Sen. Lisa Murkowski (R-Alaska): Bipartisan Bill to Modernize Violence Against Women Act
Progress cited in improving Violence Against Women Act for Indian Country
Friday, February 11, 2022
Indianz.Com

WASHINGTON, D.C. — A bill to update the Violence Against Women Act and recognize tribal jurisdiction over additional crimes is finally moving forward in the nation’s capital.

A bipartisan group of lawmakers introduced the Violence Against Women Act Reauthorization Act in the U.S. Senate on Wednesday after more than a year of discussions. The 335-page package [PDF] includes a section that ensures tribes can arrest, prosecute and sentence all offenders — regardless of race — who commit crimes against women and children.

“Nearly a decade ago, the Violence Against Women Reauthorization Act of 2013 restored tribal jurisdiction over domestic violence crimes, recognizing tribes’ right to exercise their authority and giving them resources to go after criminals,” said Sen. Brian Schatz (D-Hawaii), the chairman of the Senate Committee on Indian Affairs and one of the bill’s co-sponsors.

“Yesterday’s introduction makes clear the Senate is serious about strengthening this important law, protecting Native women, children, and families, and restoring justice for Native communities,” Schatz said in a news release on Thursday.

C-SPAN: Senators Durbin, Ernst, Feinstein, Murkowski and Others on Violence Against Women Act

Sen. Lisa Murkowski (R-Alaska), the vice chair of the committee, discussed the tribal provisions in S.3623 during a press conference at the U.S. Capitol on Wednesday. She said the bill will help protect the most vulnerable, especially those in her home state of Alaska, where the current version of VAWA has a limited impact.

“In 2013, we recognized the inherent tribal jurisdiction, but we knew that we needed to allow for modernization and expansion and we have done that within this title,” Murkowski said of Title VII — Safety for Indian Women — in the measure.

“We go further in recognizing, that in Alaska, due to jurisdictional complexities, due to geography, isolated communities with sparse population, you can have a situation where you have literally no law enforcement whatsoever,” Murkowski said of the challenges in the 200-plus Native villages in the state. “No presence whatsoever. No safety whatsoever”

The 2013 version of VAWA recognizes the inherent authority of tribes to prosecute non-Indians who commit violent offenses against their partners. The law is considered landmark but it does not cover crimes like sexual assault, human trafficking and child abuse.

Lisa Murkowski
Sen. Lisa Murkowski (R-Alaska) speaks at a press conference to announce the introduction of the Violence Against Women Act at the U.S. Capitol on February 9, 2022. Photo Renee Bouchard / U.S. Senate

S.3623 closes the loophole by ensuring that tribal governments can arrest, prosecute and punish non-Indians for those additional offenses, along with crimes like witness tampering, obstructing justice or assaulting law enforcement personnel. And in addition to bringing Alaska Natives into VAWA, the bill for the first time ensures that tribes in Maine can follow the provisions of the law they have been excluded from since 2013.

“In my work on this issue, I have learned that no state, no community, and no family is immune to the horrors of domestic violence,” said Sen. Susan Collins (D-Maine). “In Maine, domestic violence has historically been involved in approximately half of annual homicides.”

Further, Title VII starts to address violence against Native Hawaiians, who weren’t included in the 2013 law. The bill authorizes a federal review of a wide range of public safety issues in Hawaii, including missing and murdered Native Hawaiians.

“Native Hawaiians experience a disproportionately high rate of human trafficking, with percent of human trafficking victims in the state of Hawai’i identifying as at least part Native Hawaiian,” the text of the measure states.

Despite the movement in the Senate, the bill introduced on Wednesday is not exactly the same as H.R.1620, the version of VAWA that passed the U.S. House of Representatives nearly a year ago. One of the most striking changes addresses how non-Indians can challenge tribal sovereignty by going to the federal court system.

S.3623, for the first time, lays out the conditions in which a non-Indian can petition for a writ of habeas corpus, meaning the steps taken to be released from tribal custody or tribal detention. The bill states that a defendant must have “exhausted the remedies available in the tribal court system,” a nod to U.S. Supreme Court precedents pertaining to proceedings in tribal courts.

But the Senate measure also states that a non-Indian can go to federal court if “there is an absence of an available tribal corrective process” of even if ”circumstances exist that render the tribal corrective process ineffective to protect the rights of the applicant.” The nature of these types of situations isn’t further explained in the bill.

