[Senate Hearing 117-158]
[From the U.S. Government Publishing Office]
S. Hrg. 117-158
RESTORING JUSTICE: ADDRESSING VIOLENCE IN
NATIVE COMMUNITIES THROUGH VAWA TITLE
IX SPECIAL JURISDICTION
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HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
DECEMBER 8, 2021
__________
Printed for the use of the Committee on Indian Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT
__________
U.S. GOVERNMENT PUBLISHING OFFICE
46-826 PDF WASHINGTON : 2022
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COMMITTEE ON INDIAN AFFAIRS
BRIAN SCHATZ, Hawaii, Chairman
LISA MURKOWSKI, Alaska, Vice Chairman
MARIA CANTWELL, Washington JOHN HOEVEN, North Dakota
JON TESTER, Montana JAMES LANKFORD, Oklahoma
CATHERINE CORTEZ MASTO, Nevada STEVE DAINES, Montana
TINA SMITH, Minnesota MIKE ROUNDS, South Dakota
BEN RAY LUJAN, New Mexico JERRY MORAN, Kansas
Jennifer Romero, Majority Staff Director and Chief Counsel
K. Williams, Minority Staff Director and General Counsel
C O N T E N T S
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Page
Hearing held on December 8, 2021................................. 1
Statement of Senator Cantwell.................................... 57
Statement of Senator Cortez Masto................................ 52
Statement of Senator Daines...................................... 62
Statement of Senator Hoeven...................................... 59
Statement of Senator Lujan....................................... 5
Statement of Senator Moran....................................... 65
Statement of Senator Murkowski................................... 2
Statement of Senator Rounds...................................... 64
Statement of Senator Schatz...................................... 1
Statement of Senator Smith....................................... 54
Statement of Senator Tester...................................... 4
Witnesses
Chavarria, Hon. J. Michael, Governor, Santa Clara Pueblo......... 17
Prepared statement........................................... 18
Demmert, Michelle, Director, Law and Policy Center, Alaska Native
Women's Resource Center........................................ 39
Prepared statement........................................... 41
Fourstar, Hon. Stacie, Chief Judge, Fort Peck Assiniboine and
Sioux Tribes................................................... 28
Prepared statement........................................... 29
Garriott, Wizipan Little Elk, Principal Deputy Assistant
Secretary, Indian Affairs, U.S. Department of the Interior..... 13
Prepared statement........................................... 14
Randall, Allison L., Principal Deputy Director, Office on
Violence Against Women U.S. Department of Justice.............. 6
Prepared statement........................................... 7
Reese, Elizabeth A., Professor, Stanford Law School.............. 32
Prepared statement........................................... 33
Sharp, Hon. Fawn, President, National Congress of American
Indians........................................................ 21
Prepared statement........................................... 23
Appendix
Letters submitted for the record
Port Gamble S'Klallam Tribe, prepared statement.................. 69
Sullivan, Hon. Jeromy, Chairman, Port Gamble S'Klallam Tribe,
prepared statement............................................. 76
United South and Eastern Tribes Sovereignty Protection Fund,
prepared statement............................................. 71
RESTORING JUSTICE: ADDRESSING VIOLENCE IN NATIVE COMMUNITIES THROUGH
VAWA TITLE IX SPECIAL JURISDICTION
----------
WEDNESDAY, DECEMBER 8, 2021
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:30 p.m. in room
628, Dirksen Senate Office Building, Hon. Brian Schatz,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. BRIAN SCHATZ,
U.S. SENATOR FROM HAWAII
The Chairman. Good afternoon. This hearing will come to
order.
The Senate Committee on Indian Affairs was established for
the primary purpose of representing the legislative and
oversight priorities of Native Americans. The Committee is the
first stop in the Senate toward achieving these priorities and
broadly fulfilling the United States' trust and treaty
obligations.
The Congress is capable of forgetting these obligations.
Our trust and treaty obligations are not just abstract
promises; they are enshrined in the United States Constitution,
the constitutional mandate that committee members carry with
them as they go about their work in the Senate.
When it comes to the Violence Against Women Act, Congress
does not have the luxury of forgetting this mandate. That is
because every member of this Committee knows that public safety
in Native communities is a problem. We have heard from tribal
leaders, we have heard from law enforcement, and we have heard
from the families of Native victims.
Their message is consistent: doing nothing is not an
option. We have heard that message loud and clear in 2013, with
the last VAWA reauthorization.
Almost a decade ago, this Committee came together on a
bipartisan basis and voted to restore tribal criminal
jurisdiction over non-Indians who commit domestic violence in
Indian Country. That vote, one of the first that I took as a
new member of the Senate and of this Committee, was Congress'
first real step toward restoring justice for Native
communities. Because before VAWA in 2013, when tribal law
enforcement was called to the scene of a rime in Indian
Country, the officer had to figure out the nature of the crime,
the status of the land where the crime occurred, whether the
victim was an Indian, and whether the offender was an Indian.
That meant tribal law enforcement officers, often the first
responders on a crime scene, had to complete a complicated
mental checklist before deciding whether to arrest or detain a
suspect. It is no wonder tribes had their hands tied when it
came to maintaining public safety on their own lands.
The criminals exploited this jurisdictional maze, preying
on Native women and children and putting tribal communities in
harm's way. But under VAWA 2013, tribes that opt to exercise
special domestic violence criminal jurisdiction can cut through
the legal red tape to enforce protection orders and prosecute
domestic violence crimes, all while safeguarding defendants'
due process and constitutional rights.
For nearly a decade, tribes have made at least 396 arrests
for VAWA-related crimes, and at least 133 subsequent
convictions using special tribal jurisdiction. Despite the
concerns of some, prior to the law passing, there had been zero
valid habeas corpus petitions filed and zero, zero claims of
due process violation.
So what we will hear today is a story of success. Each of
our witnesses will underscore the importance of special
jurisdiction for Indian Country. They will also lay out ways
that Congress can help tribes and Native communities build on
this success in the next VAWA reauthorization, closing
jurisdictional gaps, creating parity, providing resources, and
making sure that Native Americans are not invisible in public
safety data. These are just a few of the commonsense bipartisan
solutions that our Committee can and should work to advance.
That is one of the many reasons I am thankful for my
partnership with Vice Chair Murkowski. She has been an
extraordinary leader for Native people across the Country, in
Indian Country, of course in Alaska, on behalf of Native
Hawaiians, and especially in this case, on behalf of people who
are victims of domestic violence. We will continue to work
together to make sure Indian Country priorities are included in
the Senate's coming Violence Against Women Act reauthorization.
Finally, before I turn to Vice Chair Murkowski, I would
like to extend a special welcome and thanks to our witnesses
for joining us today. I look forward to your testimony and our
discussion.
Vice Chair Murkowski.
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman.
Indeed, it is a genuine thank you. I want to thank you and
your team for the very cooperative work that has gone into not
only where we are in holding this very, very important hearing,
but in the work that we have done in preparing this draft
legislation that has been publicly now released. It has been a
little bit of a long process. I think we would all like to move
more quickly, but I think we also want to do good work. That is
what this Committee is committed to doing.
So the focus today on what more we can be doing to ensure
levels of protection for those who are subjected to violence in
our Native communities, what more we can be doing for Native
women around the Country, this is a key priority for us. But
how we knit this into the broader VAWA picture proposal is also
very important.
You have outlined, Mr. Chairman, that sometimes these
issues of tribal jurisdiction are confusing, they are esoteric.
But I want to emphasize that the impacts on the ground in
Native communities, particularly in places like very rural
Alaska, they are very real, they are very tragic.
In 2019, we had the Attorney General come out to a small
Native village. He looked around, he talked to the people, he
left and he declared a law enforcement emergency. It was based
on the fact that Alaska has the highest per capita crime rate
in the Country. We face a unique jurisdictional landscape. But
jurisdictional complexity should not deny safety or justice.
That is what we have seen happening.
In 2013, Congress passed the Violence Against Women Act. In
Title IX of VAWA 2013, as it is commonly called, Congress
enacted what has been described as a partial Oliphant fix by
recognizing the inherent authority of tribes to prosecute and
punish certain domestic violence crimes committed by non-
Indians against Indian women.
At that time, this Act was described as unprecedented. Some
members of Congress and the news media pushed a narrative that
tribal governments somehow would not be fair, they wouldn't
safeguard the rights of non-Indian defendants, something that
we all knew was far from the truth.
Mr. Chairman, as you have pointed out, eight years later
the parade of horrible that so many had predicted did not
happen. I am proud to report, as you have, and we are going to
hear from our witnesses, despite all the horror stories, non-
Indian defendants experienced a tribal justice system that
treats them fairly and perhaps in some ways with more attention
than the State or the Federal system.
That is why I believe we have a moral imperative here in
Congress that we take action to further restore and improve the
implementation of this special tribal criminal law jurisdiction
over non-Indians who commit violent crimes in our Native
communities. I firmly believe that by empowering tribal courts
in this way, we can help combat this major public safety issue
that affects Native people and Native children.
We know the statistics on this Committee, we say them a
lot, but they bear repeating. American Indians and Alaska
Natives are the victims of rape, sexual assault and domestic
violence in numbers far out of proportion to the level that
these crimes are committed outside of Native communities. Most
often, these crimes are committed by non-Indian men.
In Alaska, the rates of violence experienced by Alaska
Natives are horrific. There is no other word than horrific.
According to a report prepared by the Indian Law and Order
Commission, Alaska Native women are over-represented by nearly
250 percent among women domestic violence victims in our
Country.
Most Native communities in rural Alaska have no local law
enforcement physically present. One out of three Native
communities, one out of three, has no local law enforcement
that is physically there. Think about what that means if you
are a victim of violence in your home, if your children have
been targeted, and there is no presence for law enforcement.
Currently, Alaska tribes, many of the tribes don't have the
tools that they need to address this violence in their tribal
communities. Only one Alaska tribe could potentially implement
the special jurisdiction. This is wrong, and we have recognized
that, and we have to make it right. We need to do it in a way
that recognizes the unique jurisdictional situation that we
have in Alaska.
