Monthly Archives: September 2012

City of Stevenson v. Davis: More than a Property Fight

“Cemeteries are to be regarded as inviolate, and their use appropriated as a sacred place, consecrated by the elements of taste and affection, to be preserved from profanation through every mutation of human creeds, as well as from the baser conquests of Mammon.”[1]

 In 2009, after the City of Stevenson denied his application to put a cemetery on his property, James Davis and his son-in-law fired up a backhoe anyway and buried Davis’ late wife of forty-eight years just off Davis’ front porch.[2]  City attorney Parker Edmiston then sued Davis on Stevenson’s behalf in Clark County Circuit Court. Edmi

Todd Panciera, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

ston sought to force Davis to move the body from his property to a local cemetery.  On March 30, 2012, Circuit Judge Jennifer C. Clark, citing Alabama law, ordered the body removed, concluding that “[t]he owner of property within the corporate limits of a city has no unqualified right to use his property for purposes of a cemetery.”[3] Mr. Davis then filed a post judgment motion in which he argued that his family burial plot was not, in fact, a cemetery, and therefore the state statute describing the process for seeking approval to “locate a cemetery”[4] did not apply.  In support of this argument, Mr. Davis offered a statutory definition of “cemetery” under the “Burial Services, Merchandise, and Property” section of the Alabama Code, which excluded “family burial plots” from its definition.[5]  The court rejected Davis’ new argument, saying, among other things: “a family burial plot is a cemetery but is a cemetery that is not regulated by the consumer law and commercial protection statute;” and that Davis was reading the statute’s definition out of context.  Mr. Davis has been unsuccessful in his legal appeals to date.

Though Mr. Davis’ actions may seem odd, they are not abnormal.  The fact that front yard burial plots are not unheard of in Alabama is indicative of a deeper right   —or least a perceived right—that is rooted in history.  American courts have long acknowledged a reverence for the dead and the permanence of their final resting places.[6]  As one North Carolina Supreme Court opined, “Civilized countries have always recognized and protected as sacred the right to Christian burial and to an undisturbed repose of the human body when buried.”[7]Thus, in the early days when churchyards were not geographically convenient, American frontiersman resorted to interring loved ones on family burial grounds.  Surrounded by “neat white pailings”[1] or other similar enclosures, generations of Americans were buried at home on private property, their graves serving as “symbols of civilization and domestication.”[2]

Because of this well-documented tradition, Mr. Davis’ case deserves more than a cursory glance.  Alabama law addresses Davis’ claims in more depth than the Clark County Circuit Court has acknowledged.  Admittedly, the states plenary authority generally, and, more specifically, the constitutionality of Alabama Code §22-20-4 under which the circuit court decided Davis’ case, are beyond the scope of this article.  That aside, Alabama case law has acknowledged specific limits on the state’s authority to regulate family plots.

In Bryan v. City of Birmingham, the Alabama Supreme Court noted that “[b]urial places for the dead are indispensable. They may be the property of the public, devoted to the use of the public; or the owner of the freehold may devote a part of his premises to the burial of his family or friends.”[3] In another early opinion, the court addressed a landowner’s claim that his neighbor’s family burial plot was poisoning his well, noting initially that a burial ground is not a nuisance without a showing that it has caused injury.[4]  In its holding, the court refused to prevent future burials on a family plot without a showing of “special injury, irreparable by the ordinary remedies of law.”  In this sense, perhaps early Alabama law found something unique in family burial plots that called for a showing of injury above that required by typical nuisance law.

In Mr. Davis’ case, the court relied heavily on Alosi v. Jones, which noted: “the right and power of the municipality to cause removal under some conditions is unquestioned.”[5]  On the facts of that case, the court resolved the issue of whether burials should continue in “Pine Haven Cemetery,” holding: “Our own cases, therefore, as well as authority elsewhere, fully settled the doctrine that the owner of property within the corporate limits of a city has no unqualified right to dedicate the property to purposes of a public cemetery.”[6]  In fact, this is the proposition that the court in Davis cites, reaching its judgment thereby.  However, reading the Alosi opinion side by side with the Davis opinion, Mr. Davis’ argument that the city cannot regulate the grave because it is a “family burial plot” rather than a cemetery appears to be left largely unaddressed, even taking the court’s reading of §§ 22-20-4 and 8-30-1 as correct.

