February 24, 2016, Press Release: National Indigenous Women’s Resource Center, www.NIWRC.org
Washington, D.C. — More than 100 people accepted the invitation to attend a congressional briefing, Violence Against Women and Implementation of VAWA 2013 Special Domestic Violence Criminal Jurisdiction held February 23, 2016 in Washington, D.C.
“VAWA was a major step but it was just the beginning to restoring to Indian tribes – sovereign nations – the authority to protect women,” said Congressman Xavier Becerra. “I want to thank those tribes who are implementing tribal jurisdiction over non-Indians committing domestic violence on tribal lands because we can now talk about real successes. Now we have cases of Native women who have had their rights defended.”
The 2013 Violence Against Women Act affirmed tribes’ ability to exercise special domestic violence criminal jurisdiction (SDVCJ) over non-Indian defendants within Indian country for domestic or dating violence against Native women, and violations of protection orders. The briefing provided updates on tribal implementation of this life-saving legislation.
“Why was this provision needed?” asked Terri Henry, the moderator of the briefing and the former chairwoman of the Eastern Band of Cherokee Indians and current Co-Chair of the National Congress of American Indians Task Force on Violence Against Women. “Because the rates of violence perpetrated against Native women showed that 6 in 10 Native women will be victims of domestic violence. And 1 of 3 Native women will be raped in their lifetime, many of which are domestic violence related.”
The briefing was cosponsored by the National Indigenous Women’s Resource Center (NIWRC), the Indian Law Resource Center (ILRC), and the National Congress of American Indians (NCAI). The honorary congressional co-hosts were U.S. Representatives Louise M. Slaughter, Betty McCollum, Gwen Moore, and Xavier Becerra.
“But, when you look at national statistics for Native women, what is lost in translation is the complexity of the criminal justice system and understanding that these crimes are perpetrated at the local level. In the case of Native women, these crimes are committed at the local, tribal level,” shared Ms. Henry. “Our reality is that our tribal lands have become safe havens for perpetrators.”
As of January 1, 2016, eight tribes have implemented special domestic violence criminal jurisdiction over non-Indians under VAWA 2013. Together, the tribes have made 44 SDVCJ arrests, resulting in 18 guilty pleas, 5 referrals for federal prosecution, 1 acquittal by jury, 12 dismissals, with 6 cases pending.
The Pascua Yaqui Tribe began exercising SDVCJ on February 20, 2014, as part of the DOJ Pilot Project. “We knew these offenses were occurring for many years and all we could do was drive the abuser to the edge of the reservation. We found that the non-Indian defendants had a long history of violence and were repeat offenders, some with criminal convictions and outstanding felony warrants,” said Alfred Urbina, Attorney General, Pascua Yaqui Tribe.
Since implementing SDVCJ, the tribe has made 26 SDVCJ arrests involving 20 separate offenders, resulting in 6 guilty pleas, 4 referrals for federal prosecution, 1 acquittal by jury, and 10 dismissals. Pascua Yaqui reports that since it began implementing SDVCJ, cases involving non-Indians have made up 25% of the tribe’s domestic violence caseload.
“The 16 offenders investigated in the initial year accounted for 86 contacts with just Pascua Yaqui law enforcement before and after passage of VAWA 2013 and not counting state contacts. The offenders included African American, Asian, Hispanic and Caucasian men and one woman,” said Oscar “OJ” Flores, Chief Prosecutor of the Pascua Yaqui Tribe.
The Tulalip Tribes began exercising SDVCJ on February 20, 2014, as part of the DOJ Pilot Project. As of February 1, 2016, the Tribes had 11 SDVCJ arrests involving 9 defendants, resulting in 6 guilty pleas, 1 federal guilty plea, 2 dismissals, and 2 cases pending. The defendants have had a combined number of 109 contacts with Tulalip Tribal Law Enforcement since 2008.
“Non-Indian offenders had the feeling they could do what they wanted to because there was no way they would be prosecuted. We could call county law enforcement but their response was very long or they would not come at all,” said Glen Gobin, Vice Chairman of the Tulalip Indian Tribes. “Now the tribe can prosecute non-Indian offenders but the jurisdiction is limited to certain crimes, it does not protect victims of stranger rape, and does not protect children or other family members.
“I am here to ask for your help to protect our children. The law today does not allow our tribe to charge crimes by non-Indians against children who are present or involved. We need the jurisdiction to protect our children,” said Theresa Sheldon, Councilwoman, Tulalip Tribes.
In response to a question asking what members of Congress can do to help in the coming weeks, Virginia Davis of the National Congress of American Indians responded, “The most critical support needed right now is tied to resources for Indian tribes to enhance their response and implement this life-saving provision. Most significant is tribal access to the Crime Victim’s Fund which is the main source of federal funding to crime victims. These funds do not currently reach Indian country well because there is no dedicated funding stream for Indian tribes. This could be fixed in the appropriations process. Last year the Senate included money from the Crime Victim’s Fund in the CJS bill but the House did not. In the ultimate bill that was passed it was not included. We are hoping for your support over the coming months.”
“I want to thank all of you implementing the hard fought legislation won under the Violence Against Women Act. You have learned from your cases prosecuting non-Indians. We knew that VAWA needed to protect all women,” said Congresswoman Gwen Moore. “We need to expand the jurisdiction over children, sexual assault and other crimes connected to domestic violence. Tribal women certainly should have the protection of their law enforcement and know they can live safe in their community.”
FAIRBANKS — Alaska Native tribes will no longer have to jump through extra hoops to have their domestic violence restraining orders enforced by the state.
A legal opinion issued by Alaska Attorney General Craig Richards ruled Alaska law was out of line with the federal Violence Against Women Act, clearing the way for a direct link between tribal courts and state troopers.
“This opinion provides clear direction to officers on the ground as well as the victims they seek to protect,” Richards said in a news release. “There should now be no doubt that these protection orders must be enforced.”
The legal opinion found an Alaska law requiring tribal court-issued restraining orders be registered with courts before they could be enforced was superseded by federal Violence Against Women Act.
The Violence Against Women Act specifically says protective orders issued by Alaska Native tribes, other tribes and other governments do not need to be registered to be enforced.
“The State should not enforce or apply the provisions of state law that conflict with VAWA,” the opinion said, “and should investigate and prosecute violations of tribal and foreign protection orders that meet the full faith and credit requirements set forth in VAWA.”
Tanana Chiefs Conference President Victor Joseph applauded the decision, saying it will help curb domestic violence and empower tribes.
“This will no doubt add to the protection of our Native women and children in our villages,” he said. “It is one less step victims will have to take in order to get the protection from law enforcement that they deserve. It is also a step in the right direction needed to lower the high rates of domestic violence as recognized by the Indian Law & Order Commission’s report.”
The protective orders must still comply with the guidelines set out in the Violence Against Women Act. Those include the tribe having the appropriate jurisdiction over the issue and provide due process.
The protection orders must be for “the protection of victims of domestic violence, sexual assault, dating violence, or stalking,” according to the federal law.
The order still encourages the tribes to register protection orders with the state court system.
“While not required for enforcement, registration of tribal and foreign protection orders helps officers to protect and serve the public,” the order explains.
The opinion was requested by Department of Public Safety Commissioner Gary Folger.
The jurisdiction of tribal courts is likely to continue to be an important issue in Alaska in coming years.
North Pole Republican Sen. John Coghill has introduced a bill that would give tribal courts jurisdiction over misdemeanor crimes. He said it not only lessens the cost for the state to enforce misdemeanor laws in rural Alaska, but importantly is a better tool to address problems in rural Alaska than the traditional court system.
“The tribal courts are using a restorative justice model that really suits many small villages,” he said. “To be fair, there are some that do it well and some that are not doing it as well as others, but the reality is something has got to happen in the rural communities to allow people to hold each other accountable.”
