Native American Crime Victims Rights { Materials by Hallie Bongar White and Kelly Gaines Stoner Presented by: Kelly Gaines Stoner
Some Statistics. In the 2000 Census 4.3 million people (1.5% of the 281.4 million people in the United States) listed themselves as American Indian or as American Indian in combination with some other race. Close to 2.4 million people (or approximately 1% of the United States population) listed themselves solely as American Indian or Alaska Native. We the People: American Indians and Alaska Natives in the United States. Census 2000 Special Reports. http://www.census.gov/prod/2006pubs/censr-28.pdf
Where Native People Live Urban, reservation, and rural areas States with highest populations: #1 = California (333,000), Oklahoma (almost 8% of population), Arizona (5%), New Mexico (9.5%), Texas (118,000), North Carolina (almost 100,000), Alaska (15.6%), Washington, New York, and Michigan
Scope of the problem American Indians experience the highest rates of violent crime victimization of any population in the United States. Rates of violent victimization for both males and females were higher for American Indians than for all other races. The rate of violent crime victimization against American Indians is 2 ½ times that of other populations. American Indians and Crime: A BJS Statistical Profile, 1992-2002, http://www.ojp.usdoj.gov/bjs/pub/pdf/aic02.pdf
Weapons and Violent Crimes Against Native People American Indians faced an offender with a weapon in nearly a third of all violent crime incidents. 11% of Native crime victims face a perpetrator with a gun Compared to all murder victims, American Indian victims of homicide were more likely to have been killed by a rifle/shotgun or by a knife than other populations.
Weapons and Violent Crime Homicides: Native people are killed by someone they know (such as a family member or acquaintance) 83% of the time Killed by a stranger 17% of the time Most murderers of Native people are of other races (jurisdictional issues raised) Source: BJS: American Indian and Crime
More BJS Stats: Violence Against Native Women (see also VAWA 2005) Native women suffer the highest rate of violent crime victimization (more than double other women): highest rate of sexual assault more likely to suffer a sexual assault by multiple perpetrators more likely to be sexually assaulted in a public place more likely to suffer serious injuries in sexual assault more likely weapon used in sexual assault highest rate of stalking (often the prelude to homicide and sexual assault)
Basic Indian Law. Tribes are sovereign nations with a sovereignty status higher than states. Tribes may maintain their own justice systems (traditional and Anglo-like ) and have the ability to make their own laws and be governed by them. Federal trust responsibility. Federal plenary authority.
Basic Indian Law cont d United States Constitution does NOT apply to Tribes. Indian Civil Rights Act of 1968 applies. No right to indigent counsel. Consequence: tribal convictions may not count for enhancement of sentencing or as predicate crimes (Ex: failure to register as a sex offender)
{ { CRIM JURIS CHART Race of Defendant Indian Indian Indian Race of Victim Indian Non- Indian No Victim Crime Jurisdiction Major Crimes Federal (Tribal) Act Concurrent) Gen.Cr. Act Tribal ( Fed if no prosecution) All Other Tribal (Exclusive) Fed Crimes of Federal General Applicability Major Crimes Federal (Tribal Act Concurrent) Other Crimes Tribal (federal if unpunished) Victimless Tribal Exclusive
{ { CRIM JURIS CHART Race of Defendant Non-Indian Indian Non-Indian Non- Indian Non-Indian Race of Victim Crime Jurisdiction Major Crimes Federal Act & Crimes of General Federal Applicability All State Exclusive Victimless State Exclusive
Basic Tribal Jurisdiction Tribes may impose criminal penalties of up to one year in jail and up to $5000 in fines against Indian defendants convicted of crimes in tribal courts. Max and stack : But see 8 th Circuit case. Major crimes (such as rape or homicide): Indian perpetrators may be tried in both federal and tribal courts concurrently without the threat of double jeopardy.
Basic Federal Prosecution Major Crimes (concurrent) General Crimes (if Tribe doesn t prosecute) Additionally, federal crimes requiring commission in inter-state travel frequently triggered in Indian Country
State A State A State B Blue River Rez. Shopping, restaurants, g Walmart, etc Capital * Green Mtn. Blue River Example:
Basic State Jurisdiction Over Crimes Non-Indian against non-indian and victimless crimes PL280= state criminal jurisdiction over all crimes in Indian Country (except retroceded Tribes) six mandatory states optional states But no state civil regulatory jurisdiction (SORNA and AWA, etc.)
