Decision and Dissent on whether Indian status is an issue of subject matter jurisdiction

The majority and dissent opinions address when the argument as to Indian status must be raised in a state prosecution. State v. Hill

Briefs here:

Appellant Brief

State Brief

NHBP Media Release: Violence Against Women Act’s Jurisdictional Provisions

Nottawaseppi Huron Band of the Potawatomi Asserts Authority to Prosecute All Persons, including Non-Indians, for Domestic Violence

Local Tribe to Implement Violence Against Women Act Jurisdictional Provisions

Pine Creek Indian Reservation, Athens, MI – Today, the Nottawaseppi Huron Band of the Potawatomi announces implementation of a new tribal government law that enables tribal police and justice officials to investigate and prosecute certain domestic violence crimes committed by non-Indians in Indian country. Non-Indians who live or work on the reservation or have a marriage or dating relationship with a Native person may now be subject to tribal jurisdiction for domestic and dating violence crimes and criminal violations of certain protection orders. Individuals who commit these crimes in Indian country can be arrested by tribal police, prosecuted in tribal court, and sentenced to prison. Individuals prosecuted under the new tribal law will have a right to an attorney. If the defendant cannot afford an attorney, one will be provided by the tribe.

This is part of the Tribal Council’s larger effort to take a stand against violence in the community—and domestic violence, in particular—because of the huge toll it has taken on Native families and youth.

“Domestic violence is a uniquely local crime that has long deserved a local solution, and now we have one,” said Tribal Council Chair Homer A. Mandoka. “We will no longer stand by and watch our Native women be victimized with no recourse. I’m here to put the community on notice, perpetrators will be held accountable.”

The federal law that authorizes these recent actions by the Nottawaseppi Huron Band of the Potawatomi is the Violence Against Women Reauthorization Act of 2013 (VAWA 2013).  Signed into law on March 7, 2013, VAWA 2013 marked a victory for Native women, tribal leaders, women’s rights advocates, and survivors of domestic abuse everywhere. For the first time since the U.S. Supreme Court stripped tribal governments of their criminal authority over non-Indians in Oliphant v. Suquamish Indian Tribe (1978), VAWA 2013 restored tribal inherent authority to investigate, prosecute, convict, and sentence non-Indians who assault their Indian spouses or dating partners in Indian country. This aims to fill a longstanding jurisdictional gap on tribal lands that has for far too long put Native women at risk and kept the hands of tribal law enforcement tied.

Crimes committed outside of Indian country, between two strangers, between two non-Indians, or by a person without sufficient ties to the Nottawaseppi Huron Band of the Potawatomi are not covered by this new authority.

This new law is necessary because violence against Native women has reached epidemic proportions*, and the old system of forcing tribes to rely exclusively on far away federal—and in some cases, state—government officials to investigate and prosecute crimes of domestic violence committed by non-Indians against Native women is not working.  Prior to VAWA 2013, the Indian woman who was beaten by her non-Indian husband on tribal land had nowhere to turn for protection: tribal law enforcement had no authority to intervene because the perpetrator is a non-Indian; the State had no authority to intervene because the victim was an Indian; and the Federal Government—the body with exclusive jurisdiction—had neither the will nor the resources to intervene in misdemeanor level domestic violence cases. VAWA 2013 is an attempt to remedy this broken system.

As President Obama said when he signed VAWA 2013 into law, “Tribal governments have an inherent right to protect their people, and all women deserve the right to live free from fear.”  The Nottawaseppi Huron Band of the Potawatomi agrees, and it’s doing its part to ensure the safety of native women and of everyone on the reservation.

About the Nottawaseppi Huron Band of the Potawatomi

The Nottawaseppi Huron Band of the Potawatomi is a federally recognized Tribal government with nearly 1,100 enrolled Tribal members. The Potawatomi name is a derivation of Bodéwadmi, meaning a people of the fire or a people who make or maintain fire, both of which refer to the role of the Potawatomi as the keepers of the Council fire in an earlier alliance with other Tribes in the area. The Tribe’s main offices are located at the Pine Creek Indian Reservation in Athens Township, with additional offices in Grand Rapids, MI, to better serve our Tribal members.  The government employs more than 150 employees who work for various departments among the Tribe including Tribal Police, Tribal Court, Housing, Environment, Membership Services, Communications, Human Resources, Finance, Public Works, Planning, Health & Human Services, and the Gaming Commission.

