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The Montana Senate on Wednesday defeated a measure that would have allowed state courts to hand down harsher sentences to some domestic violence offenders by counting previous domestic assault convictions from tribal courts.

The measure was introduced by Rep. Laurie Bishop, D-Livingston, at the request of the Montana Department of Justice. Current law calls for state courts to incrementally increase the legal penalties for partner or family members assault convictions. But, tribal convictions are not considered previous offenses. Repeat offenders face a felony by their third conviction, along with a mandatory minimum 30 days in jail.

Despite passing the House by a wide, bipartisan margin last month, the proposal split the Indian Caucus in both houses. Senate Democrats stood almost uniformly in opposition after Democratic Sen. Susan Webber, a former Blackfeet Tribal Court administrator from Browning, spoke against it on Tuesday.

“Even through House Bill 48 is well intended, it’s not the answer,” Webber said, adding, “This bill didn’t consider tribal sovereignty. We can give so much but we have to ask permission from our tribal governments … our tribal council refused to give any (criminal) data, because it’s their data. They’re sovereign.”

The measure narrowly won the Senate’s endorsement Tuesday, but was defeated on a final vote Wednesday, with several Republicans joining almost all Democrats in voting against.

Proponents of the bill argued that applying those tribal convictions could help victims by ending cycles of domestic abuse that often escalate over time.

“What this really aims to do is take into account the underlying dynamics of domestic violence,” Anna Saverud, a state prosecutor with Attorney General Tim Fox’s office, told the Senate Judiciary Committee last month. “We know that this has a high recidivism rate. This is a very hard behavior to treat and fix ... and we also know it has a heavy impact on victims. It's incredibly hard to leave an abusive relationship.”

Opponents of the bill, however, have cited the lack of consistencies among tribal courts on Montana’s seven reservations as potentially creating unequal punishment between Native and non-Native offenders, as well as between Native offenders from different tribes.

S.K. Rossi, a lobbyist for the Montana American Civil Liberties Union, also noted that the bill would have the effect of increasing the number of Native Americans placed in Montana’s prisons, further exacerbating existing racial disparities of the state’s inmates. Native Americans accounted for 21 percent of the state’s prison population in 2017, despite making up just over 6 percent of Montana’s population.

“I’m not questioning the intent of this bill,” Rossi said, “… but the impact is going to be bad. It’s going to be bad for Native communities and it’s going to put a lot more people in our systems.”

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Montana law already allows for such “stacking” of domestic violence convictions from other states. And, as Saverud noted, Montana’s DUI statutes already allow for stacking previous tribal convictions for repeat offenders.

Several lawmakers, including Sen. Bryce Bennett, D-Missoula, noted that not all offenders convicted in tribal courts had access to a public defender, as is required for criminal defendants in state courts. Most tribal courts in the state do provide public defenders, but the qualifications for those positions vary by tribe. Two tribal court systems, the Crow and the Northern Cheyenne, do not have a public defender’s office.

Bennett twice attempted to amend the bill, to require that legal counsel was provided to the offender in order to stack prior convictions in tribal court. Those efforts were defeated on mostly party-line votes.

The Legislature’s Indian Caucus was split in its support of the legislation. In the House, most members supported the bill, while Democratic Reps. Jonathan Windy Boy, of Box Elder, and Tyson Runningwolf, of Browning, voted against. Rep. Sharon Stewart Peregoy, D-Crow Agency, had previously spoken in favor of the bill during its first committee hearing, but also voted against the measure.

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Morning Reporter

General assignment reporter for the Billings Gazette.