New VAWA Bill Introduced in the Senate

On Wednesday, Senator Joni Ernst (R-Iowa) introduced a version of the Violence against Women Act bill that she sponsored. The new VAWA bill attempts to significantly erode tribal sovereignty in the name of “defending civil rights” by eliminating the exhaustion of tribal remedies, forcing an over-broad application of the U.S. Constitution in tribal courts, and providing a cause of action for defendants to sue tribes for civil rights violations.

This excerpt from the recent FMC Corp. v.  Shoshone-Bannock Tribes, — F.3d —-, 2019 WL 6042469 *22 (9th Cir. 2019), encompasses exactly why this bill is misguided in its attempts to abrogate tribal sovereignty:

“Making good on these due process guarantees, nearly five decades of tribal cases applying ICRA show that tribal courts protect the rights of both member and nonmember litigants in much the same way as do federal and state courts.” Norton, 862 F.3d at 1250. “[T]ribal courts often provide litigants with due process that ‘exceed[s] the protections offered by state and federal courts.’” Id. (second alteration in original) (citing Matthew L.M. Fletcher, American Indian Tribal Law 325 (2011))…[o]ur own experience in reviewing tribal court decisions is consistent with the findings of these studies. Tribal courts, like all courts (including our own), make mistakes. But, contrary to the contention of FMC, tribal courts do not treat nonmembers unfairly.

A copy of the bill is here.

The HuffPost ran an article on how this proposed VAWA legislation harms tribes on Thursday, November 21, 2019. That article is here.

DOJ Tribal Consultation on Domestic Violence in Fairbanks, AK (May 1, 2019)

From Monique Vondall:

I was at the historic consultation — a first — with the DOJ regarding domestic violence funding for Indian Country. Of the $169 million in grants available only 59 tribes applied and the cap of $500,000 only allowed $29 million to be distributed.  The DOJ listening session was met with many requests to continue the set-aside funding for Indian Country.

The Southwest region in Alaska reports the highest percentage of women who experience domestic violence in America. The 2019 Section 903 Reauthorization of VAWA found that Alaska Native women experience domestic violence at a rate of 250% more than any other women in America.

AG Nominee Jeff Sessions Testifies on VAWA 2015 Tribal Court Jurisdiction(Sorta)

Here is the CSPAN transcript and video link.

Here are excerpts (taken from uncorrected closed captioning) from the testimony at 1:41:48:

SO, WHEN WE VOTED IN THE COMMITTEE, EIGHT OF THE NINE REPUBLICANS VOTED AGAINST THE BILL. ONE OF THE MORE CONCERNINGPROVISIONS WAS A PROVISION THAT GAVE TRIBAL COURTS JURISDICTION TO TRY PERSONS WHO WERE NOT TRIBAL MEMBERS. AS CONTRARY, I BELIEVE THE ONLY TIMEHAT GAVE TRIBAL COURTS JURISDICTION TO TRY PERSONS WHO WERE NOT TRIBAL MEMBERS. AS CONTRARY, I BELIEVE THE ONLY TIME THAT’S EVER HAPPENED, THAT WAS A BIG CONCERN THAT I RAISED I BELIEVE PRIMARILY. ON THE LEGISLATION, SO I VOTED WITH THE CHAIRMAN AND THE LEGISLATION HE HAD THAT I THOUGHT DID THE JOB FOR PROTECTING WOMEN, TO REAUTHORIZE THE VIOLENCE AGAINST WOMEN ACT, BUT AT THE SAME TIME, DID NOT HAVE OTHER THINGS ATTACHED TO IT THAT I THOUGHT WERE CONCERNING.

At 1:43:31:

MR. CHAIRMAN, I HAVE NO UNDERSTANDING OF THAT. BUT IN OTHER RESULT, OF IT SO FAR, I’M INTERESTED FIRST TIME I’VE HEARD IT COMING ON. LET ME SAY THIS TO YOU DIRECTLY. IN MEETING WITH SENATORS PRIOR TO THIS HEAR, I’VE HAD QUITE A NUMBER, PERHAPS MORE THAN ANY OTHER ISSUE THAT NONINDIANS THAT HAVE GONE ON TO TRIBAL LANDS THAT HAVE COMMITTED CRIMES INCLUDING RAPE HAVE NOT BEEN EFFECTIVELY PROOS CUTED. THEY HAVE BEEN PROSECUTED IN THE FEDERAL GOVERNMENT BY THE UNITED STATES ATTORNEYS AND THAT HAS NOT BEEN HAPPENING SUFFICIENTLY. I AM NOT CONVINCED, SO I DO THINK THE FBI PARTICULARLY MAYBE THE BUREAU OF THE INDIAN AFFAIRS INVESTIGATEORS SHOULD BE BEEFED UP AND THE U.S. ATTORNEYS NEED TO DO PROBABLY A BETTER JOB OF PROSINGING CASES THAT NEED TO BE PROSECUTED IN FEDERAL FORTCOURT.

