Sharing Our Stories of Survival: Native Women Surviving Violence (43 page)

Types of Jurisdiction: Personal, Subject Matter, and Territorial

The authority to impose laws upon persons within a certain territory and the right to punish those persons who violate those laws is referred to as “jurisdiction.” Jurisdiction may refer to authority over a particular type of violation—such as murder, rape, or an assault—and also refers to the authority over a person who commits the offense. The first type of jurisdiction is referred to as “subject matter jurisdiction,” and the second type of jurisdiction is referred to as “personal jurisdiction.” The last element of jurisdiction is called “territorial jurisdiction” and refers to authority over the geographic area where the crime occurred.

Traditional Concepts of Jurisdiction

Jurisdictional concepts are not foreign to Indian tribes because tribes utilized these core principles among themselves for centuries prior to the arrival of the Europeans. For example, it was common among the Lakota for a man who married into another band to go and live among that band with his wife and her family. By his actions, he became subject to the laws of that band or the “jurisdiction” of that band and could be punished by them if he mistreated his wife. If his behavior became so intolerable that it threatened the welfare of the entire community, he could be banished from that community. The notion of respect for the laws and customs of other peoples was also a common denominator amongst Indian tribes. So, if we go back to the example of the Lakota man marrying into another band, if the band of his wife banished him for mistreating her in some way, they would oftentimes punish him in a manner so that other communities would recognize his inappropriate behavior, such as cutting his nose. When he returned to his band or went to another Indian nation that stigma would go with him and the other bands would acknowledge the wrongfulness of this behavior. This was the Lakota notion of “full faith and credit” (see chapter 16).

If Indian tribes were permitted by the U.S. government to apply their traditional concepts of “jurisdiction” to the problem of domestic violence within their communities, the result would be that Indian communities would be vested with their
inherent rights
. This includes the right to impose their values in order to protect Native women within their territories, without regard to the race of the perpetrator or type of crime he committed. This is not the rule, however. Instead, jurisdiction in Indian communities is too often based upon the type of crime committed, the racial identity of the perpetrator or victim, and whether any federal laws restrict tribal or state authority. Tribes are permitted to impose their laws upon perpetrators of domestic violence in some situations, while in others they are absolutely barred. In some situations, both the federal and tribal governments may have jurisdiction to punish offenders, while in others only the state courts may punish offenders. This mishmash of jurisdictional rules is confusing even for the lawyers and judges who are charged with confronting domestic violence. So, it is understandable that victims of crime and their advocates become confounded about which court can provide protection and redress for a victim of domestic violence.

Civil Versus Criminal Jurisdiction

In domestic violence and sexual assault cases, courts may become involved in several different ways. When a perpetrator of domestic violence or sexual assault is charged with a crime, the court exercises criminal jurisdiction over the prosecution of that offender. Criminal jurisdiction involves a tribal, state, or federal government filing a criminal charge against an offender and the respective government prosecutor trying the case to either a judge or jury. In almost all tribal, state, and federal jurisdictions, the government must establish the offender’s guilt beyond a reasonable doubt. The offender (defendant) also has certain rights granted him by the federal Constitution (in federal prosecutions), a state constitution (in a state prosecution), or the tribal constitution and federal Indian Civil Rights Act
¹
(in a tribal prosecution). The victim is not responsible for bringing the case to trial or procuring witnesses, but her cooperation is often important to the government in successfully prosecuting the offender.

The recent Kobe Bryant case in Colorado illustrates the differences in criminal and civil cases. In that case the State of Colorado was prosecuting Bryant for the charge of rape, while the victim of that rape filed her own civil suit against him and asked for money damages to compensate her for his actions. When the criminal case was dismissed by the state, the victim continued to pursue her civil claim against him.

Civil jurisdiction refers to a suit between two private persons or parties where the government is not involved. In domestic violence and sexual assault cases, the civil jurisdiction of a court is used, for example, by a victim to obtain a domestic violence protection order or to sue her offender for money damages. Even when the prosecutor declines to prosecute a case, the victim herself can file her own civil suit. The burden of proving that the domestic violence or sexual assault has occurred is different in civil cases because the victim need only show that the act occurred by a
preponderance
of the evidence. Such evidence is established when the victim can show that it is more likely than not that the domestic violence occurred.

This chapter is an attempt to clarify some of the confusing rules regarding jurisdiction over domestic violence in Indian Country so that victims, advocates, and others who deal with this serious problem will understand who has the authority to hold offenders accountable and to provide safety for victims. This chapter is not a substitute for a thorough review of tribal, state, and federal laws regarding domestic violence that may apply to your communities. However, it does discuss some of the general principles that govern this issue and will aid the reader in identifying which government has the authority to arrest, prosecute, and punish offenders and to issue civil protection orders to Native women who are victims of domestic violence.

Federal Jurisdiction over Domestic Violence Committed Against Native Women

Why Do the Federal Courts Have Authority over Some Indian Reservations to Respond to Domestic Violence and Sexual Assault?

In most non-Native communities, the U.S. (federal) government and its court system are rarely involved in responding to domestic violence. This is because the U.S. government has very limited criminal jurisdiction and the problems associated with domestic violence are generally left to local, state, and tribal governments to combat. The federal government does provide substantial funding for states and tribes to develop and enact laws, provide protection for victims of domestic violence, and arrest and hold offenders accountable. This funding is intended to strengthen tribal and state responses, not to substitute for local community responses.

