Top 10 Reasons Republicans Oppose Protecting Native Women

1o. “House Republican leadership just doesn’t get it.” – Sen. Patty Murray. 9.   The incidence of violence against Native women isn’t that bad– House Committee on the Judiciary, H.R. Rep. No. 112-480, at 227 (2012). This is absolutely false. Native American women suffer violent crime at the highest rates in the United States.

8.  “Legitimate rape” – Rep. Todd Akin.

7.  “The non-Indian doesn't get a fair trial" in tribal courts – Sen. Chuck Grassley. This is also false. Numerous studies have found the guarantees and traditions of fairness in tribal statutory and common law are equivalent to – and, indeed, sometimes even go far beyond – those granted in state and federal forums. And if there is any deviation, the federal Indian Civil Rights Act, 25 U.S.C. 1301-1303, assures non-Indian domestic offenders due process of law in tribal courts.

6. “If non-tribe members are tried in tribal courts, they are not protected by the United States Constitution and they have no right of appeal to the federal courts” – Sen. John Cornyn. This too is false. A non-member domestic criminal can seek a writ of habeas corpus in the U.S. District Court.

5.  A tribal jurisdictional fix “would likely be ruled unconstitutional by the courts.” – Sen. John Barasso. Congressional recognition of inherent tribal power to prosecute non-Indian domestic abusers is constitutional, as determined by the Supreme Court in U.S. v. Lara (2004). There is always the chance that the court will overrule Lara and change the state of the law, but to say that a law is currently unconstitutional because of something that the court might do in the future is nonsensical.

4.  They now have a token female to hide behind: Rep. Cathy McMorris Rodgers. McMorris Rodgers has recently voiced opposition to S. 47, arguing that the additional protections for Native Americans, immigrants, and gays and lesbians have no place in the law. McMorris Rodgers has in the past paid lip service to the tribal provisions, stating that she would “reach out to other GOP congresswomen to urge their support for the inclusive VAWA bill.” Apparently, she has now abandoned this position.

3.  Political Misogyny. This is a front in the very real, calculated GOP war against unmarried women, who after all, constitute the Democrat base. In the presidential election, married women backed Romney, 53 percent to 46 percent, while unmarried women chose Obama 68 percent to 30 percent. Political expediency has incented GOP’s anti-woman platform because unmarried women are opposed to Republicans’ policy goals on rape, birth control, abortion, equal pay, employment discrimination, and so on.

2.  Because they are Native American women. Republicans believe they can ignore issues affecting Native women, and they may be right. Unless Indian Country and its allies stand up to the GOP's anti-woman agenda, Republicans will succeed in further marginalizing Native women. Indeed, the GOP will prevail without even losing votes from their base, which, to be sure, includes few if any Indian women.

1.  Republicans are not being honest. There is no possible reasoned stance against VAWA. It’s Pascal’s Wager in the domestic violence context: the downside of failing to act on domestic violence in Indian Country outweighs any possible harm caused by acting. There must be another reason for their opposition. One they refuse to discuss in public (see #2).

Gabriel S. Galanda, Ryan D. Dreveskracht, and Anthony S. Broadman practice law with Galanda Broadman, PLLC. They pride themselves as "an Indian Country law firm," representing tribal governments, businesses and members in all varieties of dispute and business dealing. Ryan's article, "Congress' Treatment of the Violence Against Women Act: Adding Insult to Native Women's Injury," will be featured in the next edition of the University of Miami Race and Social Justice Law Review. 

Congress, Protect Native Women NOW

The Violence Against Women Act (“VAWA”) and its protections for Native American women must be immediately sent to President Obama’s desk for signature.  For sake of protecting all American women, including the First American women, the matter should not be delayed another day.  The VAWA Reauthorization must be passed by Congress NOW. Thirty-five years ago, in Oliphant v. Suquamish Indian Tribe (1978), the Supreme Court stripped tribal governments of the power to prosecute non-Indians who enter Indian Country and commit violence against Indian women.  A criminal jurisdictional void has existed in tribal communities ever since.  Last April, the Senate passed S. 1925, a VAWA Reauthorization bill that would finally restore tribal criminal jurisdiction over the perpetrators of these attacks.  The bill was passed with bipartisan support.

