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LTBB News: Little Traverse Bay Bands to exercise VAWA power

The following article was submitted by the Little Traverse Bay Bands Communications Coordinator.

LTBB Interim Chairperson Regina Gasco-Bentley signs newly revised Domestic Violence, Victim Rights Act and Personal Protection Orders statutes into law on March 6, 2015. Gasco-Bentley is surrounded by members of the Human Services Department, Victim Support Services, Tribal Court, Health Department, Prosecutor’s Office, Legal Department, Law Enforcement Department, Tribal Council and the Child Welfare Commission. Photo from Little Traverse Bay Bands of Odawa Indians

The Little Traverse Bay Bands of Odawa Indians (LTBB) has become the first tribe in Michigan – and amongst the first in the nation – to adopt the Violence Against Women Act of 2013 (VAWA), allowing the tribe to exercise criminal jurisdiction over crimes of domestic and dating violence regardless of the perpetrator’s Indian or non-Indian status.

“Domestic violence is not traditional,” said Gregory Justis, Attorney and Domestic Violence Coordinator for the LTBB Tribal Court. “The Tribe’s ability to address domestic and dating abuse committed against its own citizens, regardless of the offender’s status, is tremendously important for both survivors and the community. By adopting VAWA, the government has empowered the Tribal Court to ensure that survivors are protected and that offenders are held accountable.”

Research shows that American Indian women residing on Indian reservations suffer domestic violence at a far higher rate than women of other ethnicities and locations. Roughly one in five Native American women will experience domestic violence, and one quarter of the cases, violence involving a spouse are committed by a non- Indian perpetrator. Historically, prosecution of these cases has been challenging due to the complex jurisdiction of tribal, state and federal authorities as well as court precedent.

LTBB is the first tribe in the nation to adopt VAWA into its domestic violence statute following the deadline, signing the act into law on March 6, 2015. A copy of the Criminal Code is available on LTBB’s website

VAWA expands the jurisdiction of tribal authorities to allow prosecution of non-Indian offenders who commit acts of domestic violence against Indian victims or who violate protection orders when the protected person is an Indian. Offenders can be prosecuted under the new law if they have a connection to the tribe such as living or working in LTBB’s Indian country or being involved in a relationship with a member of LTBB or a non-member Indian residing in LTBB’s Indian country.

To exercise this jurisdiction, the tribe must guarantee certain rights to defendants similar to those provided by the United States Constitution such as the right to an attorney and effective assistance of counsel as well as the availability of trial by juries which include non-Indians. All of the requirements of VAWA have been met by LTBB.

Since February 2014, three tribes – the Confederated Tribes of the Umatilla Indian Reservation, the Pascua Yaqui Tribe and the Tulalip Tribes - have been able to exercise jurisdiction over non-Indians under a Pilot Project. To date, the tribes have charged a total of 26 Special Domestic Violence Criminal Jurisdiction cases.

On March 7, 2015, the opportunity to adopt VAWA was expanded to all 566 federally-recognized tribes.

For more than three decades, tribes have been prohibited from exercising criminal jurisdiction over non-Indian defendants. In 1978, the United States Supreme Court concluded in Oliphant v. Suquamish Indian Tribe that tribal courts lacked jurisdiction to punish non-Indian defendants.

“Oliphant created a gap in jurisdiction, which ultimately made prosecution of these enormously difficult cases even more challenging,” said Justis.

These were challenges shared by tribes throughout the nation: Oregon’s Confederated Tribes of the Umatilla Indian Reservation, for example, found that even a violent crime committed by a non-Indian husband against his Indian wife, in the presence of her Indian children, in their home on the Indian reservation, could not be prosecuted by the tribe.

Problematically, the Justice Department concluded that when non-Indian cases of domestic violence go uninvestigated and unpunished, offenders’ violence escalates.

“VAWA addresses the jurisdictional gap and greatly improves the effectiveness of preventing and responding to domestic violence,” said Justis. “By promoting the adoption of VAWA by tribes like LTBB, the United States government has reaffirmed the tribes’ authority to prosecute those who commit this particularly invidious type of violence in their communities.”

Since prosecution of a domestic violence case in the Tribal Court would be an exercise of LTBB’s inherent sovereignty, such a prosecution would not preclude the United States Attorney’s Office from prosecuting the non-Indian defendant in federal court for the same offense.

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