NYTs: Timothy Egan on Indian Country Crime (“Science and Sensibility”)


An excerpt:

For American Indians, living nearly invisible lives on archipelagos of native culture, irrational Republican philosophy has been particularly cruel. There are more than 300 reservations throughout the land — nations within a nation, sovereign to a point.

Non-Indians are responsible for most of the domestic violence in Indian country. The tribes can’t prosecute them — without the blessing of Congress — and the distant and detached feds usually won’t. Thus, the need for the change written into the renewed Violence Against Women law.

“We have serial rapists on the reservation,” Charon Asetoyer, a Native rights health advocate in South Dakota, has pointed out, “because they know they can get away with it.”

Oh, but bringing these brutes to justice in the jurisdictions where they commit their crimes would be unconstitutional, says Representative Eric Cantor, the House Majority leader. A jury of Indians, well — they’re incapable of giving a white man a fair trial. Such was the view expressed by Senator Charles Grassley, the mumble-voiced Iowa senator known for his 19th-century insight.

Both men voted against the act, and both are flat-out wrong in their interpretation. The Sixth Amendment guarantees the accused a right to a jury trial in “the state or district” where the crime was committed. It says nothing about ethnicity. The latest census found that almost half of people living on reservations were non-Indians. And more than half of Indian women are married to men who are not tribal members by blood.

Navajo President Lauds Passage of VAWA Reauthorization

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

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

Congress Passes VAWA Reauthorization with Tribal Jurisdiction Provisions Intact

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

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

Update in VAWA Reauthorization Negotiations

HuffPo article, with excerpt:

During a VAWA press conference earlier Tuesday, Sen. Patty Murray (D-Wash.) said she is “completely baffled” why House Republican leaders wouldn’t put the Senate bill on the House floor for a vote. She took direct aim at Cantor, who she said she heard is planning to put forward an entirely new VAWA bill this week that leaves out the Senate’s added protections.

“In negotiations over this bill, [Cantor] has indicated that he is set to leave out protections for tribal women … that he wants to leave off protections for the LGBT community once again, and that he will leave out many of the recent immigrants who find themselves with nowhere to turn when they are victims of domestic violence,” Murray said.

White House fact sheet.

Tulalip Tribal Vice-Chair Deborah Parker Press Release: DEBORAH PARKER VAWA PRESS RELEASE

Galanda Broadman blog post.

Salon: How Abusers Get Away with Targeting Indian Women


An excerpt:

“We have serial rapists on the reservation — that are non-Indian — because they know they can get away with it,” said Charon Asetoyer, executive director of the Native American Women’s Health Education Resource Center in Lake Andes, S.D. “Many of these cases just get dropped. Nothing happens. And they know they’re free to hurt again.”