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THE CRUX OF TIME Jane Doe andThe Re-imagination of Indigenous Justice By: David Adams

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Abstract

 

The painted picture of the historical relationship between federal and tribal governments isn’t pretty. The rate of suicide amongst our youth has increased, female incarceration has risen at a particularly high rate, and justice for Jane Doe doesn’t feel much different than it was 50 years ago. This article discusses the evolution of our trust relationship with the federal government. It looks at characteristics of what an Indigenous Jane Doe often has to endure and the grave consequences associated with such. The article concludes with policy recommendations for a more equitable governmental system that puts Jane Doe at the forefront of future.

INTRODUCTION

 

This isn’t your typical law journal article with a bunch of amazing “blue book” cites to all the wonderful Indian law literature that we have in existence. It is meant to be a brain dump of what I foresee to be a turning point in our Indigenous history. In addition to it being a turning point, it is also an acknowledgment that our U.S. Government is compromised because of the auspice that any work is being accomplished when we are as divided as we have ever been. Our future will be using taxpayer dollars to investigate the constant barrage of accusations from the

blue to the red and the red to the blue. We are over $15 trillion dollars in debt and have no real end in site to the chaos we have created over decades of failures.

The Trump Era made us more divisive than ever and if our current state of affairs is any indication to what our future beholds, its grim. It is time for Indigenous Nations to unite and break the barriers that were created to initially divide us, and come together as a united nation that can do better than what our racist “forefathers” had assembled for our division.

I’ve done over 260 trainings for social services, victim advocates, tribal members, community leaders, medical professionals, law enforcement, and the list goes on. I have represented social services for hundreds of child in need of care cases, prosecuted hundreds of defendants in tribal court, and prosecuted at least a hundred felony cases under the Violence Against Women’s Act, Major Crimes Act, and other applicable federal statutes. I work for various tribal entities and have conducted a number of investigations related to embezzlement, fraud, sexual harassment, and various constitutional violations. I am a tribal member of the Sault St. Marie Tribe of Chippewa, and of mixed decent. I am a blue eyed Indigenous Chippewa, or a “cultural chameleon” as one mentor once said. I have conducted presentations with survivors of strangulation, domestic violence, and sexual assault. I am an empath and dive as deep as I can into who Jane Doe is and why she might be in the situation she is in. I sit on a board that oversees sexual assault programs in New Mexico and was recipient of the Attorney Generals Award for my time at the U.S. Attorney’s as an Assistant United States Attorney and Tribal Liaison to 22 Tribes. I am always learning. I am definitely a believer that adverse childhood experiences will be the demise of our sovereignty.

This is a subjective and objective approach to strengthening our system of justice which will in turn strengthen our community. You won’t agree with everything I say, which is okay.

This will also be difficult for some to read because so many of us have experienced trauma in our life. So many people can be triggered by traumatic events, so please be aware of such when reading some of this brief assessment.

Foundation

 

One of the many lessons I have learned from my Dad, a contractor for over 50 years, was the importance of building a strong foundation to any building or home. Without a strong foundation your structure on top will eventually fracture, crumble, and succumb to its demise. As a result, those looking for shelter will be placed in danger, or will need refuge from the storm.

Our governmental system, which includes, law enforcement, courts, social services, amongst many others, was built on a foundation of fear and inequity.

The United States was built on conquering anyone that wasn’t European. Without going into great detail, think of every law that was passed under the gluttonous facade of power that was meant to eradicate the “savages” while enslaving a whole other race.

We are far beyond the exploration of assimilation and plenary power and what the U.S. has or hasn’t done. This paper will dive into some current and past issues regarding “trust obligations” but this won’t be a narrative of the U.S. failures, this will be narrative of our failures if we don’t act now.

1934

 

1934 is one of the many turning points of Indigenous nation building. The Indian Reorganization Act did many things, but one of those things was creating boilerplate constitutions and laws for tribes to enact. The reminiscences of such certainly exist today. Laws and constitutions evolve, but we have failed to implement effective legislative processes to continuously update our laws, and revise outdated constitutions. Why does this matter? Because

we have failed our grandmothers, daughters, nieces, and our mother. We have failed at protecting the mother that has the gift to bring life into this world. Maybe as men, we have some innate jealously that we cannot do one of the most precious things in life that our mothers can do, so we chose to take away life instead? Dark, I know, but it is undeniable that the leadership of men have failed us in many regards.

