Civil Legal Remedies For Native Sexual Assault Survivors Southwest Center for Law and Policy and Victim Rights Law Cente

1. Civil Legal Remedies For Native Sexual Assault Survivors Southwest Center for Law and Policy and Victim Rights Law Center Presented by: James G. White (Citizen Potawatomi Nation) and Jessica Mindlin Materials by: Hallie Bongar White and VRLC

2. Goals of Teleconference • Introduce civil legal response to SA • Begin dialogue re: difference between SA and DV • Overview of legal remedies for Native SA victims in civil areas • Identify barriers to advocating for and representing Native SA victims

3. Reality of Sexual Assault • 67% of SA cases are non-domestic sexual assaults • 29% of assaults are committed by acquaintances (i.e. friend, coworker, neighbor) • 22% of assaults are committed by strangers • 16% of assaults are committed by other relatives • 76% of all sexual assault cases do not have DNA evidence to support the case • NOT a miscommunication between two people, but premeditated • Perpetrators look for vulnerabilities • Destabilizes all areas of victim’s life • Results in long-term social, economic, physical and psychological harms

4. Scope of SA in Indian Country • Native victims have the highest rates of sexual assault of any population • Highest rates of multiple perpetrator sexual assault of any population • Highest rates of sexual assault in a public place (parking lots, etc.) of any population • Highest rates of serious physical injury during sexual assault of any population • Native victims more likely to be sexually assaulted by a non-Indian than an Indian

5. Additional Issues • Shortage of Sexual Assault Nurse Examiners (SANEs) in Indian Country • Jurisdictional barriers: no criminal jurisdiction over non-Indians who commit the majority of sexual assaults • Low maximum penalties in tribal courts: $5000 fine and up to one year of incarceration for “Indian” defendants • High federal declination rate in prosecuting sexual assaults • Jurisdictional void

6. More Indian Country Issues • Tribal law enforcement lack training in effectively investigating sexual assault crimes • Lack of access to forensic laboratories to process DNA (cost, distance, etc.) • Lack of training of tribal prosecutors and tribal courts on sexual assault • Historical trauma: rape as a weapon of the colonizers, child sexual abuse in boarding schools, forced sterilization, etc. • Low reporting levels of sexual assault: shame, mistrust of criminal justice system, etc.

7. Indian Civil Rights Act • Remember: ICRA applies in Indian Country • Due Process (right to notice and the opportunity to be heard) in criminal and civil cases • Difference between civil and criminal law = potential loss of liberty triggering additional protections • Significant for sexual assault cases: no ICRA right to indigent counsel for defendants

8. Criminal Justice System Response Nationally • 16% of rape victims nationally report the crime to law enforcement. • 98% of rape victims will never see their assailant apprehended, convicted and incarcerated. • 54% of rape prosecutions result in either a dismissal or an acquittal. • Approximately 1 in 10 rapes reported to the police result in time served in prison; 1 in 100 rapes (including those that are unreported) result in a sentence of more than one year in prison. • A rape prosecution is more than twice as likely as a murder prosecution to be dismissed. * Violence Against Women: The Response to Rape: Detours on the Road to Equal Justice, Report Majority Staff of the United States Senate Judiciary Committee, 103 Congress, May 1993. * For general review of this issue, see also David P. Bryden and Sonja Lengnick, Rape in the Criminal Justice System, 87 J. Crim. L. & Criminology 1194 (1997).

9. Limits of Criminal Justice Response • Problems: • DA’s, US Attorneys, and tribal prosecutors are NOT the victim’s attorney • Lack of privacy protections • Lack of control for victim • Re-traumatization • Most victims do not report to police • Lengthy process ≠ timely assistance

10. Restraining or Protection Orders Education Employment Privacy Safety Housing Financial Family Tort Criminal Justice Advocacy Unmet Civil Legal Needsof Native Sexual Assault Survivors

11. Transforming the Legal Response to SA Reality Sexual assault creates a powerful domino effect that impacts a victim’s entire social and economic life. One incident of sexual assault can lead to an overall destabilization of a victim’s housing, employment, schooling, privacy, immigration status and long-term financial welfare. Mission One victim, one lawyer – this relationship can alter the course of a rape victim’s life forever. The mission of the Victim Rights Law Center is to provide individual legal representation to prevent further harm and help victims stabilize their lives in the aftermath of an assault, promoting healing and long-term social and economic security. Our vision is to build a national cadre of lawyers committed to seeking justice for every rape and sexual assault victim nationwide.

