Author: Matthew L.M. Fletcher

Tracing the Right to Counsel in the VAWA Reauthorization Act

Matthew L.M. Fletcher3 Comments

Been asked this so here goes. Does the new statute require tribes to guarantee counsel to indigent defendants in special tribal domestic violence prosecutions of non-Indians? Yes, the answer is (as Yoda would say) (and assuming President Obama doesn’t veto).

Here is the new statute, of which section 904(d) reads:

In a criminal proceeding in which a participating tribe exercises special domestic violence criminal jurisdiction, the participating tribe shall provide to the defendant—
(1) all applicable rights under this Act;
(2) if a term of imprisonment of any length may be imposed, all rights described in section 202(c);

The section 202(c) to which VAWA references is the current version of the Indian Civil Rights Act requiring tribes that choose to assert expanded sentencing authority to provide counsel to indigent defendants (25 U.S.C. § 1302):

(c) Rights of defendants

In a criminal proceeding in which an Indian tribe, in exercising powers of self-government, imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall—
(1) provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and
(2) at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys;
(3) require that the judge presiding over the criminal proceeding—

(A) has sufficient legal training to preside over criminal proceedings; and
(B) is licensed to practice law by any jurisdiction in the United States;
(4) prior to charging the defendant, make publicly available the criminal laws (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government; and
(5) maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding.

Navajo President Lauds Passage of VAWA Reauthorization

Matthew L.M. Fletcher

Navajo President Ben Shelly Praises House Passage of Domestic Violence Bill
Bill affirms tribal sovereignty

WASHINGTON—Navajo Nation President Shelly praised the House for passing the broad bipartisan Senate version of the Violence Against Women Reauthorization Act, by a vote of 286-138, with the tribal provisions intact. The bill now goes to President Obama for his signature.

“Today is a historic day and I commend the House of Representatives for taking a stand to protect all women from crimes of domestic violence. Women should not have to live in fear of violent acts of crime. This bill gives tribal nations the tools to protect Native women. We thank those who advocated vigorously on this important piece of legislation,” President Shelly said.

The bill reauthorizes the Act for the next five years.

Voting in favor of the Senate version of VAWA included the following from the Navajo Nation congressional delegation: Reps. Ben Ray Lujan, D-N.M., Michelle Grisham Lujan, D-N.M., Steve Pearce, R-N.M., and Ann Kirkpatrick, D-Ariz., Voting against the bill was Rep. Jason Chaffetz, R-Utah.

The bill keeps language intact that provides added protections to Native American women from domestic violence crimes on tribal lands, and would allow tribes to prosecute non-Indians in some circumstances where they commit acts of domestic violence against Indians or violate domestic violence related protection orders.

“The Navajo Nation, like any government, should have the right to protect its people. I am encouraged by the bold leadership of our congressional Representatives today in protecting our sovereign rights,” President Shelly added.

Key Primary Documents in the VAWA Reauthorization Fight

Matthew L.M. Fletcher

Since it is the mission of Turtle Talk to make primary documents available to the Indian law community, here are many of the primary documents we have made available in this long-running political fight to enact what was once known as the SAVE Native Women Act in the Violence against Women Act Reauthorization:

Justice Department Legislative Proposal on Violence Against Native Women

Senate Judiciary Report March 2012

SCIA Report Dec 2012

Congressional Research Service Report

Law Professor Letter Defending SAVE Native Women Act’s Constitutionality

House Judiciary Committee Report

Former US Attorneys’ Letter Supporting SAVE Native Women Act

Federal Defenders’ Opposition

SCIA Written Testimony Nov. 2011

SCIA Written Testimony July 2011

Statement of Administrative Policy on VAWA Reauthorization Act

DOJ Framing Paper May 20 2011

Riyaz Kanji Testimony 2007

Other important materials include:

Sen. Cantwell’s speech on the Senate floor (video)

NCAI Policy Insight Brief titled, Statistics on Violence Against Native Women

White House fact sheet

BeltWayIndian Summary of Tribal Jurisdiction Provisions

Kevin Washburn’s Michigan Law Review article

Brent Leonhard article on Oliphant fix

ABA Resolution

Harold Monteau Indictment of Congressional Research Service Report Damning SAVE Native Women Act

Political commentary of note includes:

Louise Erdrich in the NYTs

UN Experts Call

David Perez

NYTs Editorial Feb. 2013

WaPo Commentary Dec. 2012

NYTs Editorial Nov. 2012

Anderson Law Opposition to Eric Cantor Draft (draft here)

Salon Commentary

The Nation Commentary

NYTs Q&A with Louise Erdrich

Caroline Mayhew in ICT

NYTs “Scourge of Rape” Article

Fletcher ACS Blog post on SAVE Native Women Act

NYTs Coverage of House Passage of VAWA Reauthorization

Matthew L.M. Fletcher

Here.

