The U.S. Senate will vote as soon as today on letting tribal courts try people accused of sexual assault who aren’t registered members of an American Indian tribe.
The proposal is intended to give women seeking protection from non-Indian abusers some place to go besides the offices of U.S. attorneys who may be hundreds of miles away. It’s a system that advocates say causes abused women to avoid filing reports because they don’t believe anything will happen.
Many Republicans in the House and the Senate see the proposal as flatly unconstitutional, so the tribal provision may complicate the passage of the Violence Against Women Act, a measure focused on grants for domestic violence shelters and programs fighting sexual assault.
“You cannot take away constitutional rights of non-tribal citizens,” Oklahoma Republican Senator Tom Coburn said in an interview. “It’s never going to hold up. Even if it passes. It’s going to get thrown out by a court. It’s an easy constitutional question.”
Behind the constitutional questions are women like Deborah Parker. The vice-chairman of the Tulalip Tribes of Washington state, Parker traveled to Washington, D.C., last year to describe her own experiences with sexual assault -- once as a child victim and once as a witness.
She said she hid in a closet to protect young children as her aunt was raped. They could hear her cries.
“I shouldn’t be alive,” she said in a Feb. 6 interview. “With all that happened to me at a young age, how many people could even function?”
Neither Parker’s assailant nor her aunt’s attackers were ever convicted, she said as she pressed for inclusion of a tribal courts provision in the next update of the Violence Against Women Act.
“My question for Congress was and has always been, why did you not protect me or my family?” Parker asked at a Capitol Hill press conference last April. “Why is my life, and the life of so many other Native American women, less important?”
In a 2012 report, the nonpartisan Congressional Research Service wrote that although the federal government has jurisdiction over those crimes, “frequently overburdened federal prosecutors are not able to prosecute them.”
“Thus, it appears that American Indian women are left with a higher risk of domestic violence and less protection than non-Indian women,” said the report by CRS analysts Jane Smith and Richard Thompson II.
Two Supreme Court decisions roughly outline tribal criminal jurisdiction, according to CRS. A 1920 decision in U.S. v. Wheeler decided that tribes had an inherent right to try members, though in 1978 the court held in Oliphant v. Suquamish Indian Tribe that tribes don’t have the inherent sovereignty to try non-tribal members.
As a result, the question of who has jurisdiction to prosecute a sexual assault case on tribal land depends on whether the victim belongs to a tribe and whether the person accused of the crime is part of the tribe or has a strong connection to the tribe. The federal government has jurisdiction if the accused has no tribal connection.
“What ends up happening is that women just don’t report the assaults because of the jurisdictional issues, because they just don’t think anything’s going to happen,” said Suzanne Koepplinger, executive director of the Minnesota Indian Women’s Resource Center, which provides support programs and emergency shelters for American Indian women and their families. “It’s outrageous, and it ends up re-victimizing native women over and over again.”
In western states, where the bulk of tribal lands are located, a U.S. attorney’s district often covers the entire state, with offices in the most populous cities, far from reservation lands.
“These rural tribal lands are often many hours away from the nearest federal prosecutor, and far too often perpetrators see them as safe havens where they can and do get away with horrific acts of violence,” Senator Patty Murray, a Democrat from Washington state, said in an e-mail.
The Justice Department agrees, and officials there dispute Republican claims that the bill is unconstitutional.
“Federal resources, which are often the only ones that can investigate and prosecute these crimes, are often far away and stretched thin,” then-Associate Attorney General Thomas Perrelli testified in 2011 in support of similar legislation.
Tribal police often wrongly believe they don’t even have the authority to make an arrest, he told the Senate Indian Affairs Committee.
“The jurisdictional framework has left many serious acts of domestic violence and dating violence unprosecuted and unpunished,” he said. Perrelli left the Justice Department in 2012 and is now a partner in the Washington office of Jenner & Block LLP.
A 2006 Amnesty International report based on Justice Department statistics said that native women were more than twice as likely to be victims of sexual assault as their non-native counterparts, and that in more than 85 percent of reported cases the alleged perpetrator wasn’t a tribe member.
“It’s outrageous,” Representative Gwen Moore, a Wisconsin Democrat, said in an interview. “We’ve even heard stories of men dragging women onto tribal land to commit sexual assault or battery because they know they can do it with impunity.” Moore, a victim of sexual assault, is a leading sponsor of the Violence Against Women Act reauthorization in the House.
“The rate of violence against women in Indian country is appalling and needs to be stopped,” said Senator Al Franken, a Minnesota Democrat who was one of the original co-sponsors of the tribal courts language.
President Barack Obama “strongly supports” keeping the tribal court language in the bill, the Office of Management and Budget wrote in a statement of administration policy. Senator Heidi Heitkamp, who cosponsored it, said she was “adamant” the tribal courts language stay in the final VAWA bill.
“It is essential to give women who are native American women the same protection that everybody else has, that every other woman enjoys,” the North Dakota Democrat said in an interview.
House Republicans didn’t include the tribal courts provision in their Violence Against Women bill in 2012 and say they are still reluctant to use the Senate’s language.
“To me, it’s a problematic issue because, depending on the tribe and reservation they have different laws, obviously because they’re sovereign nations, than what the U.S. has,” said Representative Doc Hastings, a Washington state Republican and chairman of the House Natural Resources Committee, which has jurisdiction over Indian affairs. “To put U.S. citizens under their law, it’s just problematic.”
A possible compromise was outlined in the House late last year. Sponsored by Republican Representatives Tom Cole of Oklahoma, the only Native American in Congress, and Darrell Issa of California, it would have allowed defendants to file for removal of the case to federal court if their constitutional rights were infringed.
Senate Judiciary Committee Chairman Patrick Leahy, sponsor of the legislation, said he preferred the Senate’s language, though the Cole-Issa language was worth further consideration.
“This modification should ensure that only those tribes that are following the requirements of the law and providing full rights can exercise jurisdiction and that defendants can raise challenges at the beginning of a case,” said Leahy, a Vermont Democrat.
Hastings said Republicans haven’t yet settled on an alternative proposal.
House Majority Leader Eric Cantor said Feb. 5 that he has been working on the legislation in consultation with the staff of Vice President Joe Biden. “We want to protect the women who are subject to abuse on tribal land,” Cantor, a Virginia Republican, said on the House floor.
The bill is S. 47.