Indigenous People Are Worried A New Bill Goes Too Easy On Non–Native Americans Accused Of Crimes On Tribal Lands

Amid an ongoing epidemic of violence against indigenous women, advocates said a bill pushed by Sen. Joni Ernst will hinder Native domestic violence and sexual assault survivors’ efforts to get justice.

Indigenous leaders and activists are criticizing a new version of the Violence Against Women Act reauthorization bill, introduced in Congress last week by Iowa Republican Sen. Joni Ernst, saying it would undermine domestic violence and sexual assault survivors’ efforts to attain justice on tribal lands.

At issue for tribal leaders is how much authority tribes would have to prosecute crimes on their land when a non–Native American party is involved. These types of situations could fall under tribal, state, or federal jurisdiction, depending on the nature and severity of the crime, as well as other factors. The system has led to confusion in tribal communities and even among state and federal officials, and many advocates have said it has made seeking justice for crimes in Native American country extremely challenging.

Because of this complexity, tribes have been fighting to expand their jurisdiction. According to the Bureau of Justice Statistics, indigenous Americans experience higher rates of violence than any other ethnicity, and the perpetrator of violence is more likely to be a non-Native American. Native women are murdered at a higher rate than any other group in the country; a study from the National Institute of Justice found that 84% of indigenous women have experienced violence in their lifetime, and 56% of them have experienced sexual violence.

Ernst, who is a rape survivor, pointed to her experience while introducing her version of the bill along with 10 other Republican senators. It's meant to rival California Democrat Sen. Dianne Feinstein’s VAWA reauthorization legislation, a companion bill to the one the House passed in April that has since languished in Majority Leader Mitch McConnell’s Senate. Ernst’s office did not respond to requests for comment.

Signed in 1994, VAWA is a federal law meant to protect survivors of domestic violence and sexual abuse. Congress must reauthorize it every few years, but it expired in 2018 amid a government shutdown and was revived for only a few weeks with a short-term spending bill in 2019. The most recent reauthorization, in 2013, restored tribal jurisdiction to some categories of crime related to domestic abuse, and tribes have been fighting to expand those categories in a subsequent VAWA reauthorization bill.

Though funding continues for the grant programs in VAWA, disputes between Democrats and Republicans over key details in the bill, including tribal provisions, have driven a political wedge into a piece of legislation that, until more recently, there was bipartisan agreement on.

Ernst, who is up for reelection in 2020, accused Senate Minority Leader Chuck Schumer of blocking her bill in a bid to prevent her from winning a second term in 2020. Schumer responded that she wrote the bill in a way that was favorable to the NRA.

Ernst’s staffers had shared a draft of her bill with tribal advocates in September, according to four who spoke to BuzzFeed News. The staffers, they said, appeared receptive to their concerns over some details in the draft. But they did not hear back about any potential changes to the bill, and when it was unveiled, they were taken aback because their concerns weren’t addressed.

Both Feinstein’s and Ernst’s bills expand jurisdiction over child abuse, human trafficking cases, and assault on tribal law enforcement officials, among other crimes, but the language in Ernst’s bill strips away provisions that empower tribal courts to see through a prosecution of a crime on their land. Though Ernst's bill issues $15 million a year in funding to help tribes implement VAWA, other provisions effectively render tribal courts impotent, according to Mary Kathryn Nagle, a lawyer and activist for the NIWRC.

Nagle, who was in meetings with tribal leaders and Ernst’s office, said one of the most troubling provisions in Ernst’s bill would allow a defendant to request a stay at any point in proceedings, and remove the case to a federal court for review — without first exhausting all remedies in a tribal court. Once there, a federal court would be able to review whether the defendant’s due process was violated and a tribal court conviction, if there was one.

Though tribal courts currently follow the same due process rights as state courts, Ernst’s bill would subject them to different standards, Nagle said.

“It’s absurd,” she added. “It’s just not clear why tribal courts are entitled to less deference in their own interpretations of their own laws — why this process needs to be completely revised and remodeled when it’s actually working right now.”

Ernst's VAWA bill would also subject tribal governments to be audited by the US attorney general, which Ernst’s staff told tribal leaders, according to Nagle, was included because the bill involves federal grant funding.

Nagle argues that the language is so open-ended that there are no parameters for how much authority the attorney general has during an audit.

“I think some of this drafting is just sloppy. But it’s also nonsensical,” she said. “We’re very happy to problem-solve in Indian country, but you’ve got to actually tell us what we’re trying to solve. We need to actually be able to define the problem instead of just flapping around this new language that creates more problems.”

The tribal advocates who spoke to BuzzFeed News said they’re backing Feinstein’s version of VAWA, which would close, against the NRA’s lobbying, the “boyfriend loophole.” That measure would ban anyone convicted of stalking or domestic abuse, or has a restraining order against them, from obtaining or owning guns. Feinstein’s bill also expands tribal jurisdiction and LGBTQ protections. Republican senators refused to bring Feinstein's bill to a vote last week.

Currently, tribal courts are only allowed to prosecute domestic violence, dating violence, and violation of protection orders if the non–Native American perpetrator has ties to the community or is a current or former spouse or dating partner of an indigenous victim. Feinstein’s bill would eliminate the requirement that a non-Native American perpetrator have “sufficient ties” to the community or their victim to be prosecuted by a tribal court, and expand the category of crimes a tribal court can prosecute.

As a survivor and someone who worked at a victim’s shelter during my time in college, I have a clear understanding of how vital it is for survivors to have resources and support in what can be some of the darkest times of their lives. My bill provides that support.

An attorney representing one of the tribes in meetings with Ernst's staffers told BuzzFeed News that having the jurisdiction to prosecute crimes is "the cornerstone for being able to protect our communities, our women and our children."

"The most important aspect of sovereignty is a strong judicial system," the attorney, who did not have permission from her employer to speak on the record, said.

The restrictions on tribal sovereignty in Ernst’s bill, she added, speaks to how many non–Native American lawmakers feel about tribal courts.

“I believe there’s a deep distrust of tribal courts and a belief that tribal courts are unable to be fair to non-Indians, and that couldn’t be farther from the truth,” the attorney said. “There’s no evidence to support that thought process.”

Sarah Deer, a lawyer who was in the meeting with Sen. Ernst's office, told BuzzFeed News she believes the Iowa senator's staffers are genuine about wanting to address tribal leaders' concerns.

"What I think is problematic is the assumption that tribal courts need more oversight from federal government. It would actually burden both the tribal governments and the federal government with more responsibility, and that's not the direction we need to go in," she said. "These burdens make it more difficult for tribal governments to prosecute crime."

Nagle said she views the funding increase in Ernst's bill as a mere "bargaining chip" that tribes will not accept.

"Would the state of Kansas accept more money in exchange for forgoing the ability to have decision-making authority over who is criminally prosecuted for committing crimes on Kansas lands?" she said. "Imagine if Kansas was asked to hand that over to a federal district judge. No amount of money will make the tribes give up their right to protect their own citizens in their homes."

On Tuesday, President Donald Trump established a task force “charged with developing an aggressive, government-wide strategy to address the crisis of missing and murdered women and girls in American Indian and Alaska Native communities.”

While the advocates were happy that attention was being drawn to the epidemic, the National Indigenous Women's Resource Center’s statement to BuzzFeed News showed how much the VAWA bills are a priority: “Getting critical legislation passed through Congress, particularly the bipartisan H.R. 1585 and S.2843, the Senate companion bill to reauthorize VAWA is of utmost importance to best enable Tribes to address [murdered and missing indigenous women] in tribal communities.”

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