We are a PL-280 State, Alaska is. The Alaska Native Claims
Settlement Act, ANCSA, is going to be celebrating its 50th
anniversary just this next week. It created a new and different
approach to tribal land tenure from the lower 48 reservation
system. I know it still comes as a surprise to some, but we
have half the tribes in the entire Country, but we only have
one Indian reservation in our State.
After the U.S. Supreme Court decision in the Venetie case
in which the court held that ANSCA lands are not Indian
Country, it became the State's duty, largely alone, to provide
for public safety and justice for Alaska Natives. So we are in
a situation that just isn't tenable right now.
But I am happy to report that we have an Alaska solution to
this complex jurisdictional situation in our State, and we are
calling it the Alaska Public Safety Empowerment Pilot Project.
We are rolling it out as a part of the discussion draft text
title for folks to see, give us your feedback on it. It builds
on previous legislation that you have seen from me. It is the
product of years, years of work, with tribal advocates and
smart lawyers. We are going to be able to hear from Michelle
Demmert as part of this panel. She has been a great help.
This pilot project will empower a limited number of Alaska
tribes to exercise special criminal jurisdiction over certain
crimes that occur in villages in Alaska. These tribes will have
to meet certain criteria, including have a tribal justice
system that can adequately safeguard the rights of defendants.
I am absolutely confident, absolutely confident, that Alaska
tribes are up to this task.
Overall, I think we have a unique opportunity here, working
in a cooperative and bipartisan way to make a positive
difference in the safety of our Native communities for Native
women and children across our Country. I hope, I hope, Mr.
Chairman, that we seize it.
Again, I want to thank the witnesses for participating
today, especially Michelle Demmert, of the Alaska Native
Women's Resource Center.
Mr. Chairman, thank you for helping in such a strong and
constructive way to get us here today. Thank you.
The Chairman. Thank you, Vice Chair Murkowski.
Senator Tester would like to introduce one of the witnesses
for us.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. I have a real brief opening statement.
First of all, I want to thank you, Mr. Chairman, and Ranking
Member Murkowski, for all of the good work that you have done
on this Committee, particularly on this issue. There are seven
people on the witness list today, two of them in person and
welcome, and five of them virtually. So there is a wealth of
information we can get.
I would also like to welcome the Montanans we have in the
house today. I appreciate you folks being here.
It is very important to have this hearing. The Violence
Against Women Act saves lives, plain and simple. The
reauthorization of VAWA is long overdue. Without the
reauthorization, the lifesaving resources that it offers are
put to risk.
Tribal sovereignty needs to be in the forefront of these
discussions around VAWA reauthorization, and rightfully so.
Because when it comes to making decisions about Indian Country,
tribes need to be the ones driving the bus.
This being said, it is my pleasure to introduce Chief Judge
Stacie FourStar today, someone who knows about what it takes to
make these critical decisions. She is a member of the Fort Peck
Assiniboine and Sioux Tribes. She specializes in Indian law.
While working in her home community, she has served as
prosecutor, as associate judge, and now holds the office of
Chief Judge of the Fort Peck Tribes.
She has been a key player in implementing VAWA for the
tribes since it was accepted into a pilot program back in 2015.
She knows what she is talking about, and I look forward to
hearing from Chief FourStar and the other six witnesses here
today.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Tester.
Senator Lujan, for an opening statement.
STATEMENT OF HON. BEN RAY LUJAN,
U.S. SENATOR FROM NEW MEXICO
Senator Lujan. Thank you, Chair Schatz, and Vice Chair
Murkowski, for holding this hearing to examine the tribal title
of the Violence Against Women Act Reauthorization. Thank you to
our witnesses for joining us today.
I would like to welcome Elizabeth Reese, Yunpovi, of Nambe
Pueblo, and also introduce Governor Michael Chavarria, Santa
Clara Pueblo.
Santa Clara Pueblo is the first and only pueblo or tribe in
New Mexico to exercise special domestic violence criminal
jurisdiction under the Violence Against Women Act. As governor
from 2006 and 2008, and 2014 to 2021, Governor Chavarria
oversaw the implementation of the criminal jurisdiction,
creating a new tribal code in 2020 to meet Federal standards
under VAWA, directing Federal grant funding to train judges and
defense counsel and law enforcement personnel for this purpose.
It is my pleasure and honor to have you here today,
Governor. I look forward to highlighting the pueblo's
leadership in exercising this jurisdiction and how the Native
Youth and Tribal Officer Protection Act I introduced today will
fill in many of the gaps left in place by the 2013 VAWA.
Thank you, Chair, and I yield back.
The Chairman. Thank you, Senator Lujan.
I will now turn to our witnesses. We have seven: Allison
Randall, Principal Deputy Director, Office on Violence Against
Women, in the U.S. Department of Justice; Wizipan Little Elk
Garriott, Principal Deputy Assistant Secretary, Indian Affairs,
of the U.S. Department of the Interior; J. Michael Chavarria,
Governor, Santa Clara Pueblo, Espanola, New Mexico; Fawn Sharp,
President, National Congress of American Indians; Stacie
FourStar, Chief Judge, Fort Peck Assiniboine and Sioux Tribes,
Poplar, Montana; Elizabeth Reese, Assistant Professor of Law,
Stanford University; Michelle Demmert, Director, Law and Policy
Center, Alaska Native Women's Resource Center, Fairbanks,
Alaska.
I want to remind our witnesses that your full written
testimony will be made part of the official hearing record.
Please confine your remarks to five minutes exactly or less if
you can.
Principal Deputy Director Randall, the Committee's rules,
specifically (b), requires that if a Federal witness misses the
Committee's 48-hour deadline for submission of testimony, the
witness must state on the record why the testimony was late.
Please be prepared to start your testimony with an explanation
of why you were unable to comply with the Committee's rule.
Now we will recognize the witnesses, starting with
Principal Deputy Director Randall.
STATEMENT OF ALLISON L. RANDALL, PRINCIPAL DEPUTY
DIRECTOR, OFFICE ON VIOLENCE AGAINST WOMEN U.S.
DEPARTMENT OF JUSTICE
Ms. Randall. Thank you so much, Chairman Schatz, Vice
Chairman Murkowski, and esteemed members of the Committee.
My apologies, and please excuse the delayed submission of
testimony, due to the lengthy inter-agency clearance process
and the department's comprehensive review.
I am honored to be here to discuss implementation of
special domestic violence criminal jurisdiction, how it has
made a real difference in addressing violence against Native
women, and how working together, we can continue to make
progress in addressing these devastating crimes.
Prior to the Violence Against Women Act reauthorization of
2013, or VAWA 2013, even violent crimes committed by a non-
Indian husband against his Indian wife in the presence of their
Indian children, in their home on the Indian reservation, could
not be prosecuted by the tribe. This lack of jurisdiction left
many severe acts of domestic and dating violence unprosecuted
and unpunished.
At the same time, Native American women continued to suffer
unacceptably high rates of violence. More than half of American
Indian and Alaska Native women have experienced physical
violence by an intimate partner in their lifetimes.
Congress acted to bridge this critical enforcement gap when
VAWA was reauthorized in 2013, by recognizing tribes' inherent
power to exercise special domestic violence criminal
jurisdiction, or SDVCJ, over certain defendants, regardless of
their Indian or non-Indian status, who commit acts of domestic
violence, dating violence, or who violate certain protection
orders in Indian Country. Congress also required that
participating tribes provide protections for defendants' rights
and civil liberties.
In the years since 2013 has passed, 28 tribes have reported
that they have implemented SDVCJ. VAWA 2013 has empowered these
tribes to hold accountable long-time abusers who previously had
evaded justice. The experience of the implementing tribes has
demonstrated that tribal authorities can and do protect the
rights of non-Indian defendants.
Seven years' experience has also shown that there are gaps
in SDVCJ that undermine tribal efforts to protect victims and
hold offenders accountable. The National Congress of American
Indians' 2018 report on SDVCJ documents cases that could not be
brought and charges that could not be filed due to these gaps.
The Department of Justice officials have heard from tribal
leaders year after year at our annual Violence Against Indian
Women consultation that tribes cannot prosecute co-occurring
crimes, such as child abuse, assault on tribal officials, as
well as sexual assault committed by non-Natives. The stories
are heartbreaking.
That is the Department of Justice urges Congress to
recognize tribal jurisdiction that will allow tribes to hold
accountable non-Indian perpetrators of the crimes of sexual
violence, sex trafficking, domestic violence against child
victims, stalking, elder abuse, and assault against law
enforcement officers when offenders commit such crimes on
tribal territory.
I would also like to address the fact that tribes in Alaska
face additional challenges in protecting victims and responding
to offenders, the vast distances, remote locations, and an
inability to exercise SDVCJ under the current legal framework.
Given the high rates of violence experienced by Native women in
Alaska, we are committed to working with the tribes and
Congress to address these challenges and empower tribes in
Alaska to confront the violence in their communities.
The Department continues to listen to tribes and support
their exercise of SDVCJ. We have heard from tribal leaders that
they need access to funds to support the day-to-day costs of
SDVCJ. So today I am pleased to announce OVW is issuing 11
awards to implementing tribes to defray these costs. To further
our commitment to finding solutions that work for Alaska Native
tribes, I am also pleased to announce today that the
Department's annual consultation will be held in Alaska next
year.
In closing, SDVCJ has been a success. But many survivors
have been left behind, and perpetrators not held fully
accountable because of its limitations. Congress must act.
I appreciate the time and attention of this Committee, and
look forward to answering your questions, and working with you
on this crucial issue.
[The prepared statement of Ms. Randall follows:]
Prepared Statement of Allison L. Randall, Principal Deputy Director,
Office on Violence Against Women U.S. Department of Justice
Introduction
Thank you, Chairman Schatz, Vice Chairman Murkowski, and members of
the Committee for the opportunity to speak to you today. I am pleased
to be here to discuss implementation of Special Domestic Violence
Criminal Jurisdiction from 2013-2021, including successes achieved and
lessons learned.
In the spring of 1994, I ran away from home and drove halfway
across the country to a small town just outside Cherokee, North
Carolina, where the Native American women who worked and were fellow
residents at a domestic violence shelter saved my life. They embraced
me, taught me, and encouraged me to give back to other survivors,
sparking my lifelong dedication to reducing domestic and sexual
violence. It is thanks to those Cherokee women that I sit before you
today.
