The Trial of The Chicago 7

If you’re watching The Trial of The Chicago 7 on Netflix, here’s a fabulous photo from the trial, courtesy of David Fenton, who took it from the trial at age 17.

I tried a criminal case in 1990 (Danbury) against William Kunstler (far right) who believed no press was bad press. The movie doesn’t do him justice, predictably. Kunstler was as good a natural cross examiner as I’ve ever seen. And he was rather theatrical in our little CT trial. I learned many valuable lessons from that trial and from being opposing counsel.

Photo: From left Lenny Weinglass, Rennie Davis, Abbie Hoffman, Lee Weiner, Dave Dellinger, John Froines, Jerry Rubin, Tom Hayden and Bill Kunstler. Courtesy of David Fenton

The trial was so colorful, so impactful, it is a real shame Aaron Sorkin didn’t recreate it accurately. I expected more from Sorkin, don’t you?

Photo: Leonard Weinglass, left and William Kunstler, right, after Kunstler was sentenced for contempt. Photo: David Fenton

Lessons I learned from Bill Kunstler:

  1. The trial is not over when the case is presented to the jury. Never stop arguing, advocating. Kunstler beat me during jury deliberations on read-back strategies.
  2. You can’t fight history. The judge was dealing with a legend and was going to give him the benefit of the doubt in every ruling.
  3. There is no such thing as bad press. Kunstler was running out of the courtroom through the whole trial making pay-phone calls to journalists as he read the daily headlines in the NY Times.
  4. A really good cross examiner through a skilled cross will pounce on the exposed weakness of a witness.
  5. Take really good notes during the trial, or have somebody do it. Kunstler took exquisitely detailed notes during the jury deliberations. I asked him why he was doing that. “I once won a case on it,” he said. And his second seat, the famous Ron Kuby, helped with note taking. But not much more.
  6. You’d be surprised how a well delivered line can have an impact on a jury. During his summation Kunstler, in a booming deep voice, warned the jury that if they convicted, ruined, this “pillar of the community” doctor on such flimsy evidence, one day they would “wake up screaming.” What a great and vivid image.
  7. Take the long view on life. There was more at stake in the case than me, a 31 year old rookie prosecutor, winning that one case.

A Prayer For Peace

In 2013, while pursuing my degree in Indigenous Law, I was asked by Navajo Nation Justice and Professor Raymond Austin to preside over a peacemaking session. I did. It was instructive. This is the prayer I wrote and delivered to start the session. I cannot take all of the credit, I arranged the thoughts, but with inspiration from several Lakota, Navajo, indigenous and Jewish prayers and concepts.

 

PEACEMAKING PRAYER  

By James D. Diamond

 

Great Spirit, whose voice we hear in the thunder on the mountains.

Today as we sit together in this place let us surround this family with a canopy of peace.

Let the wisdom of our ancestors fill our minds.

Give us sharp ears to hear your voice,
and eyes to see the light and the truth and the wisdom that is hidden in the earth.

Make us wise so can understand how the lessons you taught our ancestors answer the questions of today.

Help us find kindness and compassion owed to our brothers and sisters.

We ask you to restore to strength to anyone who is in pain or who suffers.

And give us the strength not to battle each other but to conquer the monsters that dwell within ourselves.

 

 

Copyright 2013: James D. Diamond

Life During the Age of Contagion — April and the Link to Mass Murder

James D. Diamond April 6, 2020 Published in  InsideSources

The month of April will be the among the most challenging months in American history. The physical, mental and emotional well-being of the nation is at hope’s edge, as our nation comes to grips with a global pandemic and dire economic consequences. For many mass shooting survivors and their communities, though, April is challenging for another reason: The five days between April 15-20 have been notoriously marked with the intentional spilling of innocent blood.

On April 15, 2013, terrorists killed six and seriously injured 280 in the Boston Marathon attack. April 16, 2007, was the school shooting at Virginia Tech University. On April 19, 1995, a mass murderer killed 168 innocent victims and seriously wounded more than 680 in the Oklahoma City bombing. And on April 20, 1999, there were the murders of 15 at Columbine High School in Colorado. The connection between the April dates is no coincidence.