Granting tribes greater jurisdiction over criminal and civil issues has been a prickly issue for many legislators and administrations, but Coghill said there’s a compromise that can and should be struck.
“We have such a diversity in Alaska,” he said, “and if you can’t find a way to work in those diverse conditions, I think we’ve failed.”
Next week the Tanana Chiefs Conference will be hosting its annual Tribal Court Development Conference in Fairbanks.
Washington, DC- On March 7, 2015, Tribal governments may elect to begin exercising jurisdiction over non-Indians who commit crimes of domestic violence, dating violence, or violate a protection order against a Native victim on tribal lands.
“This is a major step forward to protect the safety of Native people, and we thank all Members of Congress for passing the Violence Against Women Act of 2013 and recognizing tribal authority,” said Brian Cladoosby, President of the National Congress of American Indians and Chairman of the Swinomish Tribe.
So far three Tribes, the Confederated Tribes of the Umatilla Indian Reservation, the Pascua Yaqui Tribe, and the Tulalip Tribes have been able to exercise jurisdiction over non-Indians under a Pilot Projectsince February 6, 2014. To date the Tribes have charged a total of 26 Special Domestic Violence Criminal Jurisdiction cases.
“I want to encourage all tribal governments to get this law on their books,” said Juana Majel, Chair of the NCAI Task Force on Violence Against Women. “The main goal is deterrence of domestic violence. On most reservations there are a handful of bad actors who have figured out how to slip between jurisdictional boundaries. They need to get the message. If they continue to assault our women we will prosecute and put them in jail.”
Violence against Native women has reached epidemic proportions. The root cause is a justice system that forced tribal governments to rely on distant federal — and in some cases, state —officials to investigate and prosecute misdemeanor crimes of domestic violence committed by non-Indians against Native women. However, outside law enforcement has proven ineffective in addressing misdemeanor level reservation-based domestic violence. The Justice Department has found that when non-Indian cases of domestic violence go uninvestigated and unpunished, offenders’ violence escalates. The 2013 VAWA Reauthorization authorizes tribal governments to investigate and prosecute all crimes of domestic and dating violence regardless of the race of the offender.
Tribes choosing to exercise Special Domestic Violence Criminal Jurisdiction must provide the same rights guaranteed under the Constitution as in state court. This includes the appointment of attorneys for indigent defendants and a jury drawn from the entire reservation community. “Many tribal courts are already providing these protections to defendants, and it isn’t a big step to provide indigent counsel to all. Just like county courts, tribal courts can contract for public defenders on a case-by-case basis,” encouraged President Cladoosby.
For an overview on tribal VAWA, and more information please see: http://www.ncai.org/tribal-vawa. The Tribal Law & Policy Institute has developed a Legal Code Resource for implementation at www.TLPI.org.
Courtesy Sen. Jon Tester/Flickr About 100 people gathered for a listening session with Sen. Jon Tester on August 28 to discuss the increased trafficking of mostly young girls and women in Indian country.
As the trafficking of Native women and girls becomes more prevalent in an expanding radius around the Bakken oil fields of North Dakota, politicians and indigenous leaders are seeking to protect these young victims—and help the survivors heal.
“Human trafficking is a serious issue afflicting our region and much of Indian country. Tribes from Washington State to New York have felt its terrible impact,” said Montana Senator Jon Tester during opening remarks at a listening session he held at Ft. Peck Community College on August 28. “Montana and North Dakota have been especially hard-hit by increases in crime, including human trafficking, due to the explosive influx of people and resources following the oil and gas boom in the Bakken.”
The listening session was aimed at gathering more information from tribal leaders and local law enforcement regarding the spike in sex trafficking of underage girls, as well as other related crimes that have increased since the oil boom began in the Bakken region. Also among the panelists at Thursday’s session was United States Attorney Mike Cotter, who appeared at the event to voice the growing alarm shared by he and his colleagues in Montana, the Dakotas and Wyoming, about the exploding industry of human trafficking involving mostly Native girls aged 12 to 14 who are being sold for sex.
“If you look around the rural regions of Montana, North Dakota, South Dakota and Wyoming, you would not expect to find 12-14 year old girls sold for sex on the Internet, or lured by an adult for sex or forced into a life of servitude by predators to sell their bodies to strangers,” Cotter told the audience of about 100 tribal leaders, community members and law enforcement. “It is hard to imagine but it is here in our region, and this corruption occurs with too much frequency and is more prevalent than one would imagine.”
Cotter underscored the fact that human trafficking is a global, national and regional problem that has snared millions of men, women and children into being trafficked for labor and commercial sex. Situated on the energy-rich Williston Basin, the Bakken Oil Patch is located in North Dakota. Since the energy boom in that state began, crime rates in the multi-state region have also spiked, including sexual violence, domestic violence, multiple murders and an increase in the use of meth and other drugs.
“We’re dealing with drug cartels, we’re dealing with people who don’t come to the door with a shotgun, they come to the door with a sub-machine gun,” said Tester. “And it’s very different. A lot of law enforcement agencies have seen a real uptick in crime, but haven’t seen an uptick in police officers or staffing or training.”
Typically, traffickers target mostly young girls who average between 12 and 14 years in age and are usually from low-income homes where one or both parents are absent. Additionally, many of the girls are already victims of child abuse and neglect, and many are struggling with drug and alcohol abuse. In South Dakota alone, Tester said, at least half of the sex trafficking victims are Native girls. Many of the girls, he said, are lured during times of vulnerability, when they may be homeless or struggling in other ways.
Tribal leaders across the region have also begun to feel the burden of the crime rates in their own communities, which are often underfunded, understaffed and ill-equipped to take on Mexican cartels, who they say have infiltrated the region and are well-organized and armed with heavy weaponry, including machine guns, which heretofore have been a rarity in the Northern Plains. The Fort Peck Indian Reservation, for example, is located approximately two and a half hours west of the Bakken region. Still, their tribal chairman said, his community is feeling the downside of the boom.
“Because of our proximity to the Bakken oil field, we are already seeing the negative effects of oil and gas development without any financial benefits,” Chairman Rusty Stafne of the Fort Peck Tribes of Montana, told the audience. “Washington has been quick to promote the exploitation of natural resources, but slow to provide the necessary funding for the increased demand on our services and infrastructure.”
“Adding to the problem is the lack of treatment available to survivors,” said Tester. “The survivors are often children or young adults from impoverished homes with broken family ties. Help for them is rarely available in the Native community—or even within a manageable drive.”
The negative impacts of the rise in crime is also being felt among tribes in South Dakota and Wyoming, both of whom have had an increase in the trafficking of their young girls.
“Energy development is bringing tremendous new opportunities to the region, but with the good comes the bad,” said Tester. “Many of the small towns on reservations and surrounding areas are being inundated with new businesses and more jobs, but also with infrastructure challenges and bad actors attracted to the profits and free-wheeling environment.”
Cotter said the Department of Justice launched the Human Trafficking Enhanced Enforcement Initiative in 2011. In 2012, the Montana U.S. Attorney’s office created the Montana Human Trafficking Task Force to confront the “complex, multi-dimensional crime of human trafficking, which includes sex crimes, violent crimes, immigration crimes, labor exploitation, fraud, money laundering and organized crime.
Among the attendees were Three Affiliated Tribes Chairman Tex Hall, Montana State Director of Indian Affairs Jason Smith, Roosevelt County Sheriff Freedom Crawford and Annie Daumiller of the Annie Casey Foundation.
