Tribal Provision of S. 1925: Myths v. Facts

We expect the floor discussion of S. 1925 to begin TODAY (4/18) in the Senate. You may have heard concerns raised about the tribal provisions in VAWA in your meetings and discussions with senators who haven’t yet signed on in full support of S.1925 and perhaps in the media. It is crucial that all advocates understand and fully support these critically important provisions in VAWA.

For that reason, the National Congress of American Indians, a member of the National Task Force, has compiled the following responses to misinformation being circulated about the tribal provisions.

Please incorporate factual information about the tribal provisions in your VAWA advocacy and use and distribute these facts to respond to any concerns raised.

The Violence Against Women Act Reauthorization—S.1925

The Truth About Title IX, Safety For Indian women

 

Myth: Native women are not in need of extra protections.

Fact: Existing law denies Native women equal access to justice, which is borne out in statistic after statistic: 34% of American Indian and Alaska Native women will be raped in their lifetimes; 39% will be subjected to domestic violence in their lifetimes; and on some reservations, Native women are murdered at more than ten times the national average

 

Myth: The Federal Government has no legal responsibility to protect Native women.

Fact: VAWA 2005 recognizes that the legal relationship between tribes and the U.S. creates a federal trust responsibility to assist tribes in safeguarding Indian women.  In addition, it is federal laws and court decisions that created the maze of injustice that is a major cause of current epidemic of violence against Native women.   S. 1925 addresses the problem by allowing for greater local control to deal with domestic and dating violence.  

 

Myth: S.1925 strips jurisdiction of federal or state authorities.

Fact: S. 1925 does not in any way alter or remove the current criminal jurisdiction of the United States or of any state.  Rather, S.1925 restores concurrent tribal criminal jurisdiction over a very narrow set of crimes that statistics demonstrate are an egregious problem on Indian reservations.

 

Myth: Tribal jurisdiction exercised under Section 904 would violate Double Jeopardy.

Fact: The U.S. Constitution recognizes Indian tribes as separate governments.  In addition, tribal jurisdiction exercised under Section 904 would be an exercise of inherent tribal authority, not a delegated Federal power, and would thus render the Double Jeopardy Clause inapplicable to sequential prosecutions of the same crime by a tribal government and the Federal Government, just as it would be inapplicable for a similar prosecutions by a state and federal governments.

 

Myth: S.1925 gives tribes criminal jurisdiction over all crimes committed by non-Indians on or off the reservation.

Fact: S.1925 provides a limited jurisdictional fix to address a narrow set of egregious crimes committed in Indian country. Statistics demonstrate that crimes of domestic violence, dating violence, and violations of protection orders are rampant on Indian reservations. Section 904 of the bill recognizes concurrent tribal authority to prosecute these specific crimes committed in Indian country. It does not extend to other crimes or to crimes committed beyond reservation boundaries.

 

Myth: Congress does not have the authority to expand tribal jurisdiction.

Fact: The provisions in S.1925 are well within Congressional authority. Congress’ power to define the contours of tribal jurisdiction is a well-settled matter of U.S. Supreme Court law. The Court in U.S. v. Lara, 541 U.S. 193 (2004), held that the Constitution confers on Congress the power to enact legislation to limit restrictions on the scope of inherent tribal sovereign authority.

 

Myth: Section 904 would permit tribal prosecutions of all non-Indians.

Fact: Section 904 of S.1925 is limited to only crimes of domestic violence or dating violence committed in Indian country where the defendant is a spouse or established intimate partner of a tribal member. It does not permit tribal prosecutions unless the defendant has “sufficient ties to the Indian tribe,” meaning he/she must either reside in the Indian country of the prosecuting tribe, be employed in the Indian country of the prosecuting tribe, or be the spouse or intimate partner of a member of the prosecuting tribe.

 

Myth: S.1925 is unconstitutional because tribal courts are not bound by the U.S. Constitution.

Fact: Under Section 904, tribal courts must provide defendants with the same constitutional rights in tribal court as they would have in state court. Defendants would be entitled to the full panoply of constitutional protections, including due-process rights and an indigent defendant’s right to appointed counsel (at the expense of the tribe) that meets federal constitutional standards. This includes the right to petition a federal court for habeas corpus to challenge any conviction and to stay detention prior to review, and explicit protection of “all other rights whose protection is necessary under the Constitution of the United States.”

 

Myth: The tribal civil jurisdiction provisions in Section 905 grant tribes new authority that they did not previously have.

Fact: The civil jurisdiction found in Section 905 already exists under the full faith & credit clauses of VAWA 2000. S.1925 simply clarifies the intent of this earlier reauthorization by making clear that tribes have full civil authority to issue and enforce protection orders against Indians and non-Indians alike regarding matters arising in Indian country.

 

Myth: The amendments to Title IX have not been the subject of Senate hearings.

Fact: The amendments to Title IX have been the subject of numerous Senate hearings. The key tribal provisions of S.1925 are also contained in Senator Akaka’s S.1763, the Stand Against Violence & Empower Native Women Act. The U.S. Senate Committee on Indian Affairs (SCIA), the primary committee of jurisdiction over Indian issues and tribal jurisdiction, held a legislative hearing on S.1763 on November 10, 2011 and has held numerous oversight hearings to examine issues of violence against Native women, including complex jurisdictional issues on tribal lands.

 

 

Thank you for all your great work!!  

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