Senate amendments to the Violence Against Women Reauthorization Act (“VAWA”) should be completed today. According to Senate Minority Leader Mitch McConnell (R-Ky.), “Republicans are working with Democrats on an agreement to consider just a few amendments to the bill, and a short time agreement on those amendments.” From the very beginning, Sen. Chuck Grassley (R-IA) had opposed the VAWA, even requesting that Senate Judiciary Republicans unanimously vote against it because of what he believes are “problematic provisions of the committee bill [that] would give tribal courts authority to arrest, try and imprison any American” – provisions that he believes are “probably unconstitutional.” Now, Senator Grassley has teamed up with Sen. Kay Bailey Hutchison (R-TX) to offer “a substitute that would address GOP concerns with the bill.” Although the full details of Grassley and Hutchinson’s changes have yet to be released, it is likely that they will map their previously stated opposition to providing tribal jurisdiction over non-Indians.
These “concerns” are unfounded and, quite frankly, offending.
Prior to the Supreme Court’s decision of Oliphant v. Suquamish Indian Tribe in 1978, tribal governments had full authority to exercise criminal jurisdiction over non-Indians who voluntarily entered into Indian Country and committed crimes. Lifting restrictions on the ability of tribal governments to exercise this inherent sovereign authority is by no means unconstitutional. Because the Court’s decision in Oliphant was rooted in federal common law – bluntly racist common law denouncing tribal governments as “inferior” and “dependent upon the fostering care and protection of the [United States],” United States v. Sandoval (1913) – the Supreme Court has held that Congress has full authority restore the pre-1978 status-quo by “lift[ing] the restrictions on the tribes’ criminal jurisdiction.” United States v. Lara (2004). In the VAWA Congress has partially done so, and with full constitutional authority.
According to a recent iteration of the Senators’ argument put forth by the Heritage Foundation: “Today, if John and Mary Smith were visiting a casino on an Indian reservation and John assaulted Mary, John would be charged by the federal government with assault and would be prosecuted by the local U.S. Attorney’s Office in federal magistrate court.”
This, of course, is the problem. Were the local U.S. Attorney’s Office doing its job, Indian women would not face a 34-percent chance of being raped. Evidence collected by the Justice Department, as well as nongovernmental organizations such as Amnesty International, indicate that an overwhelming majority of these cases are going unreported, uninvestigated, and unprosecuted. Rather than leaving the protection of Indian Country up to federal police forces and prosecutors who have proven themselves incapable and uninterested in putting an end to reservation crime since the sole authority to do so was vested there in 1978, in the VAWA Congress has, correctly for once, determined that tribal justice systems are in the best position to turn things around. Indeed, the Senators and the Heritage Foundation recognizes this logic vis-à-vis the states: “To address the problem of domestic violence appropriately, the federal government should limit itself to handling tasks that have been assigned to it by the Constitution and which state and local governments cannot perform by themselves.” Why that same logic does not apply to Indian Country, the Senators and their constituents do not, and cannot, offer an explanation.
Moreover, the Senators are flat-out wrong in assuming that the VAWA would have much play, if any, in this hypothetical. The VAWA authorizes tribes to exercise criminal jurisdiction only: (1) over domestic violence, (2) when the victim is an enrolled member of an Indian tribe, and (3) where the defendant resides in Indian Country, is employed by the prosecuting tribe, or is a spouse or intimate partner of a member of the prosecuting tribe. So, unless Mary Smith was a member of an Indian tribe, assuming that John and Mary were married, the tribe would not have jurisdiction over John under the VAWA.
And, of course, no Republican discussion of tribal court jurisdiction would be complete without the obligatory talk of inferior tribal justice systems that are incapable of upholding non-Indian constitutional rights and notions of due process: “A non-Indian subject to tribal jurisdiction would enjoy few meaningful civil-rights protections. Courts have held, for example, that tribal governments are not bound by the Constitution’s First, Fifth, or Fourteenth Amendments. What this means is that if somebody is accused of abuse on tribal lands, the accused can kiss normal constitutional protections good-bye.”
Of course, this is wrong. The Indian Civil Rights Act (“ICRA”), 25 U.S.C. § 1301-1303, requires that tribal courts provide all rights accorded by state and federal courts. Section 904 of the VAWA also requires that tribal courts provide further minimal guarantees of fairness. If the ICRA and VAWA are not followed, federal courts have jurisdiction to review the tribal court proceedings – and the VAWA further requires that federal courts grant a stay of the tribal proceeding if there is a substantial likelihood that those provisions of federal law were not followed. Further, the VAWA does not raise the maximum one-year sentence that tribal courts may impose for any crime.
To any extent that the Senators are arguing that tribal courts are somehow incapable of providing the requisite safeguards, this red herring – based on the same racist arguments of inferiority espoused in Sandoval and Oliphant – should be cast aside. There is simply no evidence that tribal courts and tribal judges are unable to be fair and just. To the contrary, numerous studies have proven otherwise. See e.g. Bethany Berger, Justice and the Outsider: Jurisdiction Over Nonmembers in Tribal Legal Systems, 37 Ariz. St. L.J. 1047 (2005). For the Senators to assert otherwise is simply irresponsible. As to Congress’ odd attempt to “protect” its citizens from non-traditional forums, if that duty exists at all, as I’ve said before: If these citizens don’t trust the ability of tribal courts to be fair and just, then they shouldn’t commit assault or rape on Indian Reservations.
One can only hope that the Grassley-Hutchinson amendment does not make it into the final version of the bill. Anything less than the limited provisions of the VAWA addressing violence against Indian women, as it is currently drafted, would be an epic failure. As it is, women are being attacked on an unimaginable scale. And every study to address the issue has concluded that “[j]urisdictional issues present the main barrier to prosecution” of those offenders and play the largest role in creating the violence against women statistics in Indian country. Marie Quasius, Native American Rape Victims: Desperately Seeking an Oliphant Fix, 93 Minn. L. Rev. 1902, 1904 (2009). Only local tribal justice systems are capable of understanding and being accountable to victims of violence and their communities. For the Senate to ignore this jurisdictional conundrum is a reckless and clear violation of the federal trust responsibility.
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 firstname.lastname@example.org.