12. Civil Legal Needs: Relatively New To Indian Country • Only within the past 10 years has there been a focus on civil proceedings to protect Native victims and to win safety and justice for victims. • Shortage of legal services providers (attorneys and lay legal advocates) in Indian Country. Note: non-law school trained lay legal advocates can represent victims in most tribal courts. • Relatively rare to see a tort-personal injury suit against a rapist in tribal court • However, protection orders, restraining orders, employment law, housing law, public benefits, etc. all are increasingly common.

13. Victim Rights In Indian Country Criminal Cases • Crime Victim Rights Act = federal law providing enumerated victim rights, including the right to counsel in criminal matters. • Most states have crime victim rights legislation • Few tribes have crime victim rights codes • Representing Native victims in tribal court criminal matters: you will be a trailblazer and will have to explain to the court why you should be allowed to represent the victim in criminal proceedings

14. Precedent And Custom and Tradition • When filing a notice of appearance (aka entry of appearance) in tribal court as a victim rights attorney in a criminal case you can argue: federal CVRA , state victim rights, and other tribes allow representation of victims. • Tribal custom and tradition: most tribes did not have a victim stand alone during dispute resolution mechanisms. • Similarly, in civil cases you can argue custom and tradition for imposition of restitution orders, expulsion, etc.

15. Remember: DV and SA are Different Three major differences: • Issue and client dynamics • Intake and assessment • Representation and advocacy

16. SA vs. DV:Issue and Client Dynamics • Privacy • Stigma • Victim blame • Assailant dynamics/reality • Usu. one incident only • Will only tell one person (typically not police)

17. SA vs. DV:Intake and Assessment • Trust and rapport are critical • Minimize victim blame • Traumatic memory => inconsistencies, trouble with chronology • Address upfront and directly • Allow space for victim to report details as s/he remembers

18. Comfort with Sexual Assault • Topic may be uncomfortable for client, but it may also be uncomfortable to you or folks in your agency • Not understanding differences between SA and DV dynamics • Not understanding reality of SA • Discomfort with language of SA • Many people are uncomfortable talking/asking about sex, body parts, and the details that come with SA cases

19. Cultural Issues • Native women may have taboos about speaking about sex or about their bodies, especially with members of the opposite sex • Developing trust with Native clients when you are non-Native or a member of a different tribe: educate yourself culturally and about the community • Explaining communication styles to prosecutors and courts: not making eye contact is a sign of respect, etc.

20. Intake and Assessment cont. • Issues unique to SA: • Consent • Credibility • Intoxication

21. Intoxication Issues For Native Victims • “Dry” reservations may cause victims not to report sexual assault for fear of being arrested themselves for drinking • Stereotypes of Natives and alcohol may impact criminal justice response and the system’s assessment of victim credibility

22. SA vs. DV:Representation and Advocacy • Presenting SA cases to decision-makers (i.e. judge, school administration, housing authority) requires a different approach • Many may be uncomfortable with fact scenarios that are based on sex • Need to make special efforts to protect victim privacy • If you are uncomfortable, everyone else will be uncomfortable

23. SA vs. DV:Representation and Advocacy cont. • Legal Remedies Differ • Most SA victims are not eligible for state or tribal protective orders • Generally, SA victims do not need help with divorce, custody, child support, etc. • Housing, employment and some immigration remedies do not offer protections to victims who are not spouse or intimate partner of the perpetrator • Safety plans typically presume relationship and require victim to know perpetrator’s address, work, etc.

24. Core Civil Legal Issue Areas: Nationally • Keeping victim in school via accommodations • Keeping victim in job via accommodations • Protecting privileged and confidential mental health and medical records • Advocating for legal immigration status • Securing safe housing • Physical safety measures • Economic security • Tort

25. Core Issues: Indian Country • Non-Indians commit majority of sexual assault crimes + high federal declination rate = zero consequences for rapists unless there are civil legal consequences • Low maximum sentence for sexual assault for Indian defendants = low penalty, justice and protection for serious crime unless there are accompanying civil remedies

26. Civil Jurisdiction In Indian Country: The First Hurdle • Extremely complex • Must have subject matter jurisdiction and personal jurisdiction before tribal court can order civil remedies. • Personal jurisdiction: court’s power over the rapist/defendant. Usually presence on tribal lands is sufficient as minimum contacts. • Subject matter jurisdiction: court’s power to hear the topic underlying the litigation. Must look to tribal codes and to federal case law to determine subject matter jurisdiction.

