# Presentation: 277294

## Legal Issues of Intimate Partner Violence in AI/AN Communities

- Presented by
- Stephen Wall, J.D.
- Tribal Justice Specialist
- American Indian Development Associates

## Legal Issues of Intimate Partner Violence in AI/AN Communities

- Section Agenda
- Friday April 8, 2005
- 8:00AM -11:00AM
- 8:00   Sovereignty/Jurisdiction
- 9:00   IPV/DV Terms of Art and Related Issues
- 9:30   IPV/DV Initiatives and Discussion
- 10:00 Problem Identification/Solving, Questions
-               and Answers

## Legal Issues of Intimate Partner Violence in AI/AN Communities

- Tribal Sovereignty:
- *Tribes have all governmental powers not taken from them
- Tribal source of governmental authority is not the US constitution, so one does not look for a grant of tribal authority, but to see if inherent authority has been limited
- *Domestic dependent nations
- Cherokee Nation V. Georgia, 30 U.S. (5 Pet.) 1 (1831)
- *State laws have no effect in Indian Country except by specific legislation
- Worchester v. Georgia, 31 U.S. (^ Pet.) 515 (1832) and subsequent case law and legislation
- *Congress has the authority to limit tribal sovereignty
- U.S. v. Kagama, 118 U.S. 375 (1886)

## Legal Issues of Intimate Partner Violence in AI/AN Communities

- Limitations on Tribal Sovereignty:
- * Indian Civil Rights Act (ICRA)
- * Limitation on Tribal Jurisdiction
-          Major Crimes Act
-          P. L. 280
-          Oliphant decision

## Legal Issues of Intimate Partner Violence in AI/AN Communities

- Jurisdictional Responses to IPV/DV:

| Perpetrator | Victim | Tribal | Federal | State |
| --- | --- | --- | --- | --- |
| Indian | Indian |       X |  If Federally   
 defined | If P.L. 280 |
| Indian  | Non-Indian |       X | If Federally defined | If P.L. 280 |
| Non-Indian | Indian  |  |          X | If P.L. 280 |
| Non-Indian | Non-Indian |  |  |      X |

## Legal Issues of Intimate Partner Violence in AI/AN Communities

- Federal Limitations on Tribal Jurisdiction in IPV/DV
-       Indian Country – 18 USCA 1151
-         Reservation land, Dependent Indian communities, Indian Allotments
-      Major Crimes Act –  18 USCA 1153
-         Originally 7, but now expanded to 13
-      General Crimes Act – 18 USCA 1152
-          Limited application based on race of P/V, tribal prosecution, treaty
-          limitations
-      Assimilative Crimes Act  18 USCA 13
-         Laws defined by state but not by Federal law assimilated into Federal law,
-         applied through General Crimes Act

## Legal Issues of Intimate Partner Violence in AI/AN Communities

- Federal Prosecution in IPV/DV cases:
- U.S. Attorney decides to move the case forward based on “Prosecutorial Discretion”
- Minimum standard for Federal Prosecution: Serious Bodily Injury + Airtight case
- Successful Federal prosecution does not preclude Tribal prosecution
- Tribe sent “declination” letter if no Federal prosecution

## Legal Issues of Intimate Partner Violence in AI/AN Communities

- State Jurisdiction in Indian Country IPV/DV Cases
- P.L. 280
- Applies in certain states, gave states criminal and civil jurisdiction in Indian Country, but did not extinguish tribal jurisdiction in those affected states
- Grants to Various States, i.e. Kansas Act
- Gave states criminal and civil jurisdiction in Indian Country, but did not extinguish tribal jurisdiction in those affected states
- Non-Indian on Non-Indian IPV/DV
- Neither Tribal or Federal governments have an interest (in theory)

## Legal Issues of Intimate Partner Violence in AI/AN Communities

- IPV/DV Terms of Art
- Domestic Violence
- Violence between members of a household
- Intimate Partner Violence
- Violence between persons who are or were once intimate (assumption of romantic or sexual relationship)
- Order of Protection
- A form of restraining order that provides protections to victim of IPV/DV. There are pre-hearing and post hearing requirements. Violation of OP can be either a criminal act or contempt of court.
- Full faith and credit
- The process in which a court of one jurisdiction recognizes and enforces an order from another jurisdiction. IPV/DV orders of protection have a Federal requirement of FFC for OP issued in tribal court.

## Legal Issues of Intimate Partner Violence in AI/AN Communities

- Criminal case/procedures
- A case in which a person is accused of committing a crime and the State (Tribe) is also considered the victim and the perpetrator faces the possibility of jail as a sentence.
- Civil case/procedures
- A case in which the parties are the victim and perpetrator, the actions of the accused are not considered a crime and the remedy does not include the possibility of jail.
- Misdemeanor
- A crime in which the maximum penalty is less than 366 days.
- Felony
- A crime in which the minimum penalty is at least 365 days
- Dual arrest
- The requirement that the police arrest both the alleged victim and alleged perpetrator when responding to a DV call

## Legal Issues of Intimate Partner Violence in AI/AN Communities

- IPV/DV Initiative Components
- Victim’s Services                         Primary Prevention
- Crisis Intervention                                        Community Education & Awareness
- Shelter Services                                           Control access to firearms
- Legal Assistance & Advocacy                      Alcohol/Substance Tx & Prevention
- Support Groups & Counseling                     Men’s groups
- Medical care                                                Hotline
-                                                                      Access to education/job training
-                                                                      Teach Non-Violent Traditions

## Legal Issues of Intimate Partner Violence in AI/AN Communities

- IPV/DV Initiative Components
- Law Enforcement                         Legal System
- Specially trained officers                               Dedicated docket and staffing
- LE officers to have audio                               Code revision
-   and video to document abuse                     Enforcement of court orders
- Crime data sharing                                        Protection Order registry
- LE policies to support IPV/DV                       Mandate certain OP provisions
-   initiative