NCAI Press Release on VAWA Reauthorization Passage

Matthew L.M. Fletcher

House Passes Violence Against Women Act

NCAI Praises Passage of Protections for All Women; Tribal Courts Gain Jurisdiction over Non-Indian Domestic Violence Perpetrators

Bill represents major advance for public safety in Indian Country;
Legislation headed to President for Signature

Washington, DC – Today, in a historic vote the House of Representatives passed S.47, the Senate reauthorization of the Violence Against Women Act (VAWA), sending the legislation with the tribal provisions supported by the National Congress of American Indians (NCAI) to President Obama’s desk to be signed into law. NCAI is praising the efforts of the House and the Senate to reauthorize VAWA and the bipartisan support of the Senate version of the legislation in both chambers with resounding votes of 286 – 138 in the House and 78-22 vote in the Senate earlier this month.

“It is with a glad heart and soaring spirit that I celebrate the passage of VAWA. Today the drum of justice beats loud in Indian Country in celebration of the reauthorization of VAWA and we stand in unity with all of our partners and leaders who were unrelenting in support of protections for all women, including Native women,” said Juana Majel Dixon, First Vice President of NCAI, and co-chair of NCAI’s Task Force on Violence Against Women. Juana Majel serves as a Traditional Councilwoman Pauma Band of Mission Indians located within the state of California. “500 plus days is too long to not have a bill for all women in America. For an unimaginable length of time those who have terrorized our women in our most sacred places, in our relationships, in our homes, and on our land, have gone unprosecuted. Now that time has come to an end and justice and security will flourish in these specific instances. We celebrate the protections for all women included in VAWA, including those for Immigrant and LGBT women,” added Juana Majel.

“With this authority, comes a serious responsibility and tribal courts will administer justice with the same level of impartiality that any defendant is afforded in state and federal courts,” said Jefferson Keel, the President of NCAI and Lt. Governor of the Chickasaw Nation, speaking about implementation of the new law. “We have strong tribal courts systems that protect public safety. The law respects tribal sovereignty, and also requires that our courts respect the due process rights of all defendants. My hope is that this new law is rarely used. Our goal isn’t to put people in jail. It is to create an effective deterrent so that our people can lead safe lives in our communities and nations.”

The constitutionally sound tribal jurisdiction provisions in VAWA authorize tribal governments to prosecute non-Indian defendants involved in intimate relationships with Native women and who assault these victims on tribal land. Current federal laws do not authorize tribal law enforcement or tribal courts to pursue any form of prosecution or justice against these perpetrators.

“There were at least five things that came together: an enormous grassroots effort from Indian country; the coalition of the National Task Force to End Domestic Violence; statistics so we could finally show the problem; steadfast leadership from the Department of Justice; and incredible support from so many Members of Congress both Republicans and Democrats,” said Terri Henry, Council Member at Eastern Cherokee and Co-Chair of the NCAI Task Force on Violence Against Women spoke of the large collective effort that led to the passage of the Senate version of VAWA. “We really want to thank everyone for their hard work. Now we are going to use this tool to protect Native women from violence.”

“Women and men – Native and non-Native, Senators and Representatives from all backgrounds, and tribal leaders from across Indian Country have all spoken that these injustices must not continue. We intend to keep speaking from our heart and with the law by our side,” added NCAI’s First Vice President Juana Majel Dixon. “We are thankful that there are strong leaders in both the House and Senate that have stood for the protections of Native women, regardless of party politics.”

“Today marks not the end of our efforts at NCAI to combat domestic violence issues that Indian Country faces but an important step along the way. We will remain as dedicated as we have been since we began addressing this issue as an organization. There have been many members of Congress who have stood with tribal nations throughout this effort and they have stayed true to the constitution, to the trust responsibility, and to the truth that tribal nations are the best to address our situations at the local level. Today we advance the protections tribal nations can provide all people, Native and non-Native,” said Jacqueline Pata, Executive Director of NCAI.

Findings show that 34% of American Indian and Alaska Native women will be raped in their lifetimes* and 39% of American Indian and Alaska Native women will be subjected to violence by an intimate partner in their lifetimes**. According to the U.S. Census Bureau, 46% of people living on reservations in 2010 were non-Natives (single race) and 59% of American Indian women in 2010 were married to non-Native men***.

