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TIMOTHY PURDON AND JANELLE MOOS: On reservations, VAWA protects rights of the accused

BISMARCK -- The alarming rate of domestic violence offenses against American Indian women is an issue that should trouble all North Dakotans. According to a 2011 study from the Centers for Disease Control and Prevention, 46 percent of American In...

BISMARCK -- The alarming rate of domestic violence offenses against American Indian women is an issue that should trouble all North Dakotans.

According to a 2011 study from the Centers for Disease Control and Prevention, 46 percent of American Indian women surveyed have experienced rape, physical violence and/or stalking by an intimate partner in their lifetime, a rate among the highest of any race or ethnicity surveyed.

Further, according to the U.S. Department of Justice, much of the violent victimization experienced by American Indian women is committed by non-Indians.

Contributing to this problem is the complicated jurisdictional tangle that arises when a non-Indian perpetrator commits an act of domestic violence against an American Indian victim on the reservation.

Historically, these jurisdictional issues too often have advantaged offenders while jeopardizing the safety of victims. Fortunately, the recent reauthorization of the Violence Against Women Act should give American Indian women reason to hope.

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It should also give domestic violence offenders pause, as VAWA provides more tools to bring these offenders to justice.

VAWA will allow qualified tribal courts to exercise criminal jurisdiction over certain non-Indians who commit domestic violence offenses on reservation lands. By doing so, VAWA creates a clear path for law enforcement through the jurisdictional thicket on the reservations.

Because of VAWA, no more will a non-Indian perpetrator of domestic violence scoff in the face of a first-responding tribal police officer, "You have no jurisdiction; what are you going to do about it?"

No more will tribal police officers feel powerless to protect American Indian victims of domestic violence.

The extension of tribal jurisdiction authorized by VAWA is limited and was deliberately crafted to strongly protect the rights of the accused.

• First, the exercise of this jurisdiction is limited to non-Indians who have chosen to make their lives in reservation communities. To be subject to this limited tribal court jurisdiction, the non-Indian offender must live or be employed on the reservation or be married to or dating an American Indian who lives on the reservation or is a tribal member.

• Further, before a tribal court can exercise this new limited jurisdiction, VAWA requires the tribal court to protect the rights of non-Indian defendants by, for example, ensuring access to licensed public defenders (if the defendant is indigent) and law-trained judges; making the tribe's criminal laws publicly available; providing a record of the proceedings; and affording full due process to the accused.

• VAWA also requires the jury pool for cases against non-Indian criminal defendants to include a fair mix of Indian and non-Indian jurors.

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• Finally, any non-Indian defendant who alleges that the tribal court has not adequately protected these and other rights may seek relief in federal court by filing a writ of habeas corpus.

Given these protections, the new jurisdiction under VAWA gives tribal law enforcement and courts the same kind of local enforcement authority to protect victims that other communities across North Dakota have come to expect and often take for granted.

This enhanced jurisdiction under VAWA is voluntary for each tribe. Many tribes surely will enhance their court systems to meet VAWA's requirements for protecting defendants' rights in order to exercise this limited jurisdiction. Other tribes may choose not to implement this part of VAWA.

Recognizing that there is work to be done before many tribes are in a position to meet its requirements, VAWA sets a two-year waiting period before the new tribal criminal provisions go into effect. During this two-year period, tribes that feel they are ready sooner can petition the Department of Justice for designation as a pilot project.

Last but not least, it is important to recognize that granting tribal courts limited criminal jurisdiction over individuals who are not members of the tribe is nothing new. In United States v. Lara, a 2004 case that arose on a reservation right here in North Dakota, the U.S. Supreme Court held that Congress has the constitutional power to recognize a tribe's inherent authority to prosecute nonmembers of the tribe who commit crimes on the reservation.

It is this constitutional power that Congress exercised this year when it enacted the tribal provisions of VAWA.

Domestic violence on the reservations in North Dakota is not simply a Standing Rock, Spirit Lake, Turtle Mountain, or Ft. Berthold concern. Rather, the heightened rates of abuse of American Indian women on these reservations should be a shared concern for all North Dakotans.

VAWA gives us important new tools in our work to change these statistics and build a bright, safe future for all women in North Dakota.

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To learn more about VAWA, go to www.justice.gov/tribal/vawa-tribal.htm .

Purdon is U.S. attorney for North Dakota. He also is the chairman of the U.S. Department of Justice's Native American Issues Subcommittee and helped draft the VAWA tribal court provisions that the department proposed to Congress in 2011.

Moos is executive director of the North Dakota Council on Abused Women's Services.

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