1968

 

Thanks to our “forefathers” (said with sarcasm), we were blessed with the Indian Civil Rights Act. A slimmed down replica of the bill of rights, we added inequity to the layers of inequity that were already apart of our fractured foundation. Any attorney that practices law should cringe inside when they think of the legal representation that poor people often need but are unable to obtain due to resources. Another consequence of centuries of inequity and oppression. Rather than provide representation to the accused like our neighboring State and Federal partners, we starve the accused of representation, and muddle our system with additional inequities.

Ask yourself how many contracted employees (not from your community) we have working jobs that really should require someone to be engulfed in our community to understand the issues. Someone that is informed and empathetic.

1885

 

So what is 1885 representative of? If you guessed the good ole Major Crimes Act you were spot on! What a wonderful act of Congress overturning a Supreme Court decision and belittling Indigenous justice. Well, its only been a 138 years and we still have nearly a 60% declination rate of Major Crimes that occur within the boundaries of our communities. What does that mean? That means that thousands of cases involving violent crime over the past

century that arose to the felony level were never prosecuted – making justice a foreign concept for some. That means that there are decades of red flags that were ignored. Jane Doe must return to the Court that couldn’t take her case as seriously as her neighboring sovereign partners to seek justice. That means that we often invite our federal law enforcement partners, that are not from our community, to respond to a life changing event in an untimely manner, when we know immediate advocacy, is the best advocacy.

We allow Jane Doe to enter the matrix of “what happens” next in the context of having experienced arguably the worst situation of their life. Don’t get me wrong, there are no doubt some AMAZING federal employees that respond to violent crime with trauma informed care, and a goal of helping change Jane Doe’s life for the better. But we also know that there are just as many insensitive, uninformed, culturally incompetent federal employees that cause Jane Doe more harm than good.

We, as Indigenous people / Indigenous leaders, watched our compromised system of justice fail Jane Doe for over 100 years and have done little to address this failure. It should sicken you.

Beyond that, we doubled down on our failure, followed the footsteps of our neighboring federal partner, and excluded women from many roles for far too long. Tradition and custom aside, both easily manipulated, we used both concepts to keep women from roles in leadership under the belief that women traditionally don’t belong in those roles. Insert vomit emoji here.

1994

 

118 years after the good ole declaration of “independence” the U.S. was able to have a meeting of the minds and passed the, what…………………………………………………………………………. the Violence Against Women’s Act. Why

this Act was needed in and of itself is a whole other short book to talk about how we have

collectively let misogyny dictate our governmental future, and to determine how crimes against women should be handled. Now, for a moment, allow yourself to reflect on how the impact of this Act may have been different in its applicability to tribal nations.

I am writing this book in a manner where I literally just put it out there, without much reflection, so I am going to allow my inner me, the one that I talk to in the store when I shop by myself, to step in and occasionally clarify points that may be misinterpreted. I want to be very clear that I am one of the biggest supporters of VAWA and those that it protects, supports, and funds. Without it, we wouldn’t have FUNDING, Strangulation, Domestic Assault by Habitual Offender, Interstate Stalking, and many other laws that we absolutely NEED to protect Jane Doe.

The problem is that the laws are useless without our federal partners carrying out their investigations, charges, and or indictments. Could you imagine living in a world where the “main” law enforcement agency for jurisdiction over the MOST SERIOUS crimes that happen answered the call saying “I am over 50 miles away, I will get there when I get there” or worst yet “do the investigation, let me know what you find out, and lets connect tomorrow”? It would be considered a third world problem, and it is.

