The Penobscot and Passamaquoddy tribes are seeking new powers for their courts to try cases involving domestic violence committed by non-tribal members on their reservations, setting the stage for yet another dispute with state authorities over the scope of tribal authority in Maine.
The proposed law – L.D. 268 – gives the tribes jurisdiction “over violations of a tribal ordinance” on their territories by “a person who is not a member of either tribe or nation in accord with and to the extent authorized by federal law.” Federal courts have refused to give tribes jurisdiction over non-members except for a specific set of domestic and dating violence crimes enumerated by Congress in a 2013 law.
Tribal officials say the bill would enable them to better protect women abused by their non-Indian boyfriends and spouses while bringing Maine statutes up to date with federal ones.
“Right now we have 35 open domestic violence cases, and around 80 percent of those are non-Indian offenders,” said Kirk Francis, chief of the Penobscot Nation. “Currently the tribe has no ability to comprehensively deal with this from a family wellness perspective.”
Attorney General Janet Mills’ office will likely oppose the measure, which it says inappropriately encroaches on Maine’s sovereignty and jeopardizes the constitutional rights of the accused.
The state and tribes are already embroiled in a series of jurisdictional disputes over everything from saltwater fishing to whether the Penobscots’ territory and fishing rights include the Penobscot River. The parties are also at odds over a ruling by the U.S. Environmental Protection Agency requiring the state to tighten clean water standards to ensure tribal people can safely consume large volumes of fish caught in their lakes and rivers.
LEGAL VACUUM ON RESERVATIONS
The new bill, which is before the Legislature’s Judiciary Committee but is not yet scheduled for a hearing, is an outgrowth of a national effort to close a jurisdictional vacuum that has allowed perpetrators of serious crimes against native women to go unpunished. In many parts of the country, tribal police and courts were until recently not allowed to pursue non-Indians who attacked women on reservations, even if the perpetrators were living there and married to Indian spouses. In most states, county sheriffs and state police also lacked jurisdiction on tribal land, leaving law enforcement in the hands of distant and often uninterested federal agents.
The situation led to extreme cases like that of a Southern Ute woman, Diane Millich, who said her husband would beat her and then call the sheriff in their southern Colorado county to demonstrate his impunity. Millich’s torment, spotlighted in a 2013 New York Times article, ended only after her husband stormed her office at the federal Bureau of Land Management and shot a co-worker, resulting in his arrest.
“There’s a vacuum of law enforcement on Indian reservations, which is one of the reasons that the incidence of violence is much higher than elsewhere,” said Stephen Pevar, a national expert on Indian law at the American Civil Liberties Union.
FEDERAL LAW ADDRESSES THE ISSUE
National surveys have shown American Indian women are twice as likely to have been victims of rape or sexual assault than other Americans, and that roughly two-thirds of the perpetrators of these crimes were non-native. They are also significantly more likely to have been stalked and assaulted.
In 2013, Congress passed the Violence Against Women Reauthorization Act, which allows tribal prosecution of certain non-Indians accused of domestic and dating violence. The victim must be a tribal member, while the perpetrator has to have “ties” to the tribe – residential, professional or personal. Tribes wishing to assume such authority must provide defendants with a range of protections, including all rights under the U.S. Constitution, a right to legal counsel at tribal expense, the possibility of appeal, and a hearing by a jury “reflect(ing) a fair cross-section of the community,” including non-Indians if appropriate.
“Congress really did think of everything,” Pevar said. “Every right that you would have in a state or federal court has to be in place; otherwise the tribe cannot go ahead.”
EXTENDING PROVISIONS TO MAINE
L.D. 268 would bring state law in line with these provisions of the Violence Against Women Act, allowing the Penobscots – who already have a widely respected court system, including an appeals body – to begin exercising jurisdiction in short order. The Passamaquoddy, who do not have an appeals court of their own, would likely have to make legal changes to meet the requirements of the federal statute.
The bill, introduced by Penobscot Nation Rep. Wayne Mitchell, would also grant the Penobscots expanded criminal jurisdiction – from offenses with a maximum period of sentencing of one year, to a period of three years – in accordance with the federal Tribal Law and Order Act of 2010.
“I can’t figure out what the objection would be to the (Penobscot) Nation exercising jurisdiction,” said Eric M. Mehnert, chief judge of the Penobscot Nation Tribal Court, a position previously occupied by Andrew Mead, who is now a justice on Maine’s highest court. “Our safeguards are one step ahead of the state’s. We have a smaller docket, and we have a Wellness Court that has been extraordinarily effective in these matters.”
ATTORNEY GENERAL HAS OBJECTIONS
The Maine Attorney General’s Office has an entirely different take: that neither federal law applies to the Maine tribes, and that the proposed state law represents a danger to the constitutional rights of Mainers.
These arguments are based on the text of the federal version of the Maine Settlement Act of 1980, which says that no federal Indian law is applicable within Maine if it “affects or pre-empts the civil, criminal or regulatory jurisdiction of the State of Maine” unless Congress explicitly specifies it is to apply to the Maine tribes. Maine’s attorneys general, including Mills, have emphasized this point ever since.
In a written response to questions from the Portland Press Herald, the Attorney General’s Office said that since neither the Violence Against Women Reauthorization Act of 2013 nor the Tribal Law and Order Act of 2010 specifically references the Maine tribes, the Settlement Act “bars (their) application in Maine.”
“The bill presupposes jurisdiction which (the Violence Against Women Act) accords to Western tribes, but not to the tribes of Maine,” the office’s statement added. Further, the AG’s Office said, “the bill fails to address the basic constitutional rights of the accused, including the right to a public jury trial, the right of appeal, and post-conviction review to state and federal courts.”
TRIBES PREFER THEIR APPROACH
The tribes say they are in a position to provide a better response, both in terms of resources and in successful rehabilitation via their family wellness programs, wherein spiritual and cultural figures attempt to work through domestic issues with affected families.
“What we’re trying to do is to create healthy families and healthy communities,” Chief Francis said. “It’s too bad at the policy level we get caught up in who is going to control things rather than who is going to take the responsibility for the conditions that exist currently.”
Vera Francis, vice chief at the Passamaquoddy’s Pleasant Point reservation near Eastport, said the problem with the current system is that non-tribal members – large numbers of whom reside in the community – are rarely prosecuted for domestic violence.
“The expansion of jurisdiction over non-member violators will assure that native women are no longer at the mercy of their predators,” she said.
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