Given the above history setting apart an individual’s right to accord his kin a proper burial and the state’s reluctance to infringe that right, of which the above examples are but a few, Alabama courts should clarify the definition of “family burial plot” under § 22-20-4.  Mr. Davis’ case presents the perfect opportunity.

 

[1] Brown v. Maplewood Cemetery Ass’n 89 N.W. 872 (Minn. 1902).

[2] Alabama Man Fights to Keep Wife Buried in Front Yard, Associated Press, Aug. 19, 2012, http://blog.al.com/wire/2012/08/alabama_man_fights_to_keep_wif.html.

[3] City of Stevenson v. Davis, No. CV-09-133, 2012 WL 3156092 (Ala. Cir. Ct. March 30, 2012)

[4] Ala. Code. §22-20-4 (1975)

[5] Ala. Code. §8-30-1 (1975)

[6] King v. Frame, 216 N.W. 630, 633 (Iowa 1927) (“The principle of all the cases seems to be that the buried body shall remain undisturbed, and that the right and duty falls to the next of kin to see that its repose is duly protected”)(quoting Gardner v. Swan Point Cemetery Co., 40 A. 871, 878 (RI 1898)).

[7] Cabe v. Parker-Graham-Sexton, Inc., 162 S.E. 223, 229 (N.C. 1932)

[8] C. Allen Shaffer, The Standing of the Dead: Solving the Problem of Abandoned Graveyards, 32 Cap. U. L. Rev. 479, 483-84 (2003).

[9] Id.

[10] 45 So. 922 (1908).

[11] Kingsbury v. Flowers, 65 Ala. 479 (1880)(“It is quite an error to suppose, that of itself a burying ground is a nuisance to those living in its immediate vicinity. Much depends upon the mode of interment, whether it can be justly asserted that, in any event, injury will result from it.”).

[12] 174 So. 774, 776 (1937).

[13] Id. at 777(emphasis added).

Concern over detention of Gitmo prisoners

A Yemeni man died this past weekend while detained in the United States prison camp at Guantanamo Bay.[i]  Adnan Latif spent a storied decade in the Guantanamo Bay prison in maximum security Camp 5, after being picked up late in 2001 by Pakistani authorities and was one of the first prisoners transferred to Guantanamo in January 2002.  Latif’s story begs the question of exactly what process is due to Guantanamo detainees in a time of quasi-war.  I assert that, while Latif’s story certainly upsets me and should be disconcerting to any who hear it, I believe that he was given all process due to him according to the Due Process Clause[1].

Latif suffered a head injury in a 1994 car accident, prompting him to travel to Afghanistan in 2001 for medical treatment from a charity.  The United States government claims that Latif was drawn to Afghanistan by a military recruiter.  The story goes that he was trained by the Taliban and was sent to fight against the Northern Alliance.  Latif denied this, and vehemently denied any involvement with the Taliban.  Nevertheless, Latif’s trip to Afghanistan resulted in his detention by Pakistani officials and his transfer to Guantanamo.

Chris Richard, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Latif had a long history of mental issues, hunger strikes and struggles with prison guards while in Guantanamo.  In August 2008, Latif was placed in disciplinary unit because of repetitive disruptive behavior such as throwing bodily fluids at guards and spitting in a guard’s face.  Also, during a visit with Latif in 2008, his attorney noted that Latif had lost a considerable amount of weight, dropping from 145 pounds down to 107 pounds.  Prison officials state that the frequent hunger strikes were not likely the cause of Latif’s death, as he had ended his most recent hunger strike sometime in June, some two months before his death, and he was actually at a healthy weight at the time of his death.

Latif showed several signs of mental instability such as a 2009 incident when Latif slit his wrists using the veneer off of a table and hurled the blood at his attorney during a visit.  Latif was being kept in isolation in a psychiatric unit, and his lawyer said that Latif claimed to be hearing voices and seeing ghosts.  There were concerns that Latif was schizophrenic, but it does not appear that he ever received treatment for the possible condition, aside from general psychiatric treatment.

