sovereignty

MintPress News' Christine Graef reports on how a revised Violence Against Women Act is putting tribal authorities in charge of cases of abuse and violence against American Indian women: "The reauthorized act extends tribal jurisdiction to non-Native Americans who commit acts of violence or sexual assault against their Native American spouse or partner. While such incidents often go unreported, the amount that are reported reflect a disproportionate number of Native American women will be raped, stalked or physically assaulted compared to their non-Native American peers." According to the Indian Law Research Center, more than 88 percent of violent crimes committed against American Indian women are committed by non-American Indians over which tribal governments lack jurisdiction.

The amendment goes into effect next March.

There are limitations to the amended law. Tribes must have a criminal justice system that provides legal counsel to defendants, provide non-American Indians in a jury pool and inform defendants of their right to file federal habeas corups petitions, Graef writes. Federal prosecutors will continue to prosecute crimes for tribes that don't have their own justice systems. And jurisdiction only applies to cases in which the perpetrator and the victim were in a relationship.

The U.S. Supreme Court, 5-4, has ruled that Michigan can't block an off-reservation American Indian casino from opening because of tribal sovereignity, the Associated Press reports: "The ruling was a win for Indian tribes, which have increasingly looked to casinos as a source of revenue and have relied on immunity to shield them from government interference. But it's a disappointment for Michigan and more than a dozen others states that say the decision will interfere with their ability to crack down on unauthorized tribal casinos."

The Pascua Yaqui is going to be the first American Indian tribe to prosecute a non-American Indian for domestic violence after the Violence Against Women Act was expanded to allow American Indian tribes to have that enforcement authority, the Washington Post reports. While the law is meant to address violent crimes inflicted on Native women by non-Native men, the law does not address every such circumstance: "While it covers domestic and dating-violence cases involving Native Americans on the reservation, the law does not give tribes jurisdiction to prosecute child abuse or crimes, including sexual assault, that are committed by non-Indians who are 'strangers' to their victims. In addition, the law does not extend to Native American women in Alaska," the Post reports.

A Nevada federal judge has ruled that the Federal Trade Commission can sue payday lenders, even if they are affiliated with American Indian tribes, the Legal Times reports. The judge ruled "that the FTC Act is a statute of general applicability, one that does not include an exception for Indian tribes," the Legal Times further reported. Tribes argue that they are sovereign and free from regulation by state governments and the U.S. federal government.

While American Indian reservations are sovereign nations, tribes have not had the legal authority to arrest non-Indian women who assault or rape Indian women on reservations, The Washington Post reports. But the Violence Against Women Act, signed in March, will for the first time give Indian tribes jurisdiction over some crimes of domestic violence committed by "non-Indians in Indian Country," The Post further reports (The law won't cover assaults committed by non-Indians against native women and it doesn't cover native women in Alaska).

The level of violence against American Indian women is startling: "An estimated one in three Native American women are assaulted or raped in their lifetimes, and three out of five experience domestic violence," The Post also reports.

The greater level of child abuse, domestic violence, and violence against women on American Indian reservations is horrifying. One of the recommendations of the nine-member Indian Law and Order Commission in "A Roadmap to Making Native America Safer" to improve that situation is to allow tribes to opt of currently existing law enforcement systems in favor of their own--along with the establishment of a "U.S. Court of Indian Appeals to which a defendant could appeal on the grounds that his 4th, 5th, 6th or 8th amendment rights under the U.S. Constitution had been violated," Indian Country Today Media Network reports. The report argues for an American Indian law-centric circuit court '"because it would establish a more consistent, uniform, and predictable body of case law dealing with civil rights issues and matters of Federal law interpretation arising in Indian country."'

The localism of such a system reflects the strand in American polity that favors smaller government and also would promote the sovereignty of tribes at the same time. Commission Chairman Troy Eid, a former U.S. Attorney for the District of Colorado, told Indian Country Media Network,  the commision's report '"is not to tell anyone what to do, but it's also to say, 'Local government works best; it's the American way.' It's emphatically a better way to prevent crime…. It's clear that many Native governments, even those with not a lot of means, want to and will sacrifice in order to put sovereignty into action through enforcing their own criminal laws."'

The Guardian reports on U.S. Supreme Court oral arguments today in a case in which the state of Michigan argues that the Bay Mills Indian Community inappropriately opened an off-reservation casino without authorization of the federal government and in violation of a state agreement. Some of the justices took a skeptical view of the position that tribal sovereignity gives extra protection against closing the casino or other action by Michigan. Justice Stephen Breyer, for one, said, "My belief is Indian tribes all over the country, operate businesses off the reservation, and businesses all over the country are regulated. And does the State, I guess, in your view not have the power to enforce the regulation against the Indian tribe?" The Guardian reported.

The Consumer Financial Protection  Bureau has filed a brief in a federal court siding with  "Benjamin Lawsky, New York’s top financial regulator, against a lawsuit from two western Native American tribes," The Daily Caller reported. The tribes sued over cease-and-desist letters sent by Lawsky over the online payday loan businesses. Lawsky contend that the interest rates charged by the businesses for their loans are too high, while the tribes argue that they are sovereign entities and they follow federal law, The Daily Caller further reported.

Nonprofit Quarterly reports that many American Indian legal practitioners are finding that “'basically any issue headed for the Supreme Court is probably not going to be decided in favor of the tribes.”' Their advice? Avoid going to the U.S. Supreme Court if at all possible. The other strategy is make the cases as strong as possible: the Native American Rights Fund and the National Congress of American Indians have created the Tribal Supreme Court Project to work up cases before going to the highest court in the land.

In December, the Supreme Court will hear a case about the interpretation of the Indian Gaming Regulatory Act. My prior post on that case: http://www.cultivatedcompendium.com/news/us-supreme-court-set-hear-argum...