Appeals court decision affirms tribal jurisdiction over non-Indians
Tribes can serve orders of protection against non-Indians due to their "inherent" sovereignty, a federal appeals court ruled this week, speaking to an issue that several presidential candidates are raising on the campaign trail.
By a unanimous vote, the 6th Circuit Court of Appeals on Tuesday said the Violence Against Women Act of 2013 recognized tribal authority against "any person." In this instance, it was a non-Indian who was accused of harassing a citizen of the Nottawaseppi Huron Band of the Potawatomi .
"This text authorizes Indian tribal courts to issue and enforce civil protection orders against any person —Indian or non-Indian, tribal member or non- tribal member—in matters arising in the Indian country of an Indian tribe," Judge Deborah L. Cook wrote in the 13-page decision , referring to the section of federal law that implements the landmark provisions of VAWA.
The ruling marks the first time a federal appeals court has considered the legality of personal protection orders against non-Indians. Nathaniel Spurr, the Nottawaseppi citizen who had sought the order from his Michigan-based tribe's judicial system, told Indianz.Com on Thursday that it represents a "victory" that will protect people from stalking and harassment in their communities.
"This was a great victory for Indian Country and anyone wanting to combat domestic violence in Indian Country," Spurr told Indianz.Com.
It also comes as a growing number of politicians stress the importance of tribal sovereignty and the need for tribes to be able to exercise jurisdiction over anyone who comes into their homelands. The issue was discussed repeatedly at the Frank LaMere Native American Presidential Forum last week.
"Tribes must have jurisdiction over their own lands -- including regulatory -- you name it." said Amy Klobuchar , the U.S. Senator from Minnesota , who was among the record number of presidential candidates who attended the historic event , held over two days in Iowa, a critical state in the race for the White House.
The personal protection order at issue in Spurr's case was civil in nature, the federal appeals court pointed out. The target of the order was his stepmother, who had instead claimed that the order was a criminal punishment.
The distinction is significant -- under VAWA, a tribe can only exercise criminal authority over non-Indians in limited situations. Spurr's stepmother, who lives off the reservation, argued that the law did not apply to her due to her lack of ties to the tribal community.
She is not a partner of a tribal citizen, does not live in Indian Country and isn't employed there, which are limitations imposed by Congress in VAWA.
But the 6th Circuit rejected the stepmother's line of thinking. The court relied on Nottawaseppi law to confirm that that the protection order was indeed a civil one -- although one that could possibly lead to criminal charges or even imprisonment if she violated it.
"For all those reasons, we disagree with Spurr: The tribal court issued a civil protection order against her," Cook wrote of Joy Spurr, who is Nathaniel's stepmother.
According to court briefs, the pair had a falling out a few years ago that contributed to the stalking and harassment at issue in the dispute. The stepmother, however, adamantly denied the behaviors attributed to her.
Of the "hundreds of letter, emails, voice mails and letters" allegedly sent by the stepmother, attorney Stephen Spurr, who is married to Joy Spurr and has represented her throughout the ordeal, told the 6th Circuit during oral arguments on May 1 : "I would like to say that not one word of this is true."
VAWA's limitations reflect a long-standing issue affecting criminal jurisdiction over non-Indians. They stem from the U.S. Supreme Court decision in Oliphant v. Suquamish Indian Tribe , a destructive ruling from 1978 that restricted tribal authority based on a paternalistic views of their governments.
Earlier this month, Democratic presidential candidate Elizabeth Warren , the U.S. Senator from Massachusetts who also appeared at the Frank LaMere Native American Presidential Forum, called for Oliphant to be reversed completely as part of her expansive Indian Country platform . In doing so, she became the first presidential candidate to support tribal jurisdiction over non-Indians in all criminal aspects.
"It's about money and honoring our treaty obligations," Warren said at the forum last Monday, stressing that the federal government must support tribes with resources in order to keep their communities safe.
Other White House hopefuls have taken notice following the release of Warren's platform. Joe Sestak , a veteran and former U.S. Congressman who also participated in the forum , said tribes must be able to go beyond VAWA, which does not address sexual assaults, for example.
"Eighty percent of all sex crimes on a reservation are committed by non-Native American men. It’s wrong," Sestak said at the Orpheum Theatre in Sioux City last Tuesday.
Klobuchar, who pushed for passage of the 2013 version of VAWA, said she supports an expansion of the law to cover additional offenses. Along with sexual assaults, tribes should be able to prosecute non-Indians who commit crimes against children and law enforcement, she told attendees of the forum last Monday.
As president, Klobuchar said, "I will make sure that we have people’s back when it comes to tribal issues."
On April 4, the Democratic-led U.S. House of Representatives passed H.R.1585 , the Violence Against Women Reauthorization Act, to address the crimes mentioned by Klobuchar. The bill, however, has not been brought up in the U.S. Senate, which is in Republican hands.
"The Violence Against Women Act -- don't you think people would want to pass that bill and get it signed by the president so that women can be protected?" Rep. Deb Haaland (D-New Mexico), who is one of the first two Native women in Congress , said to applause at the forum last Monday.
Haaland, a citizen of the Pueblo of Laguna, referred to the GOP-controlled Senate a "legislative graveyard" and urged forum attendees to contact Sen. Mitch McConnell (R-Kentucky), the Republican majority leader of the chamber, to "make sure that he hears from Indian Country about why we think the Violence Against Women Act needs to be put on the floor of the Senate, passed by the Senate and signed by the president."
Turtle Talk has posted documents from Joy Spurr v. Melissa Pope , the Nottawaseppi Huron Band case. Melissa Pope, one of the named defendants, serves as Chief Judge of the tribe's trial court. She was the one who issued the civil protection order against Joy Spurr.
The case later went to the tribe's highest court. In a January 25, 2018 , decision, the court noted that Joy Spurr "inundated [Judge Pope] with dozens, even hundreds, of pages of documents."
"The incredible amount of time and effort the staff of the tribal court took to communicate with Joy Spurr and her counsel, to provide service of court documents to Joy Spurr and her counsel, and to receive, manage, and file the voluminous material Joy Spurr filed — much of which did not comply with the court’s rules for filing and service — is worth noting," Tribal Judge Matthew Fletcher, a prominent Indian law professor and scholar who maintains Turtle Talk, wrote in the decision. "The appellate court applauds this effort to ensure Joy Spurr received the process due her in this matter from the inception of the case until now, and perhaps going forward as the case continues.
The civil protection order against Joy Spurr was deemed "permanent" but under Nottawaseppi Huron law, it only ran for a year after being issued in February 2017.
Nathaniel Spurr is the son of late Laura Spurr , a well-respected former chairwoman of the tribe. At the time of her passing in February 2010, she was married to Stephen Spurr, who is now married to Joy Spurr, formerly Joy Judge.
"This would not have been possible without Patti McClure, the domestic violence victims advocate for our tribe, who stood by me from day one of this case," said Nathaniel Spurr, who also thanked Judge Pope for her role in issuing the protection order. He said the tribe's leadership played a key role in protecting his rights during the legal challenge.
Joy Spurr v. Melissa Pope (August 26, 2019)