The U.S. Department of Justice's Office on Violence Against Women
(OVW) assumes the day-to-day work of implementing VAWA, including
supporting the exercise of Special Domestic Violence Criminal
Jurisdiction by federally recognized tribes. The office leads the
federal government's efforts to reduce violence against women and
administer justice for and strengthen services to victims of domestic
violence, dating violence, sexual assault, and stalking. VAWA and
subsequent legislation authorize four programs that are specifically
designed for tribal communities: the Tribal Governments Program, the
Tribal Sexual Assault Services Program, the Tribal Domestic Violence
and Sexual Assault Coalitions Program, and the Grants to Tribal
Governments to Exercise Special Domestic Violence Criminal Jurisdiction
Program (Tribal Jurisdiction Program). In fiscal year (FY) 2021, OVW
awarded over $43 million under these tribal-specific grant programs.
OVW also manages a Violence Against Women Tribal Special Assistant U.S.
Attorney (SAUSA) special initiative, which funds tribal prosecutors who
can bring cases in both tribal and federal court. The President's FY
2022 budget request includes an increase of over $46 million for OVW's
tribal-specific grant programs, including $3 million for OVW's Violence
Against Women Tribal SAUSA initiative.
OVW is proud to have a Deputy Director for Tribal Affairs,
established by the 2005 reauthorization of the Violence Against Women
Act to oversee administration of OVW's tribal funding, coordinate
development of federal policy on violence against American Indian and
Alaska Native women, and provide advice and technical assistance to
Department officials. This position is currently held by Sherriann C.
Moore, Rosebud Sicangu' Lakota, who, since 2017, also has led OVW's
work hosting the Department's annual VAWA-mandated consultation with
tribal leaders.
Domestic Violence and the Enforcement Gap in Indian Country
Criminal jurisdiction in Indian country generally is shared among
the federal, state, and tribal governments, according to a matrix that
takes into account the nature of the crime, whether the crime has
victims or is victimless, whether the defendant is Indian or non-
Indian, whether the victim is Indian or non-Indian, and sometimes other
factors as well. In 1978, in Oliphant v. Suquamish Indian Tribe, the
U.S. Supreme Court held that, absent express Congressional
authorization, tribes lack jurisdiction over crimes committed by non-
Indians. \1\ The practical effect of this decision was that, prior to
the Violence Against Women Reauthorization Act of 2013 (VAWA 2013),
even violent crimes committed by a non-Indian husband against his
Indian wife, in the presence of their Indian children, in their home on
the Indian reservation, could not be prosecuted by the tribe. Instead,
these crimes fell under the criminal jurisdiction of the United States
or, in some circumstances, of the state.
---------------------------------------------------------------------------
\1\ 435 U.S. 191 (1978).
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VAWA 2013 and Special Domestic Violence Criminal Jurisdiction
As a result of this jurisdictional framework, as well as other
factors, Native American women have suffered some of the highest rates
of violence at the hands of intimate partners in the United States. A
National Institute of Justice analysis of 2010 survey data collected by
the Centers for Disease Control and Prevention found that more than
half (55.5 percent) of American Indian and Alaska Native women have
experienced physical violence by an intimate partner in their
lifetimes. As this study notes, among these victims, 90 percent have
experienced such violence by a non-Indian intimate partner at least
once in their lifetimes. Over their lifetimes, American Indian and
Alaska Native women are about five times as likely as non-Hispanic
White-only female victims to have experienced physical violence at the
hands of an intimate partner who is of a different race. \2\ The same
analysis likewise found high rates of sexual violence against Native
American women, concluding that more than 1 in 2 American Indian and
Alaska Native women (56.1 percent) have experienced sexual violence in
their lifetimes. American Indian and Alaska Native women are three
times as likely as non-Hispanic White women to have experienced sexual
violence by a perpetrator who is of a different race. \3\
---------------------------------------------------------------------------
\2\ Andre B. Rosay, U.S. Dept. of Justice, Nat'l Inst. of Justice,
Violence Against American Indian and Alaska Native Women and Men: 2010
Findings from the National Intimate Partner and Sexual Violence Survey
(May 2016) 21, 26, https://www.ncjrs.gov/pdffiles1/nij/249736.pdf.
\3\ Id. at 13, 18.
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In VAWA 2013 (codified at 25 U.S.C. 1304), Congress recognized and
affirmed tribes' inherent power to exercise ``special domestic violence
criminal jurisdiction,'' or SDVCJ, over certain defendants, regardless
of their Indian or non-Indian status, who commit acts of domestic
violence or dating violence or violate certain protection orders in
Indian country. For the first time in decades, tribes therefore could
prosecute non-Indian perpetrators of domestic violence and dating
violence.
In broadening the set of persons who could potentially be
prosecuted by tribes for these specific crimes, Congress required that
participating tribes provide protections for a criminal defendant's
rights and civil liberties that would be as robust in tribal court as
they would be if the defendant were prosecuted in any state court.
Specifically, in any case in which a term of imprisonment of any length
may be imposed, the defendant is afforded all applicable rights under
the Indian Civil Rights Act of 1968, all rights applicable to
defendants charged with felony offenses under the Tribal Law and Order
Act of 2010 (TLOA), and also the right to trial by an impartial jury
chosen from a jury pool that reflects a fair cross-section of the
community, including both Indians and non-Indians. The TLOA rights
include providing each indigent defendant, at no cost to the defendant,
the right to the assistance of a defense attorney licensed to practice
law.
In addition, to give tribes time to prepare to meet the
requirements of the statute, Section 1304 generally did not take effect
until March 7, 2015, two years after VAWA 2013 was signed into law. In
the interim, VAWA 2013 established a voluntary Pilot Project
authorizing tribes to commence exercising SDVCJ on an accelerated
basis, but only if the tribe could establish to the Attorney General's
satisfaction that it had adequate safeguards in place to protect
defendants' rights. Once the two-year Pilot Project concluded, other
tribes were authorized to exercise SDVCJ without seeking the Attorney
General's approval.
The Pilot Project for Tribal Jurisdiction over Crimes of Domestic
Violence
After enactment, the Department moved quickly to implement the
Pilot Project and thereby lay the groundwork for other tribes that
would choose to implement SDVCJ. On February 6, 2014, the Department of
Justice announced that the Pascua Yaqui Tribe of Arizona, the Tulalip
Tribes of Washington, and the Confederated Tribes of the Umatilla
Indian Reservation in Oregon were selected for the Pilot Project. On
March 6, 2015, the Department announced the designation of two
additional pilot tribes, the Sisseton Wahpeton Oyate of the Lake
Traverse Reservation in South Dakota and the Assiniboine and Sioux
Tribes of the Fort Peck Indian Reservation in Montana.
The three original Pilot Project tribes achieved notable success
implementing SDVCJ during the Pilot Project period from February 2014
through March 2015. Tribes worked closely with their local United
States Attorneys' Offices to identify which cases were best prosecuted
by the tribes and which were more suitable for federal prosecution,
with the common goal of holding offenders accountable and keeping
tribal communities safe. In this first year of implementation, the
three pilot tribes had a total of 27 SDVCJ cases involving 23 separate
offenders. Of the 27 cases, 11 were ultimately dismissed for
jurisdictional or investigative reasons, 10 resulted in guilty pleas, 5
were referred for federal prosecution, and 1 offender was acquitted
after a jury trial in tribal court. \4\
---------------------------------------------------------------------------
\4\ Press Release, U.S. Dept. of Justice, Director Tracy Toulou of
the Office of Tribal Justice Testifies Before the Senate Committee on
Indian Affairs Oversight Hearing on Draft Legislation to Protect Native
Children and Promote Public Safety in Indian Country, (May 18. 2016),
https://www.justice.gov/opa/speech/director-tracy-toulouoffice-tribal-
justice-testifies-senate-committee-indian-affairs-0.
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Intertribal Technical-Assistance Working Group on SDVCJ
In June 2013, the Department established the Intertribal Technical-
Assistance Working Group on Special Domestic Violence Criminal
Jurisdiction (ITWG) so that tribes can exchange views, information, and
advice about how they can best exercise SDVCJ, combat domestic
violence, recognize victim's rights and safety needs, and fully protect
defendants' rights. Since then, over 50 tribes have voluntarily joined
the ITWG where tribes share their experiences implementing or preparing
to implement SDVCJ, attend in-person meetings, and participate in
numerous webinars on subjects such as jury pools and juror selection,
defendants' rights, victims' rights, and prosecution skills. Through
the ITWG, the Pilot Project tribes and other earlier implementing
tribes have not only discussed challenges and successes with other
tribes but also shared best practices, including their revised tribal
codes, court rules, court forms, jury instructions, and other tools
they have developed to implement SDVCJ. The Department continues to
support the ITWG with training and technical assistance, including
grant awards by OVW to the National Congress of American Indians (NCAI)
to support the ITWG's ongoing work.
Ongoing Tribal Implementation of VAWA 2013
To date, 28 tribes have reported to NCAI that they have implemented
SDVCJ. \5\ Based on updates provided at an October 2021 meeting of the
ITWG (which does not include data from all tribes that exercise SDVCJ),
tribes reported the following aggregate statistics regarding their
implementation of SDVCJ:
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\5\ Since the end of the pilot period, tribes are not required to
notify the Department if they begin exercising SDVCJ, but NCAI, which
receives funding from the Department to provide technical assistance to
tribes implementing or planning to implement SDVCJ, tracks
developments.
