As we have noted in our previous posts about the Indian Child Welfare Act, the practice of family law is often complicated in Pennsylvania by an attempt to balance the Pennsylvania court's authority with that of the various Native American tribes that call this state home. This week, the United States Supreme Court decided a new case that will likely impact the practice of Pennsylvania family law. In United States v. Bryant, the Court affirmed the sovereignty of the Native American tribal courts and addressed domestic violence in the Native American community for the first time. The Court unanimously upheld a federal conviction against a native domestic violence offender.
This decision placed a light on the crisis of domestic violence in the Native American community and established a precedent regarding the need for tribal jurisdiction in these matters. As a result of Violence Against Women Act, anyone with two or more convictions of domestic assault can be tried in federal court and receive a prison sentence of up to five years. It does not matter if the conviction is at a state, federal or tribal level for this rule to go into effect.
The Petitioner in this case appealed his case alleging the conviction was unconstitutional because he was not represented by a lawyer in his lower tribal court cases. In their opinion, the Supreme Court held the tribal court's convictions were constitutional under the Indian Civil Rights Act of 1968. In the opinion, Justice Ruth Bader Ginsburg stated that as "separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority."
This decision also acknowledged the high rates of domestic and sexual violence within the Native American community. According to a recent study, about 46 percent of Native American women have experienced rape, physical violence, and/or stalking by an intimate partner in their lifetime.
Interestingly, Native American tribal courts have the authority to prosecute non-Native defendants for domestic violence, they do not have the authority to do so in cases of sexual violence.
In Pennsylvania, state courts tend to defer to the authority of tribal courts in most case based on Supreme Court precedent. However, in cases of domestic violence, it can benefit victims to pursue protection from multiple courts. Just as the defendant in a Domestic Assault case can be criminally charged and served with a Protection from Abuse Petition, so too should a native victim pursuing charges with a tribal court should also consider pursuing PFA with the Allegheny County Family Division or other local courts. As the process tends to move more quickly in family court than it does in other courts, this can provide protection for a victim while the other case moves forward.
If you are the victim of domestic violence and would like assistance in pursuing a Protection from Abuse Petition, contact our Pittsburgh office today!