“As Chairman of the Senate Committee on Indian Affairs, I am very aware of the economic and social challenges facing the tribes in the region. And it’s understandable that no tribe is prepared to deal with the rapid changes affecting the Bakken,” said Tester. “Tribal police departments lack the resources to investigate and detain human trafficking offenders, most of whom are non-Native. By no fault of their own, departments are often ill-equipped to root out the players in trafficking rings that can span reservation, state, and national boundaries.”
Tester added that even though the passage of the Violence Against Women Act had allowed tribes more authority to prosecute crimes committed on Indian reservations by non-Indians, “there is so much more to do.”
Rashida Manjoo, UN Special Rapporteur on the Rights of Women presenting her report to the UN General Assembly in New York, 2011.
After decades of grassroots advocacy and calls to action, the Violence Against Women Act is putting justice back in the hands of tribal authorities in cases of abuse and violence against Native American women.
WASHINGTON — In March 2013, following nearly two decades of grassroots work and advocate work, President Barack Obama signed a reauthorization of the Violence Against Women Act that offers expanded protections for Native American women.
The reauthorized act extends tribal jurisdiction to non-Native Americans who commit acts of violence or sexual assault against their Native American spouse or partner. While such incidents often go unreported, the amount that are reported reflect a disproportionate number of Native American women will be raped, stalked or physically assaulted compared to their non-Native American peers.
“One of the most basic human rights recognized under international law is the right to be free of violence. While many in the United States take this right for granted, Native women do not,” –Jana Walker, senior attorney and director of Indian Law Resource Center’s Safe Women, Strong Nations.
Federal authorities currently maintain jurisdiction over offenses committed by non-Native Americans coming onto the territories, but with prosecuting attorneys often located hundreds of miles from these areas, reporting is infrequent. From October 2002 to September 2003, 58.8 percent of cases the Bureau of Indian Affairs referred for federal prosecution were declined, compared to the national average of 26.1 percent.
However, VAWA will now allow territories to impose a penalty on non-Native Americans married to a community member, as well as those living in the community or employed by the community. Many hope this newly granted authority will put an end to the notion of reservations as hunting grounds where offenders have impunity.
The initial Violence Against Women Act resulted from grassroots efforts that started in the late 1980s, with advocates from the battered women’s movement, law enforcement, victims services and prosecutor’s offices. It was signed into law in September 1994 as Title IV sec 4001-4073 of the Violent Crime Control and Law Enforcement Act to fund the investigation and prosecution of acts of violence against women and impose restitution. It also established the Office on Violence Against Women in the Department of Justice.
Throughout its 20 years of reauthorizations, tribal leaders had partnered with the advocacy groups, having to explain to many in Congress the realities of living on a reservation. Tribal jurisdiction continued to be debated last year — largely around questions of whether non-Native American offenders would be treated fairly in tribal judicial systems.
To be eligible, tribes must have a criminal justice system that provides representation for defendants, provide non-Native Americans in a jury, and inform defendants of their right to file federal habeas corpus petitions. The U.S. Attorneys, state and local prosecution offices continue to hold the same authority to prosecute crimes in Indian country if tribes cannot afford prosecution costs or if further charges are pending.
Native women
According to the Indian Law Resource Center: “One in three Native women will be raped in their lifetime, and three in five will be physically assaulted. Native women are more than twice as likely to be stalked than other women and, even worse, Native women are being murdered at a rate ten times the national average.”
These statistics only take reported cases into account, and they also fail to include data on violence against Native American girls, which is estimated to also be “disproportionately high.”
“Young women on the reservation live their lives in anticipation of being raped,” said Juana Majel Dixon, 1st vice president of the National Congress of American Indians and co-chair of the NCAI Task Force on Violence Against Women. “They talk about, ‘How will I survive my rape?’ as opposed to not even thinking about it. We shouldn’t have to live our lives that way.”
The Indian Law Resource Center, the NCAI Task Force on Violence Against Women, Clan Star, Inc., National Indigenous Women’s Resource Center, and other Native American women’s organizations have also turned to the international human rights community for help in the past.
In the summer of 2010, nearly 2,000 Indigenous representatives from around the world gathered at the Headquarters of the United Nations in New York for the ninth session of the Permanent Forum on Indigenous Issues.
Discussion turned to the issue of people from outside Indigenous communities entering these communities to commit abuses against Indigenous women, effectively making such behavior part of these women’s homes and communities. Speakers from Mexico, Kenya and New Zealand emphasized the necessity of Indigenous communities establishing programs relevant to them, as well as holistic approaches, environmental health and government policies to eliminate abuses such as genital mutilation.
Women of the Haudenosaunee, the Maori of New Zealand, Wara Wara of Australia, the peoples of the Lakota, Tibetan and Hawai’i nations came out of the shadows and spoke of disruptions to womanhood.
The U.N. and the Organization of American States began examining the situation of American Indian women. In 2011, Rashida Manjoo, U.N. Special Rapporteur on the Rights of Women, presented her report to the U.N. General Assembly in New York, telling the United States to “consider restoring, in consultation with Native-American tribes, tribal authority to enforce tribal law over all perpetrators, both Native and non-Native, who commit acts of sexual and domestic violence within their jurisdiction.”
After touring Native American territories for a month in the U.S., James Anaya, U.N. Special Rapporteur on the Rights of Indigenous Peoples, went before the U.N. Human Rights Council in Geneva in September 2012 and recommended that the U.S. put creating legislation to protect Native American women as an immediate priority.
The reality of the lives of women around the world started being documented in 1946, when the U.N. created a Commission on the Status of Women. At first focusing on the need for education and employment, by the spring of 2013 the theme of the 57th session of the commission was “Elimination and prevention of all forms of violence against women and girls.”
When it became clear that a cooperative environment could promote protections, space was made to include the Indigenous voice to the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child and the U.N.’s Declaration on the Rights of Indigenous People.
The 2013 report by the U.N.’s Permanent Forum on Indigenous Issues and the International Indigenous Women’s Forum was called “Breaking the Silence on Violence against Indigenous Girls, Adolescents and Young Women,” based on analysis of data from Africa, the Asia-Pacific region and Latin America. The Indigenous Women’s Rights, Violence and Reproductive Health forum, meanwhile, underlined the need for grassroots programs that reach community members and can set precedents.
In February 2013, Manjoo and Anaya urged the U.S. House of Representatives to approve a revised version of VAWA that would extend protections to not only Native American women, but also to immigrant and gay victims of violence and sexual abuse.
“Congress should act promptly to pass key reforms to the Violence Against Women Act that bolster indigenous tribes’ ability to prosecute cases involving violence against indigenous women,” Anaya said, urging the House to approve the version of the act already approved by the Senate that month.
The OAS’ 2011 Inter-American Human Rights Commission also produced a report, “Violence Against Native Women in the United States,” expressing concern about violence against women in Honduras, Nicaragua, Colombia and the U.S., urging laws, policies and programs in collaboration with the women.
Confederated Tribes of the Umatilla Indian Reservation in Oregon
Given the porous borders of reservations, there’s usually frequent interaction between Native Americans and non-Native Americans and a limited scope for ensuring public safety in Indian country.
“VAWA was really needed in Indian Country,” said M. Brent Leonhard, an attorney for the Confederated Tribes of the Umatilla who was instrumental in crafting the language of VAWA applied in the tribe. “Historically, the federal government didn’t prosecute and it didn’t get reported to them.”
According to statistics cited by the Indian Law Research Center, more than 88 percent of violent crimes committed against Native American women are committed by non-Native Americans over which tribal governments lack any criminal jurisdiction under U.S. law. In 66 percent of the crimes in which the race of the perpetrator was reported, Native Americans victims indicated that the offender was not Native American.
Leonhard told MintPress that the latest changes to VAWA will give communities more confidence in their tribe’s ability to deal with an assault and be more comfortable in reporting it.