Okay David, step off the high horse, we have our own law enforcement agencies with their own investigative ability. And that is true. What really needs to happen here is the agency needs to go through several trainings, certifications, as any agency should, to be properly equipped with responding to those most serious cases. Beyond that, it takes a level of compassion that should be a pre-requisite of employment before you equip yourself with a badge and a gun. You HAVE TO RESPOND TO TRAUMA WITH INFORMED CARE. Not just with Indigenous women and children, but with all victims of crime. However, specific to Indigenous

women and children, we are talking about generations of trauma. Generations of unresolved crimes, racism, poverty, and of course boarding schools.

When responding to violent crime, what you observed at the scene of a crime, heard from witnesses, and heard from Jane Doe – will never tell the story and give you a complete picture about what her life has been like. Sure, you can have a crime that you respond to, that is abhorrent in nature for a particular defendant, but when it comes to felony DV or sexual assault, it is rarely an isolated incident.

There came a point early in my career as a prosecutor where my heart broke (one of hundreds of times) when you realize the most common reason that the worst domestic violences cases are declined is for…..drum roll  Jane Doe doesn’t want to cooperate. Why does it

break your heart? How in the hell could we have screwed up so badly, to know that 67% (admittedly not cited here, but think I am close) of the time Jane Doe dies, it happens when or after she tries to leave her abusive partner. And we wonder why she doesn’t want to cooperate – it MEANS STAYING ALIVE. This doesn’t even account for DISTRUST in the system that is undoubtedly failed her in the past. The system that doesn’t even have a place for her to go if she can’t afford to leave her abusive partner. The system that she will then have to enter as a Plaintiff in a child custody proceeding to fight her perpetrator, and his family, for her children, so they can be safe from misogyny, lies, manipulation and abuse. Yeah, we’ve made it easy for Jane Doe to cooperate. Insert vomit emoji here.

Another argument against non-cooperation declination, is if we are responding to crime in a trauma-informed manner, then our investigations will be so solid and compassionate that we will be fulfilling our civic role in standing in Jane Doe’s shoes to hold a violent offender

accountable for his actions. And hopefully have resources in place that will give he or she the opportunity to better themselves.

Many of our tribes have not implemented the laws passed under VAWA, which we should do, but that is a chapter around the corner. If our tribes failed to implement the law under VAWA we belittle Jane Doe’s justice at home.

Ex. 1. Jane Doe 1 gets strangled on the rez vs. Jane Doe 2 getting strangled off the rez.

Jane Doe 1’s case will likely not be charged initially as a strangulation, it will be charged as battery against a household member (which is a problem in and of itself), and federal charges will come in the future. The offender will likely be released on bond and roaming around the community within a one mile radius of the person he just attempted to kill, who then called the police on him. If our systems our properly functioning, Jane Doe 2’s offender would likely be charged with a felony strangulation, and held on a high bond.

It’s called inequity. It doesn’t feel very good to be “home” when we don’t protect Jane Doe in ways that our neighboring partners do. Hmmmm, I wonder if that was part of the intent of all the 1934 stuff, make it so we won’t want to be home anymore ☹ Home sometimes doesn’t protect us. Sadly, it is a rare occasion where I would advise Jane Doe to have her protection order or child custody proceeding in Tribal Court.

Going back to the charge of “battery on a household member” my intent was to reflect on

the fact that charge doesn’t represent what happened to Jane Doe. Yes that should be one of the charges, but if there is a 600% chance likelihood that John Doe will attempt to kill Jane Doe in the future due to the violent nature of strangulation, we better damn well put it in the complaint so everyone that sees it knows exactly that – it’s a future indicator for homicide.

I conclude this chapter, by saying 1 out of 3 and 1 out of 4 women being abused or sexually abused in their lifetime was the same statistic, more or less, 29 years ago. We have to do better. We have to do better.

Youth Suicide

 

Dad was an alcoholic and didn’t raise me. Mom was an alcoholic that got sober after I died. How could no one care about me being sexually abused by a relative? Why would everyone pretend it didn’t exist? Do people love him more than me? Am I one the one breaking up the family? I am 11. Does everyone hurt this bad? My teachers don’t even like me. No one likes me. I am different, I dress different, I look different, I get called names. Fuck this. Fuck you. Fuck everyone. What I do know – is that this hurts bad enough, that I need to end it. I am going to play my favorite music, put my headphones on. I don’t hear the train, but I can feel it coming. Fuck you world. The end.