Navigating The Maze It can be challenging for Native victims of violent and felony crimes to navigate the complex maze of jurisdiction in Indian Country without adequate legal representation. Victims may be challenged by being subjected to multiple trials, multiple pretrial interviews, multiple motion hearings, etc...
The Core Issue The majority of perpetrators of violent and sexual assault crimes against Native people are non-indians who have been described by their victims as white. Why is this? High Federal Declination Rate No consequences for perpetrators unless Tribe uses creative civil remedies against non-indian offenders to impose some consequences for illegal and violent conduct.
BIG Challenges Tribes do not have criminal jurisdiction over non- Indians. + Majority of violent crime, homicides, domestic violence, sexual assault, and stalking against Native women committed by non-indians. + High Federal Declination Rate = Often a jurisdictional void and non-indian perpetrators can go unpunished.
BIG Challenges cont d Maximum penalty = up to one year of incarceration + Maximum fine = up to $5000 + Serious shortage of tribal jails = Weak penalties for serious crimes
Oklahoma Courts Many Tribes in Oklahoma do not maintain their own court systems to criminally prosecute Indians charged with crimes. Many Oklahoma tribes utilize CFR courts. In the late 19 th century, Courts of Indian Offenses (also known as Courts of Federal Regulation or CFR) were established by the Bureau of Indian Affairs
CFR Courts The CFR Courts are governed by volume 25 of the Code of Federal Regulations and follow the federal rules of evidence and the federal rules of civil procedure. Magistrates of the CFR courts are appointed by the Secretary of Interior or by his/her designee. In Oklahoma approximately 29 tribes utilize these courts. The majority of tribes utilizing CFR courts have not adopted specific victim rights legislation.
Tribes Often Left Out Of Federal Legislation CVRA SORNA/AWA Statutory Construction: if it doesn t specifically include Indians or Indian Country, then it does not apply.
Tribal Court Practice Severe shortage of legal representation in tribal courts- reasons Do not need to be law school trained to practice in many Tribal Courts Must be admitted to practice before tribal court Victim advocates and community members can be admitted to practice
Non-law school trained judges and prosecutors May lack knowledge and training of crime victim rights and role of victim rights attorney Standing (also in state courts) Victim rights attorney can protect victim from discovery abuses Can protect against conditions of release that jeopardize safety Can protect at sentencing and ensure proper restitution
Tribal Court Practice Is Different Seating a fair and impartial jury Utilizing the clerk of the court Right to indigent counsel Different rules of procedure, codes, customs, etc. in the different Tribal courts Practicing in Tribal court when you are not a member of that community.
Tribal Codes Accessing tribal codes Accessing tribal case law Utilizing custom and tradition as precedent
Victim Services May have to be coordinated between multiple jurisdictions Indians are also citizens of the state and have access to state services as well as tribal
Custom and Tradition Legal Precedent Although not many Tribes have victim rights legislation, there is the custom and tradition of compensating victims for their losses. Locating the expert witness to testify on custom and tradition Drafting pleadings to explain why certain restitution or sentencing provision should be ordered because of custom and tradition
Creative Sentencing, Release and Restitution Provisions Tribal court judges are very open to creative sentencing, release conditions, and restitution Shortage of tribal jails coupled with limits on sentencing Many of these creative provisions can be requested in state and federal courts if you explain them properly
Restitution Be Creative High unemployment in Indian Country What is the ability of the defendant to pay the victim? How could there be a substitution of labor, goods, or services? Examples: Agg Assault: defendant may be ordered to replace the meat or fish the injured victim would ve provided to the family for X amount of time. Theft case: defendant ordered to allow the victim to use heavy equipment or large freezer for X number of seasons.
Community Service Can be the usual: pick up trash along highway, shelve books at library, or could be more meaningful or traditional work that benefits the community and shows remorse. Hunt and provide meat for elderly Chop wood or clear grounds for ceremonies, etc.
Shame Powerful mechanism In the old days. Wearing a shirt that says I beat my grandma
Victim Confidentiality & Safety Tribal communities are closely knit. Everyone knows where victim lives and what happened. Pressure from defendant s extended family and community Courtroom safety: tribal courts can be as small as a single trailer Limited services for victims in some tribes (shelters, etc.)