“We’re seeing at least 80 percent of those who come to our family violence program have not reported incidents to the police,” he said. “They seek help here but they won’t go to outside systems.”
The Umatilla are located near the city of Pendleton, where the FBI is stationed and can respond quickly to crimes. But for other reserves, federal law enforcement bodies may be as many as four hours away. For example, in Alaska, Leonhard said, “the problem is horrendous.”
The act legislatively reversed the U.S. Supreme Court decision in Oliphant v.Suquamish Indian Tribe, 435 U.S. 191 (1978), which held that inherent tribal sovereignty did not exist and “Indian tribes do not have inherent jurisdiction to try and to punish non-Indians.”
Leonhard said the Obama administration has been supportive of issues in American Indian territory. On July 21, 2011, Ronald Weich, assistant attorney general for the Office of Legislative Affairs, wroteto Vice President Joseph Biden and proposed the amendment to VAWA thatwould create the pilot project.
Pascua Yaqui Tribe of Arizona
Since the pilot program began in March, the Pascua Yaqui Tribe has tried more than a dozen cases involving non-Indians abusing Native American women.
VAWA does not cover crimes committed against Native American women by strangers or those who may live or work on a reservation but are not considered to be dating or in relationship with a Native American woman.
There’s a lot being defined as the process moves forward. “Dating,” for instance, is being questioned: Can it apply to a chance meeting at a restaurant between two people who have just met?
“We’ve found most of our defendants have been in relationships,” Alfred Urbina, the tribe’s attorney general, told MintPress. “Most have been contacted by tribal police six to 10 times, already have felonies on their record or are unemployed.”
To exercise the authority, a tribe must guarantee that a defendant’s rights are similar to those guaranteed by the U.S. Constitution, such as the right to a public defender and effective assistance of counsel. Tribes must also include non-American Indians in jury pools. For tribes with many enterprises that employ non-Native Americans, this is not an issue, but for those without such enterprises, this presents a problem.
Meanwhile, tribes must provide a public defender only if the offender is indigent,which also raises questions regarding who pays the costs associated with probation or treatment, or if an offender is homeless or if an offender needs to be monitored in another town.
“These are all questions we’re running into,” Urbina said. “We’re near Tucson and able to draw on defense attorneys and other resources. But for others who are remote from metropolitan areas, for instance the Diné, this will be difficult.”
Under the Indian Civil Rights Act, nations are limited to the amount of time they can sentence an offender to prison. The Yaqui constitution currently limits sentences to one year, while other tribes can sentence offenders to up to three years. For a case involving strangulation or another form of attempted murder, these sentencing limitations often mean that the cases are sent to U.S. Attorneys for further prosecution.
Meanwhile, some opt to leave criminal matters to the Bureau of Indian Affairs or FBI. The federal government deals with regional problems, so one reservation may be just a small part of an agent’s 100-mile radius. “It could be days before a person gets out to investigate a crime,” said Urbina.
While it’s brought benefits to those under the three pilot projects, Urbina said most reserves won’t have resources to put the program in place. (He estimated that about 30 would have adequate resources for implementing the program.)
The number of Native American women reporting abuse represents just small percentage of the reality, he added.
“If you don’t have jurisdiction over these crimes, you’re not going to collect data,” he said. “It can be decades a community puts up with rape and violent cases. You’re not going to find trust.”
Most tribes have victims services and access to federal grants to fund help for victims, and VAWA strengthens the trust Urbina mentioned by putting the response back into the hands of the nation’s people.
Thank you, Carlie for that kind introduction and for hosting this important gathering along with U.S. Attorneys Judge Leonardo from the District of Arizona, John Walsh from the District of Colorado, and Damon Martinez from the District of New Mexico.
With the Native America Issues Subcommittee of the Attorney General’s Advisory Committee meeting here today, we are fortunate to have over a dozen additional U.S. Attorneys in attendance. Thank you all for your commitment to serving Indian Country in your districts.
I am so pleased to be with you at this twenty-second convening of Four Corners Conference. For over two decades, this conference has provided federal and tribal leaders, social service providers, law enforcement officers, judges and prosecutors with a unique opportunity explore ideas, share best practices and forge critical collaborations that help us move forward in our common desire to make Indian Country safer and stronger.
Two years ago, I had the privilege of speaking to this Conference when you gathered in Pojoaque Pueblo, New Mexico. I said at that time ours was a moment of hope, challenge and opportunity, as we confronted the reality of alarmingly high rates of violence against Native women and girls in Indian country.
You’ll recall that at that time, the reauthorization of the Violence Against Women Act – or VAWA 2013 – hung in the balance. And notwithstanding efforts by the Justice Department, led by Attorney General Eric Holder, to push forward legislative recommendations that would enhance the ability of tribes to protect Indian women from domestic violence, the outcome of that effort, you’ll remember, was far from certain. In fact at times, it looked as if VAWA would not be reauthorized by Congress for the first time in nearly twenty years.
But thanks to the many courageous Native women who stood up and spoke out and told their stories of pain and heartache; thanks to the many tribal leaders who said enough is enough, that whether a Native woman receives justice should not depend on the race of her perpetrator; indeed, thanks to many of you in this room today, together we met that challenge and today VAWA 2013 remains the law of land, and now with additional statutory tools for both Federal and tribal governments to prosecute intimate partner violence.
And VAWA’s reauthorization was just the latest in what has been a remarkable surge in positive federal activity in Indian Country over the last five years, a commitment that began with Attorney General Holder’s convening of over 500 tribal leaders for a listening session in his first year of office.
It’s a commitment we reflect in the litigation positions we take as a Department – from our work to resolve decades-long, painful disputes like the Cobell tribal trust litigation and the Keepseagle Native American farmers discrimination lawsuit; to our repeated court filings in support of presumptive tribal jurisdiction over Indian child-custody proceedings, even though our arguments do not always prevail, because standing up for ICWA means standing strong for tribal sovereignty.
In fact, earlier this month, the Department took a strong stand on behalf of Indian children and their families involved in state child welfare proceedings in a South Dakota federal court. We filed a brief in the case out of concern for the harm to Indian families that even the temporary removal of their children can cause. This case could set important precedent regarding how the emergency removals and placements of Indian children are to be handled and how ICWA is interpreted.
Our commitment to Indian Country has likewise led us to create CTAS, an effort to streamline the way we administer Justice Department grants to tribal grant applicants.
And that commitment is made manifest in the tireless work of so many federal investigators, AUSAs and SAUSAs throughout the nation — including many of you here today – to enhance public safety on tribal lands throughout Indian Country – efforts that have resulted in a remarkable 34% increase in Federal criminal prosecutions in Indian Country since 2009.
Indeed, today, the Justice Department is releasing its second Indian Country Investigations and Prosecutions report to Congress, and it reflects this Administration’s commitment to public safety in Indian Country. Although declination rates alone are not the best way to measure the success of our law enforcement efforts, the report show that with few exceptions, areas where the largest populations of American Indian people live and suffer from the most serious crime rates – such as here in the Southwest and in the Northern Plains states – federal declination rates were among the lowest in the nation.
So we’ve come a long way and made a lot of progress in a relatively short period of time. We are witnessing an unprecedented era of collaboration among U.S. Attorneys’ offices and tribal law enforcement and prosecutors across the country.
Yet it’s in that success that lies our greatest and perhaps most difficult test: How do we take the success we’ve achieved over the last five years and make it sustainable over the long term?
I believe solidifying those gains requires us to double-down on the collaborations that enhance tribal public safety; to expand the culturally-informed law enforcement training we’ve conducted; and to encourage and incentivize interdisciplinary approaches to violence reduction.