In some Indian communities, however, the U.S. government, through its prosecutors (U.S. attorneys) and court systems, does have some authority to directly intervene to prosecute domestic violence offenses. This is due to the special relationship between Indian tribes and the U.S. government. This special relationship, oftentimes referred to as a
trust relationship,
allows the U.S. government to assist Indian tribes in providing law and order on certain Indian reservations. Federal authority over domestic violence crimes committed on some Indian reservations is derived from three principal federal statutes that grant to the U.S. government criminal jurisdiction over certain types of crime. These laws apply on those reservations that are in states that have not been given jurisdiction over crimes in Indian Country and when the crime has occurred in Indian Country. “Indian Country” is a legal term defined in federal law, 18 U.S.C. § 1151, to include all lands within Indian reservations, trust lands that lie outside of Indian reservations, and “dependent Indian communities,” which are lands where the U.S. government has a requirement to supervise the area where substantial populations of Native people live. If the state has been given jurisdiction through PL 280, the rules that follow involving federal criminal jurisdiction may not apply.

Federal Laws That Protect Women Against Domestic Violence and Sexual Assault in Indian Country

The principal federal law that gives the U.S. courts certain jurisdiction over crimes committed on Indian lands is called the Major Crimes Act.
²
This federal law was enacted after the U.S. Supreme Court declared in the late 1800s that Indian tribes had the exclusive authority to punish Indians who committed crimes against other Indians within the tribe’s lands.
³
That case involved Crow Dog and a murder committed on what is now the Rosebud Sioux Indian Reservation. When the tribe imposed a traditional sanction of
restitution
on Crow Dog, the U.S. court stepped in and prosecuted Crow Dog for murder. Crow Dog, however, successfully argued to the U.S. Supreme Court that the federal court had no “subject matter” jurisdiction over the crime because the tribe retained its right to punish its own members for crimes and Congress had not given the federal courts any authority.
⁴

Congress then passed a law that permits the federal government to prosecute any Indian who commits one of fourteen
enumerated
crimes within an Indian community against any person, Indian or non-Indian.
⁵
There is no definition of “Indian” under this federal law, or any other federal law pertaining to criminal conduct on Indian reservations. Therefore, the U.S. Supreme Court has adopted a definition of Indian that requires proof that the person has some degree of Indian blood and is considered by the community as an Indian.
⁶
The specific crimes that the United States may prosecute under the Major Crimes Act that relate to domestic violence include murder, manslaughter, kidnapping, maiming, rape, assault with a deadly weapon, and assault resulting in serious bodily injury. Many acts of domestic violence do not fit within the definitions of these crimes, because they often involve relatively “less serious” kinds of violence. For example, it is very unlikely that the United States would prosecute an assault where a man strikes a woman breaking her nose because such a crime does not rise to the legal level of “serious bodily injury.” In that situation, it is up to the Indian tribe where that crime occurred to prosecute the defendant if he is an Indian person. However, advocates and others who are concerned about assuring prosecutions of those persons who commit domestic violence against Native women should familiarize themselves with the definitions of the crimes covered by the Major Crimes Act because many times the conduct reported could be prosecuted by the United States.

Rape, for example, can be prosecuted under the federal system if sexual relations are forced or the victim is too impaired by mental or physical incapacity to consent. Rape is an extremely underprosecuted crime in many Indian communities because of the low incidences of reporting, and also because it generally does not involve independent witnesses and sometimes involves intoxicated victims, which make the cases difficult to prove “beyond a reasonable doubt.” The mere fact that a woman was intoxicated when the crime occurred should not preclude a prosecution in the federal system, because intoxication can be used to show that the victim was incapable of consenting. There are numerous court cases involving intoxicated victims where the courts have upheld convictions.

Another federal law, the General Crimes Act
⁷
(also referred to as the Indian Country Crimes Act) gives the United States jurisdiction over other types of domestic violence in Indian Country. This law applies all the United States criminal laws to interracial crimes in Indian Country, including the crimes of murder, manslaughter, rape, assault, and other serious crimes. It applies when a non-Indian commits a crime against an Indian or when an Indian commits a crime against a non-Indian and the crime is not enumerated in the Major Crimes Act. The only exception to the United States prosecuting an Indian under the General Crimes Act for committing a crime against a non-Indian is that the United States may not have jurisdiction if the tribe has already punished the Indian for the offense.
⁸
Congress by statute restricted U.S. courts’ jurisdiction over non-Major Crimes Act violations where the tribe has already punished an Indian offender.

Impact of Federal Prosecution on Tribal Court Action

Even if a crime of domestic violence appears to be serious enough to be prosecuted by the United States, an Indian tribe should continue to prosecute the case. In many situations, the United States delays prosecution. The tribal system is often the first criminal justice system to respond to the violence. An offender should not be released from the tribal jail to await a federal charge merely because the offense is serious enough to warrant federal charges. This endangers a victim’s safety and may result in further victimization. In addition, there is no guarantee that the United States will prosecute an offender, even if the crime seems to meet the definition of one of the offenses under the Major Crimes Act. The tribe should pursue the domestic violence charge even if it may eventually be prosecuted in the federal system. An Indian tribe can prosecute an Indian offender for a crime covered by the Major Crimes Act and the United States can prosecute the same offender. Double jeopardy prevents one government from prosecuting or punishing a person twice for the same conduct. However, double jeopardy does not apply to separate governments (state and tribe or federal government and tribe) prosecuting the same offender for the same conduct. The Supreme Court in
U.S. v. Lara
⁹
recently upheld the authority of tribes to prosecute nonmember Indians and held that such prosecutions do not violate the Double Jeopardy Clause, even though the United States may also prosecute.