* Compared with other demographic groups, American Indian women have one of the highest rates of domestic violence victimization in the United States. See. e.g.,Centers for Disease Control and Prevention (CDC), The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Preliminary Report at 3, 39 (Nov. 2011) (finding that 46% of Native American women have experienced rape, physical violence, and/or stalking by an intimate partner in their lifetime.)  A significant percentage of residents of Indian reservations are non-Indian.  See U.S. Census Bureau, 2010 Census Briefs, The American Indian and Alaska Native Population: 2010, at pages13- 14 and table 5 (Jan. 2012) (showing that 1.1 million American Indians and 3.5 million non-Indians reside in American Indian areas).  Many married Indian women have non- Indian husbands. See U.S. Census Bureau. Census 2010, special tabulation, Census 2010 PHC-T- 19, Hispanic Origin and Race of Coupled Households: 2010, Table 1, Hispanic Origin and Race of Wife and Husband in Married-Couple Households for the United States: 2010 (Apr. 25, 2012) (showing that more than 54% of Indian wives have non-Indian husbands).

Pascua Yaqui Review of the Impact of Sentencing Guidelines on Tribal Communities

Download comments here.

The United States Sentencing Commission’s Tribal Issues Advisory Group visited the Reservation last week.  The issue they were investigating was whether there was disparity between a tribal member sentenced in federal court, when compared to a similarly situated defendant in state court. The information and data collected over the past year showed no disparity for the Tribe.

NAICJA Board of Directors Unanimously Support AG and ILOC Reports

Resolution No. 2015-01
Resolution No. 2015-02

The National American Indian Court Judges Association are supporting the Indian Law and Order Commission’s November 2013 report entitled “A Roadmap for Making Native America Safer,” which “advocates for tribal justice systems to have the ability to fully express their sovereignty by opting out of the current jurisdictional maze, and exercise criminal jurisdiction over all persons without any sentencing limitations, including juveniles.”  However, NAICJA prefers that all individuals charged with crimes under this enhanced tribal jurisdiction be provided with civil rights protections equivalent to those guaranteed by the Indian Civil Rights Act, instead of the U.S. Constitution.

NAICJA is also supporting the November 2014 report from the Attorney General’s advisory committee on American Indian/Alaska Native Children Exposed to Violence entitled “Ending Violence So Children Can Thrive” which “calls for the restoration of the inherent sovereignty of tribes to assert full criminal jurisdiction over all persons who commit crimes against AI/AN children in Indian country.”

FBA Annual Meeting Agenda — Indian Law Highlights

Here is the agenda for the FBA’s Annual Meeting in Oklahoma City (website). Indian Law is prominently featured:

Thursday, Sept. 10

9:30–10:30 a.m. Session 1A: Criminal Jurisdiction in Indian Country

10:45–11:45 a.m. Session 2A: The Cherokee Freedmen

1:45–2:45 p.m.Session 3A: Issues and Ethics for Lawyers Working with Corporate and Tribal General Counsel

3:00–4:00 p.m. Session 4A: Issues and Ethics for Lawyers Working with Corporate and Tribal General Counsel (Continued) (see speakers above)

4:15–5:15 p.m.Session 5A: Delivery of Veterans Services in Indian Country

Friday, Sept. 11

9:45–10:45 a.m.Session 6A: The Roberts Court on Indian Law

Please be advised that the Federal Bar Association selected Walter Echo-Hawk for this award, one of its highest honors.  The FBA will honor him on the evening of Sept. 12, 2009 in Oklahoma City at the installation banquet.  Lawrence Baca will assume the Presidency of the FBA at this dinner as well.