WASHINGTON – More foes of tribal courts are making themselves known in the battle to reauthorize the Violence Against Women Act (VAWA), legislation currently under consideration in the U.S. Senate that would in part expand the power of tribal courts to have jurisdiction over non-Indians who commit crimes against Indians.
Rep. Kristi Noem, R-S.D., who has previously said she is a supporter of Native American issues and whose district includes many Native constituents, reportedly said after a press event on April 25 that she doesn't support Indian inclusions in VAWA because she has concerns about consistency with federal criminal laws that govern tribes.
"We just need to make sure we are also consistent with broader criminal law policies," Noem said in explaining her position, according to a Huffington Post article.
Noem is part of a group of Republicans who have said they plan to offer their own House version of VAWA that would exclude tribal court jurisdiction and protection orders aiding Indian families.
On top of Noem’s anti-tribal comments, a new policy paper issued by the Heritage Foundation, a conservative think tank, takes several shots at tribal courts. In a section of the paper, titled, Surrendering Rights to Tribal Courts, authors David B. Muhlhausen and Christina Villegaswrite that S. 1925, the VAWA reauthorization, offers a “radical and unorthodox surrender of jurisdiction” by the federal government to tribal courts.
“This surrender by federal or state governments of jurisdiction over Americans who are not members of Indian tribes is unprecedented, unnecessary, and dangerous,” the authors write, adding that tribal courts are untested entities to administer justice to those who commit violence against Indians.
The criticisms come at the same time that Sen. Kay Bailey Hutchison, R-Texas, has painted tribal courts poorly in the press, saying, falsely, that they could “imprison any American” if the Senate legislation became law, as reported by Indian Country Today Media Network on April 16.
Hutchison has written a replacement bill in the Senate with Sen. Chuck Grassley, R-Iowa, who has also spoken out against tribal provisions in the proposed VAWA reauthorization, saying they weaken federal sovereignty.
Tribal advocates have strongly admonished the criticism, saying it is untrue and attempts to falsely portray tribal courts as rogue systems of justice. In reality, the advocates say, the courts operate consistent with federal standards under the bill, while attempting to stem a violence epidemic against Native families and women that the federal government has been unable to curb.
“Were the local U.S. Attorney’s Office doing its job, Indian women would not face a 34 percent chance of being raped,” Ryan Dreveskracht, an Indian affairs lawyer with Galanda Broadman, said in an interview with ICTMN. “Evidence collected by the Justice Department itself, as well as organizations such as Amnesty International, indicates 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, Congress has, correctly for once, determined that tribal justice systems are in the best position to turn things around,” Dreveskracht added.
The White House, in a press call on April 26, backed up the claims of tribal advocates, saying the bill and its tribal provisions are “consistent with the overall federal law enforcement scheme, specifically our efforts to prevent violence and violent crime.” That’s according to Tony West, acting associate attorney general for the U.S. Department of Justice.
The Heritage Foundation authors, however, say there “appears to have been little study by the Senate Committee on the Judiciary of how capable tribal courts are in implementing this mandate.” They call for “further legislative investigation through hearings by the Senate Committee on the Judiciary.”
The White House also seems to have taken note of that critique, and officials in the Obama administration say that the claims against tribal courts are unfounded on this issue.
West said during the press call that the legislation contains procedural protections for defendants that are consistent with the federal government’s approach to federal law enforcement. Specifically, the bill calls for the requisite constitutional safeguards for defendants, including an adequate right to counsel, ICTMN reported on April 1.
“We think they are important provisions,” West said.
Senate Majority Leader Harry Reid, D-Nevada, is expected to soon bring the version of VAWA with the tribal provisions to the floor for a vote. Sixty-one senators have already signed on as co-sponsors to the legislation.