OpEd by Professor Melissa Tatum

Thursday, July 31, 2008

As printed 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.