Legal

Civil Law

Many victims are aware of the most common, potential criminal consequences of sexual violence: that the perpetrator can be sentenced to serve jail or prison time and may be ordered to pay restitution. However, accessing civil justice systems provides many additional benefits for American Indian/Alaska Native victims of sexual violence.

In civil cases, the victim is a named party to the litigation. In civil proceedings the tribal court can:

-Award restitution and monetary damages to a victim

-Grant an injunction or protection order

-Resolve divorce, custody, visitation and support issues

-Settle landlord/tenant and other housing disputes

-Resolve personal injury or tort claims related to the sexual violence

-Hold a defendant in contempt of court

-Order the perpetrator to post a Peace Bond

Unlike criminal courts (where tribal courts have only limited jurisdiction over some non-Indian domestic violence perpetrators), tribal courts have expansive civil jurisdiction over non-Indians. This topic is thoroughly discussed under the Jurisdiction tab. Tribal courts can hear civil cases related to sexual violence provided the court has both “personal jurisdiction” over the parties and “subject matter jurisdiction” over the issue in question.

Tribal courts have personal jurisdiction over any perpetrator who has:

Minimum contacts with the tribe (e.g. committed an act of sexual violence on tribal lands, is present on tribal lands, is doing business on tribal lands, etc.)?

Who has consented to the jurisdiction of the court OR

waived any objections to the exercise of personal jurisdiction in this matter by voluntarily appearing before the tribal court OR

By filing a motion, response, answer, or pleading in tribal court

Tribal courts have subject matter jurisdiction over cases where:

The conduct in question (sexual violence) occurred within the territorial jurisdiction of the tribal court AND

The defendant:

Is a member of or eligible for membership with that Tribe OR

Is a member of another Tribe or a is a non-Indian OR

The defendant has entered into a consensual relationship with the Tribe or its members through commercial dealing, contracts, leases or "other arrangements" (e.g. is married to a tribal member, has a child in common with a tribal member, is employed by the tribe, etc.) OR

The conduct (sexual violence) that threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the Tribe.

Tribal courts have subject matter jurisdiction over cases where:

An emerging trend in tribal and state courts is for victims to sue the perpetrator of sexual violence in civil court for “torts.” “Torts” means twisted or wrong, and  more information on this subject can be found under the Torts tab. Under civil law, perpetrators of sexual assault can be punished for their twisted and wrong acts.  The money that victims are awarded from perpetrators under tort law is referred to as “damages.”  There are a wide variety of “damages” available to victims.  For example, victims can collect for medical and other expenses they have incurred as a result of the assault.  This can include an award of money used to pay for traditional healing ceremonies. Victims can also receive compensation for their “pain and suffering” in tort cases.  Because society considers sexual assault to be especially wrong and evil, the victim may also be entitled to “punitive damages.”  These are damages that are not related to any of the victim’s pain, suffering, hardship, or expenses. Rather, these are damages that are awarded to the victim because the court wants to send a strong message that sexual violence is against the values of the Tribe and is extremely harmful.

Because of the high rate of unemployment in Indian Country, tribal courts may be especially open to awarding “non-monetary damages” to victims.  This may take the form of services performed by the defendant that benefit the victim directly. Examples include ordering the perpetrator to chop and stack cords of wood for a victim’s home before the onset of winter; sharing fish or meat; providing the victim’s livestock with hay or feed; and maintaining the victim’s well or irrigation system.

Civil law also is important when the victim has a protection order against the perpetrator.  When a perpetrator of domestic violence violates a protection order, he can be held in civil or criminal contempt of court, regardless of whether he is a member of a federally-recognized tribe.  The Contempt of Court tab discusses civil contempt of court.

Civil law is especially important for sexual assault victims who are legally married to the perpetrator, live in the same home as the perpetrator, or have children in common. Some tribal jurisdictions may be “fault-based divorce jurisdictions.” This means that a person must prove that the other party is at “fault” for causing the dissolution of the couple’s marriage.  In these jurisdictions, evidence of sexual violence in the marriage can assist victims in proving “fault” and winning a favorable divorce decree.

Civil Law Documents

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*National Tribal Trial College is a project of the Southwest Center for Law and Policy (www.swclap.org) This project was supported by Grant No. 2011-TA-AX-K045, awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.