VAWA: Jumping off the Racial Cliff?

Native American womanLet me hear that part about the Congressional Republicans NOT being tainted with the stain of racism?  Let me hear the tautological complaint once again that accusing members of the Republican Party of racism is racism.  And, then let me hear why members of the Republican Caucus in the Congress of the United States of America aren’t taking action to extend the protections of the Violence Against Women Act to Native American women? What situation would prevent the Senate version of the bill from a quick passage?

Did you read this on the NRDC Blog?

“Today on Indian reservations, the local governments don’t have the ability to respond to domestic violence crimes in their community if the perpetrator isn’t Native. Without this ability, non-Native offenders often go unpunished on tribal land because the only ones who can bring them to justice are federal prosecutors who are often hundreds of miles away and lack local resources to properly investigate and prosecute these crimes. The result, according to a recent National Institute of Justice (NIJ)-funded report, the offenders become emboldened, and the violence escalates to rape and in some cases homicide. On some Indian reservations, the homicide rate of Native women is 10 times the national average.”  (emphasis in original)

This isn’t rocket science, it certainly isn’t the stuff of which neurology lectures are composed.  Local law enforcement officers don’t have jurisdiction on tribal lands and federal officers are (1) physically located some considerable distance from the localities, and (2) understaffed and under-resourced to enforce the law on tribal lands.   The situation was discussed here, in some detail.

We’ve also heard from Nevada 2nd District Congressman Mark Amodei:

“I heard from tribes in my district, including the Washoe Tribe of Nevada and California, the Reno-Sparks Indian Colony Tribal Council, the Fort McDermitt Paiute and Shoshone Tribe, and the Fallon Paiute Shoshone Tribe about this issue and I can assure them that this bill would not only provide increased funding for federal law enforcement and prosecutors to pursue these cases, it would also empower Indian victims to seek protective orders in U.S. District Courts against abusers.”  [Amodei] (emphasis added) [Link]

So increased funding for federal law enforcement is the “answer” to the jurisdictional issue?  No.  And, seeking a protective order from the U.S. District Court in Reno is going to be convenient for assault victims in Duck Valley? No. Again.

So, why would Representatives like Mark Amodei (R-NV2) and Eric Cantor (R-VA) resist giving tribal courts jurisdiction over crimes committed against Native American women on tribal lands?

Cantor and other Republicans continue to stall the VAWA Reauthorization because of baseless constitutional concerns for those accused of abusing Native women.”  [NRDC] And, who are those accused of abusing Native women?  Who would be in this category, and not be subject to the jurisdiction of tribal courts?  Non-tribal people.

Of Representative Cantor, “…his staff has said they’re willing to try to come up with other solutions to responding to violence against women on tribal lands, as long as the solution doesn’t give tribes jurisdiction over the matter. But proponents of the Senate bill see the limited jurisdictional change as the only realistic way to address the problem.” (emphasis added) [HuffPo] What’s the problem?  The only logical conclusion a sentient person can reach is that Representative Cantor he doesn’t want to see white men hauled into tribal courts for assaulting Native American women.   Heaven forefend non-whites might have jurisdiction over white men?

Thus far, Representative Cantor and Representative Amodei seem to be on the same page — VAWA authorization would be just fine and dandy — BUT we can’t have non-white people facing justice in tribal courts.   And, the question does, indeed, drill right down to “protecting the rights” of non-Native rapists, as explained by Rep. Tom Cole (Chickasaw) R-OK:

“There are 535 members of Congress, and 534 of them could go on the Sioux Reservation, commit a crime, and not be subjected to local jurisdiction,” Cole added. “If I did it, though, I would be, because I’m an Indian. We trust tribes to have jurisdiction over Native Americans. As long as you give people the right to appeal, they ought to be subject to tribal jurisdiction.… Most American communities have local jurisdiction; Native Americans do not. It’s not right. I will vote with the Democrats on this if an amendment or recommit is offered. I hope we can get it done this year.” [Indian Country] (emphasis added)

OK, if “we” trust Native Americans to dispense justice to other Native Americans without comment or complaint, then why are the tribal courts — which must follow the same federal regulations regarding the rights of defendants as any other Section III courts — not to be trusted to dispense justice to non-Native people, most often men.

The answers are provided by a paper authored by Bethany Berger of Wayne State University and the University of Connecticut: (pdf)

“Federal Indian Law scholars agree that U.S. Supreme Court decisions regarding tribal jurisdiction over non-members are not dictated by judicial precedent. I believe that these decisions are based instead on two assumptions:
First, the justices assume that nonmembers will be placed at a disadvantage in tribal courts, which they portray as unfamiliar, biased, and ultimately inferior places. The justices, for example, repeatedly refer to “intrusions on personal liberties” if non-members are subject to tribal jurisdiction, the fact that nonmembers do not vote in tribal elections, that tribes are not fully bound by the U.S. Constitution, and that tribal law is “unfamiliar” and will be “unusually difficult for an outsider to sort out.”
Second, the justices assume that jurisdiction over outsiders has little to do with tribal self-government, because tribal self-government only concerns things that the justices think of as “uniquely tribal,” such as hunting and fishing and traditional practices untouched by time. Taxation, zoning, criminal jurisdiction over non-Indians are all outside what the justices imagine really matters to tribes. In Strate v. A-1 Contractors, for example, the Court held that a tribe did not have jurisdiction over lawsuit arising from an accident on a highway running through the reservation saying that it was not crucial to tribal self government for the tribe to exercise  jurisdiction over a “commonplace state highway accident claim.” Tribal government, somehow, does not involve the “commonplace” stuff that all governments do.”

The first argument is not supported by the actual results of the actions of tribal courts.   So, local justice of the peace courts, or municipal courts, are “competent” but tribal courts are assumed to be “inferior,” “unfamiliar,” or “biased?”  Now, what kind of thinking could automatically revert to those assumptions?  The second argument is equally absurd.

It’s acceptable for tribal courts to do Indiany-Things like take care of Mother Earth, or to protect their hunting and fishing rights — like Native Americans don’t hold construction jobs and exceed the speed limit on highways through tribal areas.  But, Heaven Forbid they’d be interested in things like zoning, contract fulfillment, and child custody?  In short, they are assumed competent to  take care of Mother Earth but not their earthly mothers.

The non-Native man who assaults, batters, rapes or abuses a Native woman is a batterer, an abuser, and/or a rapist.  Think that doesn’t put a Native woman in a place that’s confusing? Unfamiliar? Unpleasant?  Evidently, the constant conservative complaint that we don’t pay enough attention to Victim’s Rights, doesn’t apply to Native women?  What else could explain the devotion of Representatives Cantor and Amodei to the rights of the defendants?

What indeed?

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