Senate VAWA bill ‘undercuts tribal sovereignty’

“Placing paternalistic restrictions on tribal courts in the name of 'due process' is nothing more than a disguise for prejudice."

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SOURCEIndian Country Today
Image credit: Senator Ernst's office web page

Updated: Republicans include the ‘damaging’ legislation to the Savanna’s Act

The Republican version of the Violence Against Women Act Reauthorization bill threatens the protection of Native people, undermines tribal courts, tribal jurisdiction, and tribal sovereignty all at once. Add for good measure the bill ignores the Indian Civil Rights Act of 1968.

Senator Joni Ernst, R-Iowa, drafted the legislation and introduced it on the Senate floor on Wednesday. The senator said she “wanted to be part of the process of getting the bill done this time around” since she wasn’t in the Senate in 2013 when the legislation was reauthorized.

Part of why Ernst said she wanted to jump on this legislation is because she is a survivor.

“As a survivor and someone who worked at a victim’s shelter during my time in college, I have a clear understanding of how vital it is for survivors to have resources and support in what can be some of the darkest times of their lives,” she said.

The Violence Against Women Act expired in February 2019.

The National Indigenous Women’s Resource Center said Ernst did not negotiate with Democrats and instead she “took the lead to introduce this highly problematic language despite hearing concerns during several meetings with Native women, tribal leaders, and tribal organizations.”

That’s the elephant in the room. Critics wonder what tribal leaders Ernst asked about the bill? Did she talk with anyone who understands the special criminal justice and jurisdiction problems in Indian Country?

Ernst didn’t have time in her schedule for an interview with Indian Country Today.

Rep. Deb Haaland took to Twitter to express her concerns. Haaland, Laguna Pueblo, and a Democrat from New Mexico tweeted: “Every woman, Indian Tribe, American should be mad about the Senate GOP’s attempts to shortchange our country by introducing a #VAWA that cowers to the #NRA and disparages Tribal Courts.”

California Senator Dianne Feinstein released the Democratic alternative in April. Her bill included a provision that The Hill called “the so-called boyfriend loophole.” That provision would expand an existing ban for the purchase of firearms to boyfriends and individuals who have been convicted of domestic violence related offenses. The current ban includes spouses or formerly married partners who are under a restraining order or have been convicted of abuse. The firearm ban for boyfriends isn’t included in Ernst’s bill.

Republicans and the National Rifle Association are against this provision because they say it’s too broad and could be used to take away gun owners’ rights.

Ernst and the Republicans are “afraid of the NRA,” said Senate Minority Leader Chuck Schumer.

Ernst responded to Schumer on Twitter: “I know you’re laser-focused on preventing my re-election and turning the Senate blue. But my commonsense VAWA bill is something we should all be behind, regardless of party politics. Let’s put the partisan fights aside and get this done for survivors.”

Within the Ernst legislation is Savanna’s Act and SURVIVE, provisions that are supported by Senate Indian Affairs Committee Chairman, John Hoeven, a Republican from North Dakota. He is an original cosponsor of the bill.

“This legislation to reauthorize the Violence Against Women Act provides important resources to help address domestic violence and sexual assault, and to support survivors in their recovery,” Hoeven said. “Additionally, this legislation includes Savanna’s Act and the SURVIVE Act, two bills I’ve supported to better assist tribal communities in preventing and addressing violence against Native American women.”

In a separate email from Hoeven’s office, he said, “Senator Ernst’s VAWA reauthorization bill actually strengthens tribal jurisdiction. It includes many priorities that Indian Country supports and expands tribal criminal jurisdiction over five additional crimes, including sexual assault, stalking, child abuse, human trafficking, and assault on a law enforcement or correctional officer.”

“Further, the legislation helps improve public safety in tribal communities, combats the murdered and missing native women and girls epidemic and makes more resources available for tribal victim assistance by including a reauthorization of the Tribal Law and Order Act of 2010, as well as bills like Senator Hoeven’s SURVIVE Act and Savanna’s Act,” his office said in an email.

However the lead sponsor of Savanna’s Act Sen. Lisa Murkowski, R-Alaska, is not listed as a sponsor of Ernst’s bill.

Despite the partisan fight, the National Indigenous Women’s Resource Center wants a bill that both parties can support.