In May, however, the Republican-controlled House introduced its version of the VAWA, H.R. 4970, which omitted the Senate’s tribal provisions.  On May 16, the House passed H.R. 4970, without including the tribal jurisdiction provisions.  The bill passed strictly on party lines.

Since then, the VAWA reauthorization has lingered.  And, apparently, it is not due to partisan politics at this time.  This year’s elections saw women voters re-elect Barack Obama for a second term, send more women than ever before to Congress, and deliver a powerful message to the GOP that they need to do a better job of appealing to women.

On December 3rd, as a result of that American female mandate, Republican House Members Darrell Issa, Tom Cole, Mike Simpson, John Kline and Patrick McHenry changed their position on tribal jurisdiction over non-Indian abusers in Indian Country; they introduced H.R. 6625, a bill that includes the tribal jurisdiction provision, provided that a defendant can remove the case to federal court if he believes his rights have been violated by a tribal government.

On December 6th, Senate Judiciary Chairman Patrick Leahy confirmed that all issues have been resolved to get the VAWA reauthorization bill passed, except for the tribal jurisdiction provision.  On December 11, ten House Republicans broke ranks to sign a letter urging House Speaker John Boehner and House Majority Leader Eric Cantor to take up and pass a bill including the provisions of S. 1925.

Just today, December 18, all twelve Democratic Senate women joined together to call on the women of the House Republican Conference to work with their leadership and finally pass a VAWA with tribal protections.  The letter notes that S. 1925 “is widely supported by law enforcement officials, victims’ advocate groups, and the public at large.”  Indeed, the letter goes on, “until now, this bill has been among the most broadly supported measures considered in both the House and Senate and has only become more so over time. . . . Support for the legislation’s renewal in 2000 [garnered] a 95-0 vote in the Senate, and a 371-1 vote in the House.  And an even stronger consensus emerged in 2005, with unanimous approval in the Senate, and a 415-4 vote in the House.”

The letter then reminds House Republicans of the directive set by American women voters: “In 2013 and beyond, the women of the House and Senate are primed to play an even larger role in guiding national policy and we should do so by working across party lines. . . . All women should be protected and introducing into this legislation the notion that some women subject to violence deserve to be protected while others do not is something we believe we can all agree is unacceptable.  We should not pick and choose which victims of abuse to help and which to ignore.”

Things are coming together for a VAWA reauthorization.

It appears that Rep. Cantor’s unwavering stance on the issue is all that stands in the way.  According to the Huffington Post, Vice President Joe Biden, sponsor of the original 1994 VAWA, has been in meetings with Rep. Cantor to get a deal done.  But “Cantor is refusing to accept any added protections for Native American women that would give expanded jurisdiction to tribes.”  Rep. Cantor needs to stand down.

The 112th Congress will end on January 3, 2013.  And unless the VAWA reauthorization bill is passed with the tribal provisions intact, there will be no VAWA reauthorization.  According to the White House, the President will veto any VAWA reauthorization bill that does not include protections for Indian Country domestic violence victims.

The time is now for VAWA reauthorization.  Native women cannot wait any longer.  Please tell House Republicans to urge Rep. Cantor to allow a VAWA that includes tribal protections, here.  Majority Leader Cantor can also be reached at 202.225.2815.

Ryan Dreveskracht is an Associate at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and general economic development. His forthcoming work, “Congress' Treatment of The Violence Against Women Act: Adding Insult to Native Womens' Injury” will be published in the University of Miami Race and Social Justice Law Review.  He can be reached at 206.909.3842 or ryan@galandabroadman.com.

Rob McKenna: Tribal Friend or Foe?

