The "Tribal Provision" of the Violence Against Women Act

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Alissa_Sal's picture
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The "Tribal Provision" of the Violence Against Women Act

WASHINGTON -- Vice President Joe Biden is quietly working with House Majority Leader Eric Cantor (R-Va.) to try to pass an inclusive version of the Violence Against Women Act in the lame-duck Congress. And so far, sources tell HuffPost, Cantor is on board as long as one thing is stripped from the bill: a key protection for Native American women.

Staffers for Biden and Cantor have been trying to reach a deal on the bill for at least a week. Neither camp publicly let on it was talking to the other until Wednesday, when Cantor said the two are in negotiations and he's feeling hopeful about a deal.

"I am speaking with the vice president and his office and trying to resolve the issue of the differences surrounding the VAWA bill," Cantor said during remarks on the House floor.

"This week I've actually been encouraged to see that we could very well see agreement on VAWA, and I'm very hopeful that that comes about. But I am encouraged about the discussions that my office is having with the vice president's office right now, that bill being a high priority of Vice President Biden."

VAWA, which has been reauthorized consistently for 18 years with little fanfare, was, for the first time, left to expire in Sept. 2011. The sticking point has been new protections for three particularly vulnerable groups: undocumented immigrants, members of the LGBT community and Native Americans. The additions are supported by Democrats and opposed by House Republicans, who are calling them politically driven. The Senate passed a bipartisan bill in April with the additional protections, and House Republicans passed their own bill in May that omitted those three provisions. Since then, the issue has gone nowhere.

The fact that Cantor is working directly with Biden, an original sponsor of the 1994 law and a strong supporter of the Senate bill, suggests a real possibility that something could advance in the final weeks of a Congress otherwise consumed by a major tax fight. And now that the elections are over -- and the GOP received the message that they need to do a better job of appealing to women and minorities -- House Republicans may be more inclined to support the more inclusive bill.

But two sources familiar with negotiations on VAWA, both of whom requested anonymity given the sensitive nature of talks, have told HuffPost that Cantor is refusing to accept any added protections for Native American women that would give expanded jurisdiction to tribes, and is pressuring Democrats to concede on that front. There does seem to be room to negotiate with Cantor on the other two provisions relating to LGBT and undocumented immigrant protections, the sources say.

Asked to confirm if this is the current state of play in VAWA talks, a Cantor spokesman said only, "Your source is mistaken."

Later, the Cantor spokesman said in a statement, "Majority Leader Cantor and the Vice President have had a conversation seeking to find a solution. Since then, we have continued to work with the Vice President's staff, as well as Senate Democratic staff to work on a solution that gets to the root of the problem, namely, violence against women. Our staffs continue to work towards a compromise on those multiple provisions outstanding in the hopes of finding a solution."

A White House official did not respond to a request for comment on the tribal provision but confirmed that Biden is "talking to both the Senate and House about trying to get [VAWA] done if possible."

Meanwhile, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), the author of the Senate VAWA bill, went to the Senate floor on Thursday and plainly announced that House Republican leaders are blocking his bill "because of their objections to [the] ... tribal provision."


Leahy explained the provision, probably the least understood of the three additions in the Senate bill: It gives tribal courts limited jurisdiction to oversee domestic violence offenses committed against Native American women by non-Native American men on tribal lands. Currently, federal and state law enforcement have jurisdiction over domestic violence on tribal lands, but in many cases, they are hours away and lack the resources to respond to those cases. Tribal courts, meanwhile, are on site and familiar with tribal laws, but lack the jurisdiction to address domestic violence on tribal lands when it is carried out by a non-Native American individual.

That means non-Native American men who abuse Native American women on tribal lands are essentially "immune from the law, and they know it," Leahy said.

The standoff over including VAWA protections for Native American women comes at a time of appallingly high levels of violence on tribal lands. One in three Native American women have been raped or experienced attempted rape, the New York Times reported in March, and the rate of sexual assault on Native American women is more than twice the national average. President Barack Obama has called violence on tribal lands "an affront to our shared humanity."

