U.S. Senator Worries Tribal Courts Will Imprison ‘Any American’

WASHINGTON – Sen. Kay Bailey Hutchison, R-Texas, is expressing concern that tribal courts operating on Indian reservations will attempt to arrest and imprison ‘any American’ if legislation aimed at protecting Native women from criminal violence passes the U.S. Congress.

Hutchison made her view known in an April 5 op/ed published by The Des Moines Register.

“One of the problematic provisions of the committee bill would give tribal courts authority to arrest, try and imprison any American,” Hutchison wrote in referring to S.1925, the reauthorization of the Violence Against Women Act (VAWA), currently being considered in the U.S. Senate.

In short, Hutchison appears to be making it seem as if innocent Americans will wrongly suffer in tribal courts under the legislation. But what the senator doesn’t note is that the ‘any American’ she is referring to would have to commit serious crimes against Indians in order to be prosecuted in tribal court—and even then, would have protections under the proposed legislation.

Many non-Indian Americans are currently able to commit crimes on Indian reservations without facing any consequences, according to federal research. U.S. Attorneys decline to prosecute 67 percent of sexual abuse and related matters that occur in Indian country, the U.S. Government Accountability Office reported in 2010, because they say their resources are already stretched too thin.

Tribal courts have historically been able to pick up the slack in some cases, but a 2008 U.S. District Court decision out of Washington state found that an Indian tribe didn’t have the authority to enter a protection order for a non-member Indian against a non-Indian residing on non-Indian fee land within the reservation—effectively blocking the tribal wheels of justice from working in many cases.

The VAWA reauthorization attempts to make up for these shortfalls. Section 904 would restore concurrent tribal criminal jurisdiction over non-Indians who commit crimes of domestic violence, dating violence or violations of protection orders in Indian country. And, in response to the 2008 U.S. District Court decision, Section 905 goes on to clarify that every tribe has full civil jurisdiction to issue and enforce protection orders against all persons regarding matters on tribal lands.

At the same time, Sections 904 and 905 of the proposal under congressional consideration are the ones that worry Hutchison: “This provision is probably unconstitutional; it is certainly impractical,” she writes in her editorial.

But tribal advocates say Hutchison is wrong, as well as trying to scare Americans, and failing to take steps to reduce violence against Indians.

“Sen. Hutchison and other opponents of the tribal criminal jurisdictional amendments in S.1925 seem to be doing their best not only to undermine the credibility of tribal courts, but also to mischaracterize the tribal provisions in the media to make them appear much, much broader than they are as currently drafted,” says Katy Jackman, staff lawyer for the National Congress of American Indians (NCAI), in an interview with Indian Country Today Media Network.

Jackman points out that Section 904 does not permit tribal prosecutions unless the defendant has “sufficient ties to the Indian tribe”—the tribe must prove that any defendant being prosecuted under Section 904 either: resides in the Indian country of the prosecuting tribe, is employed in the Indian country of the prosecuting tribe, or is either the spouse or intimate partner of a member of the prosecuting tribe.

“The idea that somehow this new jurisdiction would expand to ‘any American’ is patently absurd,” Jackman says. “Apparently, Sen. Hutchison thinks that non-Indians who live, work, and/or maintain intimate relationships in Indian country should be allowed to beat their wives and girlfriends in violation of tribal laws simply because of their non-Indian status.”

"Just as no person has the right to go to Canada, violate women, and then complain that Canadian courts do not adhere to the U.S. Constitution, nor should criminals be afford such arguments when they enter Indian country," adds Ryan Dreveskracht, an Indian affairs lawyer with Galanda Broadman. "Indeed, the nation should be appalled that lawmakers such as Sen. Hutchinson are suggesting that such arguments have any merit at all."

Hutchison’s views could be especially dangerous to Native women if a replacement bill she is writing with Sen. Chuck Grassley, R-Iowa, ends up gaining steam. Grassley has also spoken out against tribal provisions in the proposed VAWA reauthorization, saying they weaken federal sovereignty.

While Hutchison and Grassley have yet to offer their specific legislation, Hutchison promises in her editorial that it “will have a sound, practical alternative to protect Native American women.”

Hutchison’s office has not explained her ideas for protecting Native women.

NCAI, meanwhile, is offering some insight on the Hutchison/Grassley bill: “We know that Hutchison’s alternative would strip the current provisions that deal with tribal jurisdiction (namely Sections 904 and 905 of S.1925) and may offer provisions that would expand state or local jurisdiction over Indian country VAWA crimes,” the tribal advocacy organization offered in an April 13 action alert, based on its own sources.

“If Senator Hutchison is successful in stripping the tribal amendments from the VAWA Reauthorization bill, she will not only harm Native women, but she will harm the American communities that surround Indian reservations as well,” Jackman adds. “All Americans should be disgusted at the number of crimes committed by non-Indians on reservations that goes unprosecuted by federal and state authorities—the sole entities with jurisdiction to prosecute.”

NCAI went on to report in the action alert that “while in all likelihood the Hutchison alternative bill will fail,” Sen. Jon Kyl, R-Arizona, intends to offer a floor amendment to S.1925 “that will strip all of the key tribal provisions of the bill.”

Kyl’s office has not responded to questions about this possibility.

The proposed VAWA reauthorization containing the tribal provisions currently has 61 co-sponsors in the Senate. Senate Majority Leader Harry Reid, D-Nevada, has yet to call for a vote, although his office says to expect one soon.

Related: Tribal Provisions of Women Safety Law Under Senate Attack