Sen. Kay Bailey Hutchison, R-Texas

U.S. Senator Worries Tribal Courts Will Imprison ‘Any American’

Rob Capriccioso

WASHINGTON – Sen. Kay Bailey Hutchison, R-Texas, is expressing concern that tribal courts operating on Indian reservations will attempt to arrest and imprison ‘any American’ if legislation aimed at protecting Native women from criminal violence passes the U.S. Congress.

Hutchison made her view known in an April 5 op/ed published by The Des Moines Register.

“One of the problematic provisions of the committee bill would give tribal courts authority to arrest, try and imprison any American,” Hutchison wrote in referring to S.1925, the reauthorization of the Violence Against Women Act (VAWA), currently being considered in the U.S. Senate.

In short, Hutchison appears to be making it seem as if innocent Americans will wrongly suffer in tribal courts under the legislation. But what the senator doesn’t note is that the ‘any American’ she is referring to would have to commit serious crimes against Indians in order to be prosecuted in tribal court—and even then, would have protections under the proposed legislation.

Many non-Indian Americans are currently able to commit crimes on Indian reservations without facing any consequences, according to federal research. U.S. Attorneys decline to prosecute 67 percent of sexual abuse and related matters that occur in Indian country, the U.S. Government Accountability Office reported in 2010, because they say their resources are already stretched too thin.

Tribal courts have historically been able to pick up the slack in some cases, but a 2008 U.S. District Court decision out of Washington state found that an Indian tribe didn’t have the authority to enter a protection order for a non-member Indian against a non-Indian residing on non-Indian fee land within the reservation—effectively blocking the tribal wheels of justice from working in many cases.

The VAWA reauthorization attempts to make up for these shortfalls. Section 904 would restore concurrent tribal criminal jurisdiction over non-Indians who commit crimes of domestic violence, dating violence or violations of protection orders in Indian country. And, in response to the 2008 U.S. District Court decision, Section 905 goes on to clarify that every tribe has full civil jurisdiction to issue and enforce protection orders against all persons regarding matters on tribal lands.

At the same time, Sections 904 and 905 of the proposal under congressional consideration are the ones that worry Hutchison: “This provision is probably unconstitutional; it is certainly impractical,” she writes in her editorial.

But tribal advocates say Hutchison is wrong, as well as trying to scare Americans, and failing to take steps to reduce violence against Indians.

“Sen. Hutchison and other opponents of the tribal criminal jurisdictional amendments in S.1925 seem to be doing their best not only to undermine the credibility of tribal courts, but also to mischaracterize the tribal provisions in the media to make them appear much, much broader than they are as currently drafted,” says Katy Jackman, staff lawyer for the National Congress of American Indians (NCAI), in an interview with Indian Country Today Media Network.

Jackman points out that Section 904 does not permit tribal prosecutions unless the defendant has “sufficient ties to the Indian tribe”—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.

“The idea that somehow this new jurisdiction would expand to ‘any American’ is patently absurd,” Jackman says. “Apparently, Sen. Hutchison thinks that non-Indians who live, work, and/or maintain intimate relationships in Indian country should be allowed to beat their wives and girlfriends in violation of tribal laws simply because of their non-Indian status.”

"Just as no person has the right to go to Canada, violate women, and then complain that Canadian courts do not adhere to the U.S. Constitution, nor should criminals be afford such arguments when they enter Indian country," adds Ryan Dreveskracht, an Indian affairs lawyer with Galanda Broadman. "Indeed, the nation should be appalled that lawmakers such as Sen. Hutchinson are suggesting that such arguments have any merit at all."

Hutchison’s views could be especially dangerous to Native women if a replacement bill she is writing with Sen. Chuck Grassley, R-Iowa, ends up gaining steam. Grassley has also spoken out against tribal provisions in the proposed VAWA reauthorization, saying they weaken federal sovereignty.

While Hutchison and Grassley have yet to offer their specific legislation, Hutchison promises in her editorial that it “will have a sound, practical alternative to protect Native American women.”

Hutchison’s office has not explained her ideas for protecting Native women.

NCAI, meanwhile, is offering some insight on the Hutchison/Grassley bill: “We know that Hutchison’s alternative would strip the current provisions that deal with tribal jurisdiction (namely Sections 904 and 905 of S.1925) and may offer provisions that would expand state or local jurisdiction over Indian country VAWA crimes,” the tribal advocacy organization offered in an April 13 action alert, based on its own sources.

“If Senator Hutchison is successful in stripping the tribal amendments from the VAWA Reauthorization bill, she will not only harm Native women, but she will harm the American communities that surround Indian reservations as well,” Jackman adds. “All Americans should be disgusted at the number of crimes committed by non-Indians on reservations that goes unprosecuted by federal and state authorities—the sole entities with jurisdiction to prosecute.”

NCAI went on to report in the action alert that “while in all likelihood the Hutchison alternative bill will fail,” Sen. Jon Kyl, R-Arizona, intends to offer a floor amendment to S.1925 “that will strip all of the key tribal provisions of the bill.”

Kyl’s office has not responded to questions about this possibility.

The proposed VAWA reauthorization containing the tribal provisions currently has 61 co-sponsors in the Senate. Senate Majority Leader Harry Reid, D-Nevada, has yet to call for a vote, although his office says to expect one soon.

