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Three Affiliated Tribes plans prosecutions under VAWA

Three Affiliated Tribes plans prosecutions under VAWA

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BISMARCK, N.D. - Since January, the Fort Berthold Coalition Against Violence has helped 47 new victims of abuse and violence and has dealt with 12 sexual assaults.

Sadie Young Bird, the executive director of the organization that helps victims of domestic violence, sexual violence, child sexual violence, elder abuse and human trafficking, said an influx of people on the Fort Berthold Reservation has meant more work for her staff of seven.

Young Bird said it is not unusual for the victims of violent crimes who come to her organization for help and support to be Native American women whose abusers are not Native Americans.

Tribes have had no authority to prosecute non-tribal members since the passage of the 1817 General Crimes Act, also known as the Indian Country Crimes Act. The law gave exclusive jurisdiction over non-tribal members on tribal lands to the federal government.

That’s the way it has stayed, until the recent reauthorization of the Violence Against Women Act, which includes a section that will allow tribes to prosecute some domestic violence cases against non-members. The provision has been controversial nationwide, and perhaps more so in North Dakota, where Rep. Kevin Cramer, R-N.D., debated a domestic violence advocate over the constitutionality of that part of the measure.

For some tribes, the old way of handling cases has worked just fine, for the most part. Young Bird said Assistant U.S. Attorney Rick Volk has prosecuted many misdemeanor cases off the Fort Berthold reservation in federal court.

“Our people are getting some sense of relief. Offenders are being prosecuted,” she said. “That is rare for Indian Country.”

She explained that federal prosecutors in many places have not been willing or able to take on misdemeanor cases off reservations, leaving many victims without justice. As a result, many such victims don’t report crimes on reservations, assuming nothing will be done for them, Young Bird said. Many offenders also know that they will face no repurcussions, leaving little in the way of legal deterrants for their behaviors, she said.

If Young Bird has anything to say about it, the Three Affiliated Tribes will be one of the first tribes in the country that gets permission from the U.S. Department of Justice to prosecute non-members in certain domestic violence-related cases.

VAWA

President Barack Obama signed the 2013 reauthorization of the Violence Against Women Act on March 7, which includes the section that gives provisional jurisdiction to tribes over nonmembers in domestic violence cases, given certain criteria are met. While most tribes will not be able to begin prosecuting non-Native Americans until March 7, 2015, tribes can ask the Department of Justice for permission to begin earlier as part of a pilot project.

Young Bird said she believes the Three Affiliated Tribes would be a good fit for pilot project, both because there is a large number of non-Native Americans now living and working on the reservation, and the tribal court employs law-trained judges, prosecutors and public defenders.

The law authorizes tribes to prosecute non-members only in cases of domestic violence, dating violence and protection order violations where tribal members are the victims. The non-member would have to have a relationship with the tribe, such as being in a relationship with a tribal member, living on the reservation or working for the tribe.

Participating tribes will have to provide due process rights to defendants, including a defense attorney, an appeals process, recorded proceedings, judges that are licensed to practice law, publicly available tribal criminal laws and rules, and a jury pool that includes tribal members and non-members. The U.S. attorney’s offices also will have the authority to charge people in such situations.

Though tribal courts often get a bad rap, Young Bird said that with the rights required under VAWA, tribal courts are “not going to be able to throw you in jail and throw away the key.”

“You hear things about tribal court all the time,” she said. “But we’re going to have to follow rules, regulations.”

Controversy

The disagreements over the tribal provision in VAWA have been on center stage in North Dakota, following a dispute between Cramer and a domestic violence advocate at a meeting in March.

Melissa Merrick, director of Spirit Lake Victim Assistance, wrote a post at www.lastrealindians.com in which she said Cramer had been argumentative and combative during a discussion about the tribal provision. Merrick wrote that Cramer argued about the constitutionality of the provision and the due process rights included in it, as well as alleging the tribal courts and councils were dysfunctional.

The Tribune left a message for Merrick last week and called her office twice Wednesday.

Merrick’s post took on a life of its own, getting passed around the Internet and talked about widely throughout the state. Several tribal governments responded by condemning Cramer’s comments and demanding he address the issues with them.

Janelle Moos, executive director of CAWS North Dakota, the statewide membership organization representing domestic violence and sexual assault crisis centers, backed up Merrick’s recitation of the events, though she added there is no recording of the meeting.

“I tried to redirect him (Cramer) at least three times and so did my board president,” Moos said.

However, Moos said, she is glad to have Cramer’s support. He voted for VAWA, and Moos has met with him since the meeting at which he argued about the tribal provision. She plans more meetings with him in the future, here and in Washington, D.C., to discuss the law’s impact on North Dakota women.

“We are really poised to move forward,” she said.

Apology

Cramer, in an interview Wednesday with the Tribune, said he apologizes for the altercation. While he disputes that he called tribal councils dysfunctional, he said he gives Merrick the benefit of the doubt that she understood him to say that.

“We were clearly not talking on the same wavelength, and for that, I take responsibility,” he said.

Since the meeting, Cramer said he has talked to several tribal chairmen from North Dakota, as well as tribal members from around the country. He said Tex Hall, chairman of the Three Affiliated Tribes, plans to set up a meeting where Cramer can meet with representatives of the state’s tribes. Hall was out of the office Wednesday for a family funeral.

Cramer said he is not opposed to the tribal provision, but he is concerned that it was written in a way that could lead a court to deem it unconstitutional. His contentions are that there should be an appeal process that could move a case against a non-member into federal court, and that the provision requires more due process rights for nonmembers than for tribal members.

Still, Cramer spoke in favor of VAWA on the House floor and in meetings with other Republicans, and he was one of 87 Republicans in the House to vote in favor of renewing the law. He said he wants to keep working on it so Native American women have the protections they need “and to make it so that it doesn’t get overturned.” Cramer said he also will continue to support more law enforcement resources for tribes.

“I wouldn’t have voted for it if I hadn’t wanted it to pass,” he said.

Reach Jenny Michael at 701-250-8225 or jenny.michael@bismarcktribune.com.

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