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Sen. Kelly Ayotte, R-N.H., has sponsored the the Violence Against Women Act

Tribal Provisions of Women Safety Law Under Senate Attack

Rob Capriccioso
4/1/12

WASHINGTON – Native Americans are making a push to support reauthorization of the Violence Against Women Act (VAWA) in the face of congressional attacks of tribal provisions of the bill.

The bill, known in the U.S. Senate as S.1925, contains provisions that are meant to protect the safety of Native women in Indian country. Along those lines, Section 905 of the bill clarifies that every tribe has full civil jurisdiction to issue and enforce protection orders against all persons regarding matters arising on tribal lands. A 2008 U.S. District Court decision out of Washington state caused confusion on that issue when it held that an Indian tribe lacked authority to enter a protection order for a nonmember Indian against a non-Indian residing on non-Indian fee land within the reservation.

Section 904, meanwhile, would specifically restore concurrent tribal criminal jurisdiction over non-Indians who commit crimes of domestic violence, dating violence, and violations of protection orders in Indian country. While the U.S. Constitution and hundreds of treaties, federal laws, and court cases acknowledge that Indian tribes are sovereign governments, Indian tribes are the only government in America without jurisdiction to combat certain types of domestic violence in their communities.

While that provision makes tons of sense to tribes, it is causing plenty of congressional consternation.

“For the first time, the committee would extend tribal criminal jurisdiction over non-Indians," Sen. Chuck Grassley (R-Iowa) said in a floor speech condemning the bill in February. “I do not believe the committee has a good understanding of what the consequences would be of doing so.”

Grassley, along with all eight GOP senators on the U.S. Judiciary Committee, voted against the bill when the committee considered it in February. Besides Grassley, Sens. Jon Kyl (R-Ariz.) Tom Coburn (R-Okla.), and Kay Bailey Hutchinson (R-Texas) have specifically taken up the anti-Indian fight.

Given the concerns, the threat of the tribal portions being removed has arisen: “Some Senate Republicans may offer an amendment to strip the tribal jurisdictional provisions in Sections 904 and 905 from the bill,” according to a March 26 action alert issued by the National Congress of American Indians. “We cannot let that happen.”

Tribal advocates say that the tribal provisions of VAWA are being mischaracterized and are misunderstood by some members of Congress. “A lot of misinformation about the tribal provisions is being circulated by the bill’s opponents, and it’s important to set the record straight,” says Katy Jackman, staff lawyer for National Congress of American Indians. “We, as a nation, should not be saying, ‘There are too many victims,’ or ‘You are not the ‘right’ kind of victim.’ All victims of domestic violence, dating violence, sexual assault, and stalking deserve help—Native victims included.”

“Unfortunately, certain Republicans are singing the old song of ‘unsophisticated tribal courts and uneducated tribal judges’ to stop the bill from going forward,” adds Ryan Dreveskracht, an Indian affairs lawyer with Galanda Broadman. “I say, if you don’t trust the ability of tribal courts to be fair and just, don’t go to the reservation and rape women—but that's just my take.”

According to NCAI, with the recently announced support of Sens. Dean Heller (R-NV) and Kelly Ayotte (R-NH), the reauthorization now has 61 sponsors in the Senate, which would be enough to get it through the chamber, despite the opposition. In turn, NCAI members have asked Senate Majority Leader Harry Reid (D-NV) to bring S. 1925 to the Senate floor for a vote as soon as possible.

According to federal statistics gathered as part of the Tribal Law and Order Act in 2010, Native women are battered, raped, and stalked at far greater rates than any other population of women in the United States. The data indicates that 34 percent of Native women will be raped in their lifetimes and 39 percent will be the victim of domestic violence.

The reauthorization of the VAWA in 2005 provides some context for the current issues surrounding the new law. Provisions of the act then recognized that the legal relationship between tribes and the U.S. creates a federal trust responsibility to assist tribes in protecting Indian women. Under the law passed at the time, the federal government has the primary responsibility to investigate and prosecute major crimes that occur on the reservation.

But this is not happening. In fact, according to a 2010 U.S. Government Accountability Office study, U.S. Attorneys decline to prosecute 67 percent of sexual abuse and related matters that occur in Indian country. They say their resources are already stretched too thin.

The reauthorization language now under consideration would make changes to current law to ensure that the federal government can fulfill its legal trust obligation to tribes, according to NCAI, by restoring concurrent tribal criminal jurisdiction over a narrow set of crimes that statistics demonstrate are an egregious problem on reservations.

“Section 904 of the bill recognizes tribes’ inherent authority to investigate and prosecute crimes of domestic violence, dating violence, and violations of protection orders that occur in Indian country,” notes an NCAI briefing paper. “It does not in any way alter or remove the current criminal jurisdiction of the United States or of any state.”

Some legislators, including Grassley, have said the bill takes too much federal sovereignty away.

But NCAI officials say that tribal jurisdiction exercised under Section 904 would be an exercise of inherent tribal authority, not a delegated federal power. They note that Section 904 does not permit tribal prosecutions unless the defendant has “sufficient ties to the Indian tribe.” Defined under the language of the bill, the tribe must prove that any defendant being prosecuted under Section 904 either: resides in the Indian country of the prosecuting tribe, is employed in the Indian country of the prosecuting tribe, or is either the spouse or intimate partner of a member of the prosecuting tribe.

Jackman says the changes offered under the law are well within congressional authority, and she notes that they do not apply to just any random person. Section 904 of S.1925 is limited to only crimes of domestic violence or dating violence committed in Indian country where the defendant is a spouse or established intimate partner of a tribal member.

“S.1925 delivers a local solution for local problems,” Jackman says. “Local governments — including tribes — have had significant successes in combating crimes of domestic violence, but without an act of Congress, tribes cannot prosecute a non-Indian for domestic violence — even if that person lives on the reservation and is married to a tribal member.

This jurisdictional gap means that non-Indian men who batter their Indian wives or girlfriends often go unpunished and the violence escalates. Local justice officials in tribal communities are the most appropriate entities to respond to this violence and deal with criminals who choose to live and commit crimes on tribal lands. S.1925 provides tribes with the necessary authority to do so.”

NCAI officials also say that S.1925 provides the requisite constitutional safeguards, including an adequate right to counsel for defendants, and they add that the bill fulfills the intent of VAWA 2005 regarding tribal civil jurisdiction to issue protection orders.

S.1925 would also increase support for tribal domestic and sexual assault coalitions. Currently, tribal coalitions are eligible for discretionary funding but this funding is “wholly inadequate and unstable when compared to their state and territorial counterparts, which receive formula funding on an annual basis,” according to NCAI officials.

Tribal advocates note that the tribal provisions of S.1925 are also contained in Senator Daniel Akaka’s S.1763, the Stand Against Violence & Empower Native Women Act, which received oversight during a legislative hearing in November 2011. They also note that the U.S. Department of Justice and the Obama administration fully support the tribal amendments in the bill.

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