Rulings could bring crackdown on domestic violence

Posted Dec. 12, 2011, at 8:25 p.m.

FARGO, N.D. — On the day after Christmas last year, a drunken Roman Cavanaugh Jr. beat up his 11- and 12-year-old sons, punching both in the face. The older boy was hit so hard he couldn’t speak for a full day because his jaw was swollen shut.

At the time, Cavanaugh was a free man on North Dakota’s Spirit Lake Indian Reservation, even though he had three convictions in tribal court for domestic violence. Had he been charged for those crimes off the reservation, he probably would have been in prison.

Despite a well-known epidemic of domestic violence on American Indian reservations, federal authorities have long been stymied in their pursuit of abusive parents and spouses. That may change if recent rulings in Cavanaugh’s case and a similar matter are upheld, allowing U.S attorneys to act instead of watching abuse convictions pile up at the tribal level.

That’s a change, advocates say, that could save lives.

“There’s a gap in what we can do because domestic violence is a crime that occurs in steps,” said Timothy Purdon, the U.S. attorney for North Dakota. “First you slap someone. Then you punch them. Then you get a stick. Then you get a gun.”

Tribal courts generally provide for a maximum sentence of a year in jail on domestic violence convictions. It’s a different world in federal court, which allows for more severe punishment. But to prosecute there, authorities must show a defendant is a habitual domestic offender or that a gun was involved in the crime.

Because tribal courts are not required to provide the same services as federal and state courts, such as providing a public defender, the convictions there often fail to qualify as a past conviction in federal court.

It’s a frustration for federal prosecutors such as Purdon, who point to an epidemic of domestic abuse on Indian reservations that are often also awash in poverty and substance abuse.

An American Indian woman born in the United States has a 1-in-3 chance of being sexually assaulted in her lifetime, compared with 1-in-5 for the country as a whole, according to the Justice Department. And on some reservations, women are murdered at a rate more than 10 times the national average, a federal study of death certificates showed.

Sophia Renville Brown, a domestic abuse survivor who manages a women’s shelter on the Sisseton-Wahpeton reservation in the Dakotas, said she suspects those numbers are too low. Most cases of domestic violence go unreported because women are too ashamed to come forward, said Brown, whose shelter — which holds up to 15 women and children — is routinely full.

Brown had surgery in August to straighten her nose, which she said had been broken by a past partner. She plans to enroll in tribal law college courses so she can help other women. “I feel it’s my purpose,” she said.

Cavanaugh was convicted of domestic abuse offenses in March 2005, April 2005 and January 2008 — all in tribal court.

When federal prosecutors tried to prosecute him for a July 2008 incident in which he was accused of slamming the head of his common-law wife against the dashboard of his car and threatening to kill her, a judge threw out the indictment. Because Cavanaugh did not have a lawyer when convicted in tribal court, the judge ruled, he could not be charged as a habitual offender.

Purdon’s office appealed the decision and it was overturned in July. Meanwhile, a second federal appeals court reached the same conclusion in a case from Utah involving a member of the Ute tribe who resides on the Uintah and Ouray reservations.

Adam Shavanaux was indicted for assaulting his domestic partner after having been twice convicted in tribal court of domestic assault. Shavanaux did not have a lawyer in tribal court. A judge threw out the indictment, a decision a federal appeals court also overturned in July, saying the tribal convictions were obtained through “procedures compatible with due process of law.”

“Protecting Indians from domestic violence is unquestionably a legitimate government interest,” appellate Judge Carlos F. Lucero wrote. “Congress has found that Indian women are subject to physical and sexual abuse at higher rates than other groups in the United States.”

Both Cavanaugh and Shavanaux have appealed the decisions reinstating their indictments to the U.S. Supreme Court. Cavanaugh’s attorney, Alexander Reichert, said those decisions come at the expense of stripping Indians of their civil rights.

“This goes to a much larger issue, and that is the fact that Congress has refused to acknowledge the fact that Indians have the right to counsel,” Reichert said. “It is unbelievable to me that Indians are treated as second-class citizens by the federal government.”

William Zuger, a tribal court judge at the Standing Rock reservation in North Dakota and South Dakota, said the reason tribal courts only impose one-year maximum terms is because the tribal system is not required to provide public defenders and could not pay for them if they were required.

Standing Rock is a rare exception, Zuger said, because its tribal court provides a free lawyer and the defendant does not have to prove he or she is too poor to afford one. But “we’re the only jurisdiction I’ve ever heard of who does that,” said Zuger, who believes every defendant should have a lawyer.

Purdon declined to talk specifically about the Cavanaugh case, but hopes the recent rulings will make it easier for federal prosecutors to indicting offenders on Indian reservations.

In the meantime, Cavanaugh and Shavanaux are waiting to hear whether the U.S. Supreme Court will consider their appeals. In a separate assault case involving his two children, Cavanaugh was sentenced Friday to 52 months in prison.

“Violence starts out small and gets bigger,” Zuger said. “This stuff escalates and gets out of control before it gets to the level where it can be adequately addressed by U.S. attorneys.”

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