Indianz.Com > News > Bill recognizes tribal jurisdiction over non-Indian offenders
Friends and family of slain Ho-Chunk Nation citizen Kozee Decorah stand with MMIW activists outside the federal courthouse in Omaha, Nebraska, during a rally held on June 15, 2020. Photo by Kevin Abourezk
Bill recognizes tribal jurisdiction over non-Indian offenders
Violence Against Women Act back on the table in new political era
Tuesday, March 9, 2021

WASHINGTON, D.C. — It’s a new era for the recognition of tribal jurisdiction over non-Indians, with Democrats once again pushing for passage of the Violence Against Women Act after years of opposition from Republicans.

Nearly every Democrat in the U.S. House of Representatives is backing H.R.1620, the Violence Against Women Reauthorization Act of 2021, which was introduced on Monday. Key provisions of the bill ensure that tribes can arrest, prosecute and sentence non-Indians who commit trafficking, stalking and sexual assault offenses in Indian Country.

“This bill is transformational in the ways of dealing with those who have suffered domestic and sexual violence,” said Rep. Sheila Jackson Lee (D-Texas), the sponsor of H.R.1620, on International Women’s Day.

“This legislation will help to save lives!” Jackson Lee added.

But while Jackson Lee described the measure as “bipartisan” it counts just one Republican co-sponsor among the 150-plus co-sponsors. During the last session of Congress, Rep. Brian Fitzpatrick (R-Pennsylvania) had supported a prior version of the bill that passed the House, only for it to languish in the U.S. Senate.

That was a different era, though. In the 117th Congress, which began in January, Democrats control the House and have the upper hand in the Senate.

And this time around, there’s a Democrat in the White House. President Joe Biden, who sponsored the first version of VAWA back in 1994, is calling on lawmakers to send him the new bill as soon as possible, saying “delay is not an option,” especially in the era of COVID-19, which has exacerbated domestic violence and gender-based crimes.

“Every single Senate Democrat signed on to the Senate version of the House-passed bill, but Republican Senate leadership refused to bring VAWA to the floor for a vote,” Biden said on Monday in recounting the political football that left Native women without enhanced protections. “This should not be a Democratic or Republican issue — it’s a matter of justice and compassion.”

“I am grateful to see the House of Representatives champion ending gender-based violence, and I urge Congress to follow past precedent and bring a strong bipartisan coalition together for swift passage of VAWA,” Biden added.

In March 2013, Biden joined tribal leaders and then-president Barack Obama in signing an updated version of VAWA into law. For the first time since a disastrous U.S. Supreme Court decision, the federal government recognized the “inherent” sovereignty of Indian nations to prosecute non-Indians who abuse women on their lands.

But the law is limited in scope, as it only applies to certain crimes of domestic violence and dating violence committed by non-Indians with prior ties to a tribal community. Criminal violations of protection orders are also included in the 2013 version.

H.R.1620 expands the recognition of tribal jurisdiction to stalking, sexual assault, sexual violence and sex trafficking, which aren’t covered by existing law. Crimes against children and tribal police officers, which weren’t included in VAWA from 2013 either, also would fall under tribal authority should the bill finally make it to the White House for Biden’s signature.

The bill also takes steps to address missing and murdered Indigenous women by requiring the federal government to account for MMIW cases and improve reporting of such cases. The issue is expected to take on added importance in the Biden administration as Rep. Deb Haaland (D-New Mexico) moves toward confirmation as the first Native person to lead the Department of the Interior, the federal agency with the most trust and treaty responsibilities.

“Congresswoman Haaland wants to elevate the urgency of the missing and murdered Indigenous women’s crisis,” said Bryan Newland, a citizen of the
Bay Mills Indian Community who currently serves as Principal Deputy Assistant Secretary for Indian Affairs at the department.

“I share her sense of urgency in this effort,” Newland told tribal leaders during the recent winter session of the National Congress of American Indians, which took place virtually.

With his background in tribal leadership, Newland further explained some of the unique challenges facing Indian Country in terms of offenses committed by outsiders. He said man camps associated with energy pipelines that Republican politicians largely support, along with trafficking along the U.S. borders with Canada and Mexico, have contributed to violence against Native women.

“We know that our response must be collaborative with Indian Country and that cookie cutter approaches aren’t going to work,” Newland said.

