Senate votes to reauthorize Violence Against Women Act

By Alysa Landry
Special to the Times

WASHINGTON, February 14, 2013

The 218-page bill, which heads next to the House or Representatives, keeps intact language that provides groundbreaking protective measures for American Indian women. Under the act, tribes would have criminal jurisdiction over non-Indians who commit acts of violence against women on tribal land.

"It's very exciting," said Brian Quint, government and legislative affairs associate for the Navajo Nation Washington Office. "Tribes currently have no criminal jurisdiction over non-Indians. This is an exciting affirmation that tribal governments can govern their territory."

The vote comes despite Republican concerns that approving tribal provisions would endanger civil liberties of non-Indian defendants because tribal courts are not bound by the U.S. Constitution.

House Republicans are drafting their own version of the bill and contesting the rights of tribes to prosecute non-Indians on tribal land, where incidents of sexual assault and domestic violence run rampant – and largely unchecked.

Republicans claim tribal courts lack the resources for the job and will deprive defendants of their rights, said Clara Pratte, executive director of the Navajo Nation Washington Office.

"There is a sense that not all tribal courts are created equal," she said. "There are questions about how courts will ensure that non-Natives are treated fairly."

The bill allows tribal jurisdiction in very specific circumstances, Pratte said.

Defendants would need to have ties to the tribe and prosecuting tribal courts would have to guarantee certain rights to defendants.

"We understand that Congress wants to ensure the rights of non-Natives," she said. "We want to ensure basic rights to Native women who are falling through the cracks."

It is also important to note that the bill authorizes tribal courts to exercise jurisdiction over non-Indian defendants, but it doesn't require it, Quint said.

"It's hard to say a tribe is a distinct, sovereign entity, and then deprive it of self-government," he said. "This act is a step toward recognizing tribes as entities with rights and authorities of their own."

Democrats on Capitol Hill claim every delay in passing the act allows more Indian women to get hurt.

"Delay isn't an option when three women are still killed by their husbands or boyfriends every day," Vice President Joe Biden said in statement Tuesday. "Delay isn't an option when countless women still live in fear of abuse, and when one in five have been victims of rape."

Biden, a Delaware senator in 1994, was the chief author of the original Violence Against Women Act, which has been reauthorized twice and is credited with significantly reducing incidents of domestic violence. The latest version expired in 2011.

American Indian women are two and a half times more likely to be raped, according to a 2000 Department of Justice Report. One in three will be assaulted in her lifetime and three out of five will encounter domestic violence. Yet tribal courts lack jurisdiction over non-Indian perpetrators, so victims must turn to the United States attorneys, who decline 67 percent of cases referred to them.

Sen. Maria Cantwell (D-Wash.) spoke out Monday against the Republican proposal to eliminate tribal provisions from the bill.

"Less than 50 percent of the domestic violence cases in Indian Country are prosecuted because of a gap in our legal system," she said on the Senate floor. "This is about the life or death of women who need a better system to help prosecute those who are committing serious crimes against them."

Voting in favor of the act Tuesday were Sens. John McCain, R-Ariz.; Jeff Flake, R-Ariz.; Tom Udall, D-N.M,; and Martin Heinrich, D-N.M. Opposing the bill were Republican Sens. Orrin Hatch and Mike Lee from Utah.

Victims' advocates: VAWA passage sorely needed

By Colleen Keane
Special to the Times

ALBUQUERQUE – In passing the Violence Against Woment Act, the Senate acted Tuesday to close a loophole that has allowed non-Natives to get away with rape, abuse and murder of Native American women across the country, according to advocates for increased legal protections.

Now they are urging the House to follow suit.

"The non-Native abuser thinks that they are above the law. They just laugh about it," Lorena Halwood said.

Halwood is the executive director of the Ama Doo Alchini Bighan, Inc., a domestic violence shelter in Chinle that served more than 386 Navajo women last year. She says that one-quarter of the male offenders are non-Native.

In a very real sense, the non-Native domestic violence offender is above tribal law, according to Ohkay Owingeh Chief Tribal Judge Geoffrey Tager.

"What we are dealing with is the aftermath of Oliphant that denied criminal jurisdiction over non-Natives," he said.

In 1978, the U.S. Supreme Court ruled in favor of Mark Oliphant, a non-Native arrested by Suquamish tribal police. Oliphant argued that he was not subject to tribal authority, because he wasn't a member of a tribe.

Since then, criminal prosecution of non-Natives who committed crimes on tribal lands became the sole dominion of federal agencies, like the FBI.

But, over the years, according to victims' advocates, the feds fell down on their job with many offenders – both Native and non-Native - never brought to justice. According to a 2010 U.S. Department of Justice study, federal authorities failed to prosecute offenders nearly half of the time.

Last August, Tony West, U.S. Department of Justice Acting Associate Attorney General, told about 300 tribal law enforcement officials and leaders that tribes need to get jurisdiction back over non-Natives who abuse women on tribal lands in order to protect tribal women.

Without jurisdiction, West describes the non-Native offender as "untouchable".

