This issue of BWJP's eNewsletter provides an overview of two recent Supreme Court decisions which impact tribal responses to domestic violence and sexual assault, reviews Sarah Deer's recent book, The Beginning and End of Rape, and describes the recently launched Tribal Access Program.

U.S. v. Bryant, __ U.S. __ (2016) 

With an 8-0 ruling, the U.S. Supreme Court held that tribal court convictions for domestic violence offenses that comply with the protections set forth in the Indian Civil Rights Act (ICRA, 1968) can be used to convict in federal court under a repeat offender statute enacted as part of the VAWA reauthorization in 2005.

The Facts

Defendant Bryant, an enrolled tribal member and resident on tribal land, had numerous convictions in tribal court for committing domestic assault against his girlfriends. In one case, Bryant was convicted for hitting his girlfriend in the head with a beer bottle and strangling her; in another case, he pled guilty for kneeing another girlfriend in the face and breaking her nose. Later, he was convicted of assault for dragging a girlfriend by her hair and repeatedly punching and kicking her. Additionally, Bryant was convicted for strangling another girlfriend to the point of unconsciousness. In each of the tribal court cases, Bryant did not have an attorney as the procedures require appointment of counsel only if a defendant faces a sentence of imprisonment greater than one year. Bryant never served more than one year in prison for any of his domestic violence convictions. When Bryant committed another series of domestic violence offenses in 2011, he was indicted by a federal grand jury for committing domestic violence in Indian country as a repeat offender. The statute in question, §117(a) (VAWA 2005), had created a federal felony offense for an individual to commit domestic violence in Indian country if that person is a repeat offender with at least two prior domestic violence convictions in federal, state or tribal courts. On appeal, Bryant challenged the use of his prior, uncounseled tribal convictions in the §117(a) prosecution.

The Supreme Court Ruling

In a unanimous decision, the Supreme Court rejected defendant Bryant’s assertion that his prior tribal court convictions, without the provision of counsel, do not qualify under section 117(a). Citing the overwhelming incidences of violence committed against Native American women, the Supreme Court first acknowledged that Bryant presented the epitome of Congress’ purpose when creating the federal repeat offender crime: too often, accountability for domestic violence against Native women was not achieved because of the jurisdictional quagmire between tribal, state and federal courts and §117(a) was created as a vehicle to address these challenges.


Dollar General Stores v. Mississippi Band of Choctaw Indians, et al., __ U.S. __ (2016)

The Supreme Court failed to reach a decision, issuing a 4-4 ruling, despite the long time period between argument and ruling. Thus, the prior ruling in the case from the 5th Circuit Court of Appeals stands.

The Facts 

Through a lease agreement and business license with the Mississippi Band of Choctaw Indians, Dollar General operates a retail store on trust land within the tribal reservation. Through its store manager, Dollar General agreed to participate in the tribe’s youth job training program and several teenage tribal members were assigned internship-like positions with the retail store. Although the lease agreement included provisions in which Dollar General consented to tribal jurisdiction as part of its commercial venture, their participation in the jobs program did not specify any such consent. One of these young teenagers – labeled John Doe in the filings – accused the store manager of various acts of sexual molestation during his work assignment and, through his parents, filed a tort claim against Dollar General in tribal court. Dollar General challenged the jurisdiction of the tribal court given their nonmember status and, in addition,  the lack of connection between the accusations and Dollar General’s operation of its retail store.

The Supreme Court Ruling

The case presented both narrow and larger legal questions about tribal civil jurisdiction over nonmembers. [Tribal criminal jurisdiction over nonmembers is essentially prohibited, Oliphant v. Suquamish, 431 U.S. 191 (1978).] The Supreme Court could have spelled out what suffices for “consent” such that a tribe has civil jurisdiction over a nonmember. Additionally, the case presented the opportunity to determine if such consent applies to tribal judicial authority (as well as regulatory power) and whether the operations and procedures in tribal court provide sufficient protections and due process to nonmembers. However, with an evenly-divided court, the Supreme Court issued no ruling in this case. Therefore, the ruling of the 5th Circuit Court of Appeals stands as the final determination on the specific issues presented at this portion of the case.

