U.S. Capitol Building

VAWA Passes Senate With Major Tribal Court Provisions; Status Quo for Alaska Natives

Rob Capriccioso
4/26/12

WASHINGTON – The U.S. Senate voted 68 – 31 on April 26 to approve the Violence against Women Act (VAWA) reauthorization. It included major tribal court jurisdiction and protection order provisions for tribes in the lower 48 states to help curb the violence epidemic that exists on many reservations.

Alaska Native tribes – 40 percent of tribes in the U.S. – were not granted the same provisions to increase crime prevention efforts.

Section 904 of the passed bill recognizes tribal court jurisdiction over non-Indian domestic violence offenders. Section 905 allows for tribal protection orders involving “any person,” including non-Indian offenders. The bill also strengthens federal authority to address violent felonies on reservations.

“It was encouraging to see our leaders in the Senate put aside partisan politics and pass a bill that protects and serves all victims of domestic and sexual violence across the country—including our Native sisters, mothers, and daughters,” said Jefferson Keel, president of the National Congress of American Indians, in a statement.  “Today’s vote on the VAWA reauthorization represents a historic vote for Native people and tribal sovereignty.”

Throughout, the debate over the Indian provisions provided plenty of insight on where various legislators stand on tribal courts and sovereignty.

Some Republican senators, including Sen. Kay Bailey Hutchinson, R-Texas, and Sen. Chuck Grassley, R-Iowa, had put up a major fight against the tribal sections in recent weeks, saying they weakened federal sovereignty, as reported by Indian Country Today Media Network on April 16.

In the end, a substitute amendment offered by Hutchison eliminating tribal authorities was unsuccessful in passing muster in the Senate. Her amendment was not accepted by a 36 – 63 vote.

Alaska Sens. Lisa Murkowski, R, and Mark Begich, D, were successful at getting a technical amendment attached to the legislation that maintains the status quo of tribal civil jurisdiction in their state.

The provision was necessary, both senators said, because sometime during the drafting process of the bill, Alaska tribes were exempted from the new provisions with language that could have damaged their current civic jurisdiction standing, while giving them no increased authority over safety matters.

Neither senator has taken direct responsibility for what Murkowski’s office has called a “drafting error,” and neither senator has explained precisely how this error came to happen. It is customary for senators to be consulted about major provisions that affect their states during the drafting process of bills. In this case, the bill was a Democratic one, so why Begich was apparently not consulted on such a major issue is not clear.

Julie Hasquet, a spokeswoman for Begich, told Indian Country Today Media Network on April 26 that Murkowski was “in on the drafting and we were not.” Murkowski’s office has not confirmed that position.

Under the status quo to date, the crime rate facing Alaska Natives has been exceptionally high, according to regional crime statistics, so some Alaska tribal citizens and tribal organizations had pushed their senators to allow the same new authorities granted to tribal courts in the lower 48 to also be granted to them. The Obama administration supported equal provisions for all tribes in the nation, ICTMN reported April 25.

“Retreating on the status quo was out of the question, especially given the heartbreaking statistics of violence and abuse in rural Alaska,” Begich said in a statement after passage of the bill.

Regardless of the “drafting error” snafu, both Murkowski and Begich in the end were not open to granting the tribes in their state the same authority as granted to all other tribes under the legislation. Thus, new criminal jurisdiction over non-Indians does not apply in Alaska.

Both could have insisted on such a measure in the VAWA bill, but both senators maintained that the tribal courts in Alaska are different than tribal courts in the lower 48 because “Indian country” is defined differently in the state. Many tribal citizens and advocates disagree, saying that the new provisions would have worked in Alaska, too.

Attention now turns to the House, where it is unknown if the Republican majority will support a VAWA reauthorization with the same friendly tribal provisions as in the Senate version of the bill.

Rep. Kristi Noem, R-S.D., has already gone after tribal provisions, promising to co-sponsor a bill that does not contain them. While she has previously said she is a supporter of Native American issues and her district includes many Native constituents, she said after a press event on April 25 that she doesn’t support Indian inclusions in VAWA because she has concerns about consistency with federal criminal laws that govern tribes , as reported by ICTMN on April 26.

“We just need to make sure we are also consistent with broader criminal law policies,” Noem said in explaining her position, according to a Huffington Post article.

The White House has said the tribal provisions are consistent with federal law and offer the appropriate constitutional protections to defendants.

The U.S. House Judiciary Committee has scheduled a markup ofa VAWA bill for May 8.

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