On April 26, 2012, the Senate approved legislation, S 1925, which would reauthorize the Violence Against Women Act (VAWA) by a vote of 68-31. The margin of victory belies the controversy surrounding several provisions in the bill, including those relating to tribal jurisdiction and tribal protection orders (Sections 904 and 905 of the bill).
The bill as approved by the Senate would authorize tribes to exercise concurrent criminal jurisdiction over domestic violence cases with provisions to ensure that tribes protect the rights of defendants. The bill does so in a way similar to the so-called “Duro fix” that recognizes the pre-existing criminal jurisdiction of Indian tribes so that the enumerated criminal jurisdiction is not construed as a grant of new powers to Indian tribes. It would also clarify the authority of Indian tribes to issue and enforce protection orders against anyone in a tribe\’s Indian Country or otherwise within the authority of the Indian tribe.
Section 904 of the Senate bill allows Indian tribes to prosecute non-Indians for three crimes that occur in Indian Country. Those crimes are (1) domestic violence; (2) dating violence; and (3) violating a protection order. In addition, the Senate bill requires that the non-Indian defendant have significant ties to the Indian tribes such as living in Indian Country, working in Indian Country, or being the spouse or intimate partner of a tribal member. Finally, in order to prosecute anyone for a crime, the Indian tribe must provide due process protections to a defendant in court. Those protections include the rights to counsel, a speedy trial, and an impartial jury which does not systematically exclude non-Indians.
Following the Senate Judiciary Committee mark-up of the bill, several provisions were added to prevent Alaska Native tribes from exercising criminal jurisdiction. Those provisions possibly had the unintended effect of eliminating current civil powers and as a result, Alaska tribes and organizations objected to the provisions. Senator Murkowski (R-AK) successfully offered a technical amendment on the floor that restored the authority of Alaska Native tribes to issue civil protective orders.
Nevertheless, the Senate bill does not allow Alaska Native tribes (with the exception of the Metlakatla Indian Community) to exercise any of the new criminal jurisdiction provided in the bill.
Section 905 provides a disclaimer that “Nothing in this Act, including an amendment made by this Act, alters or modifies the jurisdiction or authority of an Indian tribe in the State of Alaska under section 2265(e) of title 18, United States Code (as in effect on the day before the date of enactment of this Act).” Furthermore, Section 910 provides, “Nothing in this Act or any amendment made by this Act limits, alters, expands, or diminishes the civil or criminal jurisdiction of the State of Alaska, any subdivision of the State of Alaska, or any Indian tribe in the State of Alaska.”
Senator Hutchison (R-TX), with strong support from Judiciary Committee Ranking Member Grassley (R-IA) Senators Kyl (R-AZ) and Hatch (R-UT), offered a substitute bill which would have struck the tribal jurisdiction and protection order provisions. The Hutchison amendment would have denied the tribal courts the authority to issue protection orders, and required them to petition the federal district court in their area for such an order. The Hutchison amendment lost by a vote of 37-62.
One of the strongest statements on the Senate floor explaining and supporting the tribal provisions in S 1925 was made by Senator Tom Udall (D-NM), and we attach his statement.
S 1925 would also reauthorize a number of grant programs to combat domestic violence and provide victim services; authorize a new grant program to strengthen tribal criminal justice systems in order to exercise special domestic violence criminal jurisdiction; increase funding for tribal domestic violence coalitions; provide for research on violence against Native women; extend the life of the Indian Law and Order Commission by an additional year; and amend the federal assault statutes to bring them in line with similar state statutes with regard to punishment.
Republicans on the House side will unveil their VAWA reauthorization bill very soon, and it is expected to be similar to the Hutchinson proposed substitute mentioned above. The House Democrats’ version of VAWA reauthorization (HR 4271) mirrors S 1925 and was introduced by Representative Moore (D-WI). The House Judiciary Committee is expected to mark-up a VAWA bill in May.
Please let us know if we may provide additional information regarding S1925. We will report on developments as they occur in the Violence Against Women Act reauthorization legislation.