On April 26, 2012, the Senate passed S. 1925, the Violence Against Women Reauthorization Act of 2012, with broad bipartisan support. Title IX of the bill would restore concurrent tribal criminal jurisdiction over non-Indians who commit certain misdemeanor crimes involving domestic violence, dating violence, and violations of protection orders and who have significant ties to the prosecuting tribe. If enacted, Title IX would be a small, but historic step forward in restoring safety and justice to Native women?women subjected to epidemic levels of violence.
A stripped-down bill, H.R. 4970, which abysmally fails to protect all victims of violence, is set to be marked up in the House Judiciary Committee next week. This version excludes the tribal jurisdiction provisions that could restore justice and safety to Native women and communities, in part, due to constitutional concerns by a few.
The statistics alone are shocking, but existing federal law is such that the vast majority of violent/sexual crimes go unprosecuted, many uninvestigated. Tribal authority to prosecute non-Indians for crimes against tribal citizens was removed by the Supreme Court in 1978, creating an Indian country landscape where non-Indians violate Native women with impunity. Those federal or state law enforcement officials having the authority to investigate and prosecute such crimes committed by non-Indians in Indian country are regularly not doing so. By their own count, federal officials fail to prosecute some 67 percent of sexual abuse and related matters referred to them from Indian country. Because 77 percent of residents of Indian lands are non-Indian, and because 88 percent of these offenders are non-Indian, the long-standing jurisdictional loophole creates a human rights crisis where some of the most heinous crimes go utterly unpunished solely because the victim is Native and was assaulted on an Indian reservation.
S. 1925 is a bipartisan bill written after months of negotiations and coordination between both parties, and with the input of law enforcement officers, prosecutors, judges, advocacy groups, and health professionals. Only recently have the bill’s tribal provisions come under attack as being unconstitutional. Opponents argue that Congress lacks the authority to restore tribal criminal jurisdiction over non-Indians, and that the tribal provisions do not provide adequate protections for criminal defendants. These concerns are without justification.
Congress’ power to determine the jurisdictional bounds of tribes has been recognized by the Supreme Court for well over a century. In drafting S. 1925, the Department of Justice worked closely with the Senate Committee on Indian Affairs and the Senate Judiciary Committee to ensure the legislation passed constitutional muster. Further, as referenced in Sen. Tom Udall’s (D-NM) testimony on April 25, a letter from fifty prominent law professors was submitted to the Senate and House Judiciary Committees, analyzing the constitutionality of restored tribal criminal jurisdiction and expressing their “full confidence in the constitutionality of the legislation.”
As for due process concerns, non-Native defendants will be provided with protections mirroring the U.S. Constitution, essentially the same rights as currently provided to defendants in state courts. If there is an argument to be made about what is or is not constitutional, consider just the equal protection implications of the ongoing complicity in allowing violent abusers of Native women to walk free without prosecution, punishment, or even investigation.
Opponents of S. 1925 suggest, as an alternative, that tribes seek validation and enforcement of protection orders from federal courts. This recommendation ignores the reality that federal courts are typically hundreds of miles from an Indian reservation and the fact that federal authorities are already declining to prosecute Indian country crimes at appalling rates.
Tribal governments must be able to investigate and prosecute those who willingly enter their lands and territories, enter into relationships with tribal citizens, and choose to commit crimes of domestic and dating violence against Native women, or to violate protection orders. “Without this act of Congress, tribes will continue to lack authority to protect the women who are members of their own tribes. With this bill we can close a dark and desperate loophole in criminal jurisdiction,” stated Sen. Udall.
We all must insist that the long overdue improvements in Title IX of S. 1925 for ensuring the safety of Native women are not lost in politics. Tribal jurisdiction over crimes of domestic and dating violence, and violations of protection orders, must be restored so that we can finally tackle this epidemic of violence against Native women together. The safety and lives of Native women, and the future of Native nations and communities, depend on it. ACT NOW to support legislation such as H.R. 4154, the SAVE Native Women Act, which includes tribal jurisdiction provisions similar to the bipartisan bill, S. 1925.
Karla E. General (Kawenniiostha) is an attorney at the Indian Law Resource Center, Washington, DC. She is Deer Clan and a citizen of the Mohawk Nation, from the Akwesasne Mohawk Territory. Robert T. Coulter, a member of the Citizen Potawatomi Nation, is the founder and Executive Director of the Indian Law Resource Center, Helena, Montana.
The Indian Law Resource Center is a non-pro?t law and advocacy organization established and directed by American Indians. The Center is based in Helena, Montana and also has an office in Washington, D.C. We provide legal assistance without charge to Indian and Alaska Native nations who are working to protect their lands, resources, human rights, environment and cultural heritage. Our principal goal is the preservation and well-being of Indian and other Native nations and tribes. For more information, please visit us online at IndianLaw.org or Facebook.com/IndianLawResourceCenter.