Tuesday, February 24, 2015

Maine tribes want to prosecute domestic violence cases, state says no.

In yesterday's Portland Press Herald, I have a story on (yet another) jurisdictional conflict between the State of Maine and Maine's Indian tribes.

In the latest development, the Penobscot Nation and Passamaquoddy tribe have asked legislators to approve a law that would give them jurisdiction to prosecute certain domestic violence cases involving non-Indians who abuse women, spouses, or partners on their reservations. The action is in accord with the federal Violence Against Women Act Reauthorization of 2013, but the state Attorney General tells me her office contends the act does not apply to Maine tribes.

The Penobscot Nation is also involved in a dispute between the federal government and the state over water pollution in the Penobscot River, while both tribes have a long history of conflict with the state over the meaning of the 1980 Maine Indian Claims Settlement Acts, described briefly here as part of my 31-part series "Unsettled." (The latter available as an ebook here.)

[UPDATE, 2/28/15: Several readers asked if I could share the full written statement from the state attorney general's office. For those interested, here it is:

"Whether a Maine tribe may summons a nontribal member for violating a tribal ordinance is an issue in the pending lawsuit brought by the Penobscot Indian Nation against the State of Maine seeking exclusive jurisdiction over 60 miles of the Penobscot River.
Beyond that, VAWA's extension to tribal courts was meant to address a serious problem in certain states where federal officials have prosecuted nontribal offenders and where access to justice for tribal members is difficult. See Congressional Research Service report attached. In Maine, state courts hear criminal charges and protection from abuse complaints brought against nontribal members. 
There are serious questions about what LD 268 proposes to do. Among other things: the bill presupposes jurisdiction which VAWA accords to the western tribes but not to the tribes in Maine; the bill is inconsistent with the Maine Criminal Code in major respects and is fundamentally nonspecific in other respects; it proposes to bootstrap certain provisions of federal law into state law without providing vital notice about what acts it would make criminal;  and the bill fails to address the basic constitutional rights of the accused, including the right to a public jury trial, the right of appeal and postconviction review to state and federal courts, double jeopardy, etc." ]

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