Amendment 13 VAWA Vote

Here. Senator Barrasso, Vice Chair of the Senate Committee on Indian Affairs, among the R’s voting to strip tribal jurisdiction provision.

VAWA Senate Vote Tonight at 5:30 PM

At 5:30pm, there will be up to 7 roll call votes in relation to the following:

  • Leahy amendment the text of which is at the desk (sex trafficking)
  • Portman amendment #10 (sex trafficking)
  • Murkowski amendment #11 (tribal protections)
  • Coburn amendment #13 (strikes tribal provisions)
  • Coburn amendment #15 (consolidate DOJ rape programs)
  • Coburn amendment #16 (notice to victims)
  • Passage of S.47, the Violence Against Women Act, as amended, if amended.

http://durbin.senate.gov/public/index.cfm/todayonthesenatefloor

News Profile of VAWA Reauthorization with Comments from Umatilla

Here. Also includes mention of a law review article by Brent Leonhard, which we posted about here.

NCAI Release in Support of Senate Version of VAWA

NCAI Reiterates Support for Senate Version of Violence Against Women Act;
Letter to Leahy and Crapo Calls for No Harmful Amendments to S.47

NCAI Policy Research Center Releases Brief on Violence Against Women Statistics

Washington, DC – In a letter sent to Senators Leahy and Crapo this morning, the National Congress of American Indians’ (NCAI) Taskforce on Violence Against Women expressed strong opposition to any harmful amendments offered to the Senate legislation to reauthorize the Violence Against Women Act (VAWA). In the letter to the Senate co-authors of the legislation, NCAI expressed unified opposition to amendments to VAWA that would strip tribal jurisdiction provisions or alter the current language in S. 47 in a harmful manner.

The letter sent by NCAI Task Force co-chairs Juana Majel Dixon (Pauma Band of Mission Indians, CA) and Terri Henry (Eastern Band of Cherokee Indians, NC) can be downloaded here, and highlights examples of amendments which the organization opposes:

“Amendments which place more funding in the hands of federal authorities will not address…local need. We believe strongly that local government is the best government for addressing public safety concerns. For example, an amendment is being offered today which would require that tribal governments petition a U.S. District Court for an ‘appropriately tailored protection order excluding any persons from areas within the Indian country of the tribe.’ This level of procedure for an intimately local issue is not practical and will do little to improve matters on Indian reservations. Tribal courts are the appropriate venue to issue such protection orders.

Also, tribal courts and authorities are the appropriate triers of fact for domestic violence matters conducted on Indian reservations. The federal system has proven ineffective in many respects, but none as detrimental to the backbone of a community as the area of domestic violence against Native women. Further many tribal courts operate in much the same manner as state courts, albeit with smaller dockets and lesser degrees of crime as their sister governments: state and federal courts. Also, all tribal courts are bound by the Indian Civil Rights Act, which, as amended, guarantees all of the constitutional rights non-Native defendants have in state courts.”

Additionally, NCAI’s Policy Research Center released today a new Policy Insight Brief titled, Statistics on Violence Against Native Women. The brief aims to provide detail on previously reported statistics and original sources of data used often in policy discussions, specifically focusing on the context in which the disproportional violence against Native women happens. The brief synthesizes data and provides context for critical tribal provisions of S. 47:

“From what we know about the high rates of intimate partner violence against Native women, about the fact that assaults against Native women tend to take place at private residences, about the reports from Native women of perceived perpetrator race, and about the high rates of interracial marriage and unmarried partners of Native women, it is clear that violence against Native women tends to be perpetrated by non-Native men.”

Lots Going on in Senate Yesterday, According to Belt Way Indian

Here and here and just generally here.

WaPo: House Republicans Protecting Rapists and Murderers by Killing VAWA

Here.

NCAI Letter to Rep. Cantor re: VAWA Tribal Provisions

Here:

Letter to Majority Leader Cantor_122012

Anderson Indian Law: Oppose the Draft Cantor VAWA Bill

OPPOSE THE DRAFT CANTOR VAWA BILL (Cantor Draft)
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

Here.

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.”