By a vote of 286-138. Washington Post coverage here.
Bill is here.
VAWA Reauthorization
On Federal Juries and American Indian Defendants
Commentators (for example, here and here) have been noting in response to Grassley’s concern that white male perpetrators will not benefit from a jury of their peers in tribal courts that Indian defendants (almost) never stand trial before federal juries with American Indians in the jury box. Let us not forget ASIA Kevin Washburn’s Michigan Law Review article from a few years back that made that perfectly clear. He wrote:
Despite the normative principle of representativeness, Indians tend not to be well represented in federal juries in Indian country cases. Even in states with large Indian populations, Indians remain a very small fraction of the population. As a result, Indians would be expected to have minimal representation in the jury venire. However, the statistics indicate lower numbers than one would expect.
David Perez on Why GOP is Wrong on Constitutionality of Tribal Court Provisions in VAWA Reauthorization
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
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
Here.
Atlantic: Why there is Opposition to VAWA
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.
NCAI Statement on VAWA
Violence Against Women Act Passes Senate with Increased Bipartisan Support for Tribal Provisions
Recent Senate votes on VAWA indicate clear support for constitutionality of local tribal authority
Washington, DC – In a 78–22 vote today, the Senate passed the reauthorization of the Violence Against Women Act (VAWA) with a net gain of ten votes since last year’s vote on the comprehensive S.1925 VAWA reauthorization. Now with support of more than three-quarters of the Senate, the VAWA legislation heads to the House of Representatives and includes Title IX; the 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. Current federal laws do not authorize tribal law enforcement or tribal courts to pursue any form of prosecution or justice against these perpetrators.
The National Congress of American Indians (NCAI) is calling the recent votes on VAWA, including today’s bipartisan vote, a clear indication of agreement that the tribal provisions are constitutional, and equally as important, that a final VAWA must provide local tribal authorities the ability to pursue justice for Native women and protect local communities. On Monday the Senate defeated the constitutionality question by striking down an amendment offered by Senator Tom Coburn (OK) to strip the tribal provisions entirely from the bill.
“Today’s passage of the Violence Against Women Act in the Senate, and previous votes to defeat harmful amendments to the bill, sends a clear message to the House that a strong VAWA bill with the tribal provisions must be passed immediately. There is no reason for further delay. This is violence that cuts deep into the hearts of our community. Addressing violence against any women, including Native women, is a priority of all Americans, and the safety of both Native and non-Native communities should not be marginalized,” said Jefferson Keel, President of NCAI, from NCAI’s offices in Washington, DC.
“We look forward to members from both parties coming together to deliver real policy solutions that solve a problem, that if left unaddressed, would leave Native women and local communities in peril. Nothing could be more unimaginable or reprehensible,” Keel concluded.
The legislation heads to the House of Representatives now and while progress on the bill stalled last year, NCAI and its partners remain optimistic and encouraged that a strong VAWA Reauthorization with the tribal provisions will be passed.
“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 until a comprehensive VAWA is passed. And with the tribal provisions included,” added Juana Majel-Dixon, 1st Vice President of NCAI and the Co-chair of the organization’s Task Force on Violence Against Women. “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. Native women and our surrounding communities need justice not more obstructions to it – the only obstacle standing in the way is politics.”
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.
Senate Approves VAWA Reauthorization 78-22
Here.
Navajo’s press release:
Senate Approves Domestic Violence Bill
Tribal Provisions Remain InTactWASHINGTON—The Senate today passed the Violence Against Women Reauthorization Act in a broad, bipartisan vote of 78-22. The bill reauthorizes the Act for the next five years.
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 narrow circumstances where they commit acts of domestic violence against Indians or violate domestic violence related protection orders. Defendants would need to have ties to the tribe, and prosecuting tribal courts would have to guarantee certain rights for defendants.
Voting in favor of S 47, were the following members from the Navajo Nation congressional delegation: Sens. John McCain, R-Ariz., Jeff Flake, R-Ariz., Tom Udall, D-N.M., and Martin Heinrich, D-N.M. Voting no on the bill included Republican Sens. Orin Hatch and Mike Lee from Utah.
The Senate adopted an amendment to the bill, S-47, by Sen. Patrick Leahy, D-Vt., that would extend through 2017 the Trafficking Victims Protection Act. The amendment would expand law enforcement grants for prosecuting trafficking crimes and criminalize confiscating passports or other immigration documents.
On Monday, the Senate rejected an amendment introduced by Sen. Tom Coburn, R-Okla., stripping the tribal provisions, which give tribes more authority over non-Indian domestic violence offenders. The Senate rejected a similar proposal last week introduced by Sen. Charles Grassley, R-Iowa.
Tribal provisions will remain a contentious issue as House lawmakers introduce their own version of the domestic violence bill.
Vote on final passage of S. 47, VAWA to begin soon
Senate Committee on Indian Affairs Release on VAWA Tribal Provisions Vote
Senate Votes Down Amendment to Remove Tribal Provisions from Violence Against Women Act
***VIDEO AVAILABLE***
In Senate floor speech, Sen. Cantwell urged colleagues to reject amendment that would have cut protections for Tribal victims
Cantwell: ‘This is about the life and death of women who need a better system to prosecute those who are committing serious crimes against them’
WASHINGTON, D.C. – Today on the Senate floor, U.S. Senator Maria Cantwell (D-WA), Chairwoman of the Senate Committee on Indian Affairs, urged her Senate colleagues to reject an amendment to the Violence Against Women Reauthorization Act of 2013 (S.47) that would have stripped critical protections for Tribal women. The amendment was defeated by a vote of 31-59 this evening.
The amendment would have removed the vast majority of Section 904 of the Violence Against Women Reauthorization Act, which ensures that non-Indian defendants in Tribal court are afforded due process in a manner consistent with state and federal courts. This includes the right to effective assistance of counsel, the right to a trial by an impartial jury, as well as all other Constitutional rights.
“This isn’t about politics. This isn’t about a debate on what is a good way to win votes somewhere in America,” Cantwell said in a floor speech prior to the vote. “This is about the life and death of women who need a better system to help prosecute those who are committing serious crimes against them.”
Watch a video of Senator Cantwell’s floor speech here.
Last week Senator Cantwell spoke on the Senate floor about a similar amendment that would overturn Tribal jurisdiction and limit the ability of Tribal courts to punish non-Indian domestic violence offenders who assault Indian women.
Cantwell is an original co-sponsor of the bill introduced by Senator Patrick Leahy (D-VT) on January 22, 2013. Since the first VAWA bill passed in 1994, domestic violence has decreased by 53 percent. The reauthorization bill includes critical improvements to extend domestic violence protections to individuals, including women in Tribal communities, who are currently not protected. An estimated 40 percent of Native women experience domestic violence in their lifetimes. Eighty percent of perpetrators of these crimes are non-Indian, and under current law, are not likely to be prosecuted by Tribal governments.
Previous reauthorizations of VAWA have been approved in a timely fashion with overwhelming support. Last Congress, a similar Senate version of the VAWA reauthorization bill passed the Senate by a bipartisan vote of 68-31, but ultimately stalled in the House. S. 47 has 60 co-sponsors and is expected to head to the Senate floor for final passage tomorrow.
Cantwell has been a consistent champion for the reauthorization of VAWA. In December, she joined six of her female Democratic Senate colleagues to call for House passage of VAWA before Congress adjourned for the year. In April 2012, she joined Senator Patty Murray (D-WA) at the King County Sheriff’s office to highlight the benefits of the bill to local law enforcement.
Turtle Talk 
You must be logged in to post a comment.