Of the Native American women who are raped, 86 percent of them are raped by non-Native men, according to an Amnesty International report. That statistic is precisely what the Senate's tribal provision targets.

The two sources say, to Cantor's credit, 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.

Some House Republicans do support giving tribes that limited jurisdictional authority and have put forward a solution of their own. Earlier this week, Reps. Darrell Issa (R-Calif.) and Tom Cole (R-Okla.) introduced a bill that has the same jurisdictional language for tribes as the Senate bill, but would also allow the defendant to move his case to a federal court if he feels his rights were violated in a tribal court. As a standalone bill that wades into complex jurisdictional laws, though, even Issa told HuffPost last week that the bill has little chance of passing in the lame duck.

Cantor's insistence on keeping the tribal jurisdictional provision out of VAWA has infuriated some backers of the Senate bill and elicited vows to prevent any VAWA bill from advancing that doesn't protect all victims of abuse. Terry O?Neill, the president of the National Organization for Women and someone who regularly talks to people directly involved in VAWA negotiations, called Cantor's stance "completely outrageous."

"Who is Eric Cantor to say that it's okay for some women to get beaten and raped?" O'Neill said. "If they happen to be Native women who are attacked by a non-Native man, as far as Eric Cantor is concerned, those women are tossed."

O'Neill's incendiary and extreme charge highlights the intense passion that has engulfed the negotiations around the bill.

The NOW president said she didn't know why the GOP leader was so opposed to keeping the provision, since it has the backing of the Justice Department. She said any concerns about constitutional laws being circumvented on tribal lands have already been vetted. Regardless, she said she doesn't expect the White House or Democratic lawmakers to cave on the provision.

"We are not going to leave behind sisters who have been brutally raped," O'Neill said.

Bolding mine.

What are your thoughts on the Tribal Provision of the VAWA? Should non-Native American men who are accused of raping Native American women on tribal land be tried in tribal courts? If not, are there other solutions that you think might work?

AlyssaEimers's picture
Joined: 08/22/06
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I am a little fuzzy on the details. What exactly does the Violence Against Women Act do?

Alissa_Sal's picture
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Here is the Wiki on it:

Violence Against Women Act - Wikipedia, the free encyclopedia

The Violence Against Women Act of 1994 (VAWA) is a United States federal law (Title IV, sec. 40001-40703 of the Violent Crime Control and Law Enforcement Act of 1994, H.R. 3355) signed as Pub.L. 103-322 by President Bill Clinton on September 13, 1994. The Act provided $1.6 billion toward investigation and prosecution of violent crimes against women, imposed automatic and mandatory restitution on those convicted, and allowed civil redress in cases prosecutors chose to leave unprosecuted. The Act also established the Office on Violence Against Women within the Department of Justice.

VAWA was drafted by the office of Senator Joe Biden (D-DE), with support from a broad coalition of advocacy groups. The Act passed through Congress with bipartisan support in 1994, clearing the House by a vote of 235–195 and the Senate by a vote of 61–38, although the following year House Republicans attempted to cut the Act's funding.[1] In the 2000 Supreme Court case United States v. Morrison, a sharply divided Court struck down the VAWA provision allowing women the right to sue their attackers in federal court. By a 5–4 majority, the Court's conservative wing overturned the provision as an intrusion on states' rights.[2][3]

VAWA was reauthorized by Congress in 2000, and again in December 2005.[4] The Act's 2012 renewal was fiercely opposed by conservative Republicans, who objected to extending the Act's protections to same-sex couples and to provisions allowing battered illegal immigrants to claim temporary visas.[5] In April 2012, the Senate voted to reauthorize the Violence Against Women Act, and the House subsequently passed its own measure (omitting provisions of the Senate bill that would protect gay men, lesbians, American Indians, and illegal immigrants who were victims of domestic violence). Reconciliation of the two bills has been stymied by procedural measures, leaving the reauthorization in question.

Thought the bolded was interesting. I can see why we wouldn't necessarily protect men (gay or otherwise) specifically in the Violence Against Women Act, but why wouldn't we protect all women?

