Proposed reauthorization includes expanded authority over non-Natives on tribal land
WASHINGTON — The 2013 Violence Against Women Act reauthorization was intended to help address statistics like 60 percent of Native women reporting having been assaulted by their spouses or intimate partners and U.S. attorneys declining to prosecute 67 percent of sexual violence cases on tribal land.
The bill is set to expire Sept. 30 according to a Friends Committee on National Legislation press release in support of a new version to reapprove VAWA introduced by U.S. Rep. Sheila Jackson Lee (D).
It proposes an expansion to tribal jurisdiction over non-Natives originally established in 2013 to continue remedying these issues.
Before the 2013 approval, it was not legal for tribes to prosecute non-Natives accused of sexual or domestic violence against Natives and similarly for local governments to handle cases on tribal lands, which left these cases to federal law enforcement.
This was due to a 1978 U.S. Supreme Court ruling that tribes had no jurisdiction over crimes committed by non-Natives on their land.
A lack of resources, jurisdictional complexity and maintenance of evidence chains were all citied as possible reasons for why federal prosecutors declined to pursue charges.
The original bill passed in 1994 with bipartisan support and according to Muscogee (Creek) attorney and VAWA advocate Sarah Deer, provisions protecting Native women were added with each reauthorization.
“Unfortunately in 2013 the last time it was reauthorized, it became a partisan issue, in other words Republicans and Democrats really spilt on their perception of whether this law was needed. It still passed eventually,” she said.
Deer said the main concern presented by Republicans, which largely led to a need for two attempts at passing the last reauthorization, was that tribal courts were not bound by the U.S. Constitution and thus a non-Indian could not receive a fair trial.
“But at the end of the day we were able to, those of us who worked on the bill, were able to compromise and argue that a domestic violence offender who has married someone in the tribe or is dating someone in the tribe, or having babies with someone in the tribe would certainly have fair notice that their actions could be conscribed by the tribal government,” she said.
Deer said this success was the start of fixing the 1978 U.S. Supreme Court case Oliphant v. Susquamish ruling on tribal criminal jurisdiction limits and the new bill reflects an effort to expand this.
The proposed legislation includes new language regarding:
– Murdered and missing women
– Sex trafficking
– Child violence and violence against their guardians
– Violence against law enforcement
– Requirements for the U.S. attorney general and federal agencies to consult with tribes on issues in the bill
– Tribal access to federal criminal databases
At the end of the Native portion of the draft listed as Title 9, there is a section titled ‘Criminal Trespass on Indian Land.’
Deer said she would want to talk to someone who worked on the draft to clarify the intent of this section but gave her initial interpretation.
“So if tribal council temporarily or permanently excludes a person from tribal land, and what’s not entirely clear to me right now is whether or not then tribes would have jurisdiction to prosecute who returns after they’ve been excluded in violation of tribal law; and whether or not that means the tribes will prosecute those regardless of the non-Indian status or whether this is sort of creating a new federal crime to enforce exclusion and banishment orders,” she said.
She said clarification and improvements to draft bills are part of the legislative process.
“That’s one of the challenges of these laws is all the deletions and additions, and it’s not always easy to see what’s being taken out and what’s being improved or what’s being inserted,” Deer said.
Deer said the common strategy when introducing legislation is to aim high.
“And then you can work backwards from there and compromise but you’re asking for as many of the expanse of powers as far as you can and understanding that there may be pushback and we may not end up with exactly what is in here right now,” she said.
Deer said a Senate version of the bill can be expected sometime soon, “I anticipate in the coming weeks that may or may not look exactly like this.”
Republicans hold a majority in both bodies of Congress along with the presidency. A spokesperson for the bill’s sponsor gave an email statement on the challenges they foresee.
‘As for obstacles to the bill, I would consider what occurred last time, which was a GOP-led delay of the reauthorization due to objections that the bill would cover folks from the LGBT community.
‘Traditionally, this bill has been bipartisan. 2013 represented the first departure from this norm, as a result of GOP maneuvering. Sadly, there’s nothing preventing the GOP from pulling the same stunt again,’ they stated.
Deer said the 2012-2013 efforts also saw objections to language aimed at protecting immigrant victims of domestic violence stating that she had not read the new bill in its entirety.
“I would anticipate, I hate to speak out of turn without having looked at it, but there are controversial provisions in this version,” she said.
The draft bill refers to those intended to be protected as ‘Indian,’ language defined specifically in the terminology section and Deer said she did not know if this was with the LGBTQ community in mind.
“I guess I didn’t look carefully enough to see if this has been sort of degendered so that it would apply to both male and female victims. I think that is sort of certainly going to be important in the context of child violence,” she said.
Deer said despite the bill’s name, it usually covers all victims of the crimes it was intended to address.
“But in the Violence Against Women Act, generally although it’s called the Violence Against Women Act, typically all victims of these gender based crimes including men and boys are typically going to be covered,” she said.
With language pertaining to consultation with tribes by the U.S. Office of the Attorney General along with cooperation, Deer said current AG Jeff Sessions voted to oppose VAWA as a senator in 2013.
“One of his reasons for doing so was his concern about expanding tribal authority over non-Indians and even at his confirmation hearing a few months, well maybe it’s been over a year now, at his confirmation hearing he was asked about his vote and whether or not he would support the provisions in 2013 and he was very evasive,” she said.
Outside of the government, Deer said momentum could be seen in society with the reauthorization coming up in the wake of the Me Too movement.
“Certainly there has been on Twitter and things, the Native Me Too movement and I think that this bill could have been authored even if that hadn’t been happening, but I think you see momentum among activists, among young people who are speaking out about the inequities that victims of crime in Indian Country experience,” she said.
She particularly emphasized an outcry for murdered and missing indigenous women, which is addressed in the new bill and that all of the provisions reflect feedback.
“Well it’s clear that what underlies all this text is the efforts and voices of Native women activists who have been in contact with members of Congress,” Deer said.
Deer gave a nod to those on the ground involved in advocacy including staff at Muscogee (Creek) Nation, who were involved in 2013.
Mvskoke Media reached out to MCN Family Violence Prevention Program Director Shawn Partridge through MCN Public Relations beginning July 26 and did not receive a response as of press time.