“The Ernst bill was unfortunately drafted in a process that excluded the voices of our tribal leaders and our Native women survivors,” said Deborah Parker said, a board member of the resource center. “This process has resulted in a bill, that in its current form, would constitute a significant rollback of the protections that VAWA 2013 provided to Native women. We cannot afford to step back. We can only move forward.”

The big question: For tribal nations and Native people, how dangerous is this bill if it is enacted?

When you look at the bill from the surface it seems to be “moving in the right direction,” said Sarah Deer over the phone from Capitol Hill, where she’s been for the past three days.

But that’s not the case when you take a deeper look, she said.

Deer, Muscogee (Creek) Nation, said there are “several provisions within the Ernst bill that are unnecessary and unwarranted.” Deer is a lawyer, advocate, professor at the University of Kansas, and Chief Justice for the Prairie Island Indian Community Court of Appeals.

Ernst’s bill would “eliminate the gains made in VAWA 2013,” said the center in a press release.

The 2013 reauthorization of the Violence Against Women Act was a jurisdictional victory for tribal governments. The 2013 law recognized the right of “tribal governments to prosecute non-Indian perpetrators of domestic violence and sexual assault,” according to the Native American Rights Fund.

Since then 18 tribes in 11 states who implemented the provisions from the 2013 VAWA have seen “increased safety and justice for victims,” according to a 2018 report released by the National Congress of American Indians called “VAWA’s 2013 Special Domestic Violence Criminal Jurisdiction Five-Year Report.”

From 2013 to 2018, these tribes reported 143 arrests of 128 non-Indian abusers. Out of those arrests, there were 74 convictions, 5 acquittals, and 24 cases pending.

The Tulalip Tribe was one of the 18 tribes who participated in the project as part of the five-year report.

Tulalip Chairwoman Teri Gobin said: “We are deeply disappointed by the VAWA legislation introduced by Senator Ernst.”

“The bill erodes tribal sovereignty and attacks the independence of our tribal judicial systems, and would prevent us from protecting our woman and children from perpetrators. And certainly, we will not allow non-VAWA specific legislation be used as a bargaining chip when it comes to protecting our women and children,” Gobin said. “The public safety of our communities is of the utmost importance for all citizens, and we urge all Senators to support S.2843, the Senate companion to the bi-partisan bill passed by the House last April.”

The Republican bill also “backtracks” on “tribes as independent sovereigns, that tribal governments are unique,” Deer said.

The language in the Ernst bill “suggests that tribal courts need more scrutiny and oversight,” Deer said. And that comes with no justification.

“It’s an insult to tribal governments when you read between the lines,” Deer said.

It “would destabilize tribal justice systems by imposing undue burdens and restrictions on tribal courts far beyond those imposed on federal and state courts, including audits by the Attorney General and leaves Tribes vulnerable to lawsuits by defendants of tribal courts through the stripping of sovereign immunity,” said the center in a press release.

To make up for stripping the authority of tribal courts, the Ernst bill says it will increase the authorization for grants to tribes.

The center said this is “an attempt to garner tribal support.”

Another way the bill undermines tribal courts and tribal sovereignty is putting a time limit on the tribal appellate court. If a defendant appeals to the tribal appellate court, then the court must give a decision in 90 days.

State and federal courts don’t have this time limit before a decision is required, Deer said.

“Depending on the complexity of a case that may be unreasonable,” she said. Again, there is “no justification on why tribal courts must move quicker than state or federal courts.”

Another concern within the Ernst bill is it would give authority to federal courts to intrude at any point during the tribal court process, undermining tribal sovereignty. The Ernst bill allows a defendant to skip the tribal appeal process and go directly to federal court without an explanation or cause.

“Despite the fact that the implementation of VAWA 2013 has been a success — both for the protection of victims in our communities as well as the due process rights of non-Indian defendants — Ernst’s bill is based on the assumption that the protections for Native victims in VAWA 2013 must be rolled back because tribal courts are not capable of fairly administering justice,” said Mary Kathryn Nagle, Cherokee and counsel for the National Indigenous Women’s Resource Center.

“Tribal courts prosecuting non-Indian defendants already provide the same — if not more — due process rights than state and federal courts,” Nagle said. “Placing paternalistic restrictions on tribal courts in the name of ‘due process’ is nothing more than a disguise for prejudice. Legislation that strips tribal courts of their inherent authority to protect victims in their communities based on prejudice alone must be stopped.” 

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