A sign calling for passage of the Violence Against Women Act is seen at the U.S. Capitol on May 22, 2019. Photo by Indianz.Com (CC BY-NC-SA 4.0)

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Protections for Native women in limbo amid party divisions in Congress

Wednesday, May 22, 2019

By Acee Agoyo

WASHINGTON, D.C. -- Democrats are calling for the passage of legislation to protect Native women from violence amid deepening partisan dysfunction in the nation's capital.

On April 4, the Democratic-controlled House of Representatives passed H.R.1585, the Violence Against Women Reauthorization Act. The bill expands on the landmark provisions in the 2013 version of the Violence Against Women Act, which were written to ensure tribes can prosecute non-Indians who abuse their domestic partners.

“We stood up for tribal rights,” Sen. Amy Klobuchar (D-Minnesota), a Democratic presidential candidate, said at the U.S. Capitol on Wednesday, citing the pressure Indian Country placed on Congress six years ago in order to address high rates of victimization on reservations.

“We stood up for tribal rights,” Sen. Amy Klobuchar (D-MN) says of the need to reauthorize the Violence Against Women Act and protect Native women and address crisis of missing and murdered indigenous women. #MMIW #MMIWG pic.twitter.com/sNhYwCWXOV
— indianz.com (@indianz) May 22, 2019

But Democrats don't think the law doesn't go far enough. That's why H.R.1585 recognizes tribal jurisdiction over crimes that aren't currently covered by VAWA, including stalking, sex trafficking, sexual violence and assaults on children and law enforcement.

The bill also addresses the crisis of missing and murdered indigenous women, an issue that has finally gained the attention of lawmakers after decades of being ignored. And it provides more resources for urban Indians, whose needs have long been overlooked despite federal policies that resulted in tribal citizens moving to metropolitan areas, away from their home communities.

"For indigenous women and children throughout the United States, we must act,” said Sen. Maria Cantwell (D-Washington), a member of the Senate Committee on Indian Affairs who was the first woman to serve as its chair.

“It’s even worse for Native Americans and indigenous women and children,” Sen. Maria Cantwell (D-WA) says of need to renew the Violence Against Women Act to protect Native families and address crisis of missing and murdered indigenous women and girls. #MMIW #MMIWG pic.twitter.com/rfpRkJR25w
— indianz.com (@indianz) May 22, 2019

But while renewing VAWA has long been considered a bipartisan affair on Capitol Hill, H.R.1585 has struggled to gain Republican support in this divided era of politics. The bill only has one GOP co-sponsor out of the 197 in the House.

And when the measure came up for a vote last month, only 33 Republicans voted in its favor. A far greater number -- 157, to be exact -- voted against it, citing language affecting gun ownership, transgender rights and even tribal jurisdiction.

"We have never had a hearing on whether we should take away the constitutional rights of non-Indians who end up being charged in tribal court," Rep. Jim Sensenbrenner (R-Wisconsin) said in March as he tried, unsuccessfully, to remove the tribal provisions from existing law.

That explains why H.R.1585 has failed to get anywhere following the vote in the House. Sen. Mitch McConnell (R-Kentucky), the Republican majority leader of the Senate, has refused to take up legislation that lacks support from his party.

“Right now, the U.S. Senate is a legislative graveyard,” Sen. Tina Smith (D-Minnesota), a new member of the Senate Committee on Indian Affairs, said of the stalemate in her chamber.

“Right now the US Senate is a legislative graveyard,” Sen. Tina Smith (D-MN), member of Senate Committee on Indian Affairs, says in calling for passage of bill to protect Native women and address crisis of missing and murdered indigenous women. #MMIW #MMIWG pic.twitter.com/LByylwMUfn
— indianz.com (@indianz) May 22, 2019

VAWA needs to be reauthorized every five years and Congress has done so three times since the first version became law in 1994. The 2013 version, though, marked the first rollback of the U.S. Supreme Court decision in Oliphant v. Suquamish Indian Tribe, a 1978 ruling which held that tribes lacked criminal jurisdiction over non-Indians.

Long before the decision, a number of tribes had laws on their books to protect their women from violence, regardless of the race or citizenship of the perpetrator. Advocates have cited this history in order to counter arguments against recognizing the sovereignty of Indian nations.

"Tribal jurisdiction over non-Indians isn't unconstitutional," Mary Kathryn Nagle, a playwright and attorney, said at the Safety for Our Sisters symposium, held at the National Museum of the American Indian in D.C. in March.

