Passing the Violence Against Women Act should be a no-brainer. However, the House Republicans — May we include Nevada Representatives Amodei and Heck in that number? — are intent on stripping from the bill some important improvements which benefit woman and law enforcement. [The Gavel] The House Republican version of the measure has some serious flaws as described by the National Network to End Domestic Violence:
“…(H.R. 4970) that was introduced April 27, 2012. It weakens or deletes entirely some of the vital improvements in the Senate bill, including the strong provisions that are designed to increase the safety of Native women and the needs of the LGBT community. The bill also contains extremely dangerous provisions that would jeopardize the safety and often the lives of immigrant victims seeking to report crimes by eliminating important confidentiality protections, undermining effective anti-fraud protections, and rolling back years of progress to protect the safety of immigrant victims. Finally, it grows excessive and costly bureaucracy that will divert resources which could be used for victim services.”
Let’s focus for a moment on the plight of Native American Women. The statistics are appalling.
“Native American women experience the highest rate of violence of any group in the United States. A report released by the Department of Justice, American Indians and Crime, found that Native American women suffer violent crime at a rate three and a half times greater than the national average. National researchers estimate that this number is actually much higher than has been captured by statistics; according to the Department of Justice over 70% of sexual assaults are never reported.” [NOW]
There are obviously two problems here. First, the violence rate is totally unacceptable. Secondly, the rate of non-reporting is equally unacceptable. And, the current system isn’t helping solve either problem:
“Police and courts tend to ignore cases of violence involving Native American women due to alleged confusion between federal and tribal jurisdiction. Law enforcement and attorneys often are not schooled to deal with the cross-over in dealing between jurisdictions. Eileen Hudon, a sexual abuse counselor from the Minnesota Indian Women’s Resource Center, said there is a “basic ignorance in the whole justice system.” This causes blatant violations of the rights of Native American women. Technically, cases involving a non-Native American perpetrator and Native American victim fall under federal jurisdiction. According to the Department of Justice, 70% or more of violence experienced by Native American women is committed by persons not of the same race.” [NOW]
The Tribal Law and Order Act of 2010 made some small improvements toward addressing domestic violence against Native American women in subsection F.
“Victims of domestic violence and sexual assault will now more often encounter authorities who have been trained to handle such cases. The Act expands training of tribal enforcement officers on the best ways to interview victims of domestic and sexual violence and the importance of collecting evidence to improve rates of conviction. The Director of Indian Health Services will coordinate with the Department of Justice, Tribes, Tribal organizations and urban Indian organizations to develop standardized sexual assault policies and protocols.
Special Assistant US Attorneys will be deputized under the Act to prosecute reservation crimes in Federal courts, and tribes will be given greater authority to hold perpetrators accountable. These provisions help to increase communication between tribal law enforcement, Federal authorities and the court system. As numbers of convictions grow, more women may be willing to report the abuses against them so that their abusers may be prosecuted.” [WH]
This was a good start, but definitely not the end of the road. The jurisdiction issues still place many Native American women in jeopardy, as Senator Tom Udall (D-NM) explained:
“…many of those crimes “go un-prosecuted and unpunished” because tribes cannot prosecute non-Native Americans for domestic violence crimes committed on tribal land. Only federal prosecutors have the authority to prosecute non-Native Americans for domestic violence crimes against their Native American spouses or partners. More than half of Native women are married to non-Native husbands. “Native women should not be abandoned to a jurisdictional loophole,” Udall said. “In effect, these women are living in a prosecution-free zone.” [RS]
Thus, we have more than 50% of Native American women married to non-Native husbands, who are NOT subject to the jurisdiction of the federal prosecutors provided for in the Tribal Law and Order Act of 2010. These women are, if their husbands choose to be abusive and violent, totally vulnerable.
“Current law does nothing to address the jurisdictional gap in Indian Country that leaves Native women without equal access to justice. In short, an Indian woman raped or beaten by her non-Indian husband often has nowhere to turn for protection under existing law. Tribal law enforcement has no authority to intervene because the perpetrator is a non-Indian; the State has no authority to intervene because the victim is an Indian; and the Federal Government—the body with exclusive jurisdiction—has neither the will nor the resources to intervene in misdemeanor level domestic violence cases.” [4VAWA]
Representative Gwen Moore (D-WI4) made the point as clearly as possible:
“…this bill would recognize the tribes’ authority to prosecute non-Indians or Indians who abuse their American Indian spouses or dating partners on tribal lands. Fifty-two percent of women who are beaten, battered, raped, or stalked on tribal lands are not prosecuted because tribes have no authority. And on tribal lands, there is no follow-up and no prosecution. […] We’re actually sanctioning the abuse that occurs on tribal lands and providing a sanctuary for assailants who commit these crimes on native lands by not providing this authority to tribal nations.. [Rep. Moore (D-WI4) CR pdf]
Why would House Republicans remove protection for Native American women when the jurisdictional issues are patently obvious and painfully real? Why would House Republicans support a measure which deliberately leaves Native American women vulnerable to abuse by non-native men?