Read more... 

Book Review: The Beginning and End of Rape: Confronting Sexual Violence in Native America

Sarah Deer book cover

With eloquence and precision, Sarah Deer writes in The Beginning and End of Rape that the word “epidemic” is entirely inadequate when discussing the rape of Native women. Epidemics are sudden events while the rape of Native women has occurred since colonization. Epidemics – being biological – are blameless. But rapists are criminals whose intentional, horrific acts do not merely shatter individual women but also their whole communities. Surviving rape and surviving colonization are intimately interconnected, Deer argues. 

The Beginning and End of Rape explores the common experiences of rape victims, and focuses on what makes rape such an egregious offense, while asking how criminal interventions can facilitate real healing. Deer includes a thorough discussion of rape theories and she advocates developing legal theory grounded in indigenous women’s perspectives which she hopes will lay the foundation for establishing widespread social change in tribal nations. Addressing the problem in this way makes the book more hopeful than depressing, and entirely absorbing. A must read.

BWJP recently hosted webinars with Professor Deer. View part 1 and part 2 in our Resource Center.

Cover art used with author's permission.

 Tribes Gain Access to National Crime Information Databases with New Federal Programs

Last fall, the Department of Justice launched the Tribal Access Program (TAP) for National Crime Information, providing federally-recognized tribes with access to national crime information databases. As a result, tribal agencies will be able to receive federal criminal information and submit criminal records to national databases, in addition to gaining access to state-of-the-art biometric/biographic technology and specialized training via the Tribal Access Program. Moreover, the Department of the Interior’s Bureau of Indian Affairs (BIA) announced that tribes will be able to view national criminal information via the new Purpose Code X Program, which will allow tribal social service agencies to conduct name-based checks on individuals prior to making child placement decisions to ensure children are provided safe homes in temporary emergency situations.

The Tribal Access Program is being implemented in phases, with only ten tribes currently participating in the User Feedback Phase to assist in the evaluation of technical and programmatic support. Future phases will include tribes with law enforcement agencies, non-law enforcement criminal justice systems, and agencies serving only civil needs. While the program is still in the early phases of implementation, the program seems quite promising. “The Tribal Access Program will be critical in protecting native women on the Umatilla Indian Reservation by ensuring all tribal domestic violence protection orders are entered into federal criminal databases. Currently the CTUIR (Confederated Tribes of the Umatilla Indian Reservation) does not have this ability. My hope is that this will prove to be a program that will eventually be available to all tribes and help protect tribal communities throughout the nation. It has been something tribes have long requested and I’m happy the CTUIR has been chosen to be among the pilot tribes.” said Brent Leonhard, a tribal attorney with the Office of Legal Counsel for the CTUIR.

Many hope that the Tribal Access Program will help address the domestic violence issues that Native women face. American Indians are 2.5 times more likely to experience sexual assault crimes compared to all other races, and one in three Indian women reports having been raped during her lifetime. Six in ten Native women will be physically assaulted and, on some reservations, the murder rate for Native women is ten times the national average. For Native women, the lethal threat a gun poses in the home of a domestic violence perpetrator is especially severe given that guns are involved in over one-third, approximately 35%, of homicides against Native women.

Although eligible tribes were granted access to national crime information databases through Congress’s enactment of the Tribal Law and Order Act of 2010, access to national networks had been severely limited by the varying state regulations, statutes, and policies in place. By granting tribal officials access to federal criminal databases, tribal law enforcement will have a greater capacity to protect vulnerable individuals, particularly Native women and children at risk of domestic violence and other criminal acts. The development of the Tribal Access Program for National Crime Information and Purpose Code X Program signifies a vital step toward addressing the civil and criminal needs of tribes and improving the communication of criminal information between federal, state, local and tribal law enforcement.