October 22, 2019
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Bill to let tribes address domestic violence in limbo

Robert F. Bukaty | AP
Robert F. Bukaty | AP
Maine Gov. Janet Mills speaks at the signing ceremony to establish Indigenous Peoples' Day, Friday, April 26, 2019, at the State House in Augusta, Maine.

AUGUSTA, Maine — Tribal leaders and advocates say they’ll keep pushing for a bill that would give two Maine tribes jurisdiction over some domestic violence cases.

Currently, tribal courts in Maine can’t prosecute non-tribal members for domestic violence against members, creating a situation that leaders say makes families unsafe. Because there is often disagreement among federal, state and tribal authorities over who can prosecute what crimes, tribal leaders say domestic violence on their lands often goes un-prosecuted.

The 2013 reauthorization of the federal Violence Against Women Act gave tribal courts limited authority to prosecute non-tribal members for domestic violence. But the wording of a 1980 settlement of tribal claims has kept many that law and many other federal laws from automatically applying to Maine tribes.

Lawmakers passed a bill this year to rectify that, but Democratic Gov. Janet Mills held it. Her office says she is working with the bill’s sponsor and the attorney general to clarify the rights of non-tribal members in the legislation but hopes to eventually sign it.

The bill would change the wording of the 1980 agreement to explicitly allow the Passamaquoddy Tribe and the Penobscot Nation to be certified to prosecute domestic violence misdemeanors and criminal violations of protection from abuse orders committed on their lands by a person who is not a member of the tribe.

Supporters of the bill will keep “fighting,” said the legislation’s sponsor, Democratic Rep. Rachel Talbot Ross.

Meanwhile, the U.S. House passed a bill in April to ensure Maine and Alaska’s tribal communities are included under the federal violence against women law.

Supporters of Maine’s bill, such as Penobscot Nation Tribal Ambassador Maulian Dana, say while they hope that Congress passes the bill, having the law on Maine books is “extremely significant” as well. Tribes would have to approve of the changes in Maine’s bill, which could also boost their federal funding.

The federal domestic violence law lays out steps that tribes must take before they can prosecute non-tribal members for domestic violence, but Penobscot Nation Tribal Court Chief Judge Eric Mehnert told lawmakers in May that his tribe would qualify.

He said the Penobscot Nation requires every individual charged with an offense in tribal court to speak with a public defender before entering a plea.

“In short, natives and non-natives in tribal court receive the benefits of due process safeguards equal to or greater than that afforded by state court,” Mehnert said.

Because Maine recognizes the “dual sovereignty” of both the state and a tribe, the state could still prosecute a domestic violence in the state court even if it has already been prosecuted in the tribal court.

Maine’s bill would also allow the Legislature’s judiciary committee to study the extension of tribal court jurisdiction to felony domestic violence offenses.

Tribal courts would also report certain data to the Maine Department of Public Safety, which would also share its annual reports with tribal law enforcement agencies.

Maine’s 1980 land claims settlement has made its relationship with tribes unlike that of most other states.

Under the settlement, the tribes agreed to be subject to Maine’s laws and jurisdiction, except for “internal tribal matters” and as regards hunting and certain fishing rights on tribal lands. The settlement has long been interpreted as requiring Congress to specifically state whether a federal law applies to Maine tribes.

 



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