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No Question of VAWA Constitutionality

Robert Odawi Porter, Seneca Nation of Indians President
5/8/12

Senator Jon Kyl (R-AZ) recently issued a statement on the reauthorization of the Violence Against Women Act (VAWA). Sen. Kyl opposed the Senate Judiciary Committee's version of the bill, S. 1925, crafted by Sen. Leahy (D-VT), calling the provision enabling tribes to arrest, prosecute, and imprison non-Indians for crimes of violence against tribal women unconstitutional.

Kyl argued that the provision subjecting individuals to the jurisdiction of tribal governments violates constitutional guarantees of equal protection and due process because the perpetrators are excluded from participating in the tribal government on account of race. This argument is simply wrong.

Section 904 of S. 1925 is constitutionally sound. The provision for tribal criminal jurisdiction would not deny a defendant’s rights. Instead, it provides mechanisms to ensure due process and civil rights.

Section 904 specifically addresses “special domestic violence criminal jurisdiction”—it does not include all tribal criminal jurisdiction, and only applies to those violent crimes against Native women that occur on Native territories by persons with significant relationships to a tribal member or her tribal nation.

In 2004, the Supreme Court upheld Congressional recognition of the inherent authority of tribal governments to prosecute nonmember Indians (United States v. Lara). The Court further held that Congress had the authority to expand tribal criminal jurisdiction.

The bill does not unfairly subject non-Natives to tribal jurisdiction based on race. Native governments are sovereign entities based on political standing, not based on race. The bill would help make all violent offenders, regardless of race, accountable for crimes against Native women in tribal courts, enabling Native communities to better protect the safety of its citizens in their territory.

This is no different than saying a New York voter is subject to the criminal jurisdiction of the State of Arizona if he visits there and commits a crime against an Arizonan. Arizona criminal jurisdiction over his conduct in Arizona, by an Arizona government in whose democratic processes he is not eligible to participate by virtue of his New York domicile, does not violate his constitutional rights to due process or equal protection. I am sure Sen. Kyl (R-AZ) would agree with this. So what is the real reason he opposed Title IX of S. 1925?

I support Title IX of S. 1925, and urge the House to include its tribal jurisdiction provisions in the bill it considers in the coming weeks to reauthorize VAWA. Restoring this modest measure of law and order to our Native communities and increased safety for Native women is the only fair position to adopt.

I am glad to see Republican Members of Congress like Tom Reed and Tom Cole and others stand up to wrong-headed Republicans like Sen. Jon Kyl. Native women must no longer be forced to sit and wait and hope for justice at the mercy of a detached and distant state or federal justice system. Our Native communities should be safe havens for Native people, not safe havens for criminals who get away with crime because of law enforcement loopholes. In other words, Sen. Kyl has it wrong about who needs "equal protection."

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