OpEd by Professor Melissa Tatum
As printer in the Tulsa world: http://www.tulsaworld.com/opinion/article.aspx?subjectID=65&articleID=20080329_7_G4_spanc30072
On Nov. 20, Oklahoma Attorney General Drew
Edmondson announced an innovative partnership with Wal-Mart to combat domestic
violence. In the press release describing that initiative, Edmondson declared,
"It's tragic to lose a mother, daughter, sister or friend to domestic
abuse. We will never know how many of those deaths could have been prevented if
these women had only known where to go for help."
In February, Edmondson joined several other state attorneys general on a
"Friend of the Court" brief asking the U.S. Supreme Court for a
ruling that has the potential to eviscerate tribal court authority to issue and
enforce protection orders -- leaving Indian women battered by non-Indians with
no legal recourse and no protection.
The case pending before the Supreme Court, -- Plains Commerce Bank v. Long
Family -- is not a case about domestic violence. It is a case involving a loan
made by a non-Indian bank to Indians who lived on the Cheyenne River Sioux
Reservation. When things went awry, and the bank lost the suit in tribal court,
it went to federal court to contest the ability of the tribal court to hear the
case.
In Plains Commerce Bank, the U.S. Supreme Court is being asked to clarify the
ability of tribal courts to hear cases involving non-Indians who come onto a
reservation and do business. State courts have the authority to decide cases
involving people and companies who conduct business within the state, even if
they are not state residents.
The U.S. Supreme Court, however, has created a separate set of rules for tribal
courts, limiting their authority over non-Indians. As part of those rules, the
Supreme Court has declared that if a non-Indian engages in consensual relations
with a tribal member, the tribal court can hear any case arising out of that
transaction.
The bank in the case pending before the court is asking the court to rule that
the "consensual relationship" test can be satisfied only if the
non-Indian clearly and expressly agrees to let the tribal court decide the
case. Edmondson and several state attorneys general are urging the court to do
what the bank asks.
Such a ruling could have far-reaching consequences. The consensual relationship
test is also what allows tribal courts to issue and enforce protection orders
to protect victims of domestic violence.
Domestic violence is a widespread problem. U.S. government statistics show that
Indian women are 2-1/2 times more likely to be the victim of violent crime; one
in three American Indian women will be raped in their lifetime; three of four
will be physically assaulted, and Indian women are stalked at a rate more than
double that of any other population. Well over 75 percent of the perpetrators
of these crimes are non-Indian.
That means when an Indian woman is involved with a non-Indian man in Indian
country (and over half the land in Oklahoma
constitutes Indian country), the only court that can issue and enforce a
protection order is a tribal court. Because it is unlikely that these men will
"clearly and expressly" agree to tribal court authority over them,
that leaves Indian women with no legal recourse.
Apparently, our attorney general thinks a bank that went to tribal court
voluntarily and got mad because it lost is more important than Indian women who
are battered and abused. He would rather protect the bank than the woman.
If that is the case, shame on him. If it is not the case, then I urge him to
withdraw from the brief asking the court to protect the bank. It's not too
late, and if it saves one woman's life, it is well worth it.