What’s essential to our long-term success is for us – at the federal, tribal, state and local levels — to takes steps that will institutionalize our commitment to Indian Country public safety, such that the best practices you are sharing, the promising pilot projects you’re launching, the interdisciplinary collaborations your spearheading – they need to become part of the routine work we do to pursue effective law enforcement in Indian Country so that the impact you are having will continue to be felt for years, even generations to come.
Our dedication to Indian Country must be transformed from an initiative defined by the contours of any one Administration’s commitment and ingrained into the DNA of federal law enforcement practice. It must be part of the yardstick by which we measure our own success or failure as federal law enforcement professionals.
So what does institutionalizing our commitment to justice in Indian Country look like? I think there are three areas that illustrate this, and they are areas where I am pleased to report we are making good strides.
First, institutionalizing our commitment means enhancing our existing collaborations between tribal and federal law enforcement, and a good example comes from our recent experience with VAWA.
As soon as VAWA’s reauthorization was signed into law, the Justice Department ’ s leadership engaged in an expedited but extensive consultation with tribal officials on how best to implement VAWA’s newest provisions dealing with tribal special criminal jurisdiction.
We came up with a voluntary Pilot Project that allowed some tribes to begin exercising that jurisdiction earlier this year – ahead of law’s March 2015 effective date – if the tribe’s criminal justice system has adequate safeguards in place to protect defendants’ rights. Six months ago, I authorized three tribes – the Pascua Yaqui Tribe of Arizona, the Tulalip Tribes of Washington, and the Confederated Tribes of the Umatilla Indian Reservation – to become the first tribes in the United States to exercise special domestic violence criminal jurisdiction.
And importantly, while these tribes have moved swiftly, they have also acted with deliberation to combat domestic violence by protecting the safety and rights of victims, while simultaneously safeguarding defendants’ rights. They are closely coordinating with their local U.S. Attorneys’ Offices to identify those cases that are best handled in tribal court and those which are more appropriate for federal prosecution. Here in Arizona, for example, the Pascua Yacqui Tribe worked with the United States Attorney ’ s Office to refer four of the 12 non-Indians arrested by the tribe for federal prosecution.
Other tribes are also carefully preparing to exercise the new jurisdiction. Since June of last year, 39 tribes have voluntarily joined the Department’s Intertribal Technical-Assistance Working Group, working with Department officials and other tribes in an effort to exercise effectively the new special criminal jurisdiction in 2015.
And as more tribes step up to assume this new exercise of sovereignty, more Tribal-Federal partnerships will be established; more interdependence and collaboration on public safety matters will result; and more tribal capacity to protect the integrity, culture and safety of the tribe will be created, enhancing the opportunity for long-term, sustainable tribal justice.
Second, we can institutionalize our commitment to public safety in Indian Country by expanding our training efforts, thereby increasing the ability of law enforcement to investigate and prosecute effectively Indian Country crimes, which in turn heightens the priority of pursuing these crimes for law enforcement.
Most of you know Leslie Hagen, who is here and who has been instrumental in leading the Justice Department’s training efforts around Indian Country public safety. One of the many Indian Country training modules she conducts for federal and tribal investigators, prosecutors, advocates, and medical professionals around the country in one that raises awareness about the lethality risks for strangulation and suffocation crimes. It is work that can pay dividends in our efforts to better protect Native women from violence, because almost half of all domestic violence victims have experienced at least one episode of strangulation prior to a lethal or near-lethal violent incident.
One FBI agent who took the training wrote Leslie an email saying fifteen days after he had taken her course, a strangulation assault occurred that was assigned to him. He wrote the training helped him to ask the right questions and present the case persuasively to the AUSA, who successfully prosecuted the assailant. According to the FBI agent, “this conviction is a direct result of the Indian Country Strangulation and Suffocation Class,” and he went on to teach what he had learned to other local, state and federal investigators.
And with VAWA 2013, Congress recognized the gravity of strangulation and suffocation crimes and amended the federal assault statute to include a specific charge of assault or attempted assault by strangulation or suffocation – making Leslie’s training all the more important and relevant to federal law enforcement priorities. Indeed, just over a year after Congress enacted these new provisions, U.S. Attorney Mike Cotter and his office in the District of Montana secured one of the first federal strangulation convictions: a 2.5-year prison sentence against a man who strangled his girlfriend into unconsciousness on the Blackfeet Indian Reservation.
Finally, I believe institutionalizing justice in Indian Country means intensifying our work and deepening our investment in efforts to reduce violence against Native women and children, not only because rates of victimization remain intolerably high; but also because our best hope of reversing those rates begins with early and predictable intervention – both from a prevention and enforcement standpoint – that helps us break the cycle of violence.
U.S. Attorneys Tim Purdon and Mike Cotter know well what I’m talking about. In their districts of North Dakota and Montana, a meteoric population boom in the geographically isolated region of the Bakken has led to escalated rates of violence, particularly against Native women. Earlier this year, Tim and I met with local law enforcement officials who spoke of the dramatic spike in sex and drug trafficking which was taxing their capabilities. We met with service providers from around the state who told us of their inability to absorb the sudden increase in demand for victim’s services. And I heard tragic stories of sexual exploitation suffered by women and girls.
To address the unique and critical needs of victims, responders, and service providers within this rural region, the Department’s Office on Violence Against Women established its Bakken Region Initiative. And as part of that effort, today, I am pleased to announce the award of seven new grants, totaling nearly $3 million, to the Assiniboine and Sioux Tribes of Fort Peck Indian Reservation in Montana; the Montana Coalition Against Domestic and Sexual Violence; the North Dakota Council on Abused Women’s Services; the Three Affiliated Tribes of the Fort Berthold Reservation of North Dakota; and the First Nations Women’s Alliance in North Dakota. These awards will fund Tribal Special Assistant U.S. Attorneys – attorneys who are cross-designated tribal-federal prosecutors – as well as victim service providers who are working to prevent violence and support survivors of sexual assault, domestic violence, dating violence, and stalking.
Now at the same time we are strengthening our efforts to protect Native women, we must also do more to shield Native children from violence.
We know that more than 60 percent of all children in the United States are exposed to some form of violence, crime, or abuse, ranging from brief encounters as witnesses to serious violent episodes as victims. And while current research doesn’t give us a complete picture for American Indian and Alaska Native children, a 2008 report by the Indian Country Child Trauma Center calculated that Native youth are two-and-a-half times more likely to experience trauma when compared with their non-N ative peers.
In fact, the rate of Post-Traumatic Stress Disorder for Indian youth is almost triple the rate of the general population – comparable to the rates of PTSD among soldiers returning from the wars in Iraq and Afghanistan.
According to the CDC, suicide is the second leading cause of death among American Indians and Alaska Natives aged 15- to 34-years of age and is 2.5 times higher than the national average for that age group.
Appalled by these statistics, the Attorney General last year invested Justice Department resources to establish a Task Force on American Indian and Alaska Native Children’s Exposure Violence, including a Federal Working Group led by U.S. Attorney Amanda Marshall and OTJ Director Tracy Toulou. And over the last year, the Task Force’s Advisory Committee held public hearings and listening sessions around the country – including one here in Arizona – examining the unacceptably high levels of violence that Native children suffer.
I participated in three of those hearings, the most recent of which was held in Anchorage, Alaska. And at each hearing, researchers told us about how victimization can steal a child’s future. Practitioners shared lessons learned from experience and outlined approaches that could help us better serve child victims in the future. Survivors courageously shared their experiences in the hope that by telling their stories, they might lift the curtain of shame and fear that too often shrouds acts of violence and exploitation against children.
And this fall, based on those hearings, the Task Force’s Advisory Committee will present the Attorney General with a blueprint of comprehensive policy recommendations for preventing and reducing the negative effects of Native children’s exposure to violence – a guide for action we are eagerly anticipating.