The NCAI Task Force on Violence Against Women was established in 2000 and has been working for thirteen years to protect the lives of Native American women and create more secure tribal communities.

* Tjaden, P., & Thoennes, N. (2000). Findings from the National Violence against Women Survey.

** Centers for Disease Control. (2008). Adverse health conditions and health risk behaviors associated with intimate partner violence.

***US Census Bureau, Census 2010.

 

About The National Congress of American Indians (NCAI):

Founded in 1944, the National Congress of American Indians is the oldest, largest and most representative American Indian and Alaska Native organization in the country. NCAI advocates on behalf of tribal governments and communities, promoting strong tribal-federal government-to-government policies, and promoting a better understanding among the general public regarding American Indian and Alaska Native governments, people and rights. For more information visit www.ncai.org

Congress Passes VAWA Reauthorization with Tribal Jurisdiction Provisions Intact

Matthew L.M. Fletcher1 Comment

Today, by a vote of 286 to 138 (update: vote link), the U.S. House of Representatives passed S. 47, the Violence Against Women Reauthorization Act of 2013. Because the U.S. Senate, by a vote of 78 to 22, passed the same VAWA reauthorization bill on February 12, it will now be presented to the President for his signature.

A copy of S. 47, as passed by both chambers of Congress, can be found at this link.

DOJ started all this, and here is the original proposal:

Justice Department Legislative Proposal on Violence Against Native Women

City of Duluth Sues National Indian Gaming Commission over Fond du Lac Casino Revenues

Matthew L.M. Fletcher6 Comments

Here is the complaint in City of Duluth v. National Indian Gaming Commission (D. D.C.):

City of Duluth Complaint

News coverage here.

Fletcher/Singel Talks at Cornell Law School — March 12, 2013

Matthew L.M. Fletcher1 Comment

Here:

Cornell NALSA 3-12

Fletcher’s paper on tribal amicus briefs in the Supreme Court is here.

Tenth Circuit Affirms Conviction for Theft from a Tribal Organization (Northern Arapahoe Tribe)

Matthew L.M. Fletcher

Here are the materials in United States v. Addison:

Addison Brief

Federal Govt Brief

CA10 Opinion

An excerpt:

Amanda Addison and Melody St. Clair were on trial for embezzling or converting funds from the Northern Arapahoe Tribe’s Department of Social Services (DSS). On July 7, 2011, the third day of trial, the trial judge declared a mistrial as to St. Clair only and excluded her from the courtroom for the remainder of the trial. Addison was convicted. She brings two issues for our consideration, whether: (1) the exclusion of St. Clair violated Addison’s Sixth Amendment right to a public trial and (2) the evidence was sufficient to demonstrate criminal intent. Because the district court had a substantial reason for excluding St. Clair, no Sixth Amendment violation occurred. The evidence was sufficient to prove her knowing and intentional taking of DSS funds. We affirm.

Study Suggests ABA Assessment of Judicial Nominees Biased against Women and Minorities

Matthew L.M. Fletcher

The study is here, hat tip to the Monkey Cage, a great site. I should say historically biased, since the study goes back to 1960.

The abstract:

This paper uses two new datasets to investigate the reliance by political actors on the external vetting of judicial candidates, in particular vetting conducted by the nation’s largest legal organization, the American Bar Association (ABA). First, I demonstrate that poorly rated lower-court nominees are signi cantly more likely to have their nominations fail before the Senate. However, I also show that minority and female nominees are more likely than whites and males to receive these lower ratings, even after controlling for education, experience, and partisanship via matching. Furthermore, by presenting results showing that ABA ratings are unrelated to judges’ ultimate reversal rates, I show that these scores are a poor predictor of how nominees perform once con fimed. The fi ndings in this paper complicate the ABA’s influential role in judicial nominations, both in terms of its utility in predicting judicial performance and also in terms of possible implicit biases against minority candidates, and suggest that political actors rely on these ratings perhaps for reasons unrelated to the courts.

An excerpt:

Despite attempts by Presidents and by advocacy groups, federal courts in the United States are still unreflective of the U.S. population. Of the 874 federal judges in service as of 2008, only 24% were women, 10% were African American, and 7% were Hispanic …. Fewer than 1% were Asian American and, even today, there are no federal judges who self-identify as Native American — surprising given the courts’ involvement in interpreting federal Indian laws.