Sadly, several killers sought to “outdo” the massacres that preceded their carnage and there exists a link between a series of massacres occurring in April, and the selection of massacre dates to coincide with the massacre anniversaries. It starts with April 19, 1993, the date law enforcement officials raided a compound near Waco, Texas, resulting in a lengthy standoff and 86 fatalities. Next, the two terrorists at Oklahoma City who drove a truck-bomb to the Murrah Federal Office Building selected the Waco anniversary; two years later, on April 19, 1995, they conducted a terrorist assault that killed 168 people. Then, with a goal of killing more people than the terrorists did at Oklahoma City, the two school shooters at Columbine High School picked April 19 for their massacre — postponed by an unknown reason to April 20. On April 20, 1999, the two high school boys murdered 15 innocent students and teachers, seriously injuring many more. The tragedy at Columbine, then, took on great importance for several rampagers who followed them. Killers at Sandy Hook Elementary School in Connecticut and Virginia Tech studied and obsessed over Columbine, as did many others.

 

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Anguished students embrace during the rampage at Columbine HS (Photo April 20, 1999 by George Kochaniec Jr Rocky Mountain News)  

How do communities, victims and survivors deal with the aftermath of mass shootings?

In my book, “After the Bloodbath: Is Healing Possible in the Wake of Rampage Shootings?,” I examine the aftermath of mass shootings and compare community and legal responses to responses in indigenous communities, with special attention devoted to restorative and therapeutic justice. I compare the aftermath of several shootings with a fatal massacre that occurred in March 2005 at the Red Lake High School on the reservation of the Red Lake Band of Chippewa Indians in northern Minnesota. For example, at Red Lake, in contrast with other massacres like Newtown, the family of the killer did not have any difficulty finding a place to bury the shooter, and the killer was given a traditional funeral and mourning rituals, which were well attended. Just as in Newtown, at Red Lake, a family member, the shooter’s grandfather, was the first victim, and like Newtown, access to the guns used could be attributed to the family member. Yet, at Red Lake the shooter’s grandfather was counted as a victim and, in contrast to many other rampages, not blamed for the killings. The grandfather was given a hero’s funeral which was very well attended.

What was most remarkable, though, was that the tribe included the killer’s family in distribution of victim compensation funds, helping to pay for his funeral expenses. In Red Lake, parents of victims thought the murderer deserved some recognition from the community so he would not, as a human being, be forgotten. A number victims’ relatives forgave the killer and considered the circumstances preceding the massacre.

There are more than 500 American Indian tribes in the United States and more than 200 tribal court systems. Indigenous peoples have a long history of restorative practices and engage in something called “peacemaking courts,” where they invite in elders, relatives and spiritual leaders and move toward restoring social bonds and healing the frayed social fabric. There are more lessons we can take from how indigenous peoples deal with mass shootings. Parents and family members of mass murderers, typically mourning as well, should be given empathy and, at a minimum, not treated as community pariahs.

While the world struggles in April to deal with the very real public health emergency, community cohesiveness, kindness and empathy are at a premium. The festering wounds associated with the still unresolved public health threat surrounding mass shootings, the linked suicide crisis, and a long list of suffering survivors will be painful throughout the month.

We have a lot to do to heal our planet.

After 15 Years, Red Lake Shooting Survivors Are Still Suffering

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The following National View Column appeared on March 20, 2020 in The Duluth News Tribune 

 

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The Cedar Creek Singers perform in Duluth at a memorial for the victims of the Red Lake school shooting. Photo: Duluth News Tribune, 2005 

by James D. Diamond 

While the world struggles to deal with a very real public health crisis, community cohesiveness, kindness, and empathy are at a premium. There is a complexity to healing, though, and the newest threat does not eliminate those in the community already suffering — many invisibly. The wounds related to the looming public health threat surrounding mass shootings, the linked suicide crisis, and post-traumatic stress still fester.

Saturday, March 21 marks the 15-year anniversary of the school shooting at Red Lake High School on the Red Lake Indian Reservation in northern Minnesota. Although occurring somewhat sequestered from the public spotlight and amidst an independent indigenous sovereign, in many ways the 2005 rampage resembled other school shootings. A suicidal male student stole his grandfather’s guns, killed his grandfather and his girlfriend, broke into his own school, and shot a teacher and teenagers before taking his own life. Sadly, it has become a common American narrative and pattern.

At Red Lake there were warning signs. There are always warning signs, which, somehow, if heeded, might prevent tragedy. The warning signs at Red Lake, each taken alone 15 years ago, were not so alarming to make him a likely mass shooter. After the fact, though, they painted a very troubling picture. Not uncommon, the shooter at Red Lake was an obviously suicidal teenager crying for help. And, he had access to guns.

