VAWA Tribal Jurisdiction Provision

On April 26, 2012, the United States Senate passed S. 1925, the Violence Against Women Reauthorization Act (VAWA). In S. 1925 is Section 904 of the bill, which restores tribal governments’ concurrent jurisdiction with Federal and State governments over non-Indians in domestic violence cases. This provision has been of great concern to Republican Leadership, including Senator Kyl (R-AZ). Senator Kyl argues that the bill is unconstitutional because of the tribal jurisdiction provision. In response, on April 21, 2012, 50 law professors wrote to leadership on the Senate Judiciary Committee arguing that the tribal provision is constitutional. S. 1925 passed the Senate by a vote of 68-31. A rare feat in a divisive Senate. Nonetheless, Senators voting against the bill included those with Indian reservations or large populations of Indian peoplein their state, including Barrasso (R-WY), Coburn (R-OK), Cochran (R-MS), Cornyn (R-TX), Hatch (R-UT), Inhofe (R-OK), Johanns (R-NE), Johnson (R-WI), Kyl (R-AZ), Lee (R-UT), Moran (R-KS), Risch (R-ID), Roberts (R-KS), Rubio (R-FL), Sessions (R-AL), Shelby (R-AL), Thune (R-SD). Senator Barrasso, Vice-Chairman of the Senate Indian Affairs Committee, voted against S. 1925 despite the February 2012 New York Times story about the high rate of crime on the Wind River Reservation in his state.

Instead of considering S. 1925 as passed by the Senate, House Republican leadership considered H.R. 4970, their own VAWA Reauthorization bill. H.R. 4970 did not include the provision restoring tribal concurrent jurisdiction over non-Indians in domestic violence cases. According to a House Rules Report, during consideration of H.R. 4970 Rep. Darrell Issa (R-CA) tried to introduce a tribal jurisdiction amendment but was thwarted by House Judiciary Chairman Lamar Smith.  The Report states:

Rep. Darrell Issa (R-CA) also attempted to offer an amendment that would have granted limited tribal criminal domestic violence jurisdiction over non-Indians, noting that ‘‘there is an important issue here about tribal sovereignty and perhaps what one might call race discrimination.’’ Again, the Chairman refused to exercise his discretion to allow consideration of the provisions. Before withdrawing his amendment, Rep. Issa took issue with the Chair’s decision and asked:

So when we are trying to create better opportunity to deal with domestic violence, greater sovereignty by Native Americans, we are also dealing with the most fundamental point, which I believe is well within this committee’s jurisdiction, if we have protection against discrimination based on race, isn’t the current law a clear discrimination be- tween two residents of a reservation simply based on their race? 

The Chairman did not answer Rep. Issa’s question, but instead acknowledged the ‘‘legitimate concern’’ and offered that the issues would be considered at ‘‘the appropriate time.’’

House Republican Leaderships’ argument is two-fold. First, the Republicans discredit a federal study by the Bureau of Justice Statistics and a study by Amnesty International regarding the exceptionally high rates of violence experienced by Indian women and argue that violence against Native American women by non-Indian men is not really a problem in Indian Country, stating in House Report 112-480 that “It is the [Bureau of Indian Affairs'] opinion that non-native domestic violence offenders represent a very small percentage of domestic violence reported crimes in Indian Country.”  The Bureau of Indian Affairs (BIA) quickly discredited this assertion via a letter to the Chairman of the House Judiciary Committee stating that the assertion is not true and that to the contrary the BIA recognizes that over half all Indian married women have non-Indian husbands and that Indian women experience some of the highest domestic-violence victimization rates in the country. The BIA also stated that instead of quibbling over the verifiability of any studies or statistics we must not lose sight of fact that there is no acceptable level of violence by non-Native men on Native American women.  House Republican Leadership, like Senator Kyl, also argue that the tribal jurisdiction provision is unconstitutional, despite the April 2012 letter from 50 law professors nationwide who assert that the tribal jurisdiction provision is constitutional. 

On May 15, 2012, President Obama issued a Statement of Administration Policy stating that H.R. 4970 did not include key provisions, including the tribal jurisdiction provision, and that “If the President is presented with H.R. 4970, his senior advisors would recommend that he veto the bill.”