---------------------------------------------------------------------------
396 arrests (cases, not charges)
227 defendants
133 convictions (both guilty pleas and convictions following a
bench or jury trial)
1 habeas petition (dismissed for lack of jurisdiction)
In March 2018, NCAI published VAWA 2013's Special Domestic Violence
Criminal Jurisdiction (SDVCJ) Five-Year Report, \6\ which summarizes
how tribes implemented SDVCJ in the five years following VAWA 2013's
enactment and analyzes its impact on tribal communities. The five-year
report documented the implementing tribes' commitment to upholding the
rights of non-Indian defendants. According to the NCAI statistics, of
the 143 arrests for SDVCJ-related crimes, 52 percent resulted in
convictions, while 18 percent of the cases resulted in acquittals or
dismissals. Of the cases that were filed, 21 percent were dismissed or
resulted in acquittals. As noted by NCAI, the rate of dismissals
indicates that tribes do not proceed with prosecutions where they lack
jurisdiction or sufficient evidence. Moreover, as of March 2018, of the
six SDVCJ trials that had occurred-five jury trials and one bench
trial-five ended in acquittal. The NCAI report quoted a former Attorney
General of the Pascua Yaqui Tribe describing the tribe's first SDVCJ
jury trial:
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\6\ The report is available at https://www.ncai.org/resources/ncai-
publications/SDVCJ_5_Year_Report.pdf.
Although we would have preferred a guilty verdict, this first
full jury trial . . . proved our system works. A non-Indian was
arrested and held by Pascua Yaqui law enforcement, he was
represented by two attorneys, and a majority Yaqui jury, after
hearing evidence presented by a tribal prosecutor, in front of
an Indian judge, determined that the Tribe did not have
jurisdiction in a fairly serious [domestic violence assault]
case. \7\
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\7\ In that case, while there was no question that the assault had
occurred, the jury was not convinced that the relationship between the
victim and the non-Indian defendant met the requirements for qualifying
as ``domestic violence'' or ``dating violence,'' as is necessary to
trigger tribal jurisdiction under VAWA 2013.
The very fact that SDVCJ trials have resulted in acquittals
suggests that, contrary to the fears of some opponents of SDVCJ, non-
Indian offenders receive fair trials in tribal court. Similarly, the
fact that only one SDVCJ defendant has filed a habeas petition
challenging his tribal conviction is a testament to the tribes' ability
to safeguard the rights of defendants. VAWA 2013 was designed to ensure
that non-Indian offenders subject to tribal criminal jurisdiction could
challenge the legality of their treatment in federal court. The statute
requires that defendants are affirmatively notified of their right to
petition for habeas review in federal court, and of their right to
request that tribal detention be stayed during that review.
Nonetheless, after six years of implementation by dozens of tribes
involving hundreds of defendants, only one defendant has filed a habeas
case.
Critically, statistics from implementing tribes indicate that many
SDVCJ defendants have long histories with the police, underscoring how
VAWA 2013 has empowered tribes to finally be able to hold accountable
long-time abusers. NCAI's report found that, with 18 implementing
tribes reporting, 85 SDVCJ defendants accounted for 378 prior contacts
with tribal police before SDVCJ implementation--when the tribes were
unable to hold non-Indian abusers accountable. For example, the Tulalip
Tribes reported that their 17 SDVCJ defendants had a total of 171
contacts with tribal police in the years prior to SDVCJ implementation
and their ultimate arrests. Similarly, the report found that 73
defendants arrested and convicted under SDVCJ had prior convictions or
outstanding warrants, including documented histories of violent
behavior.
Identified Gaps in SDVCJ
The NCAI's report also identified several areas where VAWA 2013
could be strengthened to improve public safety. The report noted that
the omission of jurisdiction over other common forms of violence
against women (e.g., stalking, sexual assault, or sex trafficking) was
a continual source of frustration for implementing tribes, which were
often unable to prosecute crimes that co-occur with domestic violence.
Similarly, the report highlighted that the narrow scope of criminal
conduct that can be charged under SDVCJ has created safety concerns for
tribal law enforcement, as the tribes lacked the ability to prosecute a
defendant who assaults responding law enforcement officers or courtroom
personnel.
Tribal leaders have repeatedly echoed these same concerns to the
Department at our annual Violence Against Women Government-to-
Government Tribal Consultation. Most of the tribes that testified about
SDVCJ between the years 2016 and 2020 advocated to expand SDVCJ to
include non-Indian perpetrators of sexual assault, sex trafficking,
crimes against children and law enforcement officers, and property
crimes, among other crimes.
One common theme from tribal leaders has been that domestic
violence incidents often involve attendant crimes that should be
prosecuted concurrently-including child abuse. For example, in 2016, a
Board of Trustees Member of the Confederated Tribes of Umatilla Indian
Reservation testified that ``[c]hildren were present in all [SDVCJ]
cases prosecuted at Umatilla with the exception of restraining order
violation cases. All suspects had prior domestic violence incidents on
their records. In the charges filed under the limited jurisdiction of
VAWA 2013, there was probable cause for other attendant crimes.
Domestic violence can also be directed at third parties, such as
children, family members, boyfriends/girlfriends, or other persons that
the primary victims have relationships with''-yet tribes cannot
prosecute these crimes. Similarly, the Tribal Chairman of the Pascua
Yaqui Tribe explained that ``[m]any tribal communities contain multi-
generational households with extended family members commonly sharing
residences and childrearing duties. A restrictive definition does not
allow for the prosecution of acts of domestic violence occurring
against other, more distantly related children in the home. This gap in
jurisdiction results in children from the extended family of the
parties in the romantic relationship being exposed to the harms of
domestic violence without the perpetrator being held accountable.''
Of equal importance, many tribes have advocated for an expansion of
SDVCJ to include non-Indian defendants who commit sexual assaults where
there is no intimate partner relationship, including those who are
strangers and do not maintain ``substantial ties'' to the tribe. In one
instance, the Vice Chairman of the Nez Perce Tribe described how ``A
woman was taken off our reservation by two non-Native perpetrators and
raped repeatedly over several days. Even if we had SDVCJ at that time,
the tribe would not have been able to prosecute the offenders since
they had no relationship to the victim because SDVCJ only applies to
intimate partners.'' And the 2018 testimony of a Tribal Council Member
of the Sault Ste. Marie Tribe of Chippewa Indians highlighted that gaps
in tribal authority to prosecute sexual assaults committed by non-
Indians have allowed some crimes to go unanswered: ``In the last year,
our tribe has had two instances of non-Native juveniles sexually
assaulting their Native step-siblings. The tribe has no jurisdiction,
so we requested the U.S. attorney to prosecute.'' The Department
acknowledges the difficulty in prosecuting juveniles in federal court,
especially if the defendants are very young, and it follows that tribes
would want jurisdiction to address these crimes within their
communities.
Finally, tribes have noted that VAWA left a gap by failing to
recognize tribal criminal jurisdiction over crimes committed by SDVCJ
defendants during and after their arrests by tribal authorities. For
example, the Lieutenant Governor of the Gila River Indian River
Community testified: ``Our Department of Corrections is concerned about
whether our tribal courts have the ability to bring additional criminal
charges against a VAWA inmate who is already imprisoned. For example,
if a VAWA inmate assaults staff or another inmate, will tribal courts
have jurisdiction over that incident?''
The Department and tribes also have identified another shortcoming
with VAWA 2013's recognition of tribal criminal jurisdiction: it did
not expressly apply to tribes in Maine. Any new legislation should
clarify that tribes in Maine may exercise this same jurisdiction so
that a provision in the Maine Indian Claims Settlement Act does not
continue to restrict tribes in that state from implementing SDVCJ.
Empowering Alaska Native Villages to Exercise SDVCJ
Tribes in Alaska face additional challenges in ensuring a strong
criminal justice response to violence against women crimes due to vast
distances, remote locations, and the limited amount of Indian country
in Alaska, a requirement for the exercise of SDVCJ under VAWA 2013. At
the Department's 2021 Violence Against Women Government-to-Government
Tribal Consultation, Vivian Korthuis, Chief Executive Officer for the
Association of Village Council Presidents and a member of the Emmonak
Tribe, testified from Bethel, AK about some of these challenges:
We are located on the Yukon-Kuskokwim Delta in western Alaska
and this is what I like to call extreme rural America. Our
region is about the size of the State of Washington, and there
are no roads connecting our 48 villages to each other or the
rest of the state. The only way into our region is to either
fly or [travel by] barge in the summertime. Transportation
within our region is by small plane or boat in the summertime
and snow machine on snow machine trails or the ice road in the
wintertime.
The rates of domestic violence in the south in our Tribal
communities are 10 times higher than the rest of the United
States. This is unacceptable. Last week at our executive board
meeting, one of our board members, who is the council president
of her Tribe, told me that she called the police to report a
crime. Her village has no local law enforcement. Calls for help
can be answered [by] one of the few state trooper posts in our
region, hundreds of miles away. This time, her call for help
was answered in Fairbanks, 453 miles away from her village.
They took down her complaint and she never heard from them
again.
According to the 2013 report of the Indian Law and Order Commission
(ILOC), Alaska Native women are overrepresented in the domestic
violence victim population by 250 percent. \8\ In the state of Alaska,
Alaska Native females comprise 7.5 percent of the population \9\ but
the ILOC found that Alaska Native women are 47 percent of reported rape
victims in the state. The ILOC also stated that ``the rate of sexual
violence victimization among Alaska Native women was at least seven
times the non-Native rate.'' \10\
---------------------------------------------------------------------------
\8\ The Indian Law and Order Commission. A Road Map for Making
Native America Safer: Report to the President & Congress of the United
States. (November 2013) Available at: https://www.aisc.ucla.edu/iloc/
report/files/A_Roadmap_For_Making_Native_America_Safer-Full.pdf.
\9\ July 1, 2019 estimate from the American Community Survey
conducted by the U.S. Census Bureau, Population Estimates Program.
Available at: https://www.census.gov/quickfacts/fact/table/AK/
RHI325219#RHI325219.
\10\ Supra note 8.