My parents are never here, I wonder if they are still in jail. This sucks. I love my grandma to pieces though, she is the best woman in the world. I don’t want to break her heart to tell her that uncle, her son, put his fingers inside me when he taught me to ride his bike. She loves him too. She always says that its okay that he’s mean sometimes, he’s a veteran, and fought for our country. But he is now put his private in mine, and I don’t want to live anymore. I am going to steal his vodka and be done. I am only 13, life can only get worse from here. I don’t feel anything anymore, I think I drank it all. I will cut my wrists, maybe someone will listen now.

That was depressing. That was real. More kids do it every year, and per capita we are the highest. Take a breath. We can do more, we can be better.

Adverse Childhood Experiences (ACE)

Thanks to Kaiser Permanente and others, we now have some amazing studies about what happens to kids when they become adults when we ignore everything that happens to them growing up. They use drugs, they hurt people, they get sick, they get diabetes, they hurt people, they hurt themselves, they hurt animals, they hurt people.

We can even assess youth for where they fall on a scale and face some of these life changing ailments, and have failed to properly respond and provide them the help they need. Which is more help than we have to offer.

So, lets just wait till their eighteen, and leave it to the next system to handle. Lordy our system ignores the cry’s for help that youth often make through their actions, inactions, and behaviors.

One of our best tools in combatting the cyclical door of crime and violence is putting forth every preventative measure we can in identifying adverse childhood experiences, and addressing them with trauma informed care. The money we could invest into it now, will be saved in the future when we aren’t sending them to jail or prison. Insert prayer hands here.

Understanding the ACE study and how our children are impacted by violent crime should be game changer for how we handle social services cases in addition to cases where children are impacted by violent crime. Remember, that does just mean that a child a victim to a violent assault, it also could mean they were simply present when their mother was battered, and dealing with the several repercussions that follow thereafter.

Church (gosh, do I have to write about this)

 

Yes, I do. But not a lot. The “church” with a cross didn’t exist here prior to European conquest. The end. If you look close enough, you will see where some division amongst our people stems from religion. One that was not welcomed, but was forced upon us. I hate saying

this because I don’t want to offend the devote Christian community in our communities, but history matters.

It bleeds into politics, the red and the blue, and will divide us until time immemorial. It has led to more warfare in the world than any other resource subjected to conquest. That’s that. No more to say about it. Other than, please just objectively sit back for a moment, and know that not a single person in our culture can attest to knowing Jesus is real. Moving on.

Jane Doe

 

I share her story a lot, because so many of us in society don’t know the depth to who Jane Doe really is. Prosecuting 40 John Does in one year, also meant 40 Jane Does for me in one year, and 112 children. That is 192 people impacted by violent crime in unimaginable ways, with more to come due to children having children carrying unresolved generational trauma.

Because of that, I gave my everything to help give each Jane Doe a chance to truly become a survivor, so that she could breaking the generational curse of unresolved trauma. So she could be the one to say enough is enough. And my goodness I have seen so many Jane Does empowered by sharing their story, having a voice, and reminding each other that we don’t have to live this way.

Jane Doe is our youngest of children, being 1.5 years old and thrown against the wall like a rag doll, because dad is tired of her crying. Jane Doe is the 1.5 year old that grandpa was penetrating with his finger and eventual penis. Jane Doe is the teen sexually assaulted by an uncle that crawled into her bed when he was drunk and didn’t know who she was. Jane Doe is a 21 year old with 2 kids, no mom, and man that strangles her so bad she has a stroke, but in her mind, he’s the only person left that loves her. Jane Doe is the 83 year old that lives off the cell grid, that is raped by a 53 year old nephew that breaks in her house, high on meth, as she fights

him tirelessly, telling him “your my nephew”. Jane Doe is woman who just broke up with her boyfriend and is drunk and hitchhiking – and later killed by two strangers who rape her with a shovel. Jane Doe is the mother of 3 that goes missing after she is kidnapped by a meth dealer who convinces everyone in the house she is a narc. So they strip her almost naked and take turns stabbing her in the dessert.

