Anderson Indian Law: Oppose the Draft Cantor VAWA Bill

Prepared by Anderson Indian Law
We strongly urge tribes to reject the Cantor draft VAWA bill because it is a diminishment of tribal sovereignty. The bill was drafted last minute, without meaningful input from tribal leaders. The cost of what tribes are giving up in this bill to obtain jurisdiction over non-Natives in domestic violence cases is at too great a cost, and does not work to protect Native women. Additionally, it creates hurdles to enforcement and sets up a two-class system for defendants on the reservation (Natives and non-Natives). It also works to protect the rights of non-Native defendants over the rights of Native women victims. The major problems are: that the bill delegates authority to tribal courts instead of recognizing inherent tribal authority; it allows for automatic removal of cases; it provides a certification process of tribal courts by the federal government; and it provides a private cause of action against tribes.
Problems Outlined:
  1. The bill creates a certification process by the Attorney General for participation (p.2, line 11)
    1. There are no standards outlined in the bill as to how the Attorney General and the Department of Interior will review tribal courts
    2. This could lead to broad directives from the Feds on how tribes need to change their tribal court systems
    3. The Feds can start to analyze tribal codes, jails, court staffing, etc…
  2. It potentially bars PL-280 tribes who are currently not exercising criminal jurisdiction from exercising it over non-Natives in the future (p. 2, line 24)
    1. The bill does not define what it means to exercise criminal jurisdiction
    2. Does tribal participation in a consortium style court equal an exercise of criminal jurisdiction?
    3. What if a tribe has a criminal code but not a tribal court? Is that tribe exercising criminal jurisdiction?
  3. It only allows tribes to prosecute non-Natives for one year whereas Natives can be prosecuted under the TLOA for up to three years (p. 4, line 5)
    1. The Tribal Law and Order Act enables tribes who meet the standards outlined in the law to prosecute and jail Natives for up to three years and increase the fines.
    2. This bill gives special treatment to non-Natives because they can only be prosecuted for up to one year and a lesser fine.
  4. It does not clarify that tribes can issue protection orders over non-Natives on the reservation (p. 5, line 9)
    1. The bill fails to clarify that every tribe has full civil jurisdiction to issue and enforce protection orders against non-Natives
    2. Fails to reverse Martinez v. Martinez
  5. It delegates authority to tribal courts instead of recognizing inherent tribal authority over non-Natives (pg. 9, line 6) DEAL BREAKER
    1. This section delegates jurisdiction to the tribe instead of recognizing inherent authority
    2. Creates double jeopardy issues
    3. If a federal prosecutor dismisses a case, can the tribe still prosecute it?
    4. If a federal prosecutor declines to prosecute a case, can the tribe still prosecute?
  6. It subjects tribes to the Constitution of the United States even though tribes are viewed as extra-constitutional (p. 9, line 6)
    1. This section submits tribes to the Constitution
    2. Tribes are considered extra-constitutional
    3. Tribes will have to provide grand juries. What are the costs?
    4. Will tribes also have to provide juries in civil cases?
    5. It is unclear which state laws tribes will have to abide by?
    6. How do you form a jury pool with non-Natives?
  7. It allows for automatic removal to federal court without cause and allows Federal and States to take cases out of tribal court (p. 9, line 16) DEAL BREAKER
    1. Removal is without cause, all the defendant has to do is allege a violation of his rights
    2. Defendant does not have to prove by a preponderance of the evidence
    3. Ignores tribal exhaustion of remedies
    4. Federal and state authorities can remove for any reason
    5. The tribe does not have any right to appeal if a case is removed
    6. Cases will be removed for political reasons
    7. Tribes will have to notify defendants at time of arrest of their right to remove. How will they identify who is Indian and non-Indian?
  8. It does not provide victim notification protections when Defendants are released or transferred from tribal jail (p. 11, line 1)
    1. 48 hours to transfer a defendant is not practical for remote tribes
    2. Victim notification is missing from this section
    3. Creates a dangerous situation for victims if defendant is released or transferred from custody and they are not notified
  9. It provides a private right of action against tribal governments for violating civil rights and subjects tribes to suit (p. 12, line 21) DEAL BREAKER
    1. Private right to suit against tribes
    2. Qualified immunity. How long will it take to dismiss cases against tribal judges and officials if defendants file against them
    3. Overrules Santa Clara v. Martinez case