READ MORE 

James Diamond’s Interview on Arizona Public Media

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From Arizona Public Media: January of 2020 marks the ninth anniversary of the mass shooting in Tucson that killed six people and injured thirteen, including then-Congresswoman Gabrielle Giffords. Emma Gibson, the tribal affairs reporter at AZPM, spoke with lawyer, professor and author James D. Diamond about his book After the Blood Bath: Is Healing Possible in the Wake of Rampage Shootings?, which compares how Indigenous and non-Indigenous communities cope with the results of mass shootings.

Diamond AZPM Interview (Arizona Spotlight) January 16, 2020

Original link: radio.azpm.org/p/radio-azspot-ep…old-and-the-boys/ 

 

Can Hate Beget Healing? Looking Back at 2019 and for a Silver Lining in Responses to Rampage Shootings

In 2019, many lives were lost at the hands of mass shooters. These tragedies occur so frequently they have become the new normal. Nobody is surprised anymore. But, as 2019 came to a close, at least one small step was taken to address mass and school shootings—revisiting federal funding for the study of causes of gun violence.

We know so little about why men—and it is primarily men—go on shooting, mass murder rampages. As someone who spent decades teaching and practicing criminal law, my hypothesis is that the crisis is closely associated with suicide. Suicide is now the fourth-leading cause of adult deaths. Consider that in most, but not all, mass shootings, the killer expects to die in the melee in shootouts with responding police, or they actually kill themselves before the police can. Looking at the big picture, if you add in the availability of guns (powerful guns and ammo) plus the prevalent social conditions of depression, hopelessness, loneliness and isolation, bullying at schools, mental health and mental illness and intimate partner violence, the picture becomes slightly clearer.

What’s the best way to find out if mass shootings are really part of the suicide epidemic?  Medical research. Since 1996 the Center for Disease Control and the National Institute for Health were prevented by Congressional legislation from studying gun violence and causation in general. The move to cut the funding arose in response to efforts made in the early 1990s to begin treating gun violence as a public health issue. The 1996 legislation was called the “Dickey Amendment,” named after Congressman Jay Dickey of Arkansas. Dickey led the movement to add language to the 1996 federal budget that said that “[n]one of the funds made available in this title may be used, in whole or in part, to advocate or promote gun control.” Of course, medical research is not advocacy, but the language was included in every federal budget since. As a result, medical research became part of the overall gun control battle and fell victim to political gridlock. Some progress was made to clarify the intent of the research and the language in 2018, after the Parkland Marjory Stoneman High School massacre.

At the end of 2019, finally, $25 million was set aside set aside for the study.

Something else noteworthy happened in 2019. Some progress was made in how communities respond to mass shootings. It’s a subject I cover in a recent book, After The Bloodbath, Is Healing Possible In the Wake of Rampage Shootings? In the book, among other topics, I look at how a community responded on the reservation of the Red Lake Band of Chippewa Indians after a fatal shooting at Red Lake High School. Consider, in 2019, two sisters, Tana and Brooke Risley. Brooke is a student at Saugus High School in Santa Clarita, California, and Brooke is a recent graduate of the school. Last month, there was a fatal school shooting at the high school when a 16-year-old student opened fire with a .45 caliber handgun, killing two students and injuring several others before firing one last gunshot to his head. In the aftermath of the melee, Tina and Brooke created a GoFundMe campaign to raise money for the mother and sister of the shooter. Similarly, in 2005 the Tribal Council at Red Lake made efforts to support the killer’s family and help them pay for funeral costs.

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Memorials in front of Saugus High School, November 19, 2019. Photo by David Crane, Los Angeles Daily News

“It is times like this that we must band together,” wrote the Risleys, “not to support the shooter and his actions, but to support his family. It is time to spread love, support kindness … Kindness is unconditional and constant. You are kind even when you don’t need to be, even when it is not convenient to be.”

In showing compassion to the family of the Red Lake school shooter, the people in Red Lake were not looking for recognition. The same goes for the Risley sisters. These days it’s a struggle to find anything upbeat to say about the shedding of so much innocent blood. Yet, Tana and Brooke found a way to light a spark of goodness amid painful darkness. Perhaps more light will be revealed into the causes of this deadly scourge after further federal medical research.

