Rejecting attempts to politicize the Violence Against Women Act (VAWA), a wide majority of the U.S. Senate voted February 12 to once again pass tribal provisions in an overdue reauthorization of the law that would allow tribal courts to have jurisdiction over non-Indians who commit crimes against Indians on reservations.
The bill, S. 47, passed the chamber with bipartisan support by a vote of 78 to 22. Many congressional friends of Indian country supported the legislation, but there were a few surprises, including from the current vice-chair of the Senate Committee on Indian Affairs, Republican John Barrasso of Wyoming.
The same legislation passed the Senate last Congress, but the Republican leadership of the U.S. House of Representatives would not sign off on the same tribal provisions, so the clock started anew on the legislation this Congress, which started in January.
Alaska Natives were left unprotected by both the current Congress and last Congress.
The tribal provisions became highly politicized in the House last Congress with some members saying that they were unconstitutional and could cause Indians to be able to arrest any non-Indian.
The politicization boiled over to some in the Senate this time around, with Sen. Tom Coburn, R-Okla., taking up the same unsuccessful argument, but his amendment that would have altered the tribal provisions was defeated before final passage. On February 7, another anti-tribal amendment by Sen. Chuck Grassley, R-Iowa, also failed.
The anti-tribal efforts were seen as political posturing by some Indian policy and legal observers.
“Throwing around the term ‘constitutional violation’ raises a big red flag, and is used purely to create dissidence,” said Ryan D. Dreveskracht, an Indian affairs lawyer with Galanda Broadman. “We know from the House Report (issued in 2012) that they are basing this argument on an alleged ‘unsettled question of constitutional law whether Congress has the authority … to recognize inherent tribal sovereignty over non-Indians.’”
“But the question is settled,” Dreveskracht said. “In United States v. Lara, the Supreme Court explicitly held that ‘Congress does possess the constitutional power to lift the restrictions on the tribes’ criminal jurisdiction.’ Further, the Indian Civil Rights Act, 25 U.S.C. 1301-1303, requires that tribal courts provide all rights afforded to defendants in state and federal court.
“The senator [Coburn] was flat wrong on the law,” Dreveskracht added. “He made the comments he did as a pure political tactic.”
Coburn also rankled some tribal citizens when he couldn’t recall the number of tribes in his state in a Senate speech focused on VAWA.
The White House, Justice Department, and a bevy of legal and tribal law officials nationwide have said the tribal provisions are constitutional, and that they are much needed to protect the safety of Indian women and families who currently experience the highest rates of violence over anyone else in the country.
Attorney General Eric Holder once again cited the importance of the tribal provisions after the bill’s Senate passage, and he urged the House to now act in the same manner. “Notably, the tribal provisions included in the VAWA reauthorization and originally proposed by the Department of Justice, will close a significant jurisdictional gap that has left too many Native American women, precisely because they are Native American, exposed to violence for far too long,” Holder said in a statement.
Sen. Maria Cantwell, D-Wash., and new chair of the Senate Committee on Indian Affairs, said that the real merits of the tribal VAWA provisions should rise above partisan politics.
“This isn’t about politics,” Cantwell said in her floor speech. “This isn’t about a debate on what is a good way to win votes somewhere in America. This is about the life and death of women who need a better system to help prosecute those who are committing serious crimes against them”
Cantwell noted that less than 50 percent of domestic violence cases in Indian country are prosecuted because of a current gap in the legal system that has seen federal justice officials failing to take up such cases.
President Barack Obama also hailed the bi-partisan vote: “This important step shows what we can do when we come together across party lines to take up a just cause,” he said in a statement, adding that he is now calling on the House to do the same so he can sign the legislation into law.
While many Senate Republicans supported the bill, Sen. John Barrasso, R-Wyo., cast a vote against it, and he said in a floor speech that he did not support the tribal provisions, which perplexed many in Indian country—with some even questioning whether he is seated on the right committee.
Barrasso also recently disappointed some in Indian country when he failed to send a representative to present at the recent meeting of the United South and Eastern Tribes (USET) in Washington, D.C.
“In my opinion, Sen. Barrasso has the sacred responsibility to advance the platforms of Indian country, and to be and advocate for Indian country,” said Brian Patterson, president of USET. “I’m not so sure we are seeing that from some members of the Senate Indian Affairs Committee.”
Sen. John McCain, R-Ariz., also a SCIA member, made arguments against the tribal provisions in a floor speech related to the bill, although he voted for the final Senate VAWA including the tribal provisions. Sen. John Thune, R-N.D., and a friend to some Indian communities in his state, voted against the bill.
For the tribal provisions and VAWA as a whole to become final, the House must pass a similar bill, but there remains strong opposition from some Republican House members who believe the tribal provision to be unconstitutional.
“[W]e continue to try and educate the House Majority and others opposed to the tribal provision about its constitutionality and the language of those early treaties,” said Brent Leonhard, a lawyer with the Confederated Tribes of the Umatilla Indian Reservation.
Native American Rep. Tom Cole, R-Okla., has said he will push his colleagues to vote for a bill similar to the Senate’s version this Congress. Last Congress Cole participated in negotiations between House leaders, tribal leaders, and Vice President Joe Biden in trying to come up with a compromise.