Naja swsn final

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One of three Native women will be raped in her lifetime. According to the U.S.
Department of Justice, the incidence of violence against Native women is
nearly 3 times greater than any other population in the U.S.

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Naja swsn final

  1. 1. Safe Women, Strong Nations Lucy Simpson, JD Philomena Kebec, JD
  2. 2. Violence Against Native Women  Indian women are more than twice as likely to have violence committed against them than any other group in the United States  3 in 5 Indian women will be battered in their lifetimes  1 in 3 Indian women will be raped in their lifetimes
  3. 3. The Jurisdictional Maze In order to achieve justice, survivors of sexual violence frequently have to navigate a maze of tribal, state and federal law. The US federal government has created a complex interrelation between these three jurisdictions that undermines equality before the law and often allows perpetrators to evade justice. … this has created areas of effective lawlessness which encourages violence. Amnesty International Report, p. 8
  4. 4. What is Jurisdiction? Jurisdiction is the power of governments to make and enforce laws.
  5. 5. Key Factors in Determining Criminal Jurisdiction in Indian Country  Location of the Crime  Type of Crime  Race of the Perpetrator  Race of the Victim
  6. 6. Key Questions  Did the Crime Occur in Indian Country?  Is it a Major Crime?  Is the Perpetrator Indian or non- Indian?  Is the Victim Indian or non-Indian?
  7. 7. What is Indian Country?  All land within the limits of any Indian reservation, notwithstanding any rights of way running through the reservation;  All dependent Indian communities; and  All Indian allotments.
  8. 8. Crow Nation Reservation from Crow Nation Land Use and Realty Report (2002)
  9. 9. What is a Major Crime?  One of 15 crimes listed in the Major Crimes Act  Must be committed by Indians in Indian Country  Victim can be Indian or non-Indian  Federal government has jurisdiction over these crimes
  10. 10. Major Crimes Related to Violence Against Indian Women  Murder  Manslaughter  Rape  Felony sexual abuse  Incest  Maiming  Assault with a deadly weapon  Assault resulting in serious bodily harm
  11. 11. Who Is an Indian?  “Indian” is not defined by Major Crimes Act or any other federal legislation dealing with crime in Indian country.  Two requirements:  Proof of some Indian blood; and  Community acceptance of the person as Indian.  Tribal enrollment is not required.
  12. 12. John , a tribal member, has a fight with his girlfriend, and gives her a black eye. His girlfriend is also a tribal member and they live on the reservation. Who has jurisdiction?
  13. 13. Key Questions  Did the Crime Occur in Indian Country?  Is it a Major Crime?  Is the Perpetrator Indian or non- Indian?  Is the Victim Indian or non-Indian?
  14. 14. Tribal Criminal Jurisdiction: Indian Perpetrators  Within Indian country, tribes have the inherent power to exercise criminal jurisdiction over all Indians (member and non-member).  This power is often concurrent with the federal government.  Tribal prosecutions are limited by the Indian Civil Rights Act.
  15. 15. Tribal Sentencing Authority  The Indian Civil Rights Act limits the sentencing authority of tribal courts to:  One year in prison, and/or  A maximum fine of $5000.00.  The typical sentence in state court for rape is at least 4 years.  TLOA will increase sentencing authority to 3 years.
  16. 16. Tom, a tribal member, murders his girlfriend, who is also a tribal member, at their house on the reservation. Who has jurisdiction?
  17. 17. Key Questions  Did the Crime Occur in Indian Country?  Is it a Major Crime?  Is the Perpetrator Indian or non- Indian?  Is the Victim Indian or non-Indian?
  18. 18. Tribal Criminal Jurisdiction: Indian Perpetrators  Within Indian country, tribes have the inherent power to exercise criminal jurisdiction over all Indians (member and non-member).  This power is often concurrent with the federal government.  Tribal prosecutions are limited by ICRA.
  19. 19. Federal Criminal Jurisdiction: Indian Perpetrators  Under the Major Crimes Act, the federal government has jurisdiction over Indians who commit major crimes in Indian country.  Federal jurisdiction is concurrent with tribal jurisdiction.
  20. 20. Now, what if Tom is not a tribal member and he assaults his girlfriend, who is a tribal member, at their house on the reservation? Who has jurisdiction?
  21. 21. Key Questions  Did the Crime Occur in Indian Country?  Is it a Major Crime?  Is the Perpetrator Indian or non- Indian?  Is the Victim Indian or non-Indian?