If the sisters in Santa Clarita are the future—as well as the children of Parkland in 2018 and other brave children of 2019—perhaps there is still hope for the rest of us.

James D. Diamond is the author of the book, After The Bloodbath: Is Healing Possible in the Wake of Rampage Shootings? He is dean of Academic Affairs of the National Tribal Trial College, holds a Doctor of Juridical Science degree (S.J.D.) from the University of Arizona College of Law and is the former director of the Tribal Justice Clinic there.

 

 

20 Facts About Mass Shootings You May Not Know

Red Lake Jeff May 10 yrs later
Jeffrey May at his home in Redby, MN on the Red Lake Reservation. 10 years earlier May saved countless students who were being shot by jumping the school shooter who paused to reload.  Photo: Jennifer Simonson, MPR News

  1. NASA Astronaut Mark Kelly saw mistaken TV news reporting that his wife, Gabby Giffords was killed in a mass shooting before he jumped on an airplane from Houston, TX to Tucson, Arizona.
  2. Liviu Librescu lived through a Nazi concentration camp in Romania only to be killed by the school shooter at Virginia Tech.
  3. The Marjory Douglas Parkland High School killer took an Uber to the rampage, packing his AR 15, ammunition and smoke bombs in his bag.
  4. When the UT Austin tower killer tried to take the elevator to the top of the tower to perpetrate the murders, the elevator was not working. He found a campus employee who activated the elevator for him.
  5. A significant number of mass shooters, at least 9 killed a family member first before going on a shooting rampage.
  6. While the school shooter at Red Lake High School, MN paused to reload his rifle, fellow student Jeffrey May tried to stop the attack by jumping the killer with a pencil; he was doing his math homework in study hall before the shooting.
  7. The killers at Columbine High School selected April 20th for their killing because it was Adolph Hitler’s birthday and was the anniversary of the Oklahoma City federal building tragedy.
  8. California woman Hannah Sindaha survived the Las Vegas Rte. 91 concert massacre, then a year later survived the Thousand Oaks barroom massacre. The day after Thousand Oaks she had to evacuate her home due to the Woolsey fire that claimed 3 lives.
  9. The F.B.I. does not have an official definition of a “mass shooting,” but Congress defined a “mass murder,” and changed it in 2013 from an incident with at least four fatalities to one with three.
  10. Mass shooters are male, with very few rare exceptions.
  11. Conspiracy theorists waged a campaign to convince the world the twenty children killed at the Sandy Hook Elementary School were not really killed, their coffins were empty, and their grieving parents were actors.
  12. In 1977 Stephen King wrote a novel about a fictitious high school shooting titled “Rage” under the pseudonym Richard Bachman. The book became associated with school shootings. Finally, after a copy of the book was found in the locker of Heath High School shooter Michael Carneal, King allowed the book to go out of print.
  13. There are often visible warning signs before a mass shooter acts. In one unusual case, the case of the murders at the AME Church in Charlestown, a friend of the killer was arrested and sent to prison for knowing about the planned spree and failing to take action to prevent it.
  14. The mass killer at the movie theater in Aurora, Colorado claimed he picked the midnight showing of Batman movie Dark Knight Rises for his killing, thinking there wouldn’t be children in the theater at that hour. There were. He killed a 6-year-old girl.
  15. Because he was such a prolific gambler the Mandalay Bay Hotel gave Las Vegas Route 91 concert killer a free luxury suite that usually cost nearly $600 a night and allowed him to move his luggage containing a vast arsenal in the service elevators. He killed fifty-eight and wounded more than 800 people.
  16. Christina Taylor-Green, the nine-year-old victim killed in the Tucson massacre was the granddaughter of former baseball manager and player, Dallas Green. Green managed the New Yankees and other teams in the 1970’s-1990’s.
  17. Newspaper reporters at the Capital Gazette massacre in Maryland had the difficult assignment of having to write about a shooting they themselves witnessed, one that claimed the lives of their colleagues.
  18. In preparation for the massacre the Columbine killers stored in their bedroom closets the bombs they built and used in the massacre.
  19. After a fatal shooting at Red Lake High School, which is located on the Reservation of the Red Lake Band of Chippewa Indians, the Tribe used donations to help pay for the funeral of the shooter. That payment is unprecedented.
  20. The phrase “going postal” is believed to have been originated as a result of the 1986 massacre in Edmond, Oklahoma where a postal employee went on a workplace rampage, killing fourteen and injuring 7. The employee, a former Marine, received a series of negative performance reviews and was reprimanded earlier in the day before the killings. One of the victims of the massacre was the thirty-three-year-old Mike Rockne, grandson of Knute Rockne, the legendary Notre Dame football coach.