Alissa_Sal's picture
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double post

AlyssaEimers's picture
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I really don't know a ton about this, but speaking for all laws in general, I grew up next to an Indian Reservation. They have their own laws and we can not enforce our laws on them. It would be like the US making a law for France.

ftmom's picture
Joined: 09/04/06
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I dont think they are saying these groups are not protected. There are laws against rape and domestic abuse etc already. The specific issue seems to be weather tribes are able to directly prosecute men who commit violence against their women, as apposed to it going to federal court.

I assume the issue is that a tribal court would be predisposed towards the native woman, and non-native men could be falsely accused and prosecuted. I am not saying I agree with this assessment, but I do see the point. I look forward to seeing some arguments on this Smile

GloriaInTX's picture
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No I don't think that giving Native American courts jurisdiction over non-Native American men is the answer. If this is a problem, then this is the problem that they need to solve. Give federal and state law enforcement more resources or a dedicated resource to investigate and prosecute these cases.

Currently, federal and state law enforcement have jurisdiction over domestic violence on tribal lands, but in many cases, they are hours away and lack the resources to respond to those cases.

Joined: 08/17/04
Posts: 2226

It definitely does seem like a loophole but it is something I'm not familiar with. If tribes prosecute non native men how does that work? How do we prosecute through federal govt for something done on tribal land.

Good question and I would also like to hear others opinions.

smsturner's picture
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Abusers are abusers. If there is a loophole that lets men off when they are abusing their wives, I would like to think we'd step in if possible. Our land or not. Our citizens or not.
Still not sure why we would oppose any protection we could offer for these women?

If you go into france and beat up a woman there, wouldn't we let france prosecute? So let them prosecute non-natives. As long as there is a fitting punishment and protection for the abused.

Alissa_Sal's picture
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"smsturner" wrote:

If you go into france and beat up a woman there, wouldn't we let france prosecute? So let them prosecute non-natives. As long as there is a fitting punishment and protection for the abused.

This is kind of what I was thinking too. I know that reservations aren't a different country, but they do have their own governing bodies, laws, et cetera that are separate. I think in this case, it should be treated like a separate country, in that if you go on their land and violate their laws, you face their courts. How awful to think that people have been exploting a loophole that basically allows them to get away with rape. Sad

mom3girls's picture
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I need to do some research on this but I believe the tribal laws extend beyond the boundaries of the reservation. So a non-native male that rapes a native woman at a home outside of the reservation could be tried on reservation. I do not agree with this.

I really do not agree that is seems to be an issue that is being politicized instead of being looked at as an issue as a that needs to be fixed.

Joined: 08/17/04
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okay that thought cemented it for me. They are sovereign so anything that happens on tribal lands should be prosecuted by tribal consuls.

Dewey's picture
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We are non natives who live with in the boundaries of a reservation on deeded land that we own. There are loop holes when it comes to prosecuting natives and whites a like. For example we have had property stolen from our yard, the county sheriff has no jurisdiction and the tribal police won't help if you are non native. A tribal police officer can detain you, but they have to call in and give permission to the county sheriff to come on the reservation to prosecute you, On the other hand if a native commits a crime off the reservation and makes it back to the reservation prior to being caught there is nothing the county law enforcement can do as long as the person stays on the reservation.

Alissa_Sal's picture
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DH got me a book called "The Round House" by Louise Erdrich for Solstice that is very timely to this discussion. It's about an Indian woman who was raped by a non-Indian, and the fallout later. In the book her husband is a tribal judge, and their son is very interested in tribal law, and it talks a lot about the practical realities of jurisdiction when it comes to the law, and about the history of the jurisdiction laws. DH didn't know I was just talking about this subject on here, he just thought I would like the book (he's right, it's a really good one.) I highly recommend it to anyone who wants to get a feel for the subject told from the Indian POV (it is narrated by the woman's 13 year old son.)

Amazon.com: The Round House (9780062065247): Louise Erdrich: Books

mom3girls's picture
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just got it on my nook!