So let me close by saying this. Fifty years ago, Attorney General Robert Kennedy predicted that the tide was turning for Native American generations yet unborn; that the shadow of poverty and affliction and unfairness in Indian Country would be lifted.
Working with you to help make that prediction a reality has been among the highest privileges of my professional life. Still, it’s clear we have much work to do.
As long as Native youth on reservations endure rates of suicide we would never tolerate in any major American city;
Or as long as Native men and women living in remote corners of this country are denied the fundamental right to vote by state laws that make it harder for them to access the ballot box and have a voice in offices that shape their everyday lives;
Or as long we have to explain, over and over again – because of a long, sorry chapter in American history of violence, termination, forced relocation, and discrimination – why the use of “Redskins” is so painful to so many, Native and non-Native alike, then we have work to do.
But I also believe that your work over the last five years — those of you in this room – you are helping to turn the tide. You know that like any relationship that is worthwhile, our relationships with sovereign tribal nations continue to be works in progress. They require constant attention, unwavering commitment, candor about what is working well and what is not. And they require the most important of ingredients — mutual trust, faith and respect — born of a common history and shared destiny.
And with that knowledge you are forging a legacy and a future of reconciliation and respect; of support for sovereignty and self-determination; of commitment to tribal safety. And for that unwavering dedication, know that I salute you, proudly stand with you, and look forward to supporting you today and in the days to come.
Report to Congress Is Requirement Under the Tribal Law and Order Act of 2010
The Department of Justice released today its second report to Congress entitled Indian Country Investigations and Prosecutions, which provides a range of enforcement statistics required under the Tribal Law and Order Act of 2010, as well as information about the progress of the Attorney General’s initiatives to reduce violent crime and strengthen tribal justice systems.
The report, based on data compiled from the case management system used by U.S. Attorney’s Offices (USAO), shows prosecutors in 2013 continued to bring substantial numbers of cases to federal court (a 34 percent increase over FY 2009 numbers) and prosecute a substantial majority of all cases referred to them. Of the cases that were declined for federal prosecution, most were declined for insufficient evidence or because they were referred to another prosecuting authority, such as the tribe, for potential prosecution.
“As detailed in this report, the Department of Justice is making good on our commitment to strengthen cooperation with sovereign tribes, reduce violent crime, and ensure justice for every individual,” said Attorney General Eric Holder. “From our work to empower Indian women under the landmark Violence Against Women Reauthorization Act, to the task force we established to safeguard children in Indian country from violence and abuse, we have made significant strides – in close partnership with tribal nations – to bolster the safety and security of all American Indian and Alaska Native communities. As we move forward, we will continue to expand on this critical work; to deepen our ongoing efforts; and to reaffirm our dedication to the promise of equal rights, equal protection, and equal justice for all.”
Although declination rates are an imperfect means of evaluating the effectiveness of criminal justice in Indian country or elsewhere, the report shows that with few exceptions, areas where the largest populations of American Indian people live and suffer from the most serious crime rates, such as the Southwest and the northern plains states (which together handled approximately 70 percent of the 2,542 cases resolved in 2013), federal declination rates were the lowest in the nation. For instance, South Dakota had the second to highest number of cases resolved in the country last year, 470 cases, and one of the lowest declination rates of 26 percent. Arizona resolved the highest number of cases, 733 cases, and had a declination rate of 28 percent.
Associate Attorney General Tony West announced the findings in remarks to the Four Corners Indian Country Conference today on the Navajo Nation in Flagstaff, and met separately with the Attorney General’s advisory subcommittee on Native American issues to discuss the report, among other matters.
“We are witnessing an unprecedented era of collaboration among U.S. Attorneys’ offices and tribal law enforcement and prosecutors across the country,” said Associate Attorney General West. “This report shows the fruits of this continuing partnership between the federal government and American Indian tribes, including enhancing training and capacity building for tribal court systems and improving responses to victims in Indian country.”
“Over the past five years, the Justice Department and our tribal partners have taken important steps forward on our journey toward a safer Indian Country,” said Timothy Purdon, U.S. Attorney for the District of North Dakota and chair of the Attorney General’s advisory subcommittee on Native American issues. “Vigorous enforcement of federal laws is vitally important to strengthening public safety on American Indian reservations. We are pleased to see in this report that U.S. Attorney’s Offices across the country continue to work hard to remove the most dangerous offenders and work closely with tribal law enforcement and prosecutors. These promising numbers are the direct result of this enhanced communication and collaboration.”
“The FBI continues to be committed to public safety in Indian Country,” said FBI Assistant Director Joseph S. Campbell. “Our partnership with federal, state, local, and tribal agencies remains strong as we continue to aggressively address violent crime and victimization in tribal communities.”
The information contained in the report shows the following:
The Justice Department’s prioritization of Indian country crime has continued to result in substantial numbers of prosecutions, despite resource constraints that impacted the U.S. Attorney community in 2013. Between FY 2009 and FY 2012, the number of cases the department filed against defendants in Indian country increased nearly 54 percent. In FY 2013, due to fiscal challenges, overall case filings in Indian country declined somewhat compared to FY 2012, but still remained 34 percent above the number of cases filed when the department first began its department-wide tribal justice initiative in 2009. Notwithstanding the fiscal impact of the sequester, reduced budgets, and a hiring freeze, federal agents and prosecutors continued to focus their efforts on improving public safety in Indian country.
A substantial majority of Indian country criminal investigations opened by the FBI were referred for prosecution.
A substantial majority of Indian country criminal cases opened by the United States Attorneys’ Offices were prosecuted.
USAO data for CY 2013 show that 34 percent (853) of all Indian country submissions for prosecution (2,542) were declined for prosecution. In CY 2012, USAOs declined approximately 31 percent (965) of all (3145) Indian country submissions for prosecution. USAO data for CY 2011 indicate that just under 37 percent (1,041) of all Indian country submissions for prosecution (2,840) were declined.
The most common reason for declination by USAOs was insufficient evidence (56 percent in CY 2013, 52 percent in CY 2012, and 61 percent in CY 2011).
The next most common reason for declination by USAOs was referral to another prosecuting authority (21 percent in CY 2013, 24 percent in CY 2012, and 19 percent in CY 2011).
The most common reason FBI Indian country investigations were closed administratively without referral for prosecution was that the investigation concluded that no federal crime had occurred.
For instance, all but 30 of the 164 death investigations the FBI closed administratively in CY 2013 were closed because the FBI established that the death was due to causes other than homicide – i.e., accidents, suicide, or death from natural causes.
Other important developments in FY 2013:
VAWA Pilot Projects
The fight against domestic violence in Indian country has been an especially important priority for the Department of Justice, and in 2013, Congress and this administration took an historic step forward with the passage of the Violence Against Women Reauthorization Act of 2013 (VAWA 2013), which the President signed into law on March 7, 2013.
Congress, in VAWA 2013, provided new tools to fight domestic violence in Indian country, and the department spared no time utilizing them. From the date the act took effect, March 7, 2013, through the end of fiscal year 2013, U.S. Attorneys with prosecutorial responsibilities in Indian country have charged defendants with the amended provisions of the federal assault statutes that strengthened penalties for domestic assault offenses, such as strangulation and stalking. And, while the new law’s tribal criminal jurisdiction provision takes effect generally on March 7, 2015, under VAWA 2013’s “Pilot Project” provisions, the department recently approved three tribes’ applications voluntary “Pilot Project” to begin exercising special domestic violence criminal jurisdiction sooner. These tribes – the Pascua Yaqui Tribe of Arizona, the Umatilla Tribes of Oregon, and the Tulalip Tribes of Washington – will be the first tribes in the nation to exercise special criminal jurisdiction over crimes of domestic and dating violence, regardless of the defendant’s Indian or non-Indian status, under VAWA 2013.