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When Congress recognized SDVCJ in VAWA 2013, it limited
participating tribes to those that exercise jurisdiction over Indian
country, which is defined as land within the limits of an Indian
reservation, dependent Indian communities, and Indian allotments. \11\
Although there are 229 federally recognized tribes in Alaska, when
Congress passed the Alaska Native Claims Settlement Act (ANCSA) in
1971, it revoked the reservation status of lands set aside for all
tribes in Alaska except the Annette Island Reservation of the
Metlakatla Indian Community. \12\ Then in Alaska v. Native Village of
Venetie Tribal Government, 522 U.S. 520 (1998), the Supreme Court held
that lands reacquired by the Native Village of Venetie through the
ANCSA process did not fit within the definition of ``dependent Indian
community'' under the Indian country statute. See 18 U.S.C. 1151(b). As
a result, while there are still lands that would qualify as Indian
country in Alaska, those lands are limited by ANSCA and the Venetie
decision. As a consequence, tribes in Alaska have not been able to
realize the benefits of SDVCJ in holding offenders accountable and
keeping victims safe. This is despite the fact that American Indian and
Alaskan Native (AIAN) women in Alaska endure staggering rates of
violence, often in the most remote and sparsely populated regions of
the country. By some estimates, almost 58 percent of AIAN women in
Alaska experience interpersonal violence, sexual violence, or both
during their lifetime. \13\ The extreme climate and geography of Alaska
coupled with a scarcity of resources means that AIAN victims in Alaska
are in unimaginable danger. Creating a pilot project to extend SDVCJ to
select Alaskan tribes could empower tribes in Alaska to confront the
tremendous violence against women in their communities.
---------------------------------------------------------------------------
\11\ 18 U.S.C. 1151.
\12\ For example, land was taken into trust for some tribes in
Alaska pursuant to the Indian Reorganization Act and those lands remain
in trust status and are therefore Indian country and there are
allotments in Alaska that may qualify as Indian country as well.
\13\ Johnson, I. (2021). 2020 Statewide Alaska Victimization Survey
Final Report. Justice Center, University of Alaska, Anchorage.
Available at: https://scholarworks.alaska.edu/bitstream/handle/11122/
12259/2021-10%20AVS%202020%20Final%20Report.pdf?sequence=1&isAllowed=y.
---------------------------------------------------------------------------
Support for Special Domestic Violence Criminal Jurisdiction for Tribes
under VAWA
As emphasized in the President's recent Executive Order on
Improving Public Safety and Criminal Justice of Native Americans and
Addressing the Crisis of Missing or Murdered Indigenous People, the
Department is committed to helping tribes implement SDVCJ and stands
ready to support tribes if Congress recognizes tribal criminal
jurisdiction over non-Indian offenders who commit other crimes against
Indian victims in tribal communities. Such legislation will allow
participating tribes to hold accountable non-Indian perpetrators of
sexual violence, sex trafficking, domestic violence against child
victims, stalking, elder abuse, and assault against law enforcement
officers when they commit such crimes on tribal territory.
To support tribes' implementation of this jurisdiction, the
President's FY 2022 Budget would increase the funding level for OVW's
Tribal Jurisdiction Program from $4 million to $5.5 million. This
increased funding will help tribes defray the costs of implementation,
including those associated with law enforcement, prosecution, court and
probation systems, corrections and rehabilitation, victim services,
indigent defense, and empaneling juries.
Conclusion
SDVCJ has been a success, but many survivors have been left behind
by its limitations. I urge Congress to build upon tribes' effective
implementation of SDVCJ under VAWA and recognize tribal criminal
jurisdiction over additional crimes in order to expand access to
justice for Native victims and improve public safety in Native
communities. I appreciate the time and attention of this Committee and
look forward to answering your questions and working with you on this
crucial issue.
The Chairman. Thank you very much.
Principal Deputy Assistant Secretary Garriott, please
proceed.
STATEMENT OF WIZIPAN LITTLE ELK GARRIOTT, PRINCIPAL DEPUTY
ASSISTANT SECRETARY, INDIAN AFFAIRS, U.S.
DEPARTMENT OF THE INTERIOR
Mr. Garriott. Hello, good afternoon, Chairman Schatz, Vice
Chairman Murkowski. In my language I say, [phrase in Native
tongue], I greet with you a good heart.
My name is Wizipan Little Elk Garriott. I serve as the
Principal Deputy Assistant Secretary for Indian Affairs at the
U.S. Department of the Interior. Thank you for the opportunity
to present the Department's testimony supporting increased
efforts to address violence in Indian Country through
implementation of the Tribal Special Domestic Violence Criminal
Jurisdiction Provisions in the Violence Against Women Act.
This is an issue that is close to my heart. Many of my
relatives have experienced hurt and trauma including abuse as a
child, domestic abuse, and even human trafficking at the hands
of both Indian and non-Indian perpetrators. Sadly, living in
fear is all too often the reality for many in Indian Country.
As members of this Committee are aware, American Indians
and Alaska Natives are more than two times as likely to
experience violent crimes and at least two times more likely to
experience rape or sexual assault and crimes than all other
ethnicities. Violence does not happen in a vacuum. This is why
the Biden-Harris Administration and the Department support the
expansion of tribal criminal jurisdiction beyond crimes of
domestic violence as provided for in H.R. 1620, the Violence
Against Women Act reauthorization.
In line with this commitment, the Department is working to
reduce rates of domestic violence and violence against American
Indian and Alaska Native people, collaborate with tribes and
law enforcement agencies to equip tribes with the resources to
respond to violence at the community level, implement models of
tribal restorative justice, provide violence prevention
services to diminish cycles of violence, and directly assist
tribes with solving active and unsolved missing persons and
homicide cases.
Also working through the Bureau of Indian Affairs Office of
Justice Services to implement the Missing and Murdered
Indigenous Peoples Unit, and to fulfill the requirements of the
Savanna's Act, the Not Invisible Act, and the President's
Executive Order on Addressing the Crisis of Missing or Murdered
Indigenous People.
Assisting the tribes with implementation of VAWA 2013 is
another critical part of the Department's commitment to
addressing this epidemic. To date, 28 tribal governments
maintain domestic violence jurisdiction over non-Indians, and
many more tribal governments are in varying stages of planning
and implementation. The BIA OJS provides support to those
tribes currently implementing VAWA as well as those with
prospects for implementation.
Despite the successes of VAWA 2013, jurisdictional gaps
persist across Indian Country. Many domestic violence cases
involve children who are present in the home during alleged
incidents. According to the Pascua Yaqui Tribe, from 2014 to
2017, 32 children, all under the age of 11, were exposed to
violence, were victims, or reported the crime while it was in
progress. Pascua Yaqui's numbers are not unique. They
demonstrate the need for tribal criminal jurisdiction to be
expanded to include crimes against children.
The time has come to honor tribal sovereignty and expand
tribal criminal jurisdiction. H.R. 1620 provides for the
expansion of tribal criminal jurisdiction beyond crimes of
domestic violence to include crimes of dating violence,
obstruction of justice, sexual violence, sex trafficking,
stalking, and assault of law enforcement or correctional
officers. Importantly, this legislation expands tribal criminal
jurisdiction to crimes against children.
Since time immemorial, Native nations have maintained
effective justice systems. Today, tribal governments of course
continue to prove they are best suited. This is why the
Department is pleased to support expansion of criminal
jurisdiction to tribes in Maine and in Alaska. Due to the
remote nature and limited resources of many Alaska Native
villages, providing for public safety and law enforcement serv
ices remains a big challenge. Many villages lack enforcement,
and in many cases must wait days for law enforcement response
to an incident. The Department understands and appreciates the
unique jurisdictional and resource challenges faced by Alaska
Native tribes.
The Administration and the Department are firmly committed
to working with tribal governments and this Committee to
meaningfully improve public safety and justice for all tribes.
Thank you for the opportunity to testify today. I would be
happy to answer any questions the Committee may have.
[The prepared statement of Mr. Garriott follows:]
Prepared Statement of Wizipan Little Elk Garriott, Principal Deputy
Assistant Secretary, Indian Affairs, U.S. Department of the Interior
Hello and good afternoon Chairman Schatz, Vice Chairman Murkowski,
and members of the Committee. My name is Wizipan Garriott, and I serve
as Principal Deputy Assistant Secretary for Indian Affairs at the U.S.
Department of the Interior (Department). Thank you for the opportunity
to present the Department's testimony at this important oversight
hearing regarding the implementation of the Tribal special domestic
violence criminal jurisdiction (SDVCJ) provisions in the Violence
Against Women Act of 2013 (VAWA 2013).
As members of this Committee are aware, American Indians and Alaska
Natives are two and a half times more likely to experience violent
crimes and at least two times more likely to experience rape or sexual
assault crimes in comparison to all other ethnicities, according to the
U.S. Department of Justice Bureau of Justice Statistics. The Biden-
Harris Administration is prioritizing our work to address the crisis of
Missing and Murdered Indigenous Peoples and reduce the high rates of
violence in Indian country.
In line with this commitment, the Department is working to (1)
reduce rates of domestic violence and violence against American Indian
and Alaska Native people across Indian country; (2) collaborate with
Tribes and all law enforcement agencies to ensure that Tribes are
equipped with resources to respond to violence at the community level;
(3) implement models of tribal restorative justice that utilize tribal
knowledge and traditions through the Tiwahe Initiative; (4) provide
violence prevention services to interrupt long standing cycles of
violence; (5) directly assist Tribes with solving active and unsolved
missing persons and homicide cases through the Bureau of Indian Affairs
Office of Justice Services (BIA-OJS) Missing and Murdered Unit; and (6)
to fulfil the requirements of Savanna's Act, the Not Invisible Act of
2019, and the President's Executive Order 14053 on Improving Public
Safety and Criminal Justice for Native Americans and Addressing the
Crisis of Missing or Murdered Indigenous People, with the goal of
improving federal collaboration on law enforcement and justice
protocols in Indian country and improving tribal data collection and
access to federal criminal databases.
Assisting Tribes with implementation of the special domestic
violence criminal jurisdiction provisions in VAWA 2013 is another
critical part of the Department's commitment to addressing the epidemic
of violence in Indian country. The special domestic violence criminal
jurisdiction provisions affirmed the inherent sovereign authority of
Tribal governments to exercise criminal jurisdiction over certain non-
Indians who violate protection orders or commit domestic or dating
violence against Indians in Indian country. This limited restoration of
inherent Tribal criminal jurisdiction over non-Indians on Tribal lands
has allowed Tribal governments to significantly increase safety
throughout Indian country and effectively find justice for victims.