[James D. Diamond’s 2019 book, After The Bloodbath: IS Healing Possible In The Wake of Rampage Shootings is now available from the publisher, MSU Press  from your local bookstore, and all major digital booksellers like Amazon and Barnes and Noble. ]

“Where Angels Play:” Emilie’s Shady Spot

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Children play as playground opens in New London Connecticut, November 17, 2013. Photo, YouTube

(This post was originally appeared in The Huffington Post on December 13 2017 and was updated in 2019).

They would be 13 or 14 years old now, and in the eighth grade. Maybe they’d be learning in school about American history and slavery and reading the novel Lord of the Flies. But those 20 innocent schoolchildren never made it out of first grade.

It’s been nearly seven years since the 2012 massacre at Sandy Hook Elementary School in Newtown, Connecticut. The bloodshed attributed to rampage shootings continues at a frenetic pace; to my count there have been more than 30 mass shootings since that unspeakable tragedy. While progress is being made in some related fields—school safety and neurological medical research, for example—the sheer number of incidents and innocent lives lost is so painful that whatever steps forward we are able to take get lost in a tsunami of profound sadness and regression. Sometimes it’s all we can do to brace ourselves for the next.

Rampage murders bear a striking resemblance to another American crisis—that of suicide. In most cases that’s what a rampage is. The murderers know they’ll be killed and often kill themselves before police can. That’s exactly what the Newtown killer did. Suicide is so preventable, but it is now the 10th-most common cause of death in the U.S. and, relevant to rampages, the second highest cause of death among young people. The most notable and striking difference between the rampage and most suicides is the rampager also kills many innocent people.

The motives of rampage killers like the Newtown murderer or the 2017 Las Vegas killer are unknown. Perhaps there’s something to be learned from the rare rampager who survives, like the killer in Aurora, Colorado (the 2012 “Dark Knight” theater massacre), or Tucson, Arizona (the 2011 “Congress on Your Corner” massacre).

There is persuasive evidence that rampage killers study the rampagers who came before them, even obsess about them, as the Newtown killer did. They try to outdo their predecessors and achieve a notoriety in death that was unachievable in life. On that point, I believe it would be a significant step toward progress if major news media stopped using killers’ names (as I did here), stopped publishing their pictures, ignored their rants and stopped declaring their murders as “the deadliest.” Why award bloodthirsty murderers with titles and achievements, like trophies on a mantel? The more we make these killers famous, the more we are assuring that there will be someone (or multiple someones) intent on breaking these “records” of infamy.

I went to a very moving ceremony a few years ago to honor the memory of Emilie Parker, one of the little angels murdered in Newtown. The ceremony was the opening of a playground in New London, Connecticut. It’s called “Emilie’s Shady Spot,” a lovely, playful, cheerful, pink playground, with pictures of butterflies. The playground was one of 26 built by a group of New Jersey firefighters and paid for by generous donations. Playing on the sparkling new equipment, the children were running, climbing and playing with bright smiles on their faces. I heard laughter. I fought back tears. More than 200 other people in attendance also fought back tears that morning. Sometimes it seems that’s all a person can do. Or is it? How many more playgrounds have to be built?

[James D. Diamond’s 2019 book, After The Bloodbath: IS Healing Possible In The Wake of Rampage Shootings is now available from the publisher, MSU Press  from your local bookstore, and all major digital booksellers like Amazon and Barnes and Noble. ]

Will California Execute A Native American Female Mass Shooter?

Cherie Lash-Rhoades murdered four people and critically injured two others in a 2014 shooting spree in the tribal headquarters of the Cedarville Rancheria, a small American Indian tribe in Northern California. It all happened during a meeting at the Alturas headquarters where tribal leaders were discussing the banishment of Lash-Rhoades. Lash-Rhoades was tried in Modoc County, California, and sentenced to death by Judge Candace Beason on Feb. 20, 2014, for killing her brother Rurik Davis, 50, her niece Angel Penn, 19, her nephew Glenn Calonicco, 30 and Sheila Russo, 47, the tribal administrator who handled tribal evictions.