Such language regarding the rights of non-Indians is not present in H.R.1620. It also isn’t found in the draft version of the Safety for Indian Women title that was released by the Senate Committee on Indian Affairs in December.

According to the Muscogee Nation, S.3623 imposes different standards on tribal courts. The tribe’s reservation in eastern Oklahoma was at the center of the historic McGirt decision from the Supreme Court, which confirmed that lands promised by treaty are still considered Indian Country.

“While we are pleased with the current progress, we have questions about the potential to add habeas corpus provisions to this bill that could establish standards for tribal court convictions separate from those applied to state court convictions,” the Muscogee Nation said in a statement on Thursday.

“Tribal courts should have simple parity with state courts, and the plain language of VAWA already safeguards defendants’ rights under the law,” the tribe said in otherwise praising the work done so far to reauthorize VAWA.

The Alaska specific portion of S.3623 creates what is known as the Alaska Tribal Public Safety Empowerment Pilot Project. Tribes in Alaska will finally be able to prosecute crimes of violence in their communities if the bill becomes law.

However, Murkowski stressed that the bill does not repeal Public Law 280, so the state of Alaska still retains jurisdiction over Native-owned lands. And she said the pilot project will not “create” Indian Country in Alaska.

“Because of the jurisdictional challenges in Alaska created by Public Law 280, the Alaska Native Claims Settlement Act and the timing of historical events, Alaska tribes have been effectively left out of many of the improvements,” said Michelle Demmert, Law and Policy Director of the Alaska Native Women’s Resource Center.

“The creation of the pilot project begins to address the gaps that prior laws and policies have created and begins to address ways to provide recognition of authority and resources for Alaska Native tribes,” Demmert, a citizen of the Tlingit and Haida Tribes, said in a news release from Murkowski’s office.

With introduction of the Violence Against Women Act Reauthorization Act, President Joe Biden urged the Senate to move quickly on the bill. The 117th Congress will conclude at the end of 2022 so there are only a few more months to take action.

“Combatting domestic violence, sexual assault, dating violence, and stalking should not be a Democratic issue or Republican issue. It’s a matter of justice and compassion,” Biden, who was the original sponsor of VAWA when he served in the Senate, said in a statement on Wednesday. “I am grateful that this critical bipartisan bill is moving forward, and I look forward to Congress delivering it to my desk without delay.”

Any differences in the Senate or the House versions of VAWA would have to be resolved before Congress can complete work on the bill and send it to the White House.

The Senate Committee on Indian Affairs held a hearing to discuss VAWA on December 8, 2021. Witnesses told of the challenges that tribes must overcome to protect women, children and elders in their communities from crimes of violence.

“Removing the gaps in tribal jurisdiction and ensuring all 574 tribal nations can exercise jurisdiction and providing the resources and tools for implementation together can dramatically change the environment in Indian Country by empowering tribal sovereignty and safety,” President Fawn Sharp of the National Congress of American Indians said at the hearing.

NCAI, which is the largest inter-tribal advocacy organization in the U.S., has long endorsed the inclusion of Alaska and Maine in VAWA. Historically, Native lands in Alaska have been treated differently than Indian Country in the lower 48 states so the 2013 law did not cover them.

Similarly, tribes in Maine are not covered by VAWA due to pre-existing land claim settlements that require Congress to take special action in passing laws affecting Indian Country in Maine. For that reason, the state of Maine has claimed the Tribal Law and Order Act doesn’t apply there.

According to repeated studies by the U.S. government, American Indians and Alaska Natives suffer from the highest rates of victimization in the nation. Data also shows the majority of perpetrators of crime are non-Indians.

Relevant Documents
Violence Against Women Act Reauthorization Act of 2022 (Note: The PDF released by several members of the U.S. Senate appears to have some form of password protections on it. For that reason, users may have trouble extracting individual pages from the file.)

Summary of TITLE VIII – Safety for Indian Women

VAWA 2022 Reauthorization: Section-by-Section Summary

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Draft version of ‘Safety for Indian Women’ released by Senate committee leaders (December 8, 2021)
Indian Country continues push to strengthen Violence Against Women Act (December 8, 2021)
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Howard Center for Investigative Journalism: Child sexual abuse in Indian Country goes unprosecuted (September 2, 2021)
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Bill recognizes tribal jurisdiction over non-Indian offenders (March 9, 2021)
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