On July 21, 2011, the Department of Justice (DOJ), in consultation with Indian tribes and in anticipation of the reauthorization this year of the Violence Against Women Act (VAWA) sent a major legislative proposal to the leadership of the Senate and House of Representatives to address three gaps in the existing jurisdictional framework that have hindered the prosecution and punishment of domestic violence and dating violence crimes in Indian Country. Attorney General Eric Holder, speaking in Rapid City, South Dakota, on July 27, stated that these legislative fixes are simple and highly targeted and would have a profound impact on public safety in tribal communities, and he urged Congressional leaders to act on them.
Most significantly, the draft legislation would (1) recognize the power of certain tribes to exercise criminal jurisdiction over non-Indian offenders in domestic violence cases, and (2) clarify the civil jurisdiction of tribal courts to issue and enforce protection orders against both non-Indians and Indians. The proposed legislation would also increase federal sentences for certain acts of domestic violence committed in Indian Country. As discussed in more detail below, the DOJ proposal would begin to fix problems created by Supreme Court decisions that have precluded tribal criminal jurisdiction over non-Indian citizens of the United States and limited tribal civil jurisdiction over non-Indians in cases regarding domestic and dating violence.
The Assistant Attorney General, Ronald Weich, sent letters with the draft legislation and a question and answer document to Vice President Joe Biden, in his capacity as President of the Senate, and to John Boehner (R-OH), Speaker of the House of Representatives (see attached). Representatives from the DOJ and the White House (Associate Attorney Tom Perrelli, White House Senior Policy Advisor for Native American Affairs Kim Teehee, and the White House Advisor on Violence Against Women, Lynn Rosenthal) also discussed the proposed legislation in a teleconference they conducted with representatives from Indian Country.
The House and Senate Judiciary committees have jurisdiction over the Violence Against Women Act, and the Senate Judiciary committee held two hearings in July regarding its reauthorization. The Senate Committee on Indian Affairs held a hearing July 14 regarding violence against Indian women. The National Congress of American Indians is urging the Judiciary Committees to include the tribal proposal in any VAWA reauthorization bill. It is anticipated that the comprehensive reauthorization bill will be introduced by Judiciary Committee Chairman Leahy (D-VT) in September and possibly see Senate Judiciary Committee action in early October. The House Judiciary Committee has held no hearings so far this year on VAWA.
The DOJ states that “violence against Native women has reached epidemic rates” and cites several surveys in support thereof. The DOJ explains that there is a familiar pattern of escalating violence, with increasingly more severe beatings, which the current legal structure for prosecuting domestic violence in Indian Country is not well suited to address. Attorney General Holder described the current situation as “shocking as it is unacceptable” and stated that it “must, and will be reversed.” The proposed legislation, which is based on DOJ consultation with Indian tribes, is intended to address three legal gaps that require immediate attention.
(1) Recognition of Tribal Jurisdiction over Crimes of Domestic Violence
In 1978, the U.S. Supreme Court issued a decision in the case of Oliphant v. Suquamish, which ruled that “Indian tribes do not have inherent jurisdiction to try and to punish non-Indians. ” As the DOJ notes, if an Indian woman is battered by a non-Indian husband or boyfriend, a tribe cannot prosecute him. Ms. Teehee noted that this lack of tribal jurisdiction is especially challenging because more than 50 percent of Indian women have non-Indian husbands. During the consultations, tribal leaders repeatedly told DOJ that a tribe’s ability to protect a woman from violent crimes should not depend on whether the woman’s husband or boyfriend is Indian or non-Indian. The DOJ states that tribal governments (police, prosecutors, and courts) should be essential parts of the response to these crimes, and the proposed legislation would establish a program to recognize the powers of self-government of “participating tribes” to exercise special domestic violence criminal jurisdiction over certain non-Indian defendants.
The DOJ proposes to amend the Indian Civil Rights Act (ICRA) (25 U.S.C. 1301et seq.) by adding a new section recognizing the inherent power of participating tribes to exercise special concurrent domestic violence criminal jurisdiction over all persons, including non-Indians, who commit criminal conduct that falls into one of the following categories: (1) any acts of domestic violence or dating violence that occurs in the Indian Country of the participating tribe and (2) any act occurring in the Indian Country of the participating tribe that violates the provision of a protection order issued against the defendant prohibiting or providing protection against violent or threatening acts or harassment, sexual violence, or contact, communication, or physical proximity to another person.
Any federally-recognized tribe could request to become a “participating tribe” so long as (1) it exercises powers of self-government over an area of Indian Country and (2) it adequately protects the rights of defendants. The proposal would also limit the scope of the special domestic violence criminal jurisdiction by providing that a case shall be dismissed if the prosecuting tribe is unable to prove that: (1) the defendant or alleged victim, or both, is an Indian or (2) the defendant or the alleged victim, or both, resides in the Indian Country of the prosecuting tribe, is employed in the Indian Country of the prosecuting tribe, or is a spouse or intimate partner of a member of the prosecuting tribe. A defendant would have the right, under the ICRA, to petition a federal court to seek release (“habeas corpus”), and a defendant who files such a petition could also ask the federal court for a stay of the tribal detention. The draft bill would also authorize a new grant program to support the efforts of participating tribes.
2. Tribal Court Protection Orders
The draft legislation would confirm the full civil jurisdiction of a court of an Indian tribe to issue and enforce protection orders, arising anywhere in the Indian Country of the Indian tribe or otherwise within the authority of the tribe, involving any persons, including the authority to enforce orders through civil contempt proceedings, exclusion of violators from Indian lands, and other appropriate mechanisms. The DOJ explains that this provision would confirm the intent of Congress in enacting the VAWA of 2000 and effectively reverse a federal district case, which held that a tribe lacked 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. It would also clarify a tribe’s jurisdiction to impose civil penalties and exclusion orders against non-Indians to enforce such orders.
3. Amendments to the Federal Assault Statute
The DOJ also proposes to amend the federal criminal code to significantly increase sentences for assaulting a spouse, intimate partner, or dating partner, and it would amend the Indian Major Crimes Act to expressly include these amended federal offenses. The DOJ states that a federal prosecutor, under existing law, can only charge a six-month misdemeanor offense for an assault and battery offense against a non-Indian who commits an act of domestic violence against an Indian victim, and can only charge a felony offense if the victim’s injuries rise to the level of “serious bodily injury,” which is much more severe than “substantial bodily injury.” Thus, at present, federal prosecutors often cannot seek sentences in excess of six months for domestic violence involving strangling, suffocating, substantial bodily injury, or assault by striking, beating, or wounding. The proposed amendments would increase the maximum sentence for assaults committed by striking, beating, or wounding from six months to one year. They would also allow federal prosecutors to charge felony offenses for assaults causing “substantial injury” to a spouse or intimate partner, or a dating partner, and establish a new ten-year offense for assaults of a spouse or intimate partner, or a dating partner, by strangling or suffocating the victim.
Protecting Indian women from violence and correcting the unfortunate law enforcement effects of the Oliphant decision are long-standing goals of tribal leaders and advocates. It is significant that the DOJ and the White House have proposed legislation that would provide a partial – though limited – criminal jurisdiction over non-Indian offenders in domestic violence cases. Enactment of such legislation would represent a significant achievement for many Indian tribes.
Please let us know if you would like us to follow the tribal aspects of the Violence Against Women Act reauthorization efforts or provide other assistance regarding the Department of Justice legislative proposal.