Jane Doe is an unbelievably strong woman, that has a lot to tell you, if you will listen. Maybe she will tell you why she doesn’t do her makeup right because she doesn’t look in the mirror anymore because she doesn’t like the scars on her face, and her missing teeth. Love her. Help her. Know that she probably copes with her pain using drugs or alcohol. She needs you. Don’t just go away because the case is over, be there for her when he gets out. Answer her call when she takes too many pills and doesn’t know where else to turn. Help her get her license. A job. A place to live. Survive. Don’t ever judge her again. You don’t know her story, you haven’t lived her life. Look at the women’s prison when you drive by it and wonder how many Jane Does are there? Wonder how many people knew they were hurt and did nothing. How many are addicts? How many had parents that were one of the 192.

2023

 

I think we are embarking upon the end of this short journey. One that many will disagree with and criticize as you should. Like anything.

However, my intent is to give those much smarter than me an idea that may be worth exploring. Whether it was intentional or not, it’s a moot point at this point, our almost 600 Tribes across the Country are spread out all over. The IRA did a pretty good job of setting us up with our own individual governments and our sovereign status to operate as individual Tribal

governments. I will admit, in recent times, our sovereign partner, the federal government, has done an excellent job recruiting the elite of our indian law professionals. We definitely have way more sway and representation in the political arena.

However, the facade that isn’t worth spending much time on here, is that that U.S. government is efficient and effective in our operation. Don’t get me wrong, we are way better than most places in the world. But when it comes to how effective our divided government is, not very effective. Recently we watched our elected leaders vote 15 different times before appointing the same person they wanted to appoint one vote 1. Do you know much tax payer money was spent casting votes against each other, and wasting precious time? I don’t either but I bet it was A LOT.

Yes, we also have the Congress of American Indians but I humbly have to admit I don’t even know what they do anymore. Which is not an insult, its just me admitting I am ignorant. So what’s the point Dave?!

It feels possible to me, that this was the plan all along, limit our ability to move forward because its too costly for 600 Tribes to constantly be reinventing the wheel. We are undoubtedly at a point in our history, where we need to establish a Confederated Indigenous Nation in the U.S.

Yes, we still remain all separate sovereigns, but we establish a single Indigenous Nation with a central capital, appointed leaders, attorney general, and other posts that we deem necessary. Could you imagine how amazing it would be if we created our own penal system, our own set of laws that is passed by a legislative body?!

Legislative Body

As a prior tribal attorney/prosecutor and federal prosecutor, I’ve been in my fair share of Tribal courts and have trained thousands of Tribal employees from all over the country. One area of our sovereign setup that we clearly have neglected, is having a yearly legislative process for the update or passing of new laws. We have failed Jane Doe when we don’t update our laws that protect our community members. Some of our Tribes have exhausted hundreds of thousands of dollars in past legal expenses for “code drafting”. Could you imagine if we jointly established efforts to provide legislation for all of our tribes!? It would be up the specific Tribe to adopt the legislated laws but at least the availability of them would be priceless.

This of course includes Tribes like Pasqua Yaqui and others that have fully implemented enhanced jurisdiction pursuant to the Tribal Law and Order Act (TLOA) and VAWA. Those pieces of legislation could have been adopted by our sovereign brothers and sisters. Victims Rights Act, DV charges, and an array of traditional laws are all examples where the sharing of resources will better protect Jane Doe and be a better use of financial resources.

When there is a case that ends up in the Federal Circuits, we could have our leaders have roundtable discussions about these Federal issues impact our communities, and we can work together unanimously to address these issues.

Remember, the Federal and State governments would have a much different experience at the negotiating table when dealing the Confederated Indigenous Nation.

My goodness, as a trial attorney, as an attorney, Tribal member, and advocate for women and children, a uniform legislative process would be a monumental advancement towards protecting and honoring Jane Doe. Let’s be united, let’s be better, let’s do better.