Strengthening Partnerships and Support for Tribal Self-Governance
Strengthening partnerships and tribal self-governance was a major theme of the Attorney General’s message to tribal leaders on Nov.13, 2013, at the White House Tribal Nations Conference, where he announced a proposed statement of principles to guide the department’s work with federally recognized tribes. As the Attorney General said, “ As a result of these partnerships – and the efforts of everyone here – our nation is poised to open a new era in our government-to-government relationships with sovereign tribes.”
U.S. Attorneys’ offices around the country are engaged in an unprecedented level of collaboration with tribal law enforcement, consulting regularly with them on crime-fighting strategies in each district. One important example of this is the department’s enhanced Tribal Special Assistant U.S. Attorney (SAUSA) program. Tribal SAUSAs are cross-deputized tribal prosecutors who are able to prosecute crimes in both tribal court and federal court as appropriate. These Tribal SAUSAs serve to strengthen a tribal government’s ability to fight crime and to increase the USAO’s coordination with tribal law enforcement personnel. The work of Tribal SAUSAs can also help to accelerate a tribal criminal justice system’s implementation of TLOA and VAWA 2013.
The 2013 reauthorization of the Violence Against Women Act was heralded by President Barack Obama as a significant step for Native American women because it allows tribal courts to prosecute certain crimes of domestic violence committed by non-Native Americans and enforce civil protection orders against them.
Before the bill passed the Senate, however, Sen. Lisa Murkowski, R-Alaska, added Section 910, known as the “Alaska exception,” that exempted Alaska Native tribes. Murkowski argued that her provision did not change the impact of the bill since even without it, the bill pertained only to “Indian country,” where tribes live on reservations and have their own court systems. As defined by federal law, there is almost no Indian country in Alaska.
Now, after pressure from Alaska Natives, Murkowski is reversing her position and trying to repeal the provision she inserted.
The senator’s change of mind is the subject of much debate in Alaska, with state officials saying that ending the exception won’t make any difference for Alaska Natives because it only applies to Indian country and the state already takes action to protect Native women and children. Tribes and the Justice Department, on the other hand, argue that repealing the provision will have a significant impact.
Associate Attorney General Tony West, who called for the repeal of the “Alaska exemption,” says that the state needs to enforce tribal civil protection orders in cases of domestic violence and that the legislative change would send a strong message about tribal authority.
“It’s important to send a very clear signal that tribal authority means something, that tribal authority is an important component to helping to protect Native women and Native children from violence,” said West, who testified in June before a hearing in Anchorage of the Task Force on American Indian and Alaska Native Children Exposed to Violence. “Those civil protective orders can help to save lives.”
Murkowski’s provision, which was originally an amendment she co-sponsored with Sen. Mark Begich, D-Alaska, in 2012, was supported by state officials. Begich has also changed his position since then.
Alaska Attorney General Michael Geraghty and Gary Folger, commissioner of the Department of Public Safety, have said that Alaska is already enforcing civil protection orders issued by tribes to try to keep one person from stalking or committing abuse or violence against another person.
But Murkowski’s “Alaska exception” reopened a contentious debate surrounding criminal jurisdiction over Alaska Native villages, and it has created confusion among law enforcement officials.
Alaska Native women protested Murkowski’s exception, and the Indian Law and Order Commission called it “unconscionable.”
“Given that domestic violence and sexual assault may be a more severe public safety problem in Alaska Native communities than in any other tribal communities in the United States, this provision adds insult to injury,” the commission said.
Troy Eid, a former U.S. attorney and chairman of the commission, said that only one Alaska Native village has a women’s shelter. He and the other commissioners were stunned by what they heard in remote Alaska Native communities, he said.
“We went to villages where every woman told us they had been raped,” Eid said. “Every single woman.”
On her Facebook page last year, Murkowski wrote: “It hurts my heart that some Alaskans may think I do not fully support protecting Native women from violence with every fiber of my being.”
“In Alaska, we have one, and only one reservation: Metlakatla,” Murkowski wrote. “The other 228 tribes have been described by the U.S. Supreme Court as ‘tribes without territorial reach.’ The expansion of jurisdiction over non-members of a tribe is a controversial issue in our state, and what works in the Lower 48, won’t necessarily work here.”
Murkowski said she still has concerns about repealing the exemption but said in a statement: “We must turn the tide of the rates of sexual assault, domestic violence, and child abuse in our state.”
Complicated history excludes Alaska Native women from Violence Against Women Act
Ishmael Hope, left, and other Alaska Native representatives at the 2013 Choose Respect rally in Juneau, Alaska, asking legislators to address issues with the Violence Against Women Act.Heather Bryant/KTOO Public Media
Opponents of the reauthorization of a federal law passed last year say it has created a dangerous situation for Alaskan domestic violence victims and are urging lawmakers to support a repeal.
Proponents of the original 1994 Violence Against Women Act say it was signed into law with the purpose of providing more protection for domestic violence victims and keeping victims safe by requiring that a victim’s protection order be recognized and enforced in all state, tribal and territorial jurisdictions in the U.S.
According to the White House, the VAWA has made a difference, saying that intimate partner violence declined by 67 percent from 1993 to 2010, more victims now report domestic violence, more arrests have been made and all states impose criminal sanctions for violating a civil protection order.
Last year the law was reauthorized, clarifying a court decision that ruled on a case involving civil jurisdiction for non–tribal members and amending the law to recognize tribal civil jurisdiction to issue and enforce protection orders “involving any person,” including non-Natives.
But almost all Alaska tribes were excluded from the amendment, with only the Metlakatla Indian community from Alaska included under the 2013 law. The rest of Alaska remains under the old law.
The change has created confusion, opponents say, particularly in cases when there is a 911 call about enforcing a protective order.
“The trooper is waiting, because he’s not sure who has jurisdiction,” said David Voluck, a tribal court judge for the Central Council of Tlingit and Haida Indian Tribes of Alaska. “We need to get rid of those exceptions that create confusion.”
An ongoing debate
The reauthorization highlighted an ongoing debate about Native communities and tribal courts’ and governments’ jurisdiction, particularly in cases of policing and justice.
The reauthorization made sense, according to Alaska Attorney General Michael Geraghty, who noted that Alaska has always been treated differently because of the 1971 Alaska Native Claims Settlement Act. In exchange for 40 million acres of land and about $1 billion, he said, tribes forfeited reservations and the notion of Indian country to form Native corporations.
He said the state needs to find better ways to collaborate with institutions in small communities to provide better protection and justice but disagrees with giving pockets of tribal authority throughout Alaska.
“We do have an issue with violence and domestic violence,” he said. “We have a challenge in providing safety.”
But Geraghty said he has never heard of a situation when a victim was in danger because of confusion over jurisdiction.
“There’s nothing in the act that expands or retracts the jurisdiction of tribal courts,” he said. “If tribal courts had jurisdiction before, they do now. Troopers are not lawyers. If they are faced with a situation, they are going to protect the public. These concerns are overblown.”
‘A cloud over Alaska’
Lloyd Miller, an attorney who works on Indian rights and tribal jurisdiction litigation, disagrees and said things did change with the 2013 reauthorization.
“What he’s saying is that an Alaska village only has the authority to issue a protective order if that man is a member of the tribe. They can’t if he’s from the neighboring tribe,” he said. “Why would we not want to have Alaska villages have all the tools to protect women from domestic violence?”
Voluck agreed. “Does it really matter if a woman is hit in a mall somewhere or the south corner of where the tribe lives?” he said.
Opponents of the Alaska exemption recently urged a task force convened by Attorney General Eric Holder to study the effects of violence on Native American children to support the repeal of Section 910 of the law.
“VAWA creates a cloud over Alaska, and the last thing women and children need is a delay in an emergency,” said Voluck. “A matter of minutes can mean life or death. It’s unequal protection under the law for a very vulnerable part of the population.”