To date, 28 Tribal governments maintain SDVCJ over non-Indians, and
many more Tribal governments are in varying stages of planning to
implement SDVCJ. BIA-OJS provides support to those Tribes currently
implementing SDVCJ as well as those with prospects for implementation
by providing funding for training and Tribal court positions focused on
implementing SDVCJ. Since 2019, BIA-OJS has funded VAWA specific
trainings for: Navajo Nation, Colorado River Indian Tribes, Pueblo of
Santa Ana, Pauma Band of Mission Indians, Bay Mills Indian Community,
Choctaw Nation, Passamaquoddy Nation, and five Tribes in Alaska, with a
total of 3,370 participants taking part in the trainings. Since 2019,
BIA-OJS has also funded 115 essential Tribal court positions focused on
VAWA implementation including judges, prosecutors, probation officers,
public defenders, special domestic violence clerks, victim specialists
and batterer intervention specialists. Tribal courts have shown their
ability to provide due process, effectively implement SDVCJ to hold
offenders accountable, and protect tribal communities.
Of the 28 Tribal governments implementing VAWA 2013, the Pascua
Yaqui Tribe was one of the first to exercise SDVCJ over non-Indians.
The Pascua Yaqui Tribe has conducted 101 investigations of domestic
violence perpetrated by 64 non-Indian defendants, resulting in 37
convictions. Similarly, the Confederated Tribes of Umatilla Indian
Reservation, also a VAWA Pilot Tribe, has prosecuted 16 non-Indian
defendants for domestic violence or protection order violations since
implementing SDVCJ. Additionally, following the Supreme Court's
decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), the Choctaw
Nation of Oklahoma increased its SDVCJ cases from 5 to 54 cases in one
year. The number of domestic violence cases investigated and prosecuted
are significant across Indian country, and they highlight that these
crimes were generally not prosecuted before the implementation of
SDVCJ.
Despite the successes of SDVCJ, jurisdictional gaps continue to
persist across Indian country. Domestic violence does not take place in
isolation, and many SDVCJ cases involve children who were present in
the house during the alleged incidents. For example, according to the
Pascua Yaqui Tribe, a total of 32 children, all under the age of
eleven, were exposed to violence, were victims, or reported the crime
while it was in progress. Additionally, Muscogee Creek Nation reports
that in FY 21 there were 47 incidents where children were present
during the alleged abuse. These numbers reported by the Pascua Yaqui
Tribe and the Muscogee Creek Nation are not unique in Indian country,
and they demonstrate the critical need for Tribal criminal jurisdiction
to be expanded to include crimes against children, or crimes relating
to child welfare in domestic violence situations.
The time has come to honor tribal sovereignty and expand tribal
jurisdiction to crimes outside of domestic violence to further empower
tribal justice systems to find justice for victims. The Department
supports the expansion of Tribal criminal jurisdiction as provided for
in H.R. 1620, the Violence Against Women Act Reauthorization Act of
2021. H.R. 1620 provides for the expansion of Tribal criminal
jurisdiction beyond crimes of domestic violence, to include crimes of
dating violence, obstruction of justice, sexual violence, sex
trafficking, stalking, and assault of a law enforcement or corrections
officer. Importantly, H.R. 1620 expands tribal criminal jurisdiction to
crimes against children. SDVCJ has been critical to increasing public
safety and justice across Indian country. Expanding Tribal criminal
jurisdiction beyond domestic violence crimes will be a significant step
toward ending the crisis of Missing and Murdered Indigenous Peoples.
Tribal governments and courts have shown many times over that they are
the ones best suited to effectively administer justice in Indian
country, and the Department is committed to supporting Tribal efforts
to ensure the safety of all American Indian and Alaska Native people.
To that end, the Department specifically supports the expansion of
Tribal criminal jurisdiction to Tribes in Maine and Alaska. The Maine
Indian Claims Settlement Act has been interpreted to restrict Tribes in
Maine from exercising SDVCJ under VAWA 2013. H.R. 1620 clarifies that
Tribes in Maine may exercise criminal jurisdiction.
Additionally, under VAWA 2013, to exercise SDVCJ a Tribe must have
lands that meet the definition of ``Indian country'', including
reservations, dependent Indian communities, and Indian allotments. See
25 U.S.C 1304 (a); 18 U.S.C. 1151. In Alaska v. Native Village of
Venetie, 522 U.S. 520 (1998), the Supreme Court held that most Tribal
lands in Alaska are not considered ``Indian country'' for jurisdiction
purposes, and as a result presently almost all Tribes in Alaska cannot
exercise SDVCJ.
H.R. 1620 provides for the creation of a pilot project to allow up
to five Tribes in Alaska to implement special Tribal criminal
jurisdiction, and defines ``Indian country'' to include ``(1) Alaska
Native-owned Townsites, Allotments, and former reservation lands
acquired in fee by Alaska Native Village Corporations pursuant to the
Alaska Native Claims Settlement Act (43 U.S.C. 33), and other lands
transferred in fee to Native villages; and (2) all lands within any
Alaska Native village with a population that is at least 75 percent
Alaska Native'' for purposes of the pilot project.
Alaska Native people suffer high rates of violence and due to the
remote nature of many villages and limited resources, providing for
public safety, law enforcement and justice services is a significant
challenge. The Department supports the creation of a pilot project to
permit Alaska Native Tribes to exercise special Tribal criminal
jurisdiction to keep these communities safe.
H.R. 1620 responds to the demonstrated need for increased public
safety in Alaska Native Villages to address high rates of domestic
violence and related crimes, and to longstanding calls from Alaska
Native Tribes for greater authority and local control to address the
same. Of particular note, Section 106 of the bill specifically provides
civil jurisdiction authority for Alaska Native Tribal courts to issue
and enforce protection orders. The Department understands and
appreciates the unique jurisdictional and resources challenges faced by
Alaska Native Tribes and we stand ready to assist Alaska Native Tribes
with implementing expanded jurisdictional authority that is tailored to
the needs of Alaska Native Tribes.
This Administration is firmly committed to working with Tribal
governments to meaningfully improve public safety and justice for all
Tribes. Thank you for the opportunity to provide the Department's views
on the implementation of VAWA's Tribal criminal jurisdiction
provisions. We look forward to continuing to work with the Committee to
support the ability of Tribal governments to keep their people safe and
find justice for victims.
The Chairman. Thank you very much, Mr. Garriott.
Next, we have Governor Chavarria from the Santa Clara
Pueblo.
STATEMENT OF HON. J. MICHAEL CHAVARRIA, GOVERNOR, SANTA CLARA
PUEBLO
Mr. Chavarria. [Greeting in Native tongue.] Good afternoon,
and honor and respect, Chairman. In my Tewa language, I am
asking permission to speak, sir.
The Chairman. You have our permission. We are honored to
grant it.
Mr. Chavarria. Thank you, Chairman. Thank you, Member
Murkowski and members of the Committee for inviting me to
testify addressing violence in Native American communities.
My name is Michael Chavarria. I serve as the Governor for
Santa Clara Pueblo. I testify today on behalf of the Pueblo
Santa Clara to share our experience in the hope that it will
assist you and your staff in broadening the current protection
provided in VAWA Title IX special jurisdiction. The current
protections go far; however, they do not go far enough.
Specifically, law enforcement officers need to be protected
when they respond to domestic violence calls. Currently, law
enforcement officers are not included in VAWA Title IX special
jurisdiction. Whenever law enforcement is called into extremely
dangerous domestic violence situations, the Pueblo cannot
protect our own officers when that perpetrator is a non-Native.
Specifically, children need to be protected as well from
domestic violence. Currently, the protections of VAWA Title IX
special jurisdiction only apply to past or present incident
partner relationships. However, children are commonly victims
of domestic violence.
Here is a real example of the need for protection for law
enforcement. On February 11th, 2013, a Santa Clara tribal
police officer responded to a domestic violence disturbance.
The tribal member and a non-Native were living together in an
intimate partner relationship within the Pueblo. Notified that
a tribal member may be in danger, the tribal police went to the
residence. While checking on that tribal member, a drunken non-
Native individual assaulted the officer. The non-Native
perpetrator was not prosecuted by the State or the Federal
Government.
The Pueblo did its best to avoid the problem from happening
again. The non-Native was excluded from entering the Pueblo.
However, the Pueblo looked for a better solution. So in March
of 2013, VAWA Title IX special jurisdiction was signed into
law. Santa Clara Pueblo immediately saw VAWA as an opportunity
to protect our community, our people. We signed up to exercise
special domestic violence criminal jurisdiction over non-Native
domestic violence perpetrators. With Federal funding, we began
to meet the Federal standard to exercise this jurisdiction.
So in the summer of 2020, we were finally approved by both
the Department of Interior and the Department of Justice to
exercise that jurisdiction. Currently, we are the only tribe in
New Mexico exercising this special jurisdiction. So it is
critical that the definition of domestic violence victims in
VAWA Title IX special jurisdiction should be expanded to
include law enforcement officers and children.
Today in the real world, our police officers are still not
sufficiently protected when they respond to these potentially
dangerous domestic violence calls. Our children are not
protected, either. The special jurisdiction definitions require
the intimate relationship. But if that provision of VAWA is
broadened to protect law enforcement and children, we can then
provide justice to our entire community.
So broadening the definition will protect our people. Thank
you, Chairman, for VAWA, and for continuing the Federal funding
which is very critical. I also submit my written testimony for
the record, and I will stand for questions.
Thank you, Chairman, members of the Committee.
[The prepared statement of Mr. Chavarria follows:]
Prepared Statement of Hon. J. Michael Chavarria, Governor, Santa Clara
Pueblo
Introduction. Thank you Chairman Schatz, Ranking Member Murkowski,
and Members of the Committee for holding this important oversight
hearing on Addressing Violence in Native Communities through VAWA Title
IX Special Jurisdiction. My name is J. Michael Chavarria and I am the
Governor of the Pueblo of Santa Clara, also serving in the capacity of
the Chairman for the Eight Northern Indian Pueblos Council and on the
All Pueblo Council of Governors (APCG), which is comprised of the
leaders of the nineteen Pueblos of New Mexico and Ysleta del Sur Pueblo
in Texas. Together and individually, our communities are dedicated to
improving the safety and welfare of our tribal citizens. I testify
today in my capacity as the Santa Clara Governor.