On May 16, 2012, the House passed H.R. 4970, largely along party lines, by a vote of 222-205. As passed by the House, H.R. 4970 excluded the tribal jurisdiction provision.  The most surprising vote for H.R. 4970, which excluded the tribal jurisdiction provision, was Rep. Dan Boren (D-OK) for two reasons. First, Rep. Boren was then Ranking Member of the Subcommittee on Indian and Alaska Native Affairs. Secondly, Rep. Boren was chief sponsor of H.R. 4154, the SAVE Native Women Act, which includes the tribal jurisdiction provision. To date, Rep. Boren (D-OK) has never explained his vote on the bill. In June 2012 and unrelated to his vote on H.R. 4970, Rep. Boren resigned as Ranking Member of the Subcommittee and announced plans to work for the Chickasaw Nation after he leaves Congress in 2013.

Following the passage of H.R. 4970, the New York Times published a story entitled, For Native American Women, Scourage of Rape, Rare Justice. On non-Indian land, state and local law enforcement has jurisdiction over the crime of rape. On Indian lands, unless a Federal statute has granted the State jurisdiction, the Federal government has exclusive jurisdiction to prosecute non-Indians who commit crimes against Indians in Indian Country, including rape.

Yet the NY Times story states: 

The Justice Department did not prosecute 65 percent of the rape cases on Indian reservations in 2011. And though the department said it had mandated extra training for prosecutors and directed each field office to develop its own plan to help reduce violence against women, some advocates for Native American women said they no longer pressed victims to report rapes.

See also the 2010 Government Accountability Office Report regarding the high rates of declination by the Federal government of violent crimes in Indian Country.  While it does not provide statistics on domestic violence or sexual assault by non-Natives on Native Americans, it does stand for the proposition that Federal law enforcement is not the answer to violent crimes in Indian Country.

In response to the NY Times Article, Reps. Edward Markey (D-MA) and, ironically, Dan Boren (D-OK) wrote a letter to House Natural Resources Chairman Doc Hastings and Subcommittee Chairman Don Young of the Subcommittee on Indian and Alaska Native Affairs for a hearing on the matter. To date, no hearing has been held nor has there been a public response to Reps. Markey and Boren’s request.

Efforts to reauthorize VAWA have been in limbo since H.R. 4970 passed the House in May but these efforts have recently seen movement.  VAWA expired in 2011 so lawmakers are eager to reauthorize the bill before Congress adjourns the 112th Congress. However, the bill is reportedly being held up by House Majority Leader Eric Cantor over the tribal jurisdiction provision. It appears all other issues have been resolved except for the tribal jurisdiction provision. Senate Judiciary Chairman Patrick Leahy confirmed Republican Leaders’ intransigence on the matter on the Senate Floor on December 6, 2012. 

To address Cantor’s concern with the tribal jurisdiction provision in S. 1925,  Republican Reps. Darrell Issa (R-CA), Tom Cole (R-OK), Mike Simpson (R-ID), John Kline (R-MN), and Patrick McHenry (R-NC) introduced H.R. 6625, the Violence Against Indian Women Act of 2012, as a compromise on December 3, 2012.  The bill includes the tribal jurisdiction provision but also a provision allowing a defendant to remove the case to Federal court if the defendant believes their rights have been violated by the tribal government. 

We wait to see if the compromise language will satisfy Majority Leader Eric Cantor so that the reauthorization of VAWA can pass before Congress adjourns the 112th Congress.

In the meantime, organizations such as the National Task Force to End Sexual and Domestic Violence Against Women are advocating for a VAWA bill that includes protection for Native American women and encourage people to call Majority Leader Cantor and Speaker Boehner at: 

Speaker Boehner:              202.225.6205 
Leader Cantor:                202.225.2815

And encourage advocates to use these tweets to amplify the message:

@EricCantor Pls accept Issa’s HR 6625 compromise on tribal jurisdiction as a path forward to get #VAWA done for all victims! #PassVAWA2012

@GOPLeader Pls accept Issa’s HR 6625 compromise on tribal jurisdiction as a path forward to get #VAWA done for all victims! #PassVAWA2012

@SpeakerBoehner Pls accept Issa’s HR 6625 compromise on tribal jurisdiction. A path forward to get #VAWA done for all victims! #PassVAWA2012

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2 thoughts on “VAWA Tribal Jurisdiction Provision

  1. [...] Here, from what promises to be an excellent new blog called Belt Way Indian. [...]

  2. [...] long entries on the VAWA Tribal Jurisdiction Provision, the Carcieri Fix, and the Tribal Stafford Act Amendments as well as short announcements about [...]

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