Latif was actually cleared for release in 2004, before many of these incidences, and was subsequently approved for a transfer to Yemen some five years later.  Latif also filed a successful writ of habeas corpus in 2010, with the court finding that the evidence presented against Latif was not adequate to link him to Al Qaeda; however, the thwarted Christmas Day Bombing of 2010 delayed his release, seemingly indefinitely.  Due to the bombing being tied to Yemenis, and because of the perceived instability of the region, an Executive Order was issued to suspend all releases of detainees to Yemen.  Latif’s writ of habeas corpus was subsequently overturned in 2011, with a finding that courts should assume that government documents presented as evidence are accurate and reliable.  A final blow resulted with the Supreme Court declining to hear the case in June of this year.  Now, two years after what looked like his impending freedom, Latif has died, still a Guantanamo detainee.

Latif’s sordid history paints the picture of a suffering, mentally ill detainee in Guantanamo Bay who was not receiving the treatment necessary and was perhaps denied the process due to him under the Due Process Clause of the United States Constitution.  This is where the law meets the unsavory facts, and concerns arise among detainees that perhaps the power to detain prisoners of war indefinitely is not so limited.

The Supreme Court has confronted such issues of Due Process and prisoner’s rights in times of war many times over the last seventy years or so, and many times more recently due to the terrorist attacks of 9/11 and the United States’ ensuing involvement in the Middle East.

The Supreme Court addressed the issue of Guantanamo Bay’s treatment as a United States territory in Rasul v. Bush[2] and Boumediene v. Bush[3], finding that Guantanamo Bay is under sufficient United States control to be considered territory of the United States.  Thus, those kept at Guantanamo are afforded the protections of the Constitution, specifically the Due Process Clause and the writ of habeas corpus.

The constant struggle in deciding Due Process issues is the balancing of compelling governmental interests against the private interest asserted.  The Court must study the function of the government interest asserted and the costs and benefits that would result from providing further process to a particular individual or group of individuals.  This test has been elaborated upon with regard to Due Process rights for detainees deemed enemy combatants.  The Court in Boumediene found that the writ of habeas corpus could not be denied to Guantanamo detainees, even those deemed enemy combatants, absent a formal suspension of the writ according to the Suspension Clause.[4],[5]  Thus, the Executive could not pursue a de facto suspension of the while neglecting a formal suspension.

But was Latif’s case sufficiently similar to prior Due Process cases in this arena?  Latif’s writ of habeas corpus was heard by a court and was actually granted initially.  The subsequent overturning of the decision rested on the reliability and accuracy of government documents tying Latif to Al Qaeda.  Is the established presumption of accuracy and reliability of government documents unfair to detainees seeking the writ?  Perhaps the Supreme Court declined to hear Latif’s case because it believed the lower courts had correctly decided the issue on the merits.  After all, at least Latif’s petition was heard by a lower court, where the detainees in Boumediene were initially denied the writ at all.  Latif was presumably confronted with the evidence against him that linked him to Al Qaeda, and he was able to contest that evidence and draw into question its probative value in his habeas petition and on appeal.  Perhaps the Court was bogged down with First Amendment issues, Immigration Law, and the ever-important Affordable Care Act this summer and did not see the import of hearing Latif’s case.  Whatever the reason, the decision has caused considerable concern in detainees who question the outer limits of indefinite detention.

Although Latif’s situation certainly causes some misgivings-most likely due to his precise issues with physical injury, mental instability, and extreme weight fluctuations due to the hunger strikes-Latif was afforded all process due to him.  His appeal was heard, and the Supreme Court found no reason to hear the merits of his case on appeal.  In a time of uncertainty and great conflict across the globe, the courts must lend great weight to the importance of national security and the judgment of those who are keeping this country safe.


[1] United States Constitution Amend. V, XIV (prohibiting deprivation of life, liberty or property without due process of law).

[2] 542 U.S. 466 (2004).

[3] 553 U.S. 723 (2008).

[4] Id.

[5] United States Constitution Art. I §9, cl. 2.