Finally, H.R.1620 ensures that tribal governments in Maine, as well as those in Alaska, can exercise their inherent jurisdiction over non-Indians. Existing law limits tribes in these two states.

Democrats in the House are moving quickly to advance the Violence Against Women Reauthorization Act of 2021 following its introduction. The House Committee on Rules has set a deadline this Friday for possible amendments to H.R.1620, in anticipation of further action on the floor of the House as soon as next week.

After Congress failed to take action on VAWA during the 116th Congress, the law expired. But the provisions recognizing tribal authority did not lapse so they remain in full effect.

Indianz.Com Video: Rep. Deb Haaland (D-New Mexico) #MMIW #NotInvisible

With the House moving forward with H.R.1620, the Senate is slowly moving on Deb Haaland’s nomination. A floor vote is expected to take place next Monday, once the chamber clears roadblocks erected by Republicans.

In a post on social media on Tuesday, Sen. Steve Daines (R-Montana), who supports the Keystone XL Pipeline that Native women warn will lead to increased violence due to the presence of man camps in Montana, claimed that “Haaland’s views will hurt the Montana way of life and kill Montana jobs.”

Daines already voted against the Haaland’s nomination when it came before the Senate Committee on Energy and Natural Resources on March 4. Only one Republican on the panel — Sen. Lisa Murkowski (R-Alaska) — voted in support. The final roll call was 11-9 in favor.

Daines also sits on the Senate Committee on Indian Affairs. Murkowski serves as the Republican vice chair.

Violence Against Women Reauthorization Act of 2021 – TITLE IX – Safety for Indian Women
Title IX of H.R.1620, the Violence Against Women Reauthorization Act of 2021, is titled Safety for Indian Women. Here is an explanation of the section from the sponsors and co-sponsors of the bill.

Native women are victimized at rates higher than any other population in the United States. It is estimated that 56% of American Indian and Alaska Native women will experience sexual assault in their lifetimes and 55% will be subjected to domestic violence in their lifetimes. Forty-eight percent will experience stalking. Co-occurring crimes in domestic violence cases are extremely common, and courts must be able to address these co-occurring crimes in order to hold the abuser fully accountable, while fully protecting all victims of the abuser’s crimes. These co-occurring crimes can include the abuser’s commission of child maltreatment, child sexual abuse, adult sexual violence, stalking, trafficking, kidnapping and other related conduct.

Sec. 901: The bill makes a number of findings regarding the extraordinarily high rates of murder committed and violent crimes perpetrated against American Indian and Alaska Native women. It clarifies the responsibilities of Federal, State, Tribal, and local governments with respect to responding to cases of missing and murdered Indians, increases coordination and communication among law enforcement agencies, empowers tribal governments with resources, and increases the collection of data and information- sharing related to missing and murdered Native women.

Sec. 902: The bill authorizes $3M, per fiscal year, for 2020 through 2024, for the Tribal Access Program, to enhance the ability of tribal government entities to enter information into and obtain information from Federal criminal information databases. This repurposes funding allocated under VAWA 2005 to create a tribal sex offender and protection order registry.

Sec. 903: The bill expands the jurisdiction of tribal authorities over non-Indians who commit a crime in Indian country, if the crime occurs within the territory of a participating tribe (i.e., one that provides certain due process guarantees), including any participating tribes in the State of Maine. The Indian Civil Rights Act currently provides for a “special tribal domestic violence jurisdiction” that extends tribal jurisdiction to non-Indians over domestic violence offenses. This section extends the jurisdiction of participating tribes over crimes other than just domestic violence offenses. The extended jurisdiction is termed “special tribal criminal jurisdiction.” Under existing law, non-Indians can be prosecuted in tribal court for domestic violence, dating violence, or a criminal violation of a protection order; this jurisdiction is reaffirmed in this bill.

The bill amends the definition of domestic violence to reach violence committed against a victim who is a child under the age of 18 or an elder. This section also extends special tribal criminal jurisdiction to the following crimes: assault of a law enforcement or correctional officer; obstruction of justice; sex trafficking; sexual violence; and stalking. The bill authorizes grants to Tribal governments to create a pilot project to allow up to five Indian tribes in Alaska to implement special tribal criminal jurisdiction and, for that specific purpose, to redefine Indian country to include certain lands in Alaska. The bill authorizes $5M per year for each of fiscal years 2020 through 2024.
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