Diane Millich's ex-husband was never arrested for any of the more than 100 times he slapped, kicked or punched her before showing up at her Colorado workplace and firing a 9 mm pistol, wounding the co-worker who pushed her out of the way.
When he was finally arrested in New Mexico weeks after the shooting, he was treated as a first-time offender.
Why? Because while Millich is Native American, her ex-husband is not and all the domestic violence took place on the Southern Ute reservation.
Under a 1978 Supreme Court decision, non-Indians cannot be prosecuted by tribal courts for crimes committed on tribal land. Last July, the Justice Department recommended that Congress give tribes local authority to prosecute non-Indians in misdemeanor domestic and dating violence cases. The pending renewal of the Violence Against Women Act seemed a good chance to do that.
But the act has become entangled in election-year politics, with each party adding language on other issues that infuriates the other. Although the version the Senate passed 68-31 would follow the Justice Department recommendations and give tribes the power to prosecute non-Indians in tribal courts, the House so far has not. The House could change its mind and add the provisions as soon as this week when it is expected to consider the bill.
Millich said a change in the law certainly would have helped her deal with the abuse in her marriage, which began with slapping and pushing when she was a 24-year-old newlywed. After a year, Millich filed for divorce and sought a protective order, which her ex-husband mocked because he knew it would not be enforced.
"American Indian women do not have the same protections as non-Indian women. Federal law ... has a large gaping hole in it for abusers who are non-Indian," Millich, 49, said in a briefing for Capitol Hill staffers last week.
She said tribal and county authorities routinely refused to arrest her ex-husband, whom she did not identify by name. Once, she said, he called the county sheriff himself "to show me that no one could stop him," and indeed, two deputies came to their home and confirmed that they did not have jurisdiction to arrest him.
"I felt like I was walking on eggshells and knew inside that something terrible was going to happen ... After I fled he broke into the house, breaking windows, furniture and dishes. He cut the knuckles of his hands during the violence and smeared his blood over the walls, floor and my bedroom sheets," Millich said.
The day after destroying her home, Millich's ex-husband showed up at her Bureau of Land Management workplace with a gun. Although officials responded, he escaped and was at large for two weeks while she hid in a women's shelter, fearful he might find her, she said. Her ex-husband ultimately was offered, and took, a plea deal on an aggravated traffic offense.
"In the end, he was right in that he was above the law," she said.
Statistics on domestic and dating violence involving Native Americans and non-Indians are vague both because of varying ways tribes collect the information and because much of the violence is unreported. There is hope to improve collection of data.
A recent Census report found about 77 percent of people living on Native American and Alaska Native areas are non-Indian. About half of Native American women are married to non-Indians, according to the Justice Department.
Lisa Boothe, a spokeswoman for Rep. Sandy Adams, R-Fla., herself a victim of domestic violence who wrote the House version of the Violence Against Women Act that excludes the tribal provisions, said laws already exist to deal with non-Indian domestic violence against native peoples that takes place on tribal land.
Although the federal government has authority to prosecute domestic violence involving non-Indians, the cases often are not priorities, said John Harte, who has been lobbying in support of the provisions on behalf of Native American tribes. He said that in 2007, the Salt River Pima, Ariz., tribal police responded to more than 400 acts of domestic violence, many involving nontribe members. That same year U.S. attorneys prosecuted only 21 misdemeanor crimes on Indian lands across the country, Harte said.
Another law gave some states all federal prosecution powers held by the federal government over non-Indians. The law originated in the 1950s as the country was enacting "termination policies" to assimilate tribes into the broader society and do away with reservations and tribes themselves, according to the Justice Department.
Though some local officials have good working relationships with tribes, the isolation of tribal lands and the lack of resources — states don't collect taxes within Indian Country — usually mean misdemeanor domestic and dating violence take a back seat. Often domestic and dating violence steadily worsens if the abuser is goes unpunished until the victim is seriously wounded or killed.
"Is it working on the ground? The answer is no," said Terri Henry, a tribal council representative for Eastern Band of Cherokee Indians in Charlotte, N.C.
The legislation also grants defendants the right to counsel if they can't afford an attorney, an impartial jury that includes non-Indians and a right to appeal. Non-Indian defendants would have the same rights in tribal courts as they have in state courts, according to the Justice Department.
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