  22. 22. Tribal Criminal Jurisdiction: Non-Indian Perpetrators Simple Rule: Tribes have no criminal jurisdiction over non-Indians. BUT tribes can exclude non-Indians from the reservation and/or use civil remedies, including the issuance of protection orders against them, to deal with non-Indian abusers.
  23. 23. Federal Criminal Jurisdiction: Non-Indians  Under the General Crimes Act, the federal government has exclusive jurisdiction over crimes by non-Indians against Indians.  The federal government also has jurisdiction over non-major crimes by Indians against non-Indians.
  24. 24. Bob and his girlfriend are both non- Indians. They live on the reservation. Bob assaults his girlfriend. Who has jurisdiction?
  25. 25. Key Questions  Did the Crime Occur in Indian Country?  Is it a Major Crime?  Is the Perpetrator Indian or non- Indian?  Is the Victim Indian or non-Indian?
  26. 26. State Criminal Jurisdiction  States have exclusive jurisdiction over crimes by non-Indians against non-Indians, or victimless crimes by non-Indians.  In Indian country, states have no jurisdiction over crimes by Indians, or over crimes that concern Indians or Indian property unless the federal government has expressly delegated this authority to them.
  27. 27. Indian Country Criminal Jurisdiction Chart Offender Victim Jurisdiction Indian Indian Major Crimes- federal jurisdiction (concurrent with tribe) Other Crimes- Tribal jurisdiction is exclusive. Indian Victimless Tribal jurisdiction is exclusive. Indian Non-Indian Federal jurisdiction (concurrent with tribe) Non-Indian Indian Federal jurisdiction is exclusive. Non-Indian Victimless State jurisdiction is exclusive, only where no interest of the tribe, its members or property is involved. Non-Indian Non-Indian State jurisdiction is exclusive under McBratney.
  28. 28. Tribal Protection Orders  Tribal courts can issue civil protection orders against Indians and non-Indians to protect women from domestic violence.  Tribal courts can fully enforce civil protection orders against Indians and non- Indians.
  29. 29. A protection order is . . . “any injunction or other order issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communications with, or physical proximity to, another person, including temporary and final orders issued by civil and criminal courts.” Violence Against Women Act
  30. 30. Full Faith and Credit for Protection Orders  The Violence Against Women Act (VAWA) requires state and tribal courts to give full faith and credit to protection orders issued by other state or tribal courts.  Full faith and credit means that a legal document from one jurisdiction will be acknowledged as valid and enforced in another jurisdiction.
  31. 31. For Full Faith & Credit, a protection order must be issued:  by a court with jurisdiction over the parties and matter under the law; and  after reasonable notice and opportunity to be heard is given to the person against whom the order is sought.
  32. 32. Full Faith & Credit under VAWA does not require:  That the order be called a “protection” order, “restraining” order, or “no contact” order.  Filing of a protection order in a local state or tribal court for enforcement of the order.  Entry of a protection order in a national database.
  33. 33. Tribal Law and Order Act of 2010  Purpose is “...to reduce the prevalence of violent crime in Indian country and to combat sexual and domestic violence against American Indian and Alaska Native women...”
  34. 34. 2010 Tribal Law and Order Act  TLOA does not solve the criminal jurisdiction issue. But it does:  Require federal prosecutors to maintain data on criminal declinations  Increase tribal court sentencing authority from 1 year to 3 years  Requires federal officials who work in Indian country to testify to support a tribal court prosecution
  35. 35. 2010 Tribal Law and Order Act  The TLOA also:  Authorizes the deputization of special assistant US Attorneys to prosecute reservation crimes in federal courts  Increases deputization of tribal and state police to enforce federal laws  Increases efforts to recruit BIA and tribal police  Allows tribal police access to state criminal history databases
  36. 36. How to Advocate on the International Level
  37. 37. What are Human Rights?  Rights that are inherent to being human  Traditionally, these are considered held by the individual  Every person is entitled to enjoy his/her human rights without discrimination
  38. 38. Human Rights Law  HR law places obligations on countries to act in a particular way to protect people’s human rights  The law does not establish human rights. It guarantees the protection and promotion of those rights.
  39. 39. International Human Rights Law  International law (the law that governs relations between the nations of the world) includes human rights law.  International HR law generally refers to the rights expressed in international legal documents and treaties, international jurisprudence and customary international law.  International HRs are rooted primarily in the UN and regional systems, such as the OAS.
  40. 40. Violence Against Women as a Human Rights Issue  All women have the right to be safe and free from violence  Governments are obligated to ensure that their own officials comply with human rights standards.  Governments are also obligated to adopt effective measures to protect people from human rights abuses by private individuals.
