According to the U.S. Department of Justice, more than 60 percent of Native American women will be physically assaulted during their lifetimes, and in two out of three of those cases, the perpetrator will be a non-Native.
All too often, this scenario has meant that there will be no justice for the victim. If the defendant is not a tribal member, the case is referred to state or federal courts, even if the alleged victim is a tribe member and the potentially criminal conduct occurred on Indian land. The cases regularly fall between the cracks of state, tribal and federal court systems. More often than not, the story ends there.
A bill intended to fix this loophole was passed by the Legislature this year and is waiting for a signature from Gov. Mills, who says she is reviewing it to make sure that all defendants have their due process rights protected. Since most federally recognized tribes have had the ability to prosecute these cases for the last six years, Mills should find that tribal courts are just as capable of delivering justice as state and federal courts. Unless Mills finds that Maine is different from every other state, she should sign the bill.
The status quo is complex, inefficient and unpredictable – exactly what you don’t want in a legal system. In addition to the cases that get lost between the parallel jurisdictions, some victims don’t see the point in reporting crimes that are not prosecuted, and non-Native perpetrators believe that they can act with impunity on Native land.
If Mills signs the bill, tribal courts in Maine would have to meet rigorous standards that are laid out in federal law. Defendants in Indian courts have all the rights they have in other jurisdictions, including trial by jury, right to an attorney even if you can’t afford to pay and the ability to appeal to the federal courts.
Maine is different in one way: In 1980, the state and its tribes signed the Indian Claims Settlement Act, the terms of which are protected from pre-emption by federal law. So when Congress reauthorized the Violence Against Women Act in 2013, the provisions that allowed tribal courts to prosecute non-Natives for domestic-violence assaults of Native victims on tribal land did not automatically apply here.
Maine’s 1st District Rep. Chellie Pingree, D-North Haven, authored language in the latest reauthorization of the Violence Against Women Act, which has passed the House, that would make Maine’s tribal courts eligible to take these cases. But we don’t have to wait for Congress to act.
The signers of the land claims act did not intend to make Native women especially vulnerable to violent attack, so the agreement shouldn’t be used to do just that.
This is a critical public safety problem, and Maine’s tribes should not be prevented from responding to it any longer.
Send questions/comments to the editors.