In a recent University of Miami Race and Social Justice Law Review article, I discussed Senate Bill 1925, a version of Violence Against Women Act that attempts to reauthorize tribal governments’ exercise of criminal jurisdiction over certain non-Indians who violate Indian women.  Regarding the State of Washington’s various political players’ stances on the issue of tribal governments’ abilities to protect Native women, I wrote:

Washington’s Senator Patty Murray (D-WA) has . . . vowed to reject any agreement with the House that does not include the tribal [jurisdiction] provisions, as has Fellow Washingtonian Senator Maria Cantwell (D-WA). . . . At the same time, Washington State Republican gubernatorial hopeful Rob McKenna advocates for mere “tribal civil authority” over non-Indian[s], stopping short of recommending the jurisdictional power that is needed to bring criminal justice – and safety – to Indian Country.  While Attorney General McKenna is at least addressing the issue with some thought, which is much more than can be said of his fellow GOPers, fines and civil restraining orders are not adequate responses to reservation murder, rape, and sexual assault.  McKenna’s gubernatorial opponent, Congressman Jay Inslee (D-WA), on the other hand, actually introduced the Stand Against Violence and Empower Native Women Act, H.R. 4154, 112th Cong. (2012), this March.  The bill tracks S. 1925 almost word for word.

Not long after publication of this article, I was contacted by Attorney General McKenna’s office with the following email:

Attorney General McKenna[’s position] on the issue . . . is a great deal more detailed than your piece gives him credit for.  I do appreciate the fact that you give him some credit for working to prevent violence against native women.  Preventing DV and sexual assault against all women has been a priority for Rob McKenna predating his time as AG and has been a personal passion of his as a long-time supporter of the Eastside Domestic Violence Coalition.

 To which I replied:

I agree that tribal civil jurisdiction over non-Indians should be explicitly recognized by Congress in all situations of DV in Indian Country.  Although tribes already have this power, [but see Martinez v. Martinez, No. 08-5503, 2008 WL 5262793 (W.D. Wash. Dec. 16, 2008)], the explicit recognition of this in the VAWA will likely support the imposition of jail time for civil contempt findings and getting civil orders recognized by other jurisdictions.  This is a very important recognition of tribal sovereignty, and I applaud Mr. McKenna for his stance on this issue.

It is apparent, however, that Mr. McKenna supports only tribal civil jurisdiction over non-Indians, and not criminal jurisdiction. . . . McKenna does not take a position on criminal jurisdiction because of “vexing jurisdictional issues.”  I would submit that those jurisdictional issues are actually quite clear.

But maybe I am misunderstanding something.  Does Mr. McKenna support the criminal jurisdiction provisions of S. 1925?  More generally, does Mr. McKenna support tribal criminal jurisdiction over those who commit violence against Native women in Indian Country?

The Attorney General’s Office responded:

I will work with AG McKenna and our tribal issues lead, Deputy Attorney General Rob Costello, to address your questions and respond.  I don’t want to misspeak or mischaracterize AG McKenna’s position on such an important issue.  I did want to make sure you were aware of the letters he wrote which I read to say, “the debate over extending tribal criminal jurisdiction over non-Indians is one that will continue due to the complex civil rights issues involved and it may significantly delay other protections we CAN provide right now.”  I read his letter to say while Congress continues to debate over that issue—they should enact the civil protection order solution to provide some protection NOW—and greater ability to bring criminal action against non-Indians in US courts—while the debate continues.

Two weeks later I received the following email:

Upon review of the letters, I think they speak for themselves. Thank you again for recognizing Rob’s attempt to advance the issue to protect women from violence no matter where they live.

There you have it women in Washington's Indian Country, a solid non-responsive answer.

Here’s how the Tacoma News Tribune framed the VAWA issue in terms of the Inslee-McKenna Gubernatorial race: “Inslee pushed in Congress to let tribes prosecute non-Indians accused of domestic violence on reservations; McKenna prefers to leave such cases in the hands of federal prosecutors.”  And as Indian Country is well aware, if left in the hands of federal government, these crimes go unprosecuted and the assailants go free.  Indeed, a recent Report by the U.N. Special Rapporteur on the Rights of Indigenous Peoples says that legislation affirming criminal jurisdiction over certain non-Indian violators of Indian women should be an “immediate priority” in U.S.

