Republican House members Tom Cole (Okla.) and Darrell Issa (Calif.) on February 20 issued new Violence Against Women Act (VAWA) legislation that includes stronger tribal jurisdictional provisions than a similar bill they released last year.
Their bill, titled the Violence Against Indian Women Act of 2013, would give tribes criminal jurisdiction over non-Indians who commit domestic violence against Indian woman and families on tribal lands. That means tribal courts would have the authority to prosecute non-Indians accused of abusing their partners on tribal lands, which is a major ongoing problem, according to federal and tribal statistics.
Jocelyn Rogers, a spokeswoman for Cole, explained that the new bill would authorize, rather than just grant, tribes such authority, and it includes language that offers stricter rules for having cases removed from tribal courts to district courts. That is, defendants must be able to prove by “clear and convincing evidence” that a right guaranteed them under the Indian Civil Rights Act of 1968 has been violated, and that the tribal court has failed to adequately remedy the violation.
“The changes are important because they enhance [tribal] sovereignty and bring the removal standard in line with current practice,” Rogers said.
The overall legislation is similar to a bill offered by Cole and Issa in December 2012 when they tried to get House leadership to agree with VAWA tribal provisions that tribal leaders could also support. But that effort stalled amid questions about constitutionality, and there were some major concerns expressed by tribal leaders about the bill of last year—namely involving tribal authority and the removal process.
This year’s version accounts for those tribal concerns, said Ryan Dreveskracht, an Indian affairs lawyer with Galanda Broadman. He said the bill includes “[a]ll of the changes that we advocated for,” a recognition of inherent tribal authority among them.
“Getting the ‘clear and convincing’ evidence standard in there was a huge win for Indian country,” Dreveskracht added.
The issue now becomes whether the House Republican leadership will take up the tribal bill, or continue to muddy the waters with constitutional questions, as some GOP House members did during last year’s debate and as some Republican Senate members have been doing this year.
Dreveskracht, for one, sees this as a possibility: “On the downside, I've heard through the grapevine that [House Majority Leader Eric] Cantor will be pushing for a Cornyn type bill instead of Cole/Issa—which would be a huge step backward.”
Sen. John Cornyn (R-Texas) voted for the Senate version of VAWA that included tribal protections in early February, saying it was a bill that could do so much good in the battle for victims' rights—but he issued a caveat when it came to the rights of tribal victims: “Unfortunately the bill that passed today would take away fundamental constitutional rights from certain citizens in order to satisfy the unconstitutional demands of a few,” he said in a statement. “I hope this will be corrected in the House.” The gist is he wants the tribal provisions removed in the House.
Cantor’s office has not yet responded to requests for comment on whether he supports the new Cole/Issa bill, which has six other Republican co-sponsors. He has said that he plans to bring up a House VAWA bill soon.
Tribal advocates are pushing for Cantor to incorporate the Cole/Issa language. It will be a tough hill to climb, most admit, especially given recent comments from Republican senators who seem to be purposely signaling misguided information to their House allies.
Sen. Chuck Grassley (R-Iowa), for instance, said at a recent town hall meeting that he doesn’t believe that tribal courts are able to offer a fair trial to non-Indians because he believes their juries would be made up of all Indians.
But critics of Grassley have pointed out that almost half of current reservation dwellers are non-Indians, so tribal jury pools reflect that reality. Plus, the Senate VAWA tribal provisions apply only to individuals who live on a reservation and have formed a relationship with Indian families.
At the same time, Sen. John Barrasso (R-Wyo.) is getting some heat from Indian country for his anti-tribal VAWA vote. Considering that he is the vice-chair of the Senate Committee on Indian Affairs, many Indians were disappointed by his anti-tribal action.
Barrasso’s spokeswoman, Emily Lawrimore, responded to Indian Country Today Media Network’s questions about his vote, saying, “As a doctor, Sen. Barrasso is very concerned about the problem of domestic violence in Indian country and supports measures that protect women and children. He voted against the recent VAWA bill because it contains provisions that would likely be ruled unconstitutional by the courts. A Supreme Court ruling against this provision could be damaging to tribal authority and have irreversible consequences.”
It’s a response that Dreveskracht finds to be a “weak position” since the U.S. Supreme Court has already ruled that tribes have the inherent power to prosecute non-Indians.
“The Supreme Court ruled in United States v. Lara (2004) that this is a valid and constitutional exercise of tribal authority,” Dreveskracht said. “Of course, there is always the chance that the court will overrule Lara and change the state of the law, but to say that a law is currently unconstitutional because of something that the court might do in the future is nonsensical.”