Recent Mass Shootings and an Empirical Approach to Public Spending and Policy

Justin Fargason, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

With the recent attention to the horrendous tragedies that occurred in Aurora, Colorado and at the Sikh Temple in a Milwaukee suburb, there has been plenty of discussion about the place of gun control in American society. Some of the legal and policy issues raised is gun control in general, control of semi-automatic assault weapons similar to the AR-15 used in the Aurora shooting and the discussion of broader topics such as the second amendment. These are all good questions, worthy of discussion. However, I argue that there is a more broad and related question that has mostly escaped public thought.

Unfortunately, people are more interested in the narrative of a psychopathic tragedy such as the Aurora shooting than larger societal problems. The Sikh shooting getting press shocks our conscience and illustrates the absence of even the most minimal respect for human dignity and religious freedom in a few antisocial individuals. In becoming interested in these stories, people yearn for justice and show compassion and empathy for the victims, but it also raises our curiosity  and appeals to our inner Sherlock Holmes. We want to pay attention to the media until we feel satisfied that we have understood the narrative, the cops and robbers story, and ultimately decided the case as essentially a juror by media proxy. The clear sense of morality (the law) and immorality (the alleged killer) allows us to feel comfortable piecing the story together little-by-little because we feel confident there will be a nice psychological dessert when the killer is brought to justice. Even while victims and families may always still ask why, the case comes to a neat public conclusion. Something that looms so large in the public consciousness cannot escape logical conclusion.

However, with other topics, the story is not so clearly discernible. Discreet events involving more subtle public actions or private actions of relatively isolated individuals, though significant to friends and families most likely, rarely meet the public eye and never come to an intellectually logical conclusion. Justice is never done and communicated through popular media and reasons why are often never discovered. Isolated tragedies that occur in the lives of a few that are less psychologically compelling and do fit in to our cops and robbers schematic, and thus, are omitted from public discourse despite the need for public attention.

What I find to be a comparable problem to the mass shooting and gun control discussions that have abounded lately in the public media of an equally tragic nature is suicide. Many people who have not taken psychology courses have never pondered this public policy issue. Also, fewer people are aware of this problem because of families’ desire for privacy, the lack of any clear good versus evil tale, and the lack of any overtly logical conclusion such as justice being done. Suicide seems more like just a tragedy while a mass shooting seems more like something that could happen to any movie-goer. While it is easier to empathize with a movie-goer, it is harder for most of us to empathize with the person at risk or with their families when many have never gone through such a tragedy and do not have the psychological training to understand mental illnesses or substance abuse disorders. Everyone knows to tell friends to avoid bad neighborhoods where shootings are somewhat likely to occur, but friends do not often recognize friends’ behavior as problematic or even harder to recognize her/his thinking as depressed. Many people go through small down times and some experience depression, but we are lucky that relatively few of us have ever experienced severe, suicidal depression. We can identify with the movie-goer in the theater at Aurora but never believe that one of our friends could have a serious depression problem or a substance abuse disorder.

Regardless of what might be inappropriate responses to substance abuse both in private and in public such as criminalization or private stigma, public organizations and private research have compiled meaningful and reliable data on the societal problem of suicide. In the latest final study reported by the Center for Disease Control and Prevention related to the recent gun control debates is that 59.8% of gun-related deaths were from suicide, while only 36.7% were due to homicide.1 The overall numbers related to suicide from any instrumentality of causation were that there were 36,909 suicides in the United States in 2009 while 16,799 homicides, more than half less. These numbers illustrate two main points. (1) As is pretty obvious, there are many more homicides than the key, media-emphasized mass shootings that make the news. (2) Suicide is actually substantially, a much bigger problem than homicide in the United States.

In terms of explaining the problem further and being inquisitive into what can be done to allay the problem, Camelia Minoiu of Columbia University and Antonio Rodriguez Andrés of Chile, conducted a novel economic study of United States suicide data over fifteen years. 2  Instead of studying the traditional psychological variables such as the relationship between certain conditions such as depression and substance abuse that had already been extensively researched and shown extensively, they studied the relationship between public health expenditures and other factors such as gender, economic inequality, and divorce and whether these factors affected suicide rates. They controlled for sociological, demographic, and geographic variables to make sure nothing confounded their data. They only studied the age groups of 26-69. Minoiu and Andrés wanted to test economic variables that would not be present in youth and the elderly that are likely to not be working.