I. Background on the Violence Against Women Act and Indian Country
Native women, men, and children living in Pueblo and Indian Country
face almost daily challenges to their physical safety and mental well-
being. The threats begin in the womb in the form of restricted access
to maternal healthcare services, safe housing, and inadequate nutrition
for fetal development, and continue into adolescence and adulthood in
high rates of physical, emotional, and sexual violence, human
trafficking, substance/mental abuse and suicide. When coupled with the
jurisdictional issues that further complicate the delivery of limited
public safety and victim services on tribal lands, particularly in
regards to the Violence Against Women Act (VAWA), it becomes clear that
additional resources and targeted political actions are urgently needed
to protect our tribal citizens.
In the United States, the Federal Government has exclusive
jurisdiction over cases of murder, sexual abuse, kidnapping, serious
bodily assault, and certain other crimes committed in Indian Country
pursuant to the Major Crimes Act, 18 U.S.C. 1153. VAWA authorized
tribal courts to exercise criminal jurisdiction over non-Native
offenders who commit domestic or dating violence against Native victims
on tribal lands-crimes that have been historically under-prosecuted in
the United States. VAWA's Special Domestic Violence Criminal
Jurisdiction is critical to ensuring that dangerous jurisdictional gaps
are closed by allowing tribal law enforcement to exercise jurisdiction
over non-indigenous offenders who commit certain crimes on tribal
lands. VAWA has enabled tribal nations to further justice in such cases
by removing cumbersome jurisdictional barriers from tribal courts. This
special jurisdiction also honors our tribal sovereignty by helping us
to build our internal justice capacities.
VAWA authorization expired in February 2019. It is the position of
our Pueblo that any reauthorization should include expanded tribal
jurisdiction over crimes against children, law enforcement personnel,
or sexual assault crimes committed by strangers to provide increased
safety and access to justice services for Native victims of crime. A
strong, dependable local law enforcement is critical for victims of
crime to feel like they have support and an opportunity to attain
justice. A permanent reauthorization of VAWA is vital to continuing
these efforts.
II. Permanently Reauthorize the Violence Against Women Act with
Expanded Tribal Jurisdiction over Non-Indian Offenders to
Protect
Native Youth and Tribal Officers
VAWA has directly contributed to the increased safety and access to
justice services for victims of crime in Indian Country. The Act
authorized tribal courts to exercise criminal jurisdiction over non-
Indian offenders who committed domestic or dating violence against
Indian victims on tribal lands--crimes that have been historically
under-prosecuted in Indian Country. These protections apply to equally
to Native women and men. According to the National Congress of American
Indians' ``Special Domestic Violence Criminal Jurisdiction Five-Year
Report,'' approximately 43 percent of Native men and 55 percent of
Native women experience physical abuse from an intimate partner in
their lifetime. \1\ VAWA has enabled tribal nations to further justice
in such cases by removing cumbersome jurisdictional barriers from
tribal courts. Unfortunately, VAWA reauthorization lapsed almost three
years ago and still has not been renewed.
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\1\ National Congress of American Indians, Special Domestic
Violence Criminal Jurisdiction Five-Year Report at 1 (March 20, 2018),
available at http://www.ncai.org/resources/ncai-publications/
SDVCJ_5_Year_Report.pdf.
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VAWA marked an historic step forward for tribal nations in
protecting Indian victims from non-Indian offenders in cases of
domestic violence on tribal lands. Tragically, the existing law does
not cover crimes against children, law enforcement personnel, or sexual
assault crimes committed by strangers. As a result, some of the most
vulnerable members of our communities and those who serve to protect
them are unable to enforce their rights in tribal courts. Intimate
partner violence is a scourge that VAWA has helped to address but much
remains to be done to protect our people. The next reauthorization of
the Act should be permanent and include expanded tribal jurisdiction
over these crimes to provide increased safety and access to justice
services for victims of crime, specifically by closing existing
loopholes in the law to protect our Native youth and tribal law
enforcement personnel.
III. Pueblo of Santa Clara's Experience with Exercising VAWA Special
Domestic Violence Criminal Jurisdiction (SDVCJ)
The Pueblo of Santa Clara has long fought to protect our members
through the exercise of criminal jurisdiction on our lands. It has been
a process of over seven years for our Pueblo to progress from planning,
to meeting federal standards, to implementation of SDVCJ. To illuminate
our work in this area, I would like to share the following history with
the Committee.
On February 11, 2013, while living within the household of a Santa
Clara Pueblo member, a non-Indian individual allegedly assaulted his
live-in partner and then assaulted the Tribal Police officer who
responded to the domestic violence emergency call. Neither the State of
New Mexico nor federal law enforcement authorities prosecuted the
domestic violence case against the Tribal Police officer. Incidents of
domestic violence are among the most volatile situations that a tribal
police officer can respond to. The inability of our tribal justice
systems to prosecute crimes against officers is a matter of grave
public safety concern.
In March 2013, shortly after the above domestic violence incident,
President Barack Obama signed the Violence Against Women Act
Reauthorization Act of 2013. Our Tribal Council viewed Title IX of the
law on ``Safety for Indian Women'' as a means to accomplish the goals
of protecting the community from domestic violence with its affirmation
of the Pueblo's inherent power to exercise criminal jurisdiction over
all persons. Through a series of resolutions, Tribal Council approved
full implementation of VAWA on Pueblo lands as soon as federal funding
could be secured. We raised our strong desire to exercise SDVCJ with
the President, our New Mexico congressional delegation, and federal
agencies involved in public safety in Indian Country, such as the
Departments of Interior and Justice. Ultimately, our Pueblo joined the
VAWA Pilot Project, a Department of Justice funded program to help
interested tribal nations implement SDVCJ.
In November 2013, our Tribal Council adopted Resolution No. 2013-60
allowing for emergency exclusions of non-members with due process to
reduce crime on Pueblo lands, including incidences of domestic
violence. Our Pueblo also had to adopt certain measures and take
concrete actions to meet federal standards for implementation of VAWA.
These were administratively burdensome and, in many instances, costly
to undertake. Yet, for our Pueblo the time and financial expenditures
were challenges that we necessarily took on to advance our public
safety.
One example of the costs of meeting federal implementation
standards is in facilities. The infrastructure for justice services
must satisfy certain requirements as part of demonstrating the adequacy
of our tribal justice systems to carry out VAWA responsibilities. We
applied for and were awarded $1,998,406 (2016-IP-BX-0013) through the
Department of Justice's Office of Tribal Justice and the Bureau of
Justice Administration for the renovation and expansion of our
courthouse. Facilities standards we had to meet included: a secure,
healthy facility with closed files; a detention room for alleged
offenders; expanded public seating; a community education room; a jury
box; jury deliberation room; modern recording devices; fire and safety
upgrades; and disability accessibility.
Within the courthouse, we are required to maintain federal services
standards. Through the Office on Violence Against Women (OVW) we were
awarded $239,074 in funding (2016-SD-AX-K001) to meet applicable
requirements. We used the funds, in part, to draft our SDVCJ Domestic
Violence Code, which was approved by the Departments of Justice and the
Interior on July 9, 2020. The funds could also be used to meet federal
standards for VAWA training and hiring of contract prosecutors and
defense attorneys; travel for covered purposes; training of courthouse
staff; juror fees; juror education; and education sessions for the
public.
It took us approximately seven years from the initial planning to
full implementation of the federal standards to exercise SDVCJ on our
lands. However, that being said, our Pueblo has not met all of its
goals nor spent its budget as it relates to domestic violence
prevention and prosecution under VAWA. This is due in substantial part
to the outbreak of the COVID-19 pandemic. Our Pueblo entered a 20-month
lockdown, which has had the side effect of greatly reducing crime
within our exterior boundaries. Only members or those with a license to
live on Pueblo lands are being allowed into the community at this time.
On July 30, 2020, a Tribal Police officer responded to a domestic
violence disturbance within the Pueblo. The case involved a 19 month
old child in the care of the grandmother and mother. The grandmother
alleged that the mother had assaulted and strangled her over a dispute
regarding the care of the child. It was eventually verified by the
officer that the mother of the child was Indian. It was also confirmed
that, if the mother had been non-Indian, the child would not have been
protected by SDVCJ as the child would not qualify as being in an
intimate relationship as defined by VAWA Title IX Special Jurisdiction.
The definition of domestic violence victims in VAWA Title IX Special
Jurisdiction must be expanded to close this dangerous gap and cover our
children.
The National Congress of American Indians reported in its March 7,
2019, testimony to the House Judiciary Committee's Subcommittee on
Crime, Terrorism, and Homeland Security that:
The tribes implementing SDVCJ report that children have been
involved as victims or witnesses in SDVCJ cases nearly 60
percent of the time. These children have been assaulted or have
faced physical intimidation and threats, are living in fear,
and are at risk for developing school-related problems, medical
illnesses, post-traumatic stress disorder, and other
impairments. However, federal law currently limits SDVCJ to
crimes committed only against intimate partners or persons
covered by a qualifying protection order. The common scenario
reported by tribes is that they are only able to charge a non-
Indian batterer for violence against the mother, and can do
nothing about violence against the children. Instead, tribes
are only able to refer these cases to state or federal
authorities, who may or may not pursue them.
This is unacceptable and must be addressed by an expansion of VAWA
Title IX Special Jurisdiction pursuant to broadened definitions that
account for children in domestic violence situations.
We have used the time during the pandemic to assess successes and
gaps in VAWA SDVCJ implementation, as well as review our operational
costs and plan for the future. A need that clearly emerged is for
additional federal support for our Pueblo in exercising SDVCJ.
Specifically in covering the costs of appellate proceedings,
incarceration, and medical care. We applied for additional funds to
advance these activities under the OVW FY 2022 Support for Tribes
Exercising SDVCJ Initiative in November 2021. Even with our success at
implementing SDVCJ much more work remains to be done.
IV. Additional Federal Support Needed for Tribal Governments to
Exercise Special Domestic Violence Criminal Jurisdiction
We believe that all tribal nations should have the opportunity to
enhance the safety of their tribal members by exercising the SDVCJ
authorized under VAWA. Too many tribal nations, however, lack the
resources, infrastructure, personnel, and training to carry out these
activities on their own. Additional federal funding and resources are
urgently needed particularly as the desire to participate in VAWA's
SDVCJ and related support services is strong and only growing.
