Tribal Law and Victims of Crime

1. Sarah Deer Associate Professor William Mitchell College of Law Tribal Law andVictims of Crime

2. Learning Objectives • Understand historical context for victimization in tribal communities • Understand basic legal restrictions on tribal jurisdiction over criminal activity • Consider possible solutions to address the high rates of crime in tribal communities

3. Terminology • Indian • Native • Native American • American Indian • Ojibwe / Anishinaabe /Chippewa • Dakota / Sioux • Tribal Law vs. Federal Indian Law

4. Victimization Rates • Native people in the United States experience more violent crime per capita than any other population. • Most statistics on this subject do not differentiate between violent crimes that happen on reservations and crimes that happen in cities/towns/other areas.

5. National Data Source: Violent Victimization and Race, March 2001, U.S. Department of Justice

6. National Data Source: American Indians and Crime, December 2004, U.S. Department of Justice

7. Minnesota Data Source: Domestic Violence: Results from the 2008 Minnesota Crime Victim Survey, Minnesota Department of Public Safety, July 2009

8. Violence Against Native Women • American Indian and Alaska Native women suffer a higher rate of rape and sexual assault (per capita) than any other group of people in the United States. (Dept. of Justice, BJS 2004) • 34.1% of American Indian/Alaska Native women will be raped sometime during their life (CDC & DOJ, NVWS 2005)

9. Historical Response • Historically, tribal nations had full jurisdiction over all crimes (no limitation by foreign governments) • Traditional law (passed down through oral traditions) typically promoted a victim-centered response to crime.

10. Traditional Law and Domestic Violence • Traditionally, violence against women was not tolerated in indigenous societies • Tribal governments had strict laws against hurting family members, especially women and children • Matrilocal / Matrilineal • Punishments included banishment and death

11. Strengths in Indigenous Beliefs “An Indian never attempts, nay, he cannot use towards a woman amongst them any indelicacy or indecency, either in action or language. I never saw or heard of an instance of an Indian beating his wife or other female, or reproving them in anger or in harsh language.” -William Bartram (European), 1773 (writing about the Creek and Cherokee Indians)

12. What factor(s) explain the disproportionate amount of violence in the lives of Native people in the United States?

13. Removal Period(1835 – 1861) • Extinguishment of Indian title to eastern lands • Removal of Indians beyond state boundary lines westward

17. Reservation Era(1861 – 1887) • Westward non-Indian settlement past Indian Territory to California • Creation of reservations within states and territories • Indian “Wars”

21. Allotment Period and Forced Assimilation (1871 – 1934) • End of treaty-making • Federal courts given some criminal jurisdiction over crimes committed by Indians in Indian Country • Federal government individually allots tribal lands • Opens up remainder of Indian lands for non-Indian settlement • Boarding Schools

24. Indian Reorganization Act(1934 – 1940) • Allotment ended • Tribes allowed/encouraged adopt Anglo-American style constitutions • Tribes establish tribal councils and business committees

25. Termination Era(1940 – 1962) • Controversy over IRA • Congress passes statutes subjecting some tribes to termination of federal supervision and subjecting them to state jurisdiction • Many Indians relocated to urban centers • Public Law 280

26. Self-Determination Era(1962 – present) • Revitalization of tribal entities and improvement of conditions on reservation • Restoration of some tribes to federal recognition and supervision • Indian Civil Rights Act (1968) • Indian Self-Determination and Education Assistance Act • Indian Child Welfare Act (1978) • Indian Gaming Regulatory Act

27. Tribal Criminal Jurisdiction:Major Restrictions • Major Crimes Act • Public Law 280 • Indian Civil Rights Act • Oliphant v. Suquamish

28. Major Crimes Act18 U.S.C. 1153 (1885) • Congress confers federal jurisdiction over Major Crimes (felonies) in Indian Country • Note: Did not eliminate concurrent tribal jurisdiction

30. What is Public Law 280? • Federal law (1953) • Conferred on the state Minnesota (and 5 other states) broad criminal and limited civil jurisdiction – • Over all Minnesota tribes except • Red Lake Band (1953) • Bois Forte Band (1975)

31. Public Law 280 – Conferred Jurisdiction Criminal Limited civil

32. What Public Law 280 Did Do • Eliminated most but not all federal criminal jurisdiction in Indian country • Authorized states to apply their statewide criminal laws in Indian country, to Indians and non-Indians • Opened state courts to private suits against Indians arising in Indian country • Authorized states, not tribes, to return (retrocede) their jurisdiction back to the federal government

33. What Public Law 280 Did Not Do • Authorize states to apply their regulatory laws within Indian country • Make city or county laws applicable in Indian country • Authorize state jurisdiction over Indian nations as governments.

34. What Public Law 280 Did Not Do • Authorize states to exercise jurisdiction over trust lands • Authorize states to exercise jurisdiction over federally protected hunting and fishing rights • Eliminate preexisting tribal jurisdiction

35. Concurrent Jurisdiction • The State of Minnesota has concurrent jurisdiction over many matters that arise on reservations • Concurrent = simultaneously • Concurrent = more than one sovereign entity has power (tribe and state) • Minnesota’s concurrent jurisdiction is limited to certain kinds of cases. • Criminal • Civil adjudicatory

36. Why is PL280 controversial? • Passed during an era of termination and relocation • Indian opposition (one-sided process) • State dissatisfaction (funding) • 1968 amendments allow states (but not tribes) to retrocede • Important changes in 2010 (Tribal Law and Order Act) will result in potential changes to the 280 scheme for some tribes.

37. Summary of Public Law 280 • Public Law 280 did not eliminate pre-existing tribal jurisdiction • Tribal governments have exercised authority over people and places for thousands of years • Tribal governments in 280 states can still assert their authority over crime in their nations. • Tribes may not currently be exercising jurisdiction over criminal matters, but this does not mean they have lost the authority.

38. Indian Civil Rights Act • 25 U.S.C. 1302(7) • Limitation of sentencing to 1 year, a $5000 fine or both • Important changes in 2010 (Tribal Law and Order Act) will result in potential changes to the sentencing restriction

39. Oliphant v. Suquamish • 435 U.S. 191 (1978) • Supreme Court ruled that tribal governments lack criminal jurisdiction over non-Indians. • Note: Does not limit civil authority over non-Indians (other cases provide those parameters)

40. Tribal Criminal Prosecution:Major Limitations • LIMITED to prosecution of members of federally-recognized tribes • LIMITED to 1 year incarceration, $5000 fine or both • LIMITED in terms of jail space / resources for probation • Result: Less prosecution, more crime

41. New Federal Laws • Tribal Law and Order Act (2010) • Expanded tribal sentencing authority • Provides more accountability measures for federal departments • Violence Against Women Act Reauthorization (2013) • Restores tribal jurisdiction over non-Indians accused of domestic violence • Clarifies that every tribe has full civil jurisdiction to issue and enforce protection orders against all persons regarding matters arising on tribal lands, and that such orders are entitled to full faith and credit by non-tribal jurisdictions

42. Working Together • Allies can support Native survivors of crime by supporting sovereignty initiatives • Acknowledge that tribal nations have history, tradition, and philosophy to develop contemporary victim-centered responses to crime • Tribal responses to crime need not mirror the state responses

43. Solutions • Enlist leadership/advice from Native survivors of crime • Identify jurisdictional issues - advocacy leadership can be key • Develop Memoranda of Understanding between state and tribal victim services programs • Develop cross-training for tribal and non-tribal victim services programs

44. Thank you! Sarah Deer William Mitchell College of Law Sarah.deer@wmitchell.edu 651-290-6309