Cherie-Lash
Cherie Lash-Rhoades 

Lash-Rhoades is awaiting execution at the Central California Women’s Facility in Chowville, California, where there are 21 women awaiting execution. But Lash-Rhoades and the other women are among the nearly 750 inmates who have been sentenced to death in California, and California has not executed any inmates since 1992. The status of the death penalty in the state is complicated by a series of voter propositions affirming it, while Gov. Gavin Newsome has imposed a moratorium on executions.

Lash-Rhoades was chairman of the small tribe, a tribe embroiled in a leadership dispute involving her own family, which led to an accusation that she had stolen more than $60,000 in tribal funds. Those allegations led to an eviction, and Lash-Rhoades came to the tribal headquarters where a hearing about the eviction was scheduled. Instead of a hearing, what followed was a harrowing murder spree.

Her conviction will be appealed to the California Supreme Court—an automatic appeal under California law. If her case is like other capital litigation, it is likely the appeal will languish for decades. California’s death row is the largest in the United States and likely the largest in the Western hemisphere.

The Cedarville Rancheria rampage killing should be viewed in the context of a disturbing move, largely on the West Coast of the U.S., where tribes are disenrolling thousands of their citizens. I wrote about the crisis in a friend of the court brief with the United States Supreme Court in the case of Aguayo v. Jewell where I explored the profound psychological impact tribal disenrollment has on native self-esteem. In that brief, I wrote: “Disenrollment thus perpetuates historical trauma by creating a loss of community, culture, tradition and identity that is associated with historical loss. Historic loss has been strongly associated with depression, post-traumatic stress disorder, and poly-drug use in Native youth.”

Disenrollment is thorny legal and political matter that poses civil rights squarely against the imperatives of native sovereignty. My colleagues Gabriel Galanda and Ryan Dreveskratch wrote a groundbreaking and expansive law review article on the subject in the Arizona Law Review: “Curing the Tribal Disenrollment Epidemic, in Search of a Remedy. 

Mass shootings on American Indian reservations are exceedingly uncommon. In light of the death penalty political turbulence in California, and its reluctance to execute anyone, is it possible it will ever execute a woman killer who is an indigenous Native American?

 

 

 

Change Is Coming for Victims of Domestic Violence on American Indian Reservations

Sexual and domestic violence in Indian country continues to be a crisis, with grave law enforcement challenges. There is progress, however. I recently published an article in the A.B.A. Criminal Justice magazine about the changes made in federal law to help Indian tribes address the problem. You can read the entire article here. Here is the section of the article detailing the Violence Against Women legal changes:

In 2013, President Obama signed into law the re-authorization of the Violence Against Women Act (VAWA), a federal statute that addresses domestic violence and other crimes against women. (Pub. L. No. 113-4, 127 Stat. 54 (2013).) When originally enacted in 1994, VAWA created new federal offenses and sanctions, provided training for federal, state and local law enforcement and courts to address these crimes, and funded a variety of community services to protect and support victims.

President Obama listens to Lisa Lyotte (Sicangu Lakota Ospaya tribe) who was raped and beaten, prior to signing the Tribal Law and Order Act on July 29, 2010. PHOTO: UPI/Kevin Dietsch

Most significantly, the amended version of VAWA recognizes that tribal courts have jurisdiction over criminal cases brought by tribes against nonmembers, including non-Indians, that arise under VAWA. Significantly, this is the first time since the Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe that Congress recognized tribal courts’ criminal jurisdiction over non-Indians. (435 U.S. 191 (1978).) This change in the law represents a major change for native communities and especially native women. Native American and Alaska Native women experience sexual violence at a rate two and a half times higher than other women in the United States. (See Nat’l Inst. of Justice, U.S. Dep’t of Justice, Public Law 280 and Law Enforcement in Indian Country—Research Priorities (2005).)

The special domestic violence criminal jurisdiction recognized under the VAWA reauthorization not only provides an additional tool to address violence in Indian country, but also strengthens tribal courts and tribal sovereignty. Congress’s recognition of tribal criminal jurisdiction comes with limitations and places obligations on tribes. Tribes wishing to take advantage of VAWA’s jurisdictional provisions may need to amend tribal law and hire new judges and public defenders. Further, there remain significant limitations on who can be prosecuted in tribal courts. VAWA pilot programs and prosecutions of non-Indians in domestic violence cases have commenced in select tribal courts in the following states: Arizona, Michigan, Montana, North Carolina, North Dakota, Oklahoma, Oregon, South Dakota and Washington, and it is extremely likely that more will follow.

