Law would let tribes prosecute non-Indians’ domestic violence

TULALIP INDIAN RESERVATION — The Violence Against Women Act (VAWA) passed the U.S. Senate last week with a provision that would allow tribal courts to prosecute non-Indians in some abuse cases, closing a loophole that many Native women say leaves them unsafe.

“People are not being held accountable for the crimes they commit against the women in my tribe,” said Sydney Napeahi, a Tulalip high schooler.

She was among those — young, old and in between — who gathered last week at a healing ceremony convened by Deborah Parker, vice chairwoman of the Tulalip Tribes board of directors, seeking to call attention to the lack of jurisdiction to prosecute non-Indian abusers on reservations. Non-Indians commit more than 85 percent of all violent crimes against Native women, according to the Department of Justice.

“To me that is another form or discrimination that should have been abolished years ago,” Napeahi said.

The bill passed the Senate with a 78-22 vote. But now it heads to the House, where a similar bill died in the previous legislative session.

Rep. Cathy McMorris Rodgers, R-Spokane, vice chair of the House Republican Caucus, is expected to play a key role. Her spokeswoman, Riva Litman, was noncommittal on the tribal provision. “The Congresswoman is 100 percent committed to the reauthorization of VAWA and wants to get it on the president’s desk as quickly as possible,” Litman wrote in an email. “She wants to protect ALL victims of domestic violence while ensuring that everyone’s constitutional rights are upheld.”

Many Republicans see the provision as an unconstitutional power grab by the tribes that would deprive non-Indians of fundamental constitutional rights, according to The New York Times.

The more-than-200-page bill was first passed in 1999, and had been reauthorized regularly until Congress allowed it to expire last year. The bill is the federal government’s main response to the problem of domestic violence. It would provide a wide range of services, from money for transitional housing for women who have had to flee their homes to best-practices training for law-enforcement personnel.

This year’s reauthorization also includes language that would require provision of services to victims regardless of sexual orientation, and would extend expedited visa procedures for immigrants who are victims of domestic violence.

“We need to make sure who you are or who you love will not prohibit you from getting help if you need it,” said U.S. Sen. Patty Murray. She and U.S. Sen. Maria Cantwell, both Democrats from Washington, took the lead in the Senate to reauthorize the law, including the tribal provision.

“The fact is nontribal members repeatedly abuse these women and thumb their noses at them because there is nothing they can do,” Murray said. “It has given them a free pass.”

Leaving prosecution to county, state or federal authorities has not worked, said Robert Anderson, professor of law at the University of Washington School of Law.

“The counties don’t want to spend resources where they don’t have taxing authority, and for the U.S. Attorney’s Office domestic violence and even rape is not a priority,” Anderson said. “As a result there is a long-standing lack of enforcement in Indian Country. You don’t have local law enforcement empowered to deal with these really serious crimes that take place on our local reservations.”

Theresa Pouley, a judge on the Tulalip Reservation, said her court needs the power to punish abusers. “We know what is going on in Indian Country,” she told women gathered at the healing circle. “One in three Native women are going to be raped in her lifetime. That is not OK. … Why are Indian women not protected the same as everyone else — that is the question.”

The provision takes limited steps. It would allow tribal officials to investigate, prosecute, convict and sentence defendants who assault Indian spouses, intimate partners or dating partners, or who violate protection orders in Indian Country.

The law would apply only to crimes of domestic violence, date violence or violation of protection orders. A participating tribe could exercise so-called “special domestic violence criminal jurisdiction” only if the defendant lives or works on the reservation or is involved with a partner who is a member of the tribe or an Indian of another tribe living on the first tribe’s reservation.

The bill does not affect existing local, state or federal enforcement authority.

The civil rights of non-Indian defendants would be retained within Indian criminal proceedings, including the right to a trial by an impartial jury that reflects a fair cross section of the community, and court-appointed defense counsel for indigent people at no cost. The law also would authorize spending up to $5 million from fiscal year 2014 through 2018 to enable the U.S. attorney general to make grants to tribal governments to strengthen their criminal-justice systems to meet the law’s provisions.

The tribal provisions in the bill would not go into effect until two years after enactment, to allow time to gear up for tribes that want to use the authority to prosecute. If a tribe wanted to prosecute cases sooner than that, it could apply to the U.S. attorney general to do so on a pilot-project basis.