Perhaps they’ve bought into some of the mythology surrounding the proposal. When we look carefully at some of the more popular myths spread by opponents of S. 1925 there’s a discernible theme: Fear that non-Native (Should we dare suggest “white?”) people will be subject to tribal jurisdictions.
Fear Number One: “The tribal provisions in S.1925 would strip jurisdiction from federal or state authorities.” Wrong – there is NOTHING in S. 1925 that alters or removes state or federal jurisdiction, “Rather, S.1925 restores concurrent tribal criminal jurisdiction over a very narrow set of crimes that statistics demonstrate are an egregious problem on Indian reservations.”
Fear Number Two: “The Senate version of VAWA gives tribes criminal jurisdiction over all crimes committed by non-Indians on or off the reservation.” Wrong – “S.1925 provides a limited jurisdictional fix to address a narrow set of egregious crimes committed in Indian country: domestic violence, dating violence, and violations of protection orders. It does not extend to other crimes or to crimes committed beyond reservation boundaries.”
Fear Number Three: “The Senate version of VAWA would allow tribes to prosecute crimes between two non-Indians with no ties to the reservation.” Wrong – “Non-Indian on non-Indian crime that occurs on the reservation is within the exclusive jurisdiction of the State. The new tribal provisions in no way alter this century-old rule established by the Supreme Court in U.S. v. McBratney, 104 U.S. 621 (1881)”
Fear Number Four: “Section 904 would permit tribal prosecutions of all non-Indians.” Wrong – “Section 904 of S.1925 is limited to only crimes of domestic violence or dating violence committed in Indian country where the defendant is a spouse or established intimate partner of a tribal member. It does not permit tribal prosecutions unless the defendant has “sufficient ties to the Indian tribe,” meaning he/she must either reside in the Indian country of the prosecuting tribe, be employed in the Indian country of the prosecuting tribe, or be the spouse or intimate partner of a member of the prosecuting tribe.”
Fear Number Five: Is honestly one of the silliest,”S.1925 is unconstitutional because tribal courts are not bound by the U.S. Constitution.” Wrong – “Under Section 904, tribal courts must provide defendants with the same constitutional rights in tribal court as they would have in state court. Defendants would be entitled to the full panoply of constitutional protections, including due-process rights and an indigent defendant’s right to appointed counsel (at the expense of the tribe) that meets federal constitutional standards. This includes the right to petition a federal court for habeas corpus to challenge any conviction and to stay detention prior to review, and explicit protection of “all other rights whose protection is necessary under the Constitution of the United States.”
Fear Number Six: But wait, it’s really does get sillier — “It is “un-American” to subject non-Indians to prosecution in tribal court because they are not allowed to participate in tribal political processes through the ballot box.” Really wrong – “Political participation has never been considered a necessary precondition to the exercise of criminal jurisdiction under the concept of due process of law. For example, Indians were subjected to federal jurisdiction under the Federal Major Crimes Act of 1885 almost 40 years before most of them were made citizens or given the vote by the Citizenship Act of 1924. Moreover, due process certainly does not prevent either the federal government or the states from prosecuting either documented or undocumented aliens for crimes committed within the United States, despite the fact that neither can vote on the laws to which they are subjected.”
Fear Number Seven: Here’s where the inklings of “reverse discrimination” mythology come into play, “Section 904 of S.1925 would subject non-Indians to tribal courts that systematically exclude non-Indians from the jury pool.” Wrong again – “Section 904 of S.1925 contains explicit language that tribes exercising authority under these new provisions must draw from jury pools that reflect a fair cross-section of the community and do not systematically exclude any distinct group of people, including non-Indians.”
Fear Number Eight: Big Government, or we don’t need to do anything because “The amendments to Title IX in the Senate VAWA are not needed because existing law—namely the Tribal Law & Order Act and the Indian Civil Rights Act—are sufficient to solve the epidemic of violence against Native women.” Wrong – “Current law does nothing to address the jurisdictional gap in Indian Country that leaves Native women without equal access to justice. In short, an Indian woman raped or beaten by her non-Indian husband often has nowhere to turn for protection under existing law. Tribal law enforcement has no authority to intervene because the perpetrator is a non-Indian; the State has no authority to intervene because the victim is an Indian; and the Federal Government—the body with exclusive jurisdiction—has neither the will nor the resources to intervene in misdemeanor level domestic violence cases.” [More at this link from 4VAWA]
What do these eight bits of mythology and misinformation have in common? Perhaps it’s the haunting fear that somewhere, somehow, some non-tribal man will have to face justice in a tribal court for violence perpetrated upon a Native American woman? Why else would so much verbiage be tortured and twisted into providing dubious issues regarding jurisdiction? In our current system we have all but granted that “sanctuary for assaults” about which Representative Moore was speaking, and the House Republicans would strip protections from Native American women while giving non-tribal men all but a license to abuse, batter, assault, and rape them.
And, now the question — which version of the VAWA will Representatives Heck (R-NV3) and Amodei (R-NV2) support?