Related: Tribal Provisions of Women Safety Law Under Senate Attack

You need to be logged in in order to post comments
Please use the log in option at the bottom of this page



laura's picture
Submitted by laura on
Gasp! She's afraid that this bill might actually give Native Americans the same rights as off-rez Americans!? It's disturbing that such attitudes & ignorance is in a place of decision-making.

natwu's picture
Submitted by natwu on
Good grief, she sounds just like legislators in Arkansas who said the same thing about white men being tried in Cherokee courts.

ppmickey's picture
Submitted by ppmickey on
Is Senator Hutchinson Native American or even part Native American? I seriously doubt that she is. Does she even know about the deaths and disappearances of Native American women in the USA and Canada? Does she not believe in giving tribes the ability to arrest both tribal and non-tribal members for committing serious crimes on their lands? I guess those who voted for putting her in her position didn't check out to see if she was sensitive to all Americans, which just so happens to include Native American Tribes. I'm only 1/8th Cherokee and I believe this amendment should be passed. I have no tribal affiliation. Why should I have tribal affiliation to believe in protecting Native American women? Why doesn't she understand the significance of what she's doing? Those in political offices sometimes seem to be the most ignorant of Americans. How the hell did they manage to get into office and then not care about what happens to others? I just don't get it.

amacarro's picture
Submitted by amacarro on
TUESDAY, APRIL 17, 2012 not be deluded....if you ever find yourself in the predicament of falling into the vortex of injustice;aka Indian country,...God bless you.... and....good luck! " the U.S. Constitution is not applicable in tribal court. So Indians and non-Indians subject to tribal court jurisdiction have limited protections as extended to them by the Indian Civil Rights Act. It should also be noted that the only remedy the ICRA has for violations of it is a writ of habeas corpus. A writ of habeas corpus is a court decree that orders that a person being held in custody be brought before the court so it may determine the lawfulness of the detention. While an action under 42 USC 1983 for declaratory, damages and equitable relief may be brought against state officials for violations of the constitution. This is why non-indians should not subject themselves to tribal court jurisdiction without fully comprehending what protections they do and do not have. However, this is true if you enter Canada or even Pennsylvania. Sometimes we as Americans think that because we are Americans we are entitled to the same "rights" where ever we are. However, those rights even vary state by state because some of the rights we enjoy are not provided by the U.S. Constitution, but from our State Constitution." 'Brutal facts are, people.....Indian country is, in fact, will find yourself in a deep; dark vortex of injustice! Injustice is dished out by thugs, thieves, and liars who wear shams of 'sovereignty which means above the law. Example: The ethos practiced practiced at Pechanga by Mark Andrew Macarro; aka clown prince of corruption and the oxymoron; 'council' of his fellow wear the shams of 'sovereignty;aka lawlessness and 'internal matter.' Internal matter means: A political cover to commit criminal acts with impunity.....right, Mark Andrew Macarro? 'Internal matter was the very special gift of 'sham of injustice' Ben Campbell bestowed before he left Congress under a dark cloud. Carole Goldberg, using the sham of UCLA, further sows and cultivates injustice by developing tribal courts.... Why is Carole Goldberg so gung ho, so enthusiastic, to perpetuate injustice;aka vortexes of injustice? Why is Goldberg so adamant against the enforcement and protection of Public Law 280? (not good for business) Whose interests do Goldberg really represent? .......certainly...not the best interests of the victims of injustice! not be deluded....if you ever find yourself in the predicament of falling into the vortex of injustice;aka Indian country,...God bless you and....good luck! p.s. You can always call the United States Embassy ! hmmm..irony...United States 'laws' created this injustice in the first place.

amacarro's picture
Submitted by amacarro on
What is being proposed is meant to deprive original peoples of ALL human an civil rights... Read comment carefully...This senator is to be commended for her concern.

amacarro's picture
Submitted by amacarro on
Regarding:National Congress of American Indians... Eh! People! Interesting that you holler when you feel light shines upon your special covers for criminal acts with know....'internal matters, sovereignty, and now Goldberg is pandering her 'tribal courts of injustice,' and retrocession. How come you people quiet like cockroaches..all deaf, dumb, and blind to the pleas from the victims of criminal acts perpetrated in Indian Country? In, fact, the most flagrant violators are on your committees. "Indian Laws" represent injustice. How come there is no outcry coming from your big fat coddled lips to repeal all those lawless laws? All you "Indian Law" shysters should feel shame! How come you not making any peeps to abolish all those unjust laws? Wasichu! Whose interests you really representing? Not Indians! Selfish people...take your balls out of your pockets and raise your voices loud and clear to object to all the lawless laws coming forth from your lawless'friends' in Washington! Please! Can you hear me?

amacarro's picture
Submitted by amacarro on
This senator has her moral compass in good working order... Moral conscience dictates speaking out even when loud voices demand injustice. This senator is an angel speaking for justice. If Reid were sincere...he would lead the charge to abolish ALL lawless 'Indian Laws.' These laws represent injustice. Only FULL constitution protection for ALL peoples in the United States.....on the reservations or off the reservations. What Reid is proposing is adding another layer of injustice... I am an Indian descendant...let me say...the vilest criminals are the ones wearing their shams of 'Indian,' sovereignty, and internal matters.

49indian's picture
Submitted by 49indian on
Well we could just evict every single non-Indian off our reservations and than problem solved XD no shes an idiot trying to start another anti-Indian fire again

native4sure17's picture
Submitted by native4sure17 on
As a very smart Native American leader says "Welcome to the Reservation"! One serious problem we have in the great state of Minnesota and it in some way affects reservations, for instance in Hennepin county which covers Minneapolis "child protection services" knowingly places children where there is "convicted felon sex offenders" in the house ! It appears people are looking out for the sex offenders rights then the childrens safety.