In short,  Attorney General McKenna does not support limited tribal criminal jurisdiction over non-Indian domestic abusers.  It is not an "priority" for him; at least not an "immediate" one.  “Right now,” he instead supports the status quo, which has failed tribal communities and Indian women.  While he deserves credit for going further on this issue than most Republicans will – meaning at least admitting there is a violence against Indian women problem in Indian Country – McKenna is playing it far too safe for fear of offending his GOP base as he vies for the Washington Governor’s Mansion.  Congress, namely the House GOP, has no intention of genuinely debating the Senate’s VAWA reauthorization bill to passage, and he knows it.

Indeed, as local pundits  have suggested, Attorney General McKenna has played it altogether too safe on tribal issues with a view towards this gubernatorial election: “there’s a perception here that Mr. McKenna’s performance of his duties as attorney general has been influenced by the fact that he would like to have a less than adversarial relationship with the tribes come this election cycle.”

A recent study by Chuck Tanner and Leah Henry-Tanner likewise concludes that:

Rob McKenna is not . . . an ideologically driven political activist wholly dedicated to terminating Indian Nations and abrogating their treaties.  However, when legal gray areas exist (as they frequently do in federal Indian law), and Rob McKenna perceives a state interest at issue, . . . he will oppose the fundamental rights of Indian Nations and ally with anti-Indian activists to achieve his goals.

The question is now before Washington tribal voters: has Rob McKenna done enough for Indian Country?  Will he be a partner to tribal governments or is his Indian policy one of political expedience?  He had the opportunity to come out swinging against domestic violence in Indian Country – to hit an underhand softball – but he struck out looking.

Meanwhile, or “while Congress continues to debate over that issue,” Native women in Washington State remain virtually unprotected from domestic violence by non-Indians.

Ryan Dreveskracht is an Associate at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and general economic development. He can be reached at 206.909.3842 or ryan@galandabroadman.com.

Ryan Dreveskracht's "Revictimizing Native Women for Political Purposes" Goes Viral

Ryan Dreveskracht's commentary, "Revictimizing Native Women for Political Purposes," regarding the increasingly partisan and misogynist VAWA reauthorization debate, was originally published on Crosscut. His op-ed has since been reposted by Turtle Talk, Indian Country Today Media Network, and pechanga.net, and has in turn gone viral via tribal social media.

As originally passed by the U.S. Senate, the Violence Against Women Act reauthorization legislation would allow tribes to exercise limited criminal jurisdiction over certain non-Indians who violate Native American women on Indian reservations. Tribes would be required to provide all rights accorded to defendants in state and federal court, and federal courts would have authority to review tribal court decisions that result in incarceration. The legislation would not raise the one-year maximum sentence that tribal courts can impose. The GOP-controlled House, however, omitted the protections for Indian women in its version of the bill.

Among those voting to omit the tribal protections were vice presidential candidate Paul Ryan, U.S. Senate candidate Akin, and House Republican King. In an interview originally broadcast on Sunday, Akin suggested that an abortion would be unnecessary in the instance of a “legitimate rape” because apparently only non-legitimate rape leads to pregnancy — whatever that means. Chiming in agreement, fellow House Rep. King said that he’s never heard of a girl getting pregnant from statutory rape or incest. While Akin and King quickly recanted, they cannot as simply withdraw their votes against the Senate’s proposed protections for abused Native women.

Also Monday, the News Tribune (editorial, “Protect Indian women without diluting Bill of Rights”) accused tribal governments of having “an agenda of their own: They see the domestic violence issue as a way to assert and reclaim broader sovereign powers.” The editorial is wrong. Indian country sees the the Violence Against Women Act (VAWA) reauthorization as a way to protect Indian women from being violently assaulted.

Ryan Dreveskracht is an Associate at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and general economic development. He can be reached at 206.909.3842 or ryan@galandabroadman.com.

Ryan Dreveskracht's Paper on the VAWA Reauthorization and Oliphant Fix Accepted for Law Review Publication

Ryan Dreveskracht's paper, “House Republicans Add Insult to Native Womens’ Injury,” has been accepted for publication in the University of Miami Race and Social Justice Law Review. Turtle Talk has published his manuscript.

Ryan Dreveskracht is an Associate at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and general economic development. He can be reached at 206.909.3842 or ryan@galandabroadman.com.