"So, the non-Indian man who beats his partner - knowing he can't be prosecuted by the local, tribal criminal justice system - keeps battering that woman. The Indian woman who suffers through violent episodes - knowing that her call to the local, tribal police is unlikely to lead to prosecution - she stops calling the police for help," he told the group who had gathered for the 20th Annual Four Corners Indian Country Conference last August at the Pojoaque Pueblo. It was sponsored by U.S. Attorneys from New Mexico, Colorado, Utah and Arizona.

He also told the participants that there was a way to get tribal jurisdiction back. The reauthorization of the Violence Against Women Act included such a provision.

Although the population of non-Natives living on the Navajo reservation is less than 4 percent according to U.S. census data, there are plenty of opportunities for Navajo women to become involved with a non-Native man, Halwood explained.

"They meet off-reservation in border towns or on-reservation at schools or hospitals," she said.

Navajo medicine man and Church Rock Chapter President Johnny Henry, Jr. said that he hears about domestic violence happening on a regular basis on the Navajo reservation and that non-Natives are often involved.

"It is a problem. I do come across a lot of issues where a Native American woman is married either to a white or a Mexican or African-American," he said, adding that the inability for tribes to prosecute non-Natives brings up an equality issue.

"If you think about it, as Native American men and women, we do something in the county or the state, they come after us, why can't we do the same?" he asked.

Sad statistics

According to federal justice and health data, Native American women are murdered at a rate more than 10 times the national average in some communities, and one in three Native American women will be raped in their lifetimes, many by non-Natives. One national study reported that 60 percent of Native American female rape victims described their offenders as white.

The vote on S47, the reauthorization of VAWA, has been controversial for the past year, in-part because of concerns from some congressional members about the tribal provisions, according to Jared King, President Ben Shelly's public information officer for the Washington office.

Like the Oliphant decision, the tribal provisions brought up concerns about the civil rights of the non-Native in tribal court. But Tager said that tribal courts will act judiciously no matter who the defendant is.

"If you are going to handle your own tribal members, why would the rules be different because of the color of the individual's skin?" he asked.

S47 and HR11 (the House version) also have provisions that protect the non-Native defendant's rights, including the right to a public defender and a trial of his peers. Tager added that there are also provisions that allow for a habeas review where the non-Native defendant can ask that his case be reviewed by a federal court if he is not happy with the tribal court process.

Getting congressional members to understand tribal provisions and laws has been a task that Shelly's office has taken on, according to Brian Quint, Government and Legislative Affairs Associate in the President's Washington, D.C. office.

"A big part of what we are trying to do is educate folks on Indian law, because it is complicated," he said.

Quint added that the concerns about the non-Native rights are out of balance.

"Why are the rights of alleged criminal offenders given greater weight than the rights of victims? It doesn't make sense. What if you travel to Arizona from where you are a resident in New Mexico, would your rights be violated if the Arizona police arrested you?" he asked.

Without the ability of tribes to prosecute non-Natives who commit criminal domestic violence on their lands, Ohkay Owingeh's Judge Tager said that the non-Natives basically get away with violence against Native women.

"This is a serious concern across Indian country, especially true when you have a rez population close to non-Indian town population areas where there is a lot of back-and-forth traffic, making it easy for someone to come on the rez and leave," Tager said.

At Ohkay Owingeh, about 80 percent of people living within the exterior boundaries of tribal lands are non-Natives.

Meanwhile

Halwood said that while Congress continues to deliberate over the rights of non-Natives, Native American women continue to get killed and beaten.

"Non-Native women have protections that Native women don't," she said.

Amnesty International calls violence against tribal members an international offense. In 2007, the worldwide human rights organization concluded that the U.S. government is breaking international human rights laws by allowing the abuses against Native American women by Native and non-Native intimate partners to continue.

Quint warned that the abuses will not stop until tribes have the authority to prosecute non-Natives.

"It's a sovereign issue. Local governments have to be able to protect their own people. If it's not done, then there is no way to keep the community safe," he said.

With the Senate out of the way, the next hurdle is the House of Representatives. Last year, the House brought up an alternative bill that did not include the tribal provisions, according to a representative from Congressman Martin Heinrich's office. It created one of the major rifts between the Senate and the House that stalled the passage of the VAWA reauthorization last year.

Doug Heye, a spokesman for House Majority Leader Eric Cantor, said that his office is optimistic that a bill everyone agrees upon will be passed.

"We are hopeful to reach an agreement between the House and Senate. Our staff is listening to advocates to reach an agreement. We are continuing to work with advocates to make any issue is addressed to move forward to protect victims and prosecute offenders," he said.

But he couldn't say when that would be or if another version of the House bill would surface. And he wouldn't comment on concerns about tribal jurisdiction.

"We are not certain right now. There has been a lot of back-and-forth. Negotiations and conversations are continuing," he said.

The haggling over tribal jurisdiction provisions in the reauthorization of VAWA, along with increased protections for immigrants and the LGBT community, has gone on since last spring and carried over to this year's Congress.

"It's enough," Halwood said. "It's overdue. We want the tribal provisions. We need to get the word out so that Native women are protected from Native and non-Native men."

If a substitute House bill passes without the tribal provisions, Halwood said that she and other Native American women advocates will be back on the phone again; this time to President Obama requesting that he veto the bill.

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