How Minn. Courts Respond to Domestic Violence Against Indians

Liza G. Garcia & Anne K. McKeig

On any given day the Family Justice Center in downtown Minneapolis is filled with individuals seeking help for domestic violence. Encompassing all of Hennepin County, Minnesota’s 4th Judicial District Family Court (the “family court”), is the largest judicial district in the state. It is also home to the state’s largest population of American Indians; more American Indians reside here than anywhere else in the state including on any one of the 11 reservations in Minnesota.

Each year approximately 3,000 civil domestic abuse cases are filed in the family court. In 2013, after reviewing existing but limited data, we had reason to believe that American Indian families were not accessing the family court for domestic violence relief relative to their population in our district. We also had reason to believe that a potential disparity existed between the American Indian population filing for domestic violence relief in our district and those in the general population seeking the same relief. We were very concerned given the known magnitude of violence perpetrated against American Indian women.

2010 Census data shows the American Indian/Alaska Native population in Hennepin County is approximately 12,000, or 1 percent of the total population. Predating the formation of the 4th Judicial District Court, Dakota people have lived on this land since time immemorial. Many continue to maintain or have regained inter-generational residence on their ancestral homelands. Other Native members, including the Lakota and Nakota peoples (constituting with the Dakota the original Oceti Sakowin (seven council fires) governing council), the Anishinaabe, HoChunk, Oneida, Cree, and other Indigenous Peoples throughout North America have made the 4th Judicial District in Hennepin County their home. Within the district, the City of Minneapolis boasts the largest number of urban tribal nation offices in the state where Red Lake Nation, Leech Lake Band of Ojibwe, Fond du Lac Band of Lake Superior Chippewa, Bois Forte Band of Chippewa, Mille Lacs Band of Ojibwe, and White Earth Nation have established diplomatic and service offices in Minneapolis to meet governing needs and to serve their members residing in the district and in the greater metropolitan area.

Consistent with national census data, the district’s Native population is young – 42 percent of American Indians are under the age of 25. Our young demographic is vulnerable; Native children experience the highest rates of violence cumulatively – from school, community, institutions and at home – in comparison to their peers. Equally disturbing, American Indian women suffer the highest rate of violence in the country. Overwhelming statistics bear this out – more than four in five American Indian and Alaska Native women (84.3 percent) have experienced violence in their lifetime; this includes sexual violence (56.1 percent), physical violence by intimate partner (55.5 percent), stalking (48.8 percent), and psychological aggression by intimate partner (66.4 percent). Over 80 percent of violence perpetrated against Native women is interracial. American Indian men have reported rates of similarly experienced violence (81.6 percent). This inexcusable alignment of violence induces a judicial branch to enhance the full power and benefit of its justice system for the security, equal protection and due process of the law for those facing historical barriers or blocks to accessing the court for help.

It was late in 2013, our family court sought and obtained funding from the U.S. Department of Justice, Office on Violence Against Women (OVW), for the opportunity to examine gaps in the family court to address domestic violence, and to improve custody and parenting outcomes for domestic violence survivors and their children. The court was one of only four courts nationwide to receive funding from the OVW for this project. Overall, the court was concerned for all domestic violence survivors and their children. We had to address whether the reach of the court’s relief was optimizing the best outcome for a domestic violence survivor and her child, regardless of the survivor’s racial and ethnic identity.

When we began our project to enhance outcomes for domestic violence survivors and their children, we convened a team of court judicial officers, court staff, attorneys, domestic violence experts, and leaders from American Indian non-profit organizations serving domestic violence survivors and their families, to create and steer the Family Court Enhancement Project (FCEP). The team, led by the Presiding Judge of Family Court, Anne K. McKeig, a descendant of the White Earth Band of Ojibwe, and in partnership with White Earth Tribal Court’s Chief Judge, Robert Blaeser, sought to remove barriers impeding Native survivors of domestic violence from accessing family court and to improve outcomes for them and their children. Our family court, as an active member of the Minnesota Tribal Court/State Court forum, was also positioned to address domestic violence spanning jurisdictions.

Conscious that the FCEP’s objective is “to improve the family court’s response to custody cases involving domestic violence so that resulting parenting and co-parenting arrangements protected the emotional and physical well-being of victimized parents and their children,” for Native families, the realization of better outcomes for victimized parents and their children could not occur unless they could equitably access the family court for relief. We began a review of the court’s approaches, assumptions, mechanisms and resources that could pose a barrier to accessing our family court.

Previously, the OVW had pressed all state court systems to engage a self-examination of existing accommodations, approaches, and responses to violence against American Indian women. The OVW appealed to multi-jurisdictional players in the states that “there must be an examination of the roles of tribal, state, and federal actors, including civil attorneys, law enforcement, prosecutors, advocates, judges and probation and parole agents, in responding to the domestic and sexual violence” of Native American women both in Indian country and throughout the United States under state and federal jurisdiction. Our court turned inward for answers.

Lacking consistent data on American Indians accessing the family court, the FCEP immediately requested and obtained approval from the governing judicial council to gather and begin aggregating racial data of persons seeking the family court’s assistance for domestic violence relief. In the fall of 2015, the family court began to expand existing race data collection efforts for OFP petitioners that would be crucial in analyzing equitable access to family court; it would also help us identify any disparities in outcomes for Native domestic violence survivors.