Cherokee Billboard

Here is a summary of the new law’s requirements and limitations:

Limitations of the Enhanced Jurisdiction under VAWA 

Types of offenses. Under the amended statute, tribes can prosecute “domestic violence” or “dating violence” by a person who is or has been in a “dating or domestic relationship” with the victim. Tribes can also prosecute violations of protection orders that occur in Indian country as long as those protection orders were issued to prevent (1) violent or threatening acts, or (2) contact, communication or physical proximity with or to the victim.
Types of defendants. Tribes can only prosecute VAWA cases against a non-Indian defendant if he or she has one of the following connections to the tribe’s reservation or lands: (1) resides in Indian country, (2) is employed in Indian country or (3) is the spouse, intimate partner or dating partner of an Indian living in Indian country or a tribal member. The last category includes former spouses, individuals who share a child in common and individuals in
social relationships of a romantic or intimate nature. With one very limited exception, this new jurisdiction does not apply to tribes in Alaska, who under the Alaska Native Claims Settlement Act (ANCSA) are governed by 12 regional corporations. (See 43 U.S.C. §§ 1601 et seq.) These new jurisdictional rules also have very limited impact with nonrecognized tribes.

Types of victims

Tribes can only use the jurisdictional provisions of VAWA to prosecute crimes against Indian victims. This new law does not recognize tribal authority to prosecute non-Indians for violent acts against non-Indian victims.

Procedural safeguards

Tribes will need to guarantee that their criminal codes and rules of criminal procedure provide defendants with certain procedural safeguards. These include the right to a trial by an impartial jury of members of the community, from which non-Indians may not be excluded. Whenever a tribe intends to impose imprisonment, it must provide counsel/public defenders for indigent defendants. It must guarantee that proceedings are presided over by a law-trained judge. It must make publicly available the tribal criminal statutes and rules of procedure, and the criminal proceedings must be recorded. Defendants ordered detained under VAWA must be informed by the tribal court of their right to file federal habeas corpus petitions. Tribes must comply with all provisions of the Indian Civil Rights Act (ICRA) and guarantee “all other rights whose protection is necessary under the Constitution of the United States” in order to exercise this criminal jurisdiction. (See 25 U.S.C. §§ 1302, 1304.) It has not yet been established precisely what “other rights” this refers to. The guarantee of these fundamental rights may very well end up becoming the topic of future defense challenges and litigation.

Pilot programs

As a result of the new federal legislation, in February 2013 the Justice Department announced a pilot program with three initial tribes, giving them jurisdiction over non-Indians in domestic violence cases on their reservations. Those tribes were the Pascua Yaqui tribe of Arizona, the Tulalip tribes of Washington and the Umatilla tribes of Oregon. As of Feb. 20, 2014, the tribal courts in those three jurisdictions began to exert their newly
enhanced jurisdiction. In 2015, two additional tribes were approved to begin exercising special domestic violence jurisdiction as part of the pilot program: the Assiniboine and Sioux tribes of the Fort Peck Indian reservation of Montana and the Sisseton Wahpeton Oyate of the Lake Traverse reservation of North and South Dakota.

Since 2015

After 2015, another 10 began to exercise the special domestic violence jurisdiction: Little Traverse Bay Band of Odawa Indians of Michigan, Seminole Nation of Oklahoma, Eastern Band of Cherokee Indians of North Carolina, Muscogee Creek Nation of Oklahoma, Chitimacha tribe of Louisiana, Alabama-Coushatta tribe of Texas, Kickapoo tribe of Oklahoma, Nottawaseppi Huron Band of Potawatomi of Michigan, Standing Rock Sioux tribe of North Dakota and Sault Ste. Marie tribe of Chippewa Indians of Michigan. The 10 tribal courts are at varying stages of exercising the approved jurisdiction, but it is likely they will all begin prosecuting cases shortly, if they have not already done so. It is extremely likely that many more tribes will soon adopt the enhanced VAWA domestic violence jurisdiction.

For more:

Practicing Indian Law in Federal, State, and Tribal Criminal Courts and an Update on Recent Expansion of Criminal Jurisdiction Over Non-Indians

Criminal Justice, Volume 32, Number 4, Winter 2018