  41. 41. Violence Against Native Women is a Human Rights Crisis  Indian women are more likely to be raped than other women in the US.  Most perpetrators are non-Indian.  According to current scheme of criminal j’d in Indian country, tribes are limited in ability to prosecute these crimes.
  42. 42. Navajo Nation First Lady, Vikki Shirley, testifying before CERD at its 2008 session in Geneva.
  43. 43. What Can be Achieved through International Advocacy?  Raising awareness of an issue  Pressuring the United States Government  Shaming the United States in the international arena  Use international HR standards to promote better laws in the US
  44. 44. Palais des Nations (UN) Geneva, Switzerland
  45. 45. Treaties and Declarations Relevant to Violence Against Women  International Covenant on Civil and Political Rights  International Convention on the Elimination of All Forms of Racial Discrimination  Convention on the Elimination of All Forms of Discrimination against Women  American Declaration on the Rights and Duties of Man  American Convention on Human Rights
  46. 46. UN Committee on the Elimination of Racial Discrimination  Monitors the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)  Receives state compliance reports & issues concluding observations
  47. 47. Palais Wilson: UN Committee on the Elimination of Racial Discrimination NCAI VAWA Task Force on Violence Against Women
  48. 48. ICERD  Principle treaty focused on preventing racial discrimination  Protects rights to equality including equal treatment before the law and security of the person  Obligates states to assure everyone within their jurisdiction effective protection and remedies from racial discrimination
  49. 49. Violence against women is a violation of ICERD:  Right to security of person and protection by the State against bodily harm (Art. 5.b)  The federal government is obligated to ensure Native women receive equal protection of the law (Art. 26); and provide effective remedies when a protected right is violated (Art. 2).  These rights must be protected without regard to race.
  50. 50. CERD Reporting Process  State parties must submit a compliance report every 2 years  NGOs invited to provide “shadow reports” on the state’s compliance  CERD last reviewed the US’ report and the NGOs “shadow report” in February, 2008.
  51. 51. US NGO’s at CERD
  52. 52. NGO’s Present to CERD at Palais Wilson
  53. 53. United States of America Reports to CERD
  54. 54. CERD Concluding Observations The Committee recommends that the State party increase its efforts to prevent and punish violence … against women … by … ensuring that reports of rape and sexual violence against … Native American women, are independently, promptly and thoroughly investigated, and that perpetrators are prosecuted and appropriately punished.
  55. 55. What is the Inter-American Commission on Human Rights?  Independent body of the OAS  Authorized to hear complaints  Can issue recommendations
  56. 56. American Declaration on the Rights and Duties of Man  Sets forth the protected rights and corresponding duties of persons.  Covers civil and political rights, as well as economic, social and cultural rights.  Obligates member states to protect the rights identified in it.
  57. 57. Violence Against Women Violates the American Declaration  Right to life and to be free from inhumane treatment (Art. I)  Right to be free from any form of discrimination (Art. II)  Right of women and children to special protections (Art. VII)  Right to privacy and home (Arts. V, VI, and IX)
  58. 58. Affirmative Obligation to Protect Women from Violence  US has an affirmative obligation to protect the rights guaranteed in the American Declaration from violation  A nation state has an obligation to act with due diligence to protect women and children from violence (Art. VII)
  59. 59. Gonzales v. United States  First case against the US addressing violence against women.  Alleges that US failure to enforce a protection order violates a woman’s rights to life, security of the person, right to judicial remedy under the American Declaration.
  60. 60. Facts of Case  Jessical Gonzales’ estranged husband abducted her 3 daughters, in violation of a DV restraining order. She contacted the police who failed to act. The children were then killed.  Ms. Gonzales filed a lawsuit against the police. In 2005, the US Supreme Court held that she had no constitutional right to police enforcement of her restraining order.  She filed a petition with the IACHR, alleging that the police and the Supreme Court’s decision violated her human rights under the American Declaration.
  61. 61. Gonzales case and Native women  Finding against the US in this case would benefit Native women because many law enforcement officers are unable and/or unwilling to enforce protection orders against non-Indians  Especially important for Native women because due to limited jurisdiction, often tribes can only protect Native women through protection orders
  62. 62. Esperanza Lujan, ILRC Human Rights Policy Specialist, testifying before the IACHR in March 2007
  63. 63. For more information: Indian Law Resource Center 602 N. Ewing Street Helena, MT 59601 (406) 449-2006 www.indianlaw.org

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