27. Subject Matter Jurisdiction • 1. Indian Country: Sexual Assault (the matter giving rise to the litigation) must have occurred in “Indian Country” • (a) all land within the limits of any Indian reservation within the jurisdiction of the United States government notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation,

28. Indian Country cont’d • (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights of way running through the same

29. Exclusive Civil Jurisdiction Of Tribal Courts • Tribes have exclusive jurisdiction over any civil case involving an Indian defendant when the underlying claim arose in Indian Country • This includes civil actions brought by non-Indian plaintiffs against Indian defendants.Williams v. Lee, 358 U.S. 217 (1959), Strate v. A-1 Contractors, 520 U.S. 438 (1997). • Unclear whether the exclusive civil jurisdiction of tribal courts also extends to Indian defendants who are citizens/members of other tribes. Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980).

30. Civil Protection Orders • Violence Against Women Act clearly recognizes the power of tribal courts to issueand enforce domestic violence protection orders against non-Indian defendants. • However, tribes must still make a showing that the court possessed both subject matter and personal jurisdiction over the parties when both issuing and enforcing these orders See: 18 USC § 2265

31. Montana v. United States, 450 U.S. 544 (1981). • Held that tribal courts have no civil regulatory authority over non-Indian defendants on fee land owned by non-Indians located within a reservation unless one of the following factors apply: • 1) the parties had entered into a consensual relationship with the tribe or its members through commercial dealing, contracts, leases or “other arrangements” or 2) the conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.

32. Strate v. A-1 Contractors • US Supreme Court held that • a tribe had no civil jurisdiction over non-members involved in a traffic accident that occurred on non-Indian fee land ( a state right-of-way running through the reservation). • absent Congressional direction enlarging tribal court jurisdiction, the civil authority of Indian tribes and their courts over non-Indian fee lands generally does not extend to the activities of non-members of the tribe.

33. Do Tribes Have More Criminal Jurisdiction Than Civil? • Therefore, if neither of the two Montana factors apply, tribal courts may not exercise civil jurisdiction over non-members on fee lands. • The “Duro fix” returns tribal criminal jurisdiction over non-member Indians on fee lands and on rights-of-way. 25 U.S.C. Sec. 1301(2) and 18 U.S.C. Sec 1151(a). • Tribes may therefore possess greater criminal jurisdiction (which involves the loss of personal liberty) than civil jurisdiction over non-citizen/member Indians. Also see United States v. Lara, 541 U.S. 193 (2004).

34. Unanswered Questions • Left unaddressed is whether tribes may exercise civil jurisdiction over non-Indians and over non-citizen/member Indians in actions arising on tribal lands. • In the absence of any specific guidance from the United States Supreme Court, the most prudent approach is for tribal courts to make specific findings in every civil case as to the following:

35. Tribal Civil Orders Should Address… • whether the Due Process requirements of the Indian Civil Rights Act 25 U.S.C Sec. 1301 et seq. of notice and opportunity to be heard have been complied with; and • whether the defendant is a citizen/member of the tribe, a non-Indian, or a citizen/member of another tribe; and • whether the incident giving rise to the civil litigation occurred on tribal land, on fee land, or on non-tribal rights-of-way ;and

36. Tribal Civil Orders cont’d • whether the parties had entered into a consensual relationship with the tribe or its members through commercial dealing, leases, or “other arrangements,” or • whether the conduct in question threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.

37. Tribal Civil Remedies • Tribal courts and legal practitioners can be creative in civil remedies • Can look to custom and tradition: what civil-like consequences did they traditionally impose when someone was sexually assaulted? • Example: Navajo Nation Code §203 (G) recognizes the importance of inclusion of elders, medicine people, and teachers of traditional laws, values, and principles in guiding the courts in their imposition of remedies and in providing a framework for the administration of justice.

38. Contempt of Court – Tribal Courts • All courts have the inherent power to punish those persons who have shown disrespect to the individual judge or to the judicial system or • to those who have engaged in behaviors which are intended to disrupt the administration of justice. • Courts also have the power to take actions to encourage persons to comply with orders previously issued by the court. • 3 types of contempt: criminal, summary and civil

39. Criminal Contempt of Court • Criminal contempt = acts intended to show disrespect to the court and/or to obstruct the administration of justice. • Also for willfully disobeying a lawful court order   • Punitive in nature and can result in incarceration, a fine, or both. • Intended to punish past conduct and are usually initiated by the tribal prosecutor. • Contemnor entitled to tribal and ICRA protections • The burden of proof on the tribal prosecutor. • tribal courts can’t not hold non-Indians in criminal contempt of court.