Alissa_Sal's picture
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Yay! Let me know what you think! I really liked it.

Alissa_Sal's picture
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Sorry, didn't mean to lock the thread. I didn't even realize I did it!

Joined: 08/17/04
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LOL...I saw that last night...I was wondering where it got "offensive"

boilermaker's picture
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If you like the Round House-- read The Bingo Palace, also by Erdrich. Great book!

Alissa_Sal's picture
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Thanks for the recommend Audra! I will definitely check it out.

wlillie's picture
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I'm confused. Do the non-native men (or women) get prosecuted on the reservation no matter where the alleged rape takes place just because the woman is a native American? I disagree with that wholeheartedly. And why aren't the two different protection agencies working together instead of making stupid laws that don't seem to work?

We're military. We have an extra set of laws the people around us don't have to follow. We can't expect that someone who isn't military would get a military punishment that we would if they commit a crime against us and definitely can't expect a civilian to go to a military court for a crime against us. I know it's different, but the logic is basically the same.

Alissa_Sal's picture
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I believe the law is talking specifically about abuse committed against Native American women on tribal land. Which is why it seems fair to me - if you commit a crime on their land, you are in their jurisdiction and subject to their trials. If I committed a crime in another state, I believe I would face trial in that state. I think this is kind of the same thing, but the states have long claimed that tribal laws have no jurisdiction over non-Native Americans, even on their own land. I don't know how the law can only apply to one ethnic group when we're talking about a crime committed on tribal land.

wlillie's picture
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But where is this happening that this is true?

Currently, federal and state law enforcement have jurisdiction over domestic violence on tribal lands, but in many cases, they are hours away and lack the resources to respond to those cases.

mom3girls's picture
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"wlillie" wrote:

I'm confused. Do the non-native men (or women) get prosecuted on the reservation no matter where the alleged rape takes place just because the woman is a native American? I disagree with that wholeheartedly. And why aren't the two different protection agencies working together instead of making stupid laws that don't seem to work?

We're military. We have an extra set of laws the people around us don't have to follow. We can't expect that someone who isn't military would get a military punishment that we would if they commit a crime against us and definitely can't expect a civilian to go to a military court for a crime against us. I know it's different, but the logic is basically the same.

This is the issue I have with this provision. It does allow for a tribal court to rule over non-native land

Alissa_Sal's picture
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"mom3girls" wrote:

This is the issue I have with this provision. It does allow for a tribal court to rule over non-native land

According to the article:

Leahy explained the provision, probably the least understood of the three additions in the Senate bill: It gives tribal courts limited jurisdiction to oversee domestic violence offenses committed against Native American women by non-Native American men on tribal lands.

Bolding mine. Do you have another source that shows that it would extend to crimes committed outside of tribal lands as well?

Spacers's picture
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"Dewey" wrote:

On the other hand if a native commits a crime off the reservation and makes it back to the reservation prior to being caught there is nothing the county law enforcement can do as long as the person stays on the reservation.

This is the problem that I'm having trouble reconciling. On one hand, they want authority to prosecute white men who rape Native American women on tribal land, but on the other, they continue to actively harbor known criminals on reservation land. They seem to want justice when their people are the victims, but not when their people are the perpetrators, and I just can't buy into that. I'm sure my family history is swaying my judgement on this, though. My great-aunt's husband died in a quarry accident, which wasn't really an accident and everyone knew it. He was a Native American, and so were the two men who dropped their load on him, and they skedaddled onto the nearby rancheria and the sheriff couldn't get them. So it was written up as an accident and my aunt got a nice settlement from the quarry's insurance company, but my cousin still grew up without his father and with the knowledge that two men got away with murder.

Alissa_Sal's picture
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So the reasoning against it is "They've been known to harbor criminals, so we want to retain the right to harbor criminals too?" I would be happy to let non-Natives get prosecuted by the tribal courts if they commit a crime on tribal land, and let Natives get prosecuted by the federal or state courts if they commit a crime off of tribal land. I don't think "Let's all continue to harbor criminals" is the best answer to the problem.

