Maine’s tribal courts could soon be authorized to try non-Indians accused of domestic violence, stalking and trafficking on their reservations, an issue that has been a flashpoint between the tribes and state authorities over the scope of tribal authority in Maine.
Other federally recognized tribes have had this authority since 2013, but Maine’s tribes were not included because then-Attorney General Janet Mills objected, citing provisions of the 1980 federal law that settled the tribe’s land claims to more than half of Maine. This law says no federal Indian law applies to Maine if it “affects or pre-empts” Maine’s jurisdiction, unless Congress explicitly says otherwise.
But Thursday the U.S. House of Representatives passed a bill reauthorizing the Violence Against Women Act that included language introduced by Rep. Chellie Pingree extending its authority to Maine tribes and also to Alaska native people. The vote was 263-158, with 33 Republicans joining nearly every Democrat in support.
“According to the way the Maine Indian Claims Settlement Act has been interpreted by some, Maine has been left out of the law,” Pingree, a Democrat representing Maine’s 1st District, said on the House floor Wednesday “Unfortunately, this has resulted in tribal victims of domestic violence in Maine or Alaska losing out on protections that have been extended to tribal victims of every federally recognized tribe in the country.”
Proponents of the changes say the Penobscot Nation and its widely respected court system are already in a position to provide a better response, both in terms of resources and in successful rehabilitation through its family wellness programs, wherein spiritual and cultural figures work through domestic issues with families. The Penobscot tribal court also has a much lighter docket, so can resolve cases faster while reducing the demands on the Maine District Court in Penobscot County.
There are currently 90 Maine women in tribal domestic violence social services programs whose cases against their accusers have yet to be resolved, said Maulian Dana, the Penobscot Nation’s tribal ambassador.
“We’re seeing months to years they have to wait in District Court, and these cases are very sensitive because it gets tricky enforcing abuse orders with all the different jurisdictions,” Dana told the Press Herald. “Some walk away from the process. If we were able to handle these cases in a more efficient manner in the tribal court, we could make a really big difference.”
National surveys have shown Native American women are twice as likely to have been victims of rape or sexual assault than other Americans, and that roughly two-thirds of the perpetrators of these crimes were not Native Americans. They are also significantly more likely to have been stalked and assaulted.
In many parts of the country, tribal police and courts were not allowed to pursue non-Indians who attacked women on reservations until changes were made to the Violence Against Women Act in 2013, even if the perpetrators were living there and married to Indian spouses.
Under VAWA, tribal courts that meet Department of Justice guidelines to ensure due process were allowed to try certain types of domestic violence cases against non-Indians. The Department of Justice initially designated he Penobscot Nation’s court to serve as one of six pilot projects, but Maine blocked the move, citing the 1980 land claims settlement act.
The chief judge of the Penobscot Nation’s court, Eric Mehnert, said it is fully prepared to take on the responsibilities and eager to do so. “From a policy perspective, it would give the Nation the ability to have a greater role in working on the issues and the behavioral changes so the individual does not reoffend,” Mehnert said, noting that, as a tribal entity, the court has access to federal resources and programs the state does not.
In the near term, only the Penobscot Nation would take on the new authority. The Passamaquoddy tribe has a court but lacks its own appellate body and other Justice Department requirements, while the Houlton Band of Maliseets and the Aroostook Band of Micmacs do not have courts.
Tribal courts elsewhere in the country have appeared to perform well. From 2013 to 2018, they reported making 143 arrests of non-Indian domestic abusers, resulting in 74 convictions and not a single petition to a federal court challenging a tribe’s right to arrest someone outside the tribe. University of Kansas professor Sarah Deer, an expert on domestic violence, testified before Congress on March 7. The data, she said, indicates that concerns about the competence of the tribal courts “were unfounded and likely based on prejudice alone.”
The bill reauthorizing VAWA now heads to the Republican-controlled U.S. Senate, where its prospects are uncertain. Many House Republicans opposed other changes made to the 2013 version of the law, including banning gun purchases for those convicted of misdemeanor – rather than just felony – domestic abuse or stalking charges, which the National Rifle Association opposes. Another provision extends the law’s protections to transgender women.
Maine’s senators, independent Angus King and Republican Susan Collins, did not respond to requests for comment.
Rep. Jared Golden, the Democrat representing Maine’s 2nd District, supported the bill, saying it restored important sovereignty to the tribal nations. “When an act of domestic violence or abuse is committed on tribal lands against a tribal member, they should be able to try the case in tribal courts,” he said in a statement. “It’s a long overdue measure that will help deliver justice for domestic abuse victims in our state.”
When she was attorney general, Maine Gov. Janet Mills argued the Violence Against Women Act did not apply to the Maine tribes and questioned whether the tribal courts could provide proper due process protections. She also testified against a 2015 bill introduced in the state Legislature seeking to accomplish the same objectives, calling it “a broad departure from the original vision of jurisdiction” laid out in the land claims settlement acts.
Mills prioritized tribal issues on the campaign trail, suggesting her stance may be evolving. Asked for comment, her office provided a statement from the governor’s senior adviser for tribal affairs, Donna Loring.
“Governor Mills appreciates the work being done by Congress to provide Maine tribes the same advantages and opportunities as tribes in other states under VAWA, and she looks forward to working with the Maine Legislature to further implement VAWA and fully protect members of our tribal communities,” Loring, a former legislative representative for the Penobscot Nation, said. “The governor sees this as a new opportunity to partner with the Tribes in a positive way moving forward.”
State Rep. Ben Collings, D-Portland, is one of the lawmakers who’ve reintroduced the state bill, L.D. 766, which would act as a backstop to extend jurisdiction to the tribal courts if Congress doesn’t act and would bring state law more nearly into compliance if it does. It hasn’t been scheduled for a committee hearing.
Collings said he, his colleagues and the tribes were compelled to act because they sense there may be a shift going on in attitudes toward the tribe among the public, decision makers and the governor. “Twenty years ago there was animosity toward the tribes and now I see a lot less of that and a lot of support in the capital,” Collings said.