VAWA: Why the controversy?

By Rosemary McClure ’13Editor-in-Chief


On Tuesday, Feb. 12, the Senate voted 78-22 to reauthorize the Violence Against Women Act, which expired in Sept. 2011. But the future of the bill in the House, where it will now move, looks bleak. You might be wondering why on earth anyone would vote against a law protects women from domestic violence (even if the 22 who did are white, republican males from states like Kentucky, Oklahoma, South Carolina, Texas, Utah, and Wyoming). I’m going to break it down for you.

Republicans strongly opposed three VAWA provisions: services specifically for LGBT victims, services for undocumented immigrants, and—here’s the really sticky part—a section that granted tribal governments jurisdiction over non-tribal Americans who commit sex crimes on tribal land.

Criminal jurisdiction on Indian reservations is a legal enigma. Indian tribes are considered sovereign nations, which means they have inherent jurisdiction over their entire territory. The federal government can only limit this power in “special circumstances” i.e., by passing a law that specifically places Indian land under federal jurisdiction. That is why Indian Country can have different laws pertaining to gambling, fireworks, and hunting.

The problem is that these “special circumstances” are not actually rare or special at all. In 1817, the General Crimes Act effectively limited tribal jurisdiction to Indian-on-Indian crimes only. In 1885, Congress passed the Major Crimes Act, which further limited tribal jurisdiction to non-serious Indian-on-Indian crimes only. The 1934 Indian Reorganization Act was meant to reverse some of this encroachment on tribal rights by establishing and protecting their right to self-governance, reservation land, and certain commercial issues.

Unfortunately, the passage of Public Law 280 in 1956 reversed this modest progress, establishing concurrent state jurisdiction over all crimes—even those committed by tribal members, against tribal members, on tribal land. In the 1978 case Oliphant v. Suquamish Indian Tribe, the Supreme Court upheld that sovereign nations’ “inherent right” to jurisdiction over their land did not include the right to try non-Indians. Tribal jurisdiction went from being the “inherent right” of a sovereign nation to being a de facto special privilege.

Unfortunately legal jurisdiction does not guarantee enforcement of the law within that territory. That’s right: state governments fought tooth-and-nail for the right to prosecute crimes on Indian land and then didn’t police Indian land.

Horror stories abound: reservation land is not included in routine county patrols, officers often take hours to respond to emergency calls, and in the rare case that an arrest is made, the cases mysteriously never make it to a courthouse. Think I’m exaggerating? It is not rare to hear stories of men dragging women onto Indian land specifically to commit assault (or worse), because they know they can do so with impunity. Deep distrust between residents of Indian Country and county police is the norm.

On the books, tribal law enforcement was the shared responsibility of tribal, state, and federal governments. In real life, many Indian Reservations became black holes of crime, where child neglect, sexualassault, and substance abuse run rampant, and three in five Native American women have been assaulted by a spouse or partner. 85% of the time, the assailant is a non-tribal member.

The VAWA would give tribal courts jurisdiction over non-tribal members who commit acts of domestic violence on tribal land. And that is exactly what makes it so controversial. Senator John Cornyn (R-TX), who voted against the act, said the bill “is being held hostage by a single provision that would take away fundamental constitutional rights for certain American citizens … In order to satisfy the unconstitutional demands of special interests.”

Washington state Republican and chairman of the House Natural Resources Committee Doc Hastings echoed this sentiment: “Depending on the tribe and reservation they have different laws, obviously because they’re sovereign nations, than what the U.S. has. To put U.S. citizens under their law, it’s just problematic.” In other words, because tribes have their own laws (kind of), persons under tribal jurisdiction would only be guaranteed the rights in the tribal constitution, not necessarily those in the Bill of Rights.

Let’s take a critical look at this logic.

“To put U.S. citizens under their law, it’s just problematic.” It’s problematic? Is it really? I mean, Canada is a “sovereign nation” with different laws than the U.S. And when Americans go to Canada, they are put under Canadian law (19-year-olds can drink, etc.). I don’t see the problem. Furthermore, tribal constitutions tend to be boilerplate duplicates of the Bill of Rights. So most of the time, minor differences regarding fireworks and gambling notwithstanding, the laws are actually the same. In fact, often the majority of tribal casino patrons are non-tribal members who gamble on the reservation precisely because it isn’t legal in the rest of the state.

“They’re sovereign nations.” OH REALLY? That’s weird because I don’t remember you asking them for permission to pass the General Crimes Act, Major Crimes Act, or PL 280. In fact, the only laws that are different on tribal land are those that the Federal Government allows to be different. If a tribe wanted to legalize homicide on their reservation, there is virtually no chance the U.S. Government would allow that to happen. Indian reservations are not sovereign nations. They’re mini-colonies ultimately under the jurisdiction of the federal government.

“VAWA satisfies the demands of special interests.” Pro tip: “special interests” is code for “not a rich, white, cisgendered, heterosexual male.” Genocide? Ok! Kidnapping American Indian children and throwing them in boarding schools? Great! Native women being raped and beaten by white men for years, with no institutional support? Perfect! White domestic abusers facing the possibility of being prosecuted in a court with a nonwhite judge and jury? UNCONSTITUTIONAL!

I hope the utter stupidity of this logic is apparent. Calling Native American women a “special interest” group is a spin tactic which implies that protecting them from bodily harm is a special indulgence, rather than an established right for all Americans. I urge you to call your representatives and ask them to pass the VAWA.