Minoiu and Andres found that a .01 increase in public health spending, from 6% to 7%, results in a significant benefit in decreasing suicides, overall across all experimental variables. An increase in only 1% in public expenditure decreased suicides by an average of 1.54% in the following year. Also, the increase in public health spending had a statistically significant effect on decreasing male suicides, which account for four times more suicides than for females, according to the National Institute of Mental Health.2 Considering a population studied less by a researchers, a 5% increase in spending decreases female suicides to a statistically significant degree and a 10% increase decreases female suicide rates by 10.7%. Minoiu and Andrés found that divorce rates, income inequality, and unemployment were statistically significant factors in female suicide, an area not often studied by researchers that needs to be studied further.

In terms of other experimental variables, Alabama ranked 18th out of 47 states for average suicide rate over a fifteen year period from 1982-1997 while ironically, the nation’s capital, the District of Columbia ranked first. Also, there are large differences across races. White people are nearly three times more likely than African Americans to commit suicide and Native Americans have the highest rate of all.3 Additional factors that are even more researched are those such as whether a person is mentally ill or has a substance abuse disorder.4 According to the National Institute of Mental Health (NIMH), those with mental illnesses particularly depression and also substance abuse disorders are much more likely than everyone else to commit suicide.5 NIMH reports that a therapy called cognitive behavioral therapy reduces suicide attempts by 50% after a person’s first attempt.

According to NIMH, suicide is even more dangerous for those 15-24, being the third leading cause of death in that age group. NIMH also concluded from data in its study that the elderly are more likely than the general population to complete suicide. As mentioned previously, Minoiu and Andrés studied a section of the population, 26-69, that from other data is at a comparably less chance for suicide. In other words, it is entirely possible that their findings on public expenditures would apply even more to adolescents and the elderly who may not have the same combination of support of coworkers, access to medical care, and friends that working age people are more likely to procure.

In proposing a solution, I argue that Congress and state legislatures should devote additional public resources. Further discussions on limited gun control should be emphasized on reducing the availability of guns, even perhaps to a limited degree such as only focusing on pistols and non-sporting weapons of those who have recently been through a divorce, those with mental illnesses that are not in remission, or those with current substance abuse problems. Particular emphasis should also be placed on preventing suicides among at risk populations such as those 15-24 and the elderly who may not have developed as much social support or may not have as many resources as those of a working age to alleviate their risk factors for suicide.

From this data, it is clear that more media attention, public resources, and social acceptance of mental illnesses should be garnered to alleviate suicide and aim to make suicide prevention a culturally interesting topic. While it may be only natural for public attention such as media coverage to focus on horribly tragic but relatively small scale events such as mass shootings, the more that people focus on even larger, preventable concerns such as suicide prevention, the more individual and societal liberty will be attained.

  1. <http://www.cdc.gov/nchs/data/nvsr/nvsr60/nvsr60_03.pdfhttp://www.nimh.nih.gov/health/publications/suicide-in-the-us-statistics-and-prevention/index.shtml> PP.16
  2. http://www.sciencedirect.com/science/article/pii/S1053535706000813> (Access Required)
  3. Id.
  4. http://www.nimh.nih.gov/health/publications/suicide-in-the-us-statistics-and-prevention/index.shtml
  5. Id.

Native American Sexual Assault: Amendments to the Violence Against Women’s Act

DJ Harris, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

In 2007 Leslie Ironroad, a young enigmatic woman decided to move to Standing Rock, a Sioux reservation in South Dakota.  At twenty years old Ironroad aimed to begin a new chapter.  She moved to Standing Rock with her friend Rhea Archambault to make tribal quilts for a living.  One evening Ironroad went to a party with friends.  It is not exactly clear what occurred at the party or who even attended the gathering.  However, several hours later Archambault’s brother received a frantic call from Ironroad. Ironroad insisted that she needed to be picked up immediately and that several men at the party were harassing her.

