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ROB PORT: Tribal courts' track records don't inspire confidence

MINOT -- The Violence Against Women Act was a hot-button issue last year in the U.S. Senate campaign between Democrat Heidi Heitkamp and Republican Rick Berg.

Rob Port
Rob Port

MINOT -- The Violence Against Women Act was a hot-button issue last year in the U.S. Senate campaign between Democrat Heidi Heitkamp and Republican Rick Berg.

Heitkamp was quick to accuse Berg of being part of what her party described as a "war on women" because he voted against the VAWA in the House during his term there.

It was an important part of Heitkamp's strategy of painting Berg as anti-female; and after the election, both Heitkamp and her party continue to play up that strategy. A recent resolution passed by the North Dakota Democratic-NPL Party claims that "North Dakota Republicans have denied and turned their backs on the emergent danger women face by simply being women in this state."

I have a problem understanding how Democrats have concluded that the hostility of North Dakotans to women has risen to the level of "emergent danger," but I digress. The point is, Democrats see the "war on women" strategy as an effective one.

What scares me is that this is clouding judgment on bad policy such as the VAWA..


The VAWA itself isn't new policy, but a new aspect in this most recent iteration of the law is expanding the jurisdiction of American Indian tribes to non-tribal members. The tribes complain that they lack the authority to apply the law to non-tribal members who commit often horrible crimes in their jurisdictions.

While we may be sensitive to that complaint, what are not getting nearly enough attention are the rights of the accused. Can non-tribal members expect to get a fair trial in tribal courts?

That probably depends on the tribe, but what needs to be acknowledged is that the tribes have a poor track record in this area.

Can we say that non-tribal members will generally get a fair trial from courts and juries staffed almost exclusively with tribal members? And suppose a non-tribal member is victimized by a tribal member. Can we depend on the tribal courts to bring one of their own to justice?

That's an important question given what North Dakotans are confronting right now. The Spirit Lake Sioux reservation has been rocked by an abuse scandal in which tribal authorities seem to have been looking the other way while children repeatedly were victimized.

"Federal officials are now moving to take over the tribe's social service programs, according to members of the tribe, government officials and documents," reported the New York Times last year. "The action comes after years of failure by government and tribal law enforcement officials to conduct proper investigations of dozens of cases of child sexual abuse, including rape."

That doesn't inspire a lot of confidence that the tribes are ready to exercise the expanded jurisdiction the VAWA grants them.

I have personal reasons for doubting the tribal justice system as well. In May 2007, the Turtle Mountain Band of Chippewa banished me from their lands for publishing a magazine column, cross posted on my website, titled "The appalling state of our Indian reservations." This was done using the tribal exclusion code, which normally is used to remove criminals such as drug dealers and sex criminals from the reservations. In this case, it was invoked through a resolution that also required the magazine that had published my column to retract it and apologize.


Being a political writer, I'm no stranger to controversy. You cannot express opinions on political topics without angering one group of people or another. But here in America, we don't respond to political disagreements with banishment and censorship. Yet that's exactly how the Turtle Mountain tribe responded, and it was an ordeal for my family and me. We dealt with death threats for months afterward.

Again, that's not exactly inspiring confidence that the tribes' broad new powers under VAWA will result in a greater degree of justice.

We all want justice, and the push to bring justice to those who commit crimes on Indian reservations should be applauded. But we should want justice for not only the victims but also the accused as well -- and I'm not at all sure the tribes are ready to provide it.

Unfortunately, the politics of the "war on women" will obfuscate these very real concerns.

Port runs the Say Anything blog, sayanythingblog.com.

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