At the inception of this project, and with the consultation and leadership of Native organizations, roundtables were held with Native community members to better understand why community members may not be accessing family court for domestic violence relief in parity with the general population. Community members told us they were not receiving information about where and how to access family court for domestic violence help. They also told us of other experienced or perceived barriers preventing them from coming to family court. Their reasons included: no or limited access to the court’s website, no access to an attorney for legal advice and representation, fear that going to court for domestic violence would result in child protection stepping in, and frustration with past experiences in enforcement of a prior state or tribal Order For Protection (OFP).

The court hired a liaison to address the lack of available information in the community, and to reach out to urban tribal offices, Native service providers and other Native groups to share information on accessing family court. We had to go to where the people were, whether it was attending a Native led resource fair, a pow wow, or other events, and to join our efforts with Native organizations and community leaders. We went onsite to urban tribal nation government offices to listen to leaders and staff on access concerns; we also sought to bridge information for Native domestic violence survivors and their families seeking relief.

In our district, there is a known digital gap where Native, people of color, and low income populations do not have internet access on par with their white, more affluent counterparts.

The digital gap created inequitable access to court information for Native domestic violence survivors and their families. We also worked with a local legal aid office who made an attorney available at the court’s Family Justice Center who could advise and represent Native and other domestic violence survivors when an OFP hearing was held.

We understood the prism of intersecting identity – as a member of a tribal nation and as a citizen of the state – and how this intersection could serve as a catalyst to reach the Native community where our lives are: in Indian country and also in the metro area where many reside on their ancestral homelands. Judge McKeig understood this intersection, both as a descendant of White Earth Nation and a resident of the State of Minnesota, and could appreciatively broaden the district court’s reach to enhance information sharing of its OFP process with sister tribal courts through the State Court/Tribal Court Forum. We capitalized on the opportunity to increase education on enforcement of Tribal Court Orders for Protection, not only for local state law enforcement, but also for community members to learn how a Tribal Court OFP could help protect them outside of their tribal nation’s jurisdiction.

We also had to acknowledge the role historical trauma has played to escalate domestic violence in American Indian families. When we acknowledge the federal and state’s historical and asymmetrical actions that, through laws, policies, and practices, ushered in the escalation of violence against Native communities, the contemporary outreach of our judicial arm to enhance access for Native survivors of domestic violence became a concrete expression of eliminating the vestiges of its colonial governing predecessors.

We recognize that for many Native families, family court elicits historical trauma and poses a paradox with child protection and juvenile court that ICWA sought to address. In our self-examination, FCEP is set to confront the entrenched belief or reported experience that, if a person files a petition for an order for protection in family court, they run the risk child protection will arbitrarily be called in.

A recent report by an Advisory Committee to the U.S. Attorney General on violence and American Indian children noted that social workers reported a significant percentage of women in the child protection system were victims of domestic violence. Noting the reality that domestic violence and child maltreatment does co-occur, but also, a woman should not fear she will be arbitrarily victimized by a court system she sought protection from for herself and her child, the FCEP is set to engage stakeholders to examine the reported belief and experiences, available data and related mechanisms that carry the reported imprimatur of unfair family rupture for Native survivors of domestic violence in family court.

Confronting an entrenched belief of family break up stemming from a petition for an Order for Protection is necessary to break through barriers, whether real and perceived, impeding Native domestic violence survivor from accessing the court for help. This confrontation is an answer to the deepening discourse being led by tribal nations, prominent American Indian legal scholars, domestic violence activists and advocates, American Indian led organizations, and community members calling state, federal and tribal courts to scrutinize policies and practices hindering or aggravating a just response to American Indian women and families seeking protection from domestic violence in their court systems.

Since the Family Court Enhancement Project was implemented with tribal leadership, strategic outreach efforts, networking, and with collaborations that would deepen in character, the district has seen an increase of Native domestic violence survivors accessing family court and at our Domestic Abuse Service Center in downtown Minneapolis where about 80 percent of all petitions for OFP are filed. This is just the beginning. We’ve started to compile and aggregate data for analysis to trace whether our efforts to improve access for Native domestic violence survivors and their children is culminating to both meaningful and equitable results in family court, ensuring the best possible outcome for the safety and well-being of a Native parent and their child.

We are and will continue to reach out to where Native communities are, listen to their experiences, critiques and recommendations to help decrease violence against Native women, men and children, and to bring us closer to healthier communities that our ancestors experienced and normalized in pre-colonial times.

On September 15, 2016, the Honorable Anne K. McKeig will become the newest Associate Justice to the Minnesota Supreme Court. A descendant of White Earth Nation, she is the first American Indian to serve in that capacity. She currently serves as Presiding Judge in Family Court in the Fourth Judicial District.

Liza G. Garcia is the Tribal/State Court Liaison for the Fourth Judicial District, Family Court Enhancement Project in Minnesota. She previously served as a Judicial Law Clerk to the Honorable Kathleen A. Mottl in the Tenth Judicial District, Minnesota.

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