"It's just pre-constitutional," said Nagle, a citizen of the Cherokee Nation whose tribe asserted jurisdiction over anyone who committed violence against a woman as far back as the early 1800s.

The 2013 version of VAWA addresses the pre-constitutional issues by requiring tribes to improve their justice systems and to provide all defendants, regardless of race, with access to legal counsel and to a trial by a jury drawn from the community. among other protections. It also allows non-Indians who have been detained by a tribe to have their status reviewed in federal court.

Since 2013, no such petition has ever been filed, which proponents -- even some Republicans -- say speaks to the fairness of tribal justice systems.

"Tribal governments, through trust and treaty obligations, should have the same authority as states to protect women and children in vulnerable situations," Rep. Tom Cole (R-Oklahoma), a citizen of the Chickasaw Nation and one of four Native Americans in the U.S. House of Representatives, said during debate on H.R.1585 last month.

Though Cole objected to the process in which Democrats brought the bill to the floor of the chamber, he said he supports the expansion of tribal jurisdiction to cover additional crimes, such as those against children and law enforcement.

"I support the right of tribes to enact their own definition of domestic and sexual violence, rather than replacing it with the federal government's definitions," Cole said on April 3. "States already have this flexibility -- tribes should as well."

“Do your job,” Rep. Jackie Speier (D-California) says in calling for Senate to renew the Violence Against Women Act. The bill expands tribal jurisdiction over non Indians and addresses crisis of missing and murdered indigenous women and girls. #MMIW #MMIWG pic.twitter.com/Q6SrTHBQ9S
— indianz.com (@indianz) May 22, 2019

Despite expressing misgivings, Cole was among the 33 Republicans who voted for H.R.1585. Rep. Don Young (R-Alaska), whose amendment ensuring that Native villages in Alaska can exercise jurisdiction over non-Indians was included in the bill, was another crossover.

"My amendment would add jurisdiction for all lands inside Alaska Native villages to cover where the majority of violence actually occurs," Young, whose children and grandchildren are Native, said during debate on April 3. "Villages need to be empowered to develop local solutions to these problems."

On the other hand, Rep. Markwayne Mullin (R-Oklahoma), who is a citizen of the Cherokee Nation, joined the majority of his GOP colleagues in voting against the bill. He has not publicly explained his opposition but he otherwise supports efforts to address violence and victimization of Native women.

"The silent crisis of missing and murdered indigenous women is wreaking havoc on our families and our communities," Mullin said earlier this month after he and the three other Native members of Congress introduced the Not Invisible Act, which does enjoy bipartisan support.

Every Cherokee woman - every American Indian woman for that matter - has the absolute right to feel safe. @chiefbillbaker #MMIW #MMIWG #NotInvisible #NotInvisibleAct https://t.co/6TQ9ibLVbr
— indianz.com (@indianz) May 10, 2019

The bill, H.R.2438, establishes an advisory committee of tribal leaders, law enforcement, federal officials, service providers and survivors. The group would make recommendations on addressing violent crime to the Department of the Interior and the Department of Justice.

The committee would also develop best practices for law enforcement to address missing persons, murder and trafficking of Native Americans. Additionally, the bill creates a position within the Bureau of Indian Affairs to improve coordination across all federal agencies.

“The Not Invisible Act of 2019 will help to increase coordination and establish best practices for law enforcement on how to combat the epidemic of missing, murdered, and trafficked Native women," said Rep. Sharice Davids (D-Kansas), who is a citizen of the Ho-Chunk Nation and is one of the first two Native women in Congress.

The bill was introduced by Rep. Deb Haaland (D-New Mexico), who hails from the Pueblo of Laguna, on May 1. Original co-sponsors include Cole, Mullin and Davids, making it the first in the history of Congress to be supported by Native members.

"Congressional members of federally recognized tribes are stepping up for our communities by working to set up an advisory board that is specifically focused on finding solutions to address this silent crisis,” said Haaland.

The bill has been referred to the House Committee on Natural Resources, where Haaland serves as vice chair, and to the House Committee on the Judiciary, the panel where Republicans have opposed the tribal jurisdiction provisions of VAWA. A hearing hasn't been scheduled so far.

An empty red dress is seen at the National Museum of the American Indian in Washington as part of The REDress Project, an installation by Métis artist Jaime Black that raises awareness of missing and murdered Indigenous women.