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.
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.
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.
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?
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.
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 inOliphant v. Suquamish Indian Tribethat 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.
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.
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.
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.
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.
Four people are dead and two critically injured after a recent shooting spree in the tribal headquarters of the Cedarville Rancheria, a small American Indian tribe in Northern California. It all happened, police say, during a meeting at the Alturas headquarters where tribal leaders were discussing the banishment of Cherie Lash Rhoades—who has been arrested for the violent acts—and her son. Frustrations are boiling over in tribal membership disputes, reaching epidemic proportions, and this was only the most recent sign.
In the case of most American Indian tribes, historically the tribes have had the power to determine tribal membership. For centuries tribes “banished” people as punishment for serious offenses. In recent years, however, a trend has been evident with tribes canceling membership, or “disenrolling” tribal members due to claims of inferior membership qualification.
August 1, 2013 I was interviewed recently by Ron Urbach about the impact of American Indian Gaming and casinos. Ron is the Chairman of Davis & Gilbert, one of the pre-eminent advertising law firms. He writes a very popular advertising/marketing industry blog called Madison Avenue insights. You can read the interview here: MADISON AVENUE INSIGHTS.
Robert Gordon has lost another round in his legal battle to distribute tax free cigarettes from his upstate New York Indian reservation. Last week United States District Court Judge Jesse M. Furman denied the Gordon’s motion to dismiss a lawsuit filed by the City of New York aimed at enforcing the “Prevent All Cigarette Trafficking Act” (PACT) on their cigarette sales.