How to Better Protect Native Women Preparing for the Consultation with DOJ
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How to Better Protect Native Women Preparing for the Consultation with DOJ
Webinar speakers: John Dossett General Counsel NCAI jdossett@ncai.org Katy Jackman Staff Attorney NCAI kjackman@ncai.org Juana Majel Dixon 1 st Vice President NCAI jmajel@aol.com Jacqueline Agtuca Policy Director Clan Star jax.clanstar@me.com Lucy Simpson Policy Coordinator Sacred Circle lucy@sacred-circle.com
Purposes of today s webinar: To help tribal leaders better prepare for the upcoming consultations with the Department of Justice To facilitate dialogue on specific issues related to violence against Native women To develop meaningful, targeted tribal responses to questions raised by the DOJ framing paper
Upcoming consultations w/ DOJ: In-person session: June 14, 1:30-4p.m., 4:30-6p.m. NCAI s Mid-Year Conference Frontier Airlines Convention Center, Rooms 201A, 101A Milwaukee, Wisconsin Conference-call consultations: June 16, 3p.m. Eastern time Call-in number: (888)790-3590; Passcode: 7643438 June 17, 3p.m. Eastern time Call-in number: (888) 790-3590; Passcode: 7643466
Framing the consultation discussion DOJ Framing Paper Background of the problem Three areas for potential solutions: Tribal criminal jurisdiction Tribal civil jurisdiction Federal criminal laws Outlines concerns raised repeatedly by tribal leaders at prior consultations
Upcoming consultation is part of ongoing dialogue Tribal requests for DOJ to address jurisdictional gaps in Indian Country Documented in OVW Consultation Reports from 2007, 2008, 2009, and 2010 TLOA Concept Paper Congressional Testimony UN Special Rapporteur Report
Looking ahead: VAWA 2011 VAWA Reauthorization right around the corner Now is the time to effect change!
Gaps in current law: Epidemic rates of DV/SA against Native women Recidivism rates and escalating violence Cases falling between the cracks Lack of tribal jurisdiction over non-indians (Well over 50% of all married Native women have non-native husbands) Violation of protection orders/failure to enforce tribal protection orders
General Issues: Legal gaps: What are the key gaps in current law that a Federal legislative proposal should fill? Potential solutions: Should a legislative proposal address ways to improve tribal criminal jurisdiction? to improve tribal civil jurisdiction? to create additional Federal criminal offenses? to effect other reforms?
Tribal Criminal Jurisdiction: Central question: Should DOJ recommend that Congress restore tribes concurrent criminal jurisdiction over DV cases, even if defendant is non-indian? Potential categories of covered criminal activity: Domestic & dating violence in Indian Country Violations of protection orders in Indian Country Potential criminal offenses: Should offenses be determined by Federal law or tribal law?
Tribal Criminal Jurisdiction cont.: Potential defendants: All non-indians? Solely non-indians who reside or work in IC? Potential tribes: Pilot project? All tribes (w/ due process protections in place)? Potential rights of defendants: What procedural/civil rights protections should be required in order for tribes to exercise this jurisdiction (indigent counsel, appellate/habeas review, etc.)?
Tribal Criminal Jurisdiction cont.: Potential federal grant funding: Should the legislation authorize federal grants to tribes: To provide indigent counsel? To protect the rights of DV and dating violence victims? To strengthen tribal criminal justice systems? Would tribal criminal jurisdiction over non-indians for crimes of DV/SA be desirable even if Congress does not provide additional funding?
Tribal Civil Jurisdiction: Central question: Should DOJ recommend that Congress clarify that tribes have full civil jurisdiction to issue/enforce protection orders involving both Indians and non- Indians alike? Background: Martinez v. Martinez (W.D. Wash. 2008) Tribe lacks authority to enter a protection order for a nonmember Indian against a non-indian residing on non-indian fee land within the reservation.
New Federal Offenses: Central question: Should DOJ recommend that Congress pass new legislation that would enable federal prosecutors more effectively to combat 3 types of assault frequently committed against women in Indian Country? Assault by strangling or suffocating Assault resulting in substantial bodily injury Assault by striking, beating, or wounding
New Federal Offenses cont.: Background: Under the current scheme, federal prosecutors cannot seek sentences in excess of six months for any of the three assaults referenced on the prior slide. Where both defendant and victim are Indian, federal prosecutors may lack jurisdiction altogether, given the strictures of the Major Crimes Act.
New Federal Offenses cont.: Assaults by striking, beating, or wounding: Should Congress amend the Federal Criminal Code to provide a one-year offense for assaulting a person by striking, beating, or wounding?
New Federal Offenses cont.: Assaults resulting in substantial bodily injury: Should Congress amend the Federal Criminal Code to provide a 5-year offense for assaulting a spouse, intimate partner, or dating partner, when the assault results in substantial bodily injury?
New Federal Offenses cont.: Assaults by strangling or suffocating: Should Congress amend the Federal Criminal Code to provide a 10-year offense for assaulting a spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to strangle or suffocate?
New Federal Offenses cont.: DV assaults by strangling/suffocating or resulting in substantial bodily injury: If these 2 felonies should be included in the Federal Criminal Code, should Congress do so by amending the existing assault statute (18 USC 113)? Alternatively, should Congress create a new, freestanding statute that would cover crimes in PL 280 jurisdictions and Indian Country (similar to the habitual offender provision of VAWA 2005)?
New Federal Offenses cont.: The Major Crimes Act: Should the Major Crimes Act be amended expressly to cover any felony assault under section 113 while deleting specific references to assault w/ intent to commit murder, assault w/ a dangerous weapon, and assault resulting in serious bodily injury? Does the answer depend on the answer to the previous question regarding the way in which new federal offenses should be enacted?
Other Potential Areas for Reform: Are there other federal legislative reforms that DOJ should recommend to Congress to help tribes combat violence against Native women?
Question and Answer Period
Written Comments E-mail: OVW.VAIW@usdoj.gov Mail: Office on Violence Against Women United States Department of Justice ATTN: Tribal Unit 145 N Street, NW, 10th floor Washington, DC 20530 Fax: (202) 305-2589
Please also send copy of written comments to: Katy Jackman Staff Attorney, NCAI kjackman@ncai.org
NCAI Task Force on Violence Against Women Upcoming Meeting: NCAI 2011 Mid-Year Conference Milwaukee, Wisconsin Monday, June 13, 2011 9a.m.-1p.m. Frontier Airlines Convention Center, Room 102E New edition of Restoration magazine Overview of all VAWA 2011 tribal proposals
Additional Resources: The Tribal Law & Order Resource Center: http://tloa.ncai.org/ Clan Star http://www.clanstar.org/
Thank you for your participation!