40. Summary Contempt • Also called “direct contempt.” • Used to maintain the orderly administration of justice, e.g. to suppress acts of violence or disrespect that occur in open court. • Example: shouting expletives inside the courtroom while the court is in session or physically attacking (or threatening to physically attack) court personnel in the courtroom while the court is in session. • Court can summarily detain a non-Indian contemnor to preserve the safety, integrity, and order of the court.

41. Civil Contempt • Purpose is to encourage prospective, future compliance with a previously issued court order issued for the benefit of another party. • Remedial in nature and can’t be used to punish. • Generally, initiated by “show cause” hearing with burden of proof, typically by a preponderance of the evidence, on the contemnor to demonstrate that 1.) the alleged contemptuous behavior was not willful or intentional and 2.) he did not have the ability to comply with the court’s order.

42. Civil Contempt cont’d • Civil contempt can result in the imposition of fines and/or in the detention of the contemnor. • Detention cannot be ordered as punishment. It can only be ordered as a means to force compliance with a court’s previously issued order. • The contemnor “holds the keys to the jail” and can earn his freedom by compliance with the previously issued court order.

43. Civil Contempt cont’d • Tribal courts may hold non-Indians, non-citizen/member Indians, and citizens/members in civil contempt of court. • Although civil contempt may result in detention, the proceedings are civil in nature and do not trigger the same right to counsel or due process safeguards as in criminal contempt proceedings. • Before any civil contemnor may be held in detention, the court must make a finding that the contemnor willingly or intentionally violated the court’s order and that he had the ability to comply with the order.

44. Other Civil Remedies In Tribal Court For Indian And Non-Indians • Fines: no $5000 limit as in criminal cases but fines can’t be excessive (but what is excessive?) under ICRA • Community Service (chopping wood, clearing ceremonial grounds, etc.) • Restitution: can include traditional forms such as providing meat for the winter, tending an injured victim’s garden, payment for ceremonies for victim, etc. • Shame Example: Wear a sign that says “I am a rapist.”

45. Other Civil Remedies • Injunctions Examples: protection orders, stay away from tribal governmental offices and businesses, etc. • Forfeiture: property was used to commit a crime. Once the government makes showing of probable cause, burden shifts to owner to show that the property was not used to commit a crime. Can include vehicles, mobile homes, trailers, etc. where sexual assault committed. • Exclusion or banishment

46. Civil Remedies cont’d • Posting of a Peace Bond • Civil Commitment • Treatment and classes • Civil Arrest: Tribal courts can issue civil arrest orders against any person for failing to comply with a court’s previously issued order =.person apprehended and detained by tribal law enforcement for a reasonable amount of time until the court can convene an evidentiary hearing to determine whether a violation has occurred.

47. Civil Regulatory Powers of Tribes • removing the name of a rapist from the lease of a tribal housing property or reassigning the lease to the victim • restricting access or rescinding a business license with the tribe • limiting a person’s access to tribally funded benefits (such as barring small business loans or limiting access to the tribally funded gym) • restricting or rescinding hunting or fishing licenses or privileges • disenrolling the person as a member of the tribe

48. Civil Regulatory cont’d • rescinding future per capita disbursements • restricting access to tribal employment or to certain types of tribal employment (such as positions working with youth, the elderly, or other vulnerable persons)

49. EducationConcerns • The assault happened on campus, off-campus housing or at a school event. • The victim was assaulted by another student or by a school employee (faculty, staff or administrator). • The sexual assault is affecting the victim’s ability to stay/succeed in school. • The school’s response has been unsupportive. • The victim feels unsafe at school. • The school knew of a security risk and did not adequately protect the victim (tort lawsuit –LAV grantees may provide referral but possibly tribal sovereign immunity if tribal college).

50. Civil Attorney Role in Education • Represent victims in disciplinary actions (even if an advocate is not permitted at the actual hearing) • Advocate with school officials about accommodations • Add/drop classes • Leaves of absence • Student loans/tuition concerns • If perpetrator is a classmate, an attorney can help: • Maintain confidential & private information • Address scholarship/work study concerns • Try to contain gossip • Bring complaint against school to Department of Education