Joined: 08/17/04
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I agree with Alissa. If crimes are committed on tribal land than tribal court should prosecute. If it is non tribal land then federal/state court can prosecute.

I do think that proper representation should be allowed..meaning non tribal criminal gets lawyer that is non tribal and vice versa. (

GloriaInTX's picture
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I just don't see how the persons right to an impartial jury could be met when he would be an non-native being judged by a tribal system and jury. They how would the appeal process work? What if the rules of evidence are different in a tribal court? Could he appeal through the regular court system? I think this just opens up a whole bunch of problems that would never work out. I think it could seriously open up the door to someone being railroaded throught a tribal court system and possible someone being falsely accused by witness evidence or something that would never stand up in a regular court.

Sixth Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Alissa_Sal's picture
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"GloriaInTX" wrote:

I just don't see how the persons right to an impartial jury could be met when he would be an non-native being judged by a tribal system and jury. They how would the appeal process work? What if the rules of evidence are different in a tribal court? Could he appeal through the regular court system? I think this just opens up a whole bunch of problems that would never work out. I think it could seriously open up the door to someone being railroaded throught a tribal court system and possible someone being falsely accused by witness evidence or something that would never stand up in a regular court.

So by that token do you also believe that no Native American can get an impartial trial in a non-Native American court system?

As far as different laws and whatnot, laws also vary from state to state. It's now legal for us to smoke pot in CO, but if I cross the border into KS they can still bust me, try me, and even jail me, using laws that don't apply in my state. Knowing that, my choices are to either stay in CO, or to at least not smoke pot in KS. Why would it be any different for reservations? Non-natives can be put on notice that if they do not want to be tried in tribal courts, they can either stay off of the reservations, or at least not break tribal laws (and yes, that means to a certain extent knowing what they are - just like I now need to know that I can't smoke pot in KS. Although, rape seems kind of like a no-brainer to me.)

GloriaInTX's picture
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"Alissa_Sal" wrote:

So by that token do you also believe that no Native American can get an impartial trial in a non-Native American court system?

No because the jury pool could include Native Americans or a least a mixture of people from different backgrounds. Native American people don't just stay on the reservation. Some do, but there are many that live in the surrounding community off the reservation. Where I grew up in Montana there were many reservations, but I also went to school with a lot of Indians that didn't live on the reservation.

Where is your tribal jury pool going to come from? ALL native American.

Alissa_Sal's picture
Joined: 06/29/06
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"GloriaInTX" wrote:

No because the jury pool could include Native Americans or a least a mixture of people from different backgrounds. Native American people don't just stay on the reservation. Some do, but there are many that live in the surrounding community off the reservation. Where I grew up in Montana there were many reservations, but I also went to school with a lot of Indians that didn't live on the reservation.

Where is your tribal jury pool going to come from? ALL native American.

I hope it's not the case that the only way to get a fair trial (anywhere) is to have people of your same skin color on the jury. If that's the case, minorities are screwed.

ETA: Okay, okay, you win that round. Minorities often ARE screwed in this country. It doesn't stop us from prosecuting them though.

GloriaInTX's picture
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They can't even prosecute Indians from another tribe for this very reason.

A frequent criticism of tribal court jury trials is that only tribal members can sit on juries. The U.S. Supreme Court cited to this common reality when it held that tribal courts have no criminal jurisdiction over Indians from other reservations who commit crimes. This is true for most Indian tribal courts where jurors are usually drawn from tribal election rolls. Some tribes allow any Indian who resides on the reservation to serve on a tribal jury, while some other tribal codes actually do not appear to restrict any person from serving on a tribal jury provided the person lives on the reservation. One obvious problem tribes confront when deciding who should be allowed to sit on tribal juries is that a non-Indian cannot be prosecuted by a tribe for violating his sworn duties as a juror and this may convince tribes not to allow them to sit. Nothing in the law, however, prevents an Indian tribe from allowing any person to sit on a tribal jury, including those persons who are normally disqualified under state and federal law.

http://www.icctc.org/tribal%20courts-final.pdf

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