Capitol Location

I am not going to even pretend like I know where this should be. It’s referenced here because it certainly will be part of the configuration and planning process. A few thoughts that may be of assistance in this discussion:

  1. Could be more centrally located in the S. (essentially same distance from all four corners of the U.S.
  2. We don’t want wealth to dominate leadership, but we would want the humility of our wealthiest Tribes to consider be an integral role of being at the forefront of financing this endeavor
  3. We would want the most brilliant of our grant specialists to utilize the grant process in such a way where it would be part of funding this endeavor through the sharing of grant awards and using them to benefit as a Confederated Indigenous Nation

I am sorry, but this concept should give you goosebumps, envisioning how we can be more successful and powerful when we are united! Let’s go!

Election Process

 

No idea, but we certainly would need someone to head this endeavor. Voting on the federal and tribal level already is horrendous. So its not like we can replicate a best practice that is already in existence. When an initial team is setup, this would have to be at the forefront of this discussion.

Cabinet Members

 

Again, I don’t want to waste a lot of time here as this would be something that would also have to determined, what CIN positions do we want here. This would require an analysis of nation building and what would best represent who we are as Indigenous people.

Going into this, I assume that we will have Tribes that opt out of being a member of the CIN. Voting members will be a designated liaison, senator, or representative from every federally recognized Tribe.

Courts

 

This will be difficult. No tribe wants to give up their sovereign say in the outcome of cases. The problem arises from where those decisions come from. Are the appellate bodies unbiased and do they include law trained minds as decisions makers? Or do they include our delegated council members that serve as the appellate body, without any separation of powers? Are they appointed judges that afraid to make certain decisions based on how they were hired? Do their decisions reflect poorly on their appointed tribal leaders?

If you have ever practiced in tribal court you know it’s a nightmare to think of what happens when you have to appeal a case. Some Tribes in the past were able to successfully create united appellate courts such as the Southwest Tribal Court of Appeals that I believe is now non- functioning.

Again, not going to jump down this rabbit hole, but rebuilding our Court system would be an essential component to our future successes. One idea being, we should have a CIN Supreme Court for cases that can be certified for the Supreme Court. One major thing that this would accomplish, is we wouldn’t have to air all our dirty laundry in the respective Circuit system, but would keep it within the CIN.

CIN Law Enforcement Branch

 

My initial inclination would be to create our own version of the FBI/BIA that would be responsible for responding to designated crimes in coordination with our existing tribal law

enforcement. Rigorous training, background checks, and an emphasis on trauma informed care would be an integral component of our future peacemakers.

Prison/Rehab

 

Government run and controlled central penal system for felony offense that occur on the reservation. The hopeful goal here would be brining in the wisest of minds to discuss how we can revamp a system that has otherwise failed when it comes to rehabilitation. The American prison system is a failure. We could restructure this an innovative way, but admittedly would be one of the more difficult components to our government structure.

There will be Tribes that say “we do all of that already and don’t need to do it with anyone else.” That’s great, no problem don’t participate, but if you have some best practices please share. Ultimately, Tribe A is much stronger when Tribe A is working with Tribe B and C. We have 22 Tribes in New Mexico and not a single one shares a criminal database with another Tribe. How have we not acknowledged the unfairness of John Doe being charged in Tribe B with a criminal history from Tribe A that isn’t acknowledged. That is so incredibly unfair to Jane Doe, and dangerous when assessing a perpetrators propensity to commit a crime. This is frustrating to watch on many levels. Let’s do better.

Victim Advocacy

 

We need a survivor’s unit that is dispatched to help survivors who have cases that are long over. Remember, that a great deal of help and guidance that a survivor needs happens after the closure of their criminal case. If we want to prevent adverse childhood experiences, this effort will help reduce those experiences for the children of our survivors.

Conclusion

The Confederated Indigenous Nation’s Council should be assembled soon and with a budget. Folks can’t do this work for free and this is going to take a tremendous amount of time. Our current way of functioning as “sovereign” governmental systems isn’t efficient and certainly isn’t as powerful as if we were united.

This doesn’t mean we don’t have some incredible success stories and isn’t meant to diminish that success. It’s a reality that some of our communities have faced for far too long.

If anything, this is just a conversation starter as to whether or not this journey is worth it or even doable.

Migwetch. Thanks for reading. Lets Do Better.

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