The next time Archambault saw her friend was in a hospital bed in Bismarck, N.D.  Ironroad had been severely beaten and had substantial injuries.  The swelling in her face was so significant that she was unable to fully open her eyes when Archambault entered the room. It was then that Ironroad informed her that she had been brutally gang raped and locked in a bathroom at the party. Ironroad continued that she stayed in this bathroom until someone found her unconscious on the bathroom floor the next morning.  Archambault contacted the Bureau of Indian Affairs (BIA) to report the rape, this bureau served as the reservation’s federal police force.  After a couple days the BIA officer finally arrived at the hospital and took Ironroad’s statement.  A week later Ironroad died of her injuries.  There was no investigation and no arrest was made.  Her case was never followed up on by the BIA nor or any other federal agency.  Nothing ever happened.

Many may hear Ironroad’s story and think “what an outrageous failure of law enforcement.”  However, this scenario may sound very familiar to those familiar with Native American tribal lands.  There is no question about it, many women experience rape, domestic violence, and other forms of domestic violence in their lifetime.  One recent study estimates that as many as one in five women are raped in their lifetime.  However, the rates of rape and domestic violence against Native American women are staggering.  Studies show that one in three Native American women will be raped during their lifetime and that nearly half will suffer from domestic violence.  These figures are nearly double the rates of abuse for white women, and much higher than those for African-American and Hispanic women.

Further adding to the victimization of Native American women are the often-isolated conditions of tribal reservations and the limited resources available to build and try rape cases.  In many reservations police forces are small and have limited resources and training to adequately handle sexual abuse crimes.  Often health centers and other clinics on tribal reservations have limited capability to provide the full array of medical examinations that would be found in a rape kit.

Moreover, federal funding has not been provided for an adequate number of federal police agents.  Often complaints and allegations of rape and sexual assault by Native American victims go uninvestigated and unprosecuted.  Many of the tribal and federal police forces in tribal lands are overworked, underfunded, and underpowered.  It is not unusual for a handful of law enforcement officers to cover huge tribal territories, some of which are even lacking paved roads.  That was case in Standing Rock, where only five BIA officers were employed at the time of Ironroad’s rape. These five officers were tasked with covering a large reservation that is nearly the size of Connecticut. The BIA officer who saw Ironroad in the hospital was interviewed by National Public Radio and said that at the time of Ironroad’s rape his office was overwhelmed with the calls and reports of sexual assault and child abuse. He went on to concede that Ironroad’s case and many others can get lost in the shuffle.

To compound the situation, it has been said that some Native American activist do not even press alleged victims to make charges of rape because the Department of Justice (DOJ) prosecutes so few cases.  In a recent New York Times article, columnist Timothy Williams noted that in 2011 the DOJ prosecuted only 65 percent of alleged sexual abuse cases on tribal lands.

The lack of federal police and prosecution is even more problematic given the fact that tribal governments lack the ability to prosecute and punish non-Indian citizens.  This appears of critical importance since recent statistics show that non-Native American, non-tribal members are alleged to have been the perpetrators in over 85 percent of reported incidents of rape and domestic violence.  However, tribal governments have no jurisdiction over the alleged non-tribal perpetrators.

This lack of criminal jurisdiction regarding non-tribal citizens is rooted in a 1978 Supreme Court decision, Oliphant v. Squamish Indian Tribe.  In Oliphant, the Court held that neither Squamish, nor any other tribe had criminal jurisdiction over non-tribal citizens.  However, in a 2004 decision, United States v. Lara, the Court held that it was within Congress’ power to “relax” or “lift” restrictions placed on Native American tribes by the political branches.

Given statistics of violence towards Native women and an apparent route around the jurisdiction box established by Oliphant, there have been calls for increased resources for tribal governments through congressional legislation.  Democrats and other progressives in Congress have attempted to use statutory amendments to the Violence Against Women’s Act (VAWA).  The bill is set for reauthorization by Congress this year.  The original bill was passed in 1994 and drastically increased federal funding for the investigation of domestic violence and to provide stiffer federal penalties for violence against women.