Lack of law enforcement
Voluck was one of a number of experts who testified last month before the Task Force on American Indian and Alaska Native Children Exposed to Violence about the special circumstances surrounding Alaska Native domestic violence, including geography, a lack of law enforcement and difficulty for victims to travel to safety.
Experts attested to a number of facts, including that Native American and Alaska Native women are 2.5 times as likely to be raped or sexually assaulted than other American women. About 140 villages have no state law enforcement. Eighty have absolutely no law enforcement. One-third of Alaska communities do not have road access.
It’s a serious issue for communities, said Valerie Davidson, a task force member who lives in Alaska. “Even if you only have 300 people, you still need law enforcement,” she said.
The debate continues, this time in Congress as the Senate Indian Affairs Committee works on legislation, which includes a provision repealing Section 910 of the 2013 reauthorization. Geraghty and the governor oppose a repeal, but the U.S. attorney general’s office has voiced its support.
Associate U.S. Attorney General Tony West attended the Alaska task force hearing and said arguments about the scope of authority of Alaska Native villages and tribes shouldn’t get in the way of protecting Native children from harm.
“If there are steps we can take that will help move the needle in the direction for victims, we need to do it,” he said. “When a tribal court issues an order, the state ought to enforce it. If not, the orders are worth nothing more than the paper they’re written on.”
More than just symbolic
Repealing the law won’t resolve the multilayered issues of jurisdiction, but it would be a step in the right direction, West added.
“It is more than just symbolic,” he said. “Repeal of Section 910 is an important step that can help protect Alaska Native victims of that violence and, significantly, the children who often witness it, and it can send a message that tribal authority and tribal sovereignty matters, that the civil protection orders tribal courts issue ought to be respected and enforced.”
The Task Force on American Indian and Alaska Native Children Exposed to Violence will make a recommendation to Holder by late October.
“Alaska is frozen in time,” Voluck said. “Why in the world would you hold the worst state when it comes to domestic violence in the old law? Forty-nine other states have figured out how to work with their tribal courts. Let’s work together. People are getting hurt and dying. That’s why I’m upset.”
Ishmael Hope, left, and other Alaska Native representatives at the 2013 Choose Respect rally in Juneau, Alaska, asking legislators to address issues with the Violence Against Women Act.Heather Bryant/KTOO Public Media
Complicated history sets Alaska Native women apart from Violence Against Women Act
Opponents of the reauthorization of a federal law passed last year say it has created a dangerous situation for Alaskan domestic violence victims and are urging lawmakers to support a repeal.
Proponents of the original 1994 Violence Against Women Act say it was signed into law with the purpose of providing more protection for domestic violence victims and keeping victims safe by requiring that a victim’s protection order be recognized and enforced in all state, tribal and territorial jurisdictions in the U.S.
According to the White House, the VAWA has made a difference, saying that intimate partner violence declined by 67 percent from 1993 to 2010, more victims now report domestic violence, more arrests have been made and all states impose criminal sanctions for violating a civil protection order.
Last year the law was reauthorized, clarifying a court decision that ruled on a case involving civil jurisdiction for non–tribal members and amending the law to recognize tribal civil jurisdiction to issue and enforce protection orders “involving any person,” including non-Natives.
But almost all Alaska tribes were excluded from the amendment, with only the Metlakatla Indian community from Alaska included under the 2013 law. The rest of Alaska remains under the old law.
The change has created confusion, opponents say, particularly in cases when there is a 911 call about enforcing a protective order.
“The trooper is waiting, because he’s not sure who has jurisdiction,” said David Voluck, a tribal court judge for the Central Council of Tlingit and Haida Indian Tribes of Alaska. “We need to get rid of those exceptions that create confusion.”
An ongoing debate
The reauthorization highlighted an ongoing debate about Native communities and tribal courts’ and governments’ jurisdiction, particularly in cases of policing and justice.
The reauthorization made sense, according to Alaska Attorney General Michael Geraghty, who noted that Alaska has always been treated differently because of the 1971 Alaska Native Claims Settlement Act. In exchange for 40 million acres of land and about $1 billion, he said, tribes forfeited reservations and the notion of Indian country to form Native corporations.
He said the state needs to find better ways to collaborate with institutions in small communities to provide better protection and justice but disagrees with giving pockets of tribal authority throughout Alaska.
“We do have an issue with violence and domestic violence,” he said. “We have a challenge in providing safety.”
But Geraghty said he has never heard of a situation when a victim was in danger because of confusion over jurisdiction.
“There’s nothing in the act that expands or retracts the jurisdiction of tribal courts,” he said. “If tribal courts had jurisdiction before, they do now. Troopers are not lawyers. If they are faced with a situation, they are going to protect the public. These concerns are overblown.”
‘A cloud over Alaska’
Lloyd Miller, an attorney who works on Indian rights and tribal jurisdiction litigation, disagrees and said things did change with the 2013 reauthorization.
“What he’s saying is that an Alaska village only has the authority to issue a protective order if that man is a member of the tribe. They can’t if he’s from the neighboring tribe,” he said. “Why would we not want to have Alaska villages have all the tools to protect women from domestic violence?”
Voluck agreed. “Does it really matter if a woman is hit in a mall somewhere or the south corner of where the tribe lives?” he said.
Opponents of the Alaska exemption recently urged a task force convened by Attorney General Eric Holder to study the effects of violence on Native American children to support the repeal of Section 910 of the law.
“VAWA creates a cloud over Alaska, and the last thing women and children need is a delay in an emergency,” said Voluck. “A matter of minutes can mean life or death. It’s unequal protection under the law for a very vulnerable part of the population.”
Lack of law enforcement
Voluck was one of a number of experts who testified last month before the Task Force on American Indian and Alaska Native Children Exposed to Violence about the special circumstances surrounding Alaska Native domestic violence, including geography, a lack of law enforcement and difficulty for victims to travel to safety.
Experts attested to a number of facts, including that Native American and Alaska Native women are 2.5 times as likely to be raped or sexually assaulted than other American women. About 140 villages have no state law enforcement. Eighty have absolutely no law enforcement. One-third of Alaska communities do not have road access.
It’s a serious issue for communities, said Valerie Davidson, a task force member who lives in Alaska. “Even if you only have 300 people, you still need law enforcement,” she said.
The debate continues, this time in Congress as the Senate Indian Affairs Committee works on legislation, which includes a provision repealing Section 910 of the 2013 reauthorization. Geraghty and the governor oppose a repeal, but the U.S. attorney general’s office has voiced its support.
Associate U.S. Attorney General Tony West attended the Alaska task force hearing and said arguments about the scope of authority of Alaska Native villages and tribes shouldn’t get in the way of protecting Native children from harm.
“If there are steps we can take that will help move the needle in the direction for victims, we need to do it,” he said. “When a tribal court issues an order, the state ought to enforce it. If not, the orders are worth nothing more than the paper they’re written on.”
More than just symbolic
Repealing the law won’t resolve the multilayered issues of jurisdiction, but it would be a step in the right direction, West added.
“It is more than just symbolic,” he said. “Repeal of Section 910 is an important step that can help protect Alaska Native victims of that violence and, significantly, the children who often witness it, and it can send a message that tribal authority and tribal sovereignty matters, that the civil protection orders tribal courts issue ought to be respected and enforced.”
The Task Force on American Indian and Alaska Native Children Exposed to Violence will make a recommendation to Holder by late October.
“Alaska is frozen in time,” Voluck said. “Why in the world would you hold the worst state when it comes to domestic violence in the old law? Forty-nine other states have figured out how to work with their tribal courts. Let’s work together. People are getting hurt and dying. That’s why I’m upset.”
