Legislation

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

House Passes Senate Version of VAWA

Kate Fort

By a vote of 286-138. Washington Post coverage here.

Bill is here.

Louise Erdrich NYTs Op\Ed on Violence against Indian Women

Matthew L.M. Fletcher3 Comments

Here.

A excerpt:

What seems like dry legislation can leave Native women at the mercy of their predators or provide a slim margin of hope for justice. As a Cheyenne proverb goes, a nation is not conquered until the hearts of its women are on the ground.

If our hearts are on the ground, our country has failed us all. If we are safe, our country is safer. When the women in red shawls dance, they move with slow dignity, swaying gently, all ages, faces soft and eyes determined. Others join them, shaking hands to honor what they know, sharing it. We dance behind them and with them in the circle, often in tears, because at every gathering the red shawls increase, and the violence cuts deep.

David Perez on Why GOP is Wrong on Constitutionality of Tribal Court Provisions in VAWA Reauthorization

Matthew L.M. Fletcher3 Comments

Here. An excerpt:

First, let’s be clear: Senator Grassley’s bold assertion that Native Americans cannot serve as impartial jurors is simply racist. The Sixth Amendment’s right to jury grants you the right to have a jury selected from the community in which the crime took place.  If a Native American committed an act of violence in Senator Grassley’s own Butler County, Iowa, chances are he’d face an all-White jury. That’s because Butler County is 98.95 percent White, and only 0.05 percent Native American. But I doubt Senator Grassley thinks that a Native American defendant couldn’t get a fair shake from his hometown Hawkeyes.  And there’s no reason to think that Native American jurors would act differently.

The other purportedly constitutional objection to the tribal protection provision stems from a 1978 Supreme Court case that originated right here in Washington state: Oliphant v. Suquamish Indian Tribe.  Suquamish tribal authorities arrested two men, Mark Oliphant and Daniel Belgarde, for crimes committed on Suquamish tribal lands. The defendants argued that the tribe could not charge them with any crime, no matter where it was committed, because they weren’t Indians. The Supreme Court agreed, but its reasoning is what’s most important: the Court never held that it was unconstitutional for tribal authorities to charge and try non-Indians, but rather that Congress’s “various actions and inactions in regulating criminal jurisdiction on Indian reservations demonstrated an intent to reserve jurisdiction over non-Indians for the federal courts.” Put differently, Congress just had to change its mind.

In a similar case about ten years later, Duro v. Reina, the Supreme Court determined that under existing federal law one tribe could not exercise criminal jurisdiction over an enrolled member of another tribe. So what happened? Congress simply changed its mind—and the law—to allow tribes to prosecute members of other tribes, explicitly overruling the Duro decision. Most recently, in 2004, the Supreme Court echoed this point by concluding, in United States v. Lara, that Congress has the power to “lift or relax” restrictions on tribal jurisdiction over criminal matters.

That’s what Congress is trying to do with these new VAWA provisions.  It’s not a constitutional hurdle—it’s a legislative one.  And the Senate just voted to remove that hurdle.

UN Human Rights Press Release: UN Experts Call for VAWA Reauthorization

Matthew L.M. Fletcher1 Comment

USA: UN rights experts call on Congress to reauthorize the Violence Against Women Act

GENEVA (19 February 2013) – The United Nations Special Rapporteurs on violence against women, Rashida Manjoo, and on the rights of indigenous peoples, James Anaya, urged the United States Government to reauthorize the Violence Against Women Act (VAWA). Their call follows the recent approval by the US Senate of a bipartisan bill to reauthorize and strengthen VAWA.

“Since its enactment in 1994, the Violence Against Women Act has played a crucial role in providing guidance to state and local level governments, and in facilitating their adequate responses to violence against women,” Ms. Manjoo said. “It has steadily expanded funding to address domestic violence and, with each reauthorization, it has included historically underserved groups.”

The new bill includes improvements with regard to the criminal justice system’s response to crimes including sexual assault and homicides resulting from domestic violence. It also foresees enhanced protections for Native American and Alaskan Native women, lesbian, gay, bisexual, and transgender victims, as well as immigrant victims and their children.

“Following my visit to the United States in 2011, I highlighted the positive legislative and policy measures undertaken by the US Government to fight violence against women, including the enactment and subsequent reauthorizations of the Violence Against Women Act, and the establishment of a dedicated office on violence against women at the highest level of the Executive,” the expert on violence against women said.

Likewise, Special Rapporteur Anaya expressed concern in his report following his visit to the United States in 2012 that numerous cases of violence against indigenous women are committed by non-indigenous individuals, many of whom are not subject to indigenous prosecutorial authority because of their non-indigenous status.

“Congress should act promptly to pass key reforms to the Violence Against Women Act that bolster indigenous tribes’ ability to prosecute cases involving violence against indigenous women,” emphasized the expert on the rights of indigenous peoples.

“We would like to reiterate the importance of reauthorizing VAWA in order to build upon its accomplishments and continue striving for more adequate responses from the authorities in providing protection to victims and ensuring accountability for perpetrators,” the UN Special Rapporteurs stressed.

ENDS Continue reading →

NYTs on VAWA Reauthorization

Matthew L.M. Fletcher1 Comment

Here.

Atlantic: Why there is Opposition to VAWA

Matthew L.M. Fletcher

Here.

An excerpt:

Another controversy surrounds a provision in this year’s reauthorization to give tribal governments criminal jurisdiction over non-Indians who commit crimes on reservations. Proponents of the bill say this closes a loophole that allows non-Native American men to abuse Indian women with impunity. But critics say the tribal courts are underresourced and have a history of failing to provide adequate legal protections to defendants.