And at 1:44:58:

I WOULD DEFEND THE STATUTE IF IT’S REASONABLY DEFENSIBLE. YES, IT’S PASSED BY CONGRESS. IT WOULD BE THE DUTY OF THE ATTORNEY GENERAL. WHETHER THEY VOTED FOR IT OR SUPPORTED IT, TO DEFEND IT.

Biden and Obama Remarks at VAWA Signing Ceremony

Highlight quote from the President:

Tribal governments have an inherent right to protect their people, and all women deserve the right to live free from fear. And that is what today is all about.

2:16 P.M. EST

THE VICE PRESIDENT: Thank you very much, Diane. Thank you. (Applause.) Continue reading

NCAI Release on VAWA Signing Ceremony with Pres. Obama

Violence Against Women Act Signed Into Law;
NCAI Begins Implementation Coordination

NCAI Members join President Obama and Vice President Biden, Members of Congress, and Advocates to Celebrate Passage of Protections for All Women

NCAI’s Creative Commons photos available for use by media

WATCH: YouTube clip of the event

Washington, DC – Native women, tribal leaders, women’s rights advocates, and survivors of domestic abuse joined President Barack Obama and Vice President Joe Biden today, along with members of Congress and the Obama Administration, to celebrate the reauthorization of the Violence Against Women Act (VAWA). Members of NCAI’s Executive Committee joined in celebrating the tribal provisions of the bill enacted into law; President Jefferson Keel, 1st Vice President Juana Majel Dixon and Co-Chair of NCAI’s Task Force on Violence Against Women, Secretary Ed Thomas, and Treasurer Ron Allen. Terri Henry, Co-Chair of NCAI’s Task Force on Violence Against Women, was also in attendance.

Diane Millich, a member of the Southern Ute Indian Tribe in Colorado, opened the event and introduced Vice President Biden, sharing her story which has been a focus of national media attention since May of last year, and most recently in a New York Times article. Deborah Parker of the Tulalip Tribe of Washington, an active and prominent voice in the VAWA advocacy efforts alongside the NCAI Task Force, also stood on stage during the signing of VAWA.

“Indian Country has some of the highest rates of domestic abuse in America. And one of the reasons is that when Native American women are abused on tribal lands by an attacker who is not Native American, the attacker is immune from prosecution by tribal courts. Well, as soon as I sign this bill that ends,” said President Barack Obama, moments before signing the bill. “Tribal governments have an inherent right to protect their people, and all women deserve the right to live free from fear. And that is what today is all about.”

“Today represents a historic moment in the nation-to-nation relationships between tribes and the federal government. Now that the tribal provisions have been enacted and protection for all women reauthorized, justice can march forward,” said Jefferson Keel, President of NCAI. “Local tribal authorities have much work to do to ensure that our citizens are protected from these violent crimes. NCAI has already begun focusing on coordinating the implementation of VAWA. Today is a great day, because it marks the beginning of justice and the end to injustice that has gone unanswered for too long.”

In addition to programmatic support for Native survivors of domestic violence and sexual assault, the law includes constitutionally sound tribal jurisdiction provisions authorizing tribal governments to prosecute non-Indian defendants involved in intimate relationships with Native women and who assault these victims on tribal land. Prior to the enactment of this law, federal laws did not authorize tribal law enforcement or tribal courts to pursue any form of prosecution or justice against these perpetrators.

The legislation was passed in late February by the 113th Congress. Bipartisan support of the Senate version of the legislation, S.47, and the tribal provisions, led to both chambers casting resounding votes of 286 – 138 in the House and 78-22 in the Senate. NCAI released statements of support upon the final House passage of the bill.

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

Here.

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.

Tracing the Right to Counsel in the VAWA Reauthorization Act

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.