This year two versions of the bill have been introduced in the Congress with disagreements largely among party lines, with much to do surrounding proposed provisions affecting tribal Native America women.  In April, with a bi-partisan majority the Senate approved a reauthorization of the VAWA that included provisions aimed at Native American tribal groups. The key provision gives tribal governments a limited criminal jurisdiction over non-tribal citizens regarding the specific crimes of assault or sexual assault against women who reside in tribal territories.  In addition to the enforcement provision, the Senate bill also provides tribal governments with funding for education, prosecution and investigation of domestic violence and rape claims.  However, in May the House of Representatives approved their own version of the Bill.

The House reauthorization crafted by Republican lawmakers does not include any of the Senate bill’s provisions regarding Native American tribal governments, including the section regarding concurrent criminal jurisdiction over alleged culprits.  It does however allow tribal women to seek orders of protection (restraining orders) in local US District Courts.  House Republican’s held that the Senate version may be unconstitutional since it allows Native American tribunals to prosecute American citizens. Also noting that some Constitutional Due Process rights may be lost if an American citizen is prosecuted in tribal courts.  Republican lawmakers have commented that Native American courts lack the resources and experience of providing the adequate due process rights of criminal defendants.

While an examination of Lara appears to provide a pathway for a congressional grant of concurrent criminal jurisdiction, evidence is lacking regarding the ability of Native American tribunals to provide adequate due process to non-tribal criminal defendants.  Native American tribes have judicial systems that vary and have even larger disparities in the amount of funding available for their judicial systems.  However, there does not appear to be a wealth of direct evidence showing that tribes would not or are unable to provide adequate due process.

The passage of dueling VAWA reauthorization bills means that both houses must settle the disputes and try to reconcile the two bills.  If a reauthorization is not passed by the end of the year then the entire bill is without force.

“What else could authorities want or needed to investigate such cases and when will the violence stop” was the question asked by Rhea Archambault when asked about the rape and death of her friend.  This question asked by many lingers along as well as the future of the VAWA.

Sources:

http://www.fed-soc.org/publications/detail/criminal-jurisdiction-of-indian-tribes-should-non-indians-be-subject-to-tribal-criminal-authority-under-vawa

http://www.nytimes.com/2012/05/23/us/native-americans-struggle-with-high-rate-of-rape.html?pagewanted=all

http://www.amnestyusa.org/pdfs/MazeOfInjustice.pdf

http://www.justice.gov/otj/pdf/american_indians_and_crime.pdf

http://blogs.justice.gov/main/archives/1489

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S. Ct. 1011, 55 L. Ed. 2d 209 (1978)

United States v. Lara, 541 U.S. 193, 124 S. Ct. 1628, 1629, 158 L. Ed. 2d 420 (2004)

http://www.whitehouse.gov/blog/2012/05/14/addressing-violence-against-native-women-violence-against-women-act-reauthorization

http://www.ourbodiesourblog.org/blog/2007/07/a-warped-world-for-native-american-women-seek

http://dartcenter.org/content/sexual-abuse-native-american-women

http://www.aljazeera.com/programmes/witness/2012/06/20126565933637560.html

http://www.newser.com/story/146595/for-native-american-women-sex-assault-is-the-norm.html

http://www.standingrock.org

http://www.ncai.org/news/articles/2012/05/10/keel-op-ed-vawa-tribal-provisions-are-constitutionally-sound

http://www.nytimes.com/2012/07/24/opinion/delay-on-violence-against-women-act.html

http://www.whitehouse.gov/blog/2012/05/14/addressing-violence-against-native-women-violence-against-women-act-reauthorization

http://www.huffingtonpost.com/2012/05/16/house-passes-violence-against-women-act_n_1522524.html

http://www.huffingtonpost.com/2012/04/26/violence-against-women-act-passes-senate_n_1456839.html

http://womenagainstvawa.org/battle-in-the-house-looms/

http://4vawa.org/pages/tribal-provision-of-s-1925-myths-v-facts

http://www.randomlengthsnews.com/blogs/Notebook/2012/08/congressional-foot-dragging-leaves-violence-against-women-act-in-limbo/

http://www.washingtonpost.com/blogs/2chambers/post/senate-should-hold-firm-on-vawa-provisions-murray-says/2012/06/26/gJQAmPBa4V_blog.html

http://www.now.org/nnt/spring-2001/nativeamerican.html

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