Additional federal funds are also needed to supplement the budget
for the OVW tribal program with the area of greatest unmet need.
Effectively addressing the public safety crisis in Indian Country
requires a holistic approach. We must address tribal court jurisdiction
over non-Indian offenders and the lack of economic opportunities that
contribute to social despair and interpersonal violence. We must
address the lack of a quality and structurally sound educational
infrastructure in many tribal communities and the high rates of
substance abuse among Native youth. We must address under-resourcing of
tribal law enforcement entities and the rise in major crimes across
Indian Country. Each of these issues influences the others and shapes
the public safety landscape of a tribal community. We, therefore,
recommend that additional federal resources be allocated to areas of
greatest need to advance the interests of Indian Country.
Our tribal citizens need to be safe in their home communities, and
our tribal governments are the best situated to provide the necessary
services. Accessing the necessary resources, however, continues to
present challenges. Many tribal nations are daunted by the application
process and the perquisites needed to qualify for the program. Others
are uncertain about how to engage in the infrastructure building
process to carry out their VAWA responsibilities. As a result, the OVW
has encountered the distressing situation in which there is a
documented need for assistance, readily available federal funds, but
low applicant participation.
Relatedly, on an administrative note, we recommend that the OVW
streamline the application process so that it is more responsive to the
internal capabilities of each tribal nation. Reduced and/or more
flexible application requirements would help lighten the administrative
burden on all tribal nations while also making the program more
accessible to smaller and financially restricted tribal governments.
This should be accompanied by a reissuance of solicitation the OVW
solicitation to exercise this jurisdiction would enable more tribal
nations to receive support for these critical services. To the extent
permitted by law, the reissuance of the solicitation should include
targeted education and outreach to geographic regions that have thus
far been unrepresented in the application process.
V. Create a Line Item for the Establishment of New Tribal Justice
Departments
The Pueblo of Santa Clara has a robust tribal justice department
and Tribal Court system. We have invested significant tribal funds in
the establishment and continued development of our tribal justice
services. We are also grateful for the federal funds that have enabled
us to expand in recent years in relation to VAWA, as described herein.
With the additional resources made possible by these federal dollars,
we have been able to enrich the exercise of our statutory and sovereign
jurisdiction over non-Indians who commit crimes of domestic violence
against Indians on our land.
Many tribal nations, however, do not have tribal justice
departments and lack the resources to establish programs on their own.
While a plethora of federal resources exist to assist tribal nations
that have established law enforcement agencies or a tribal court, very
few-if any-federal funds are available to facilitate the start-up
process. This is particularly true in the Department of Justice where
existing tribal justice services are a prerequisite to qualify for both
strategic planning and competitive grants. Having experienced the
benefits of operating our own tribal justice department and tribal
court system, we stand with other tribal nations who wish to exercise
this fundamental aspect of tribal sovereignty but lack the immediate
resources to accomplish their goals. We, thus, recommend as an
ancillary factor to the successful expansion and implementation of VAWA
Title IX that a line item within the Department of Justice to create a
special program to assist tribal nations in the establishment and
development of new tribal courts and justice services, including law
enforcement departments be advanced in the FY 2022 budget and going
forward.
Conclusion. Thank you for the opportunity to testify on VAWA Title
IX Special Jurisdiction and its role in addressing violence in tribal
communities. Title IX Special Jurisdiction is a vital authority to
exercising tribal sovereignty and restoring justice on tribal lands in
cases of domestic violence. Yet, over the years of its initial
implementation hard lessons are being learned that this Congress is now
tasked with remedying. Top among these is the fact that gaps in VAWA
jurisdiction continue to leave our tribal police officers and children
exposed. Title IX Special Jurisdiction must be broadened to close these
points of exposure and strengthen public safety in Indian Country-the
welfare of our most vulnerable members and communities depends on it.
On behalf of the Pueblo of Santa Clara, kuunda and thank you.
The Chairman. Thank you, Governor.
Next, we have Fawn Sharp, President of the National
Congress of American Indians.
STATEMENT OF HON. FAWN SHARP, PRESIDENT, NATIONAL CONGRESS OF
AMERICAN INDIANS
Ms. Sharp. [Greeting in Native tongue.] Chairman Schatz,
Vice Chairman Murkowski and members of the Senate Committee on
Indian Affairs, on behalf of the National Congress of American
Indians, I would like to thank you for holding this hearing on
the success of the 2013 Violence Against Women Act, and the
critical need to reauthorization VAWA with strong tribal
provisions.
My name is Fawn Sharp, Vice President of the Quinault
Indian Nation and President of NCAI. We welcome the opportunity
to work with the Committee to pass bipartisan legislation that
continues to build on VAWA's success and includes four
priorities for VAWA reauthorization.
Number one, amend 25 U.S.C. Section 1304 to fill the
current jurisdictional gaps. Number two, ensure and reaffirm
that all 574 tribal nations can exercise criminal jurisdiction
through VAWA. Number three, reauthorize VAWA's tribal grant
programs and create a reimbursement program for exercising
tribal nations. And fourth and finally, create a permanent
authorization for the U.S. Department of Justice's tribal
access to the National Crime Information program.
These four priorities build off of the 2013 VAWA
reauthorization and further acknowledge the inherent tribal
sovereignty and tribal jurisdiction to protect the safety and
security of Indian Country. In the eight years since Congress
reauthorized VAWA, we have seen tribal nations combat domestic
violence against Indian women, while protecting non-Indian
rights in an impartial tribal forum. By exercising their
inherent sovereignty and jurisdiction, many tribal nations have
increased safety and justice for victims who had previously
seen little of either.
Currently, 28 tribal nations are exercising VAWA's special
domestic violence criminal jurisdiction, and in eight years,
these nations have made 396 arrests, prosecuted 227 defendants,
leading to 133 convictions. In 2016, the Department of Justice
stated that these programs have allowed tribal nations to
respond to long-time abusers who previously had evaded justice.
It has also revealed places where the Federal
administrative policies, practices, resources and tools needed
to be strengthened to enhance justice for victims of sexual
violence, children, elders and law enforcement. Tribal nations
report that children have been involved as victims or witnesses
in nearly 60 percent of these cases. These children have been
assaulted or have faced physical intimidation and threats, are
living in fear and are at risk for developing school-related
problems, medical illness, post-traumatic stress disorder, and
other impairments.
However, Federal law currently limits these cases to crimes
against intimate partners, or persons covered by a qualifying
protection order. This common scenario reported by tribal
nations is that they are only able to charge a non-Indian for
violence against the mother, and can do absolutely nothing
about violence committed against the children.
Similarly, tribal nations lack jurisdiction to charge a
non-Indian offender for crimes that may occur within the
context of the criminal justice process itself, such as
resisting arrest, assaulting an office, witness tampering or
obstructing justice. Tribal nations are also unable to
prosecute crimes of sexual assault, trafficking, and stalking.
In addition to the gaps, not all 574 tribal nations were
included in VAWA 2013. Tribal nations in Alaska and Maine must
be expressly included in this next reauthorization to protect
their citizens and communities.
Before I conclude my testimony, I want to share a case from
the Sioux Ste Marie Tribe of Chippewa Indians that illustrates
how tribal jurisdictional gaps have real consequences. In the
case, a non-Indian man in a relationship with an Indian woman
moved in with her and her 16-year-old daughter on the
reservation. The man began making unwanted sexual advances
toward the 16-year-old daughter and groped her. The tribal
nation charged him with domestic abuse against the mother and
attempted to tie the daughter's sexual assault to the mother's
case. The tribal court had no choice but to dismiss the charges
for lack of criminal jurisdiction.
Soon after, he kidnapped a 14-year-old Indian child, took
her off the reservation and repeatedly raped her. This horrific
crime could have been prevented if the tribal nation had the
ability to exercise criminal jurisdiction in the first place.
Removing the gaps in tribal jurisdiction and ensuring all
574 tribal nations can exercise jurisdiction, and providing the
resources and tools for implementation together can
dramatically change the environment in Indian Country by
empowering tribal sovereignty and safety.
Please join us in sending this message that domestic
violence, sexual assault, child abuse, elder abuse, stalking
and trafficking will not be tolerated on our tribal lands. We
look forward to working with each of you to pass a bipartisan
VAWA bill that includes strong tribal provisions.
[Phrase in Native tongue].
[The prepared statement of Ms. Sharp follows:]
Prepared Statement of Hon. Fawn Sharp, President, National Congress of
American Indians
Chairman Schatz, Vice Chairman Murkowski, and members of the Senate
Committee on Indian Affairs, on behalf of the National Congress of
American Indians (NCAI), I am pleased to present testimony to the
Committee on the success of the 2013 Violence Against Women Act (VAWA)
and the critical need to reauthorize VAWA with strong tribal provisions
now. NCAI is the oldest and largest national organization representing
American Indian and Alaska Native tribal governments in the United
States. NCAI is steadfastly dedicated to protecting the rights of
Tribal Nations to achieve self-determination and self-sufficiency, and
to the safety and security of all persons who reside within or visit
Indian Country.
In 2000, NCAI's member Tribal Nations adopted resolution STP-00-
081, establishing the NCAI Task Force on Violence Against Native Women.
Since that time, the Task Force has worked to identify needed policy
reforms at the tribal and federal levels. NCAI has been actively
involved in the development of the tribal provisions of VAWA in the
past reauthorizations of the bill. Each time VAWA has been
reauthorized, it has included important provisions aimed at improving
safety and justice for Indian women. We welcome the opportunity to work
with the Committee to pass bipartisan legislation that continues to
build on VAWA's success and promise. At this time, we would like to
share four priorities for the upcoming bipartisan VAWA reauthorization:
1. Include amendments to 25 U.S.C. 1304 that will fill
jurisdictional gaps and ensure that the tribal criminal
jurisdiction provision included in VAWA 2013 fully achieves its
purpose;
2. Ensure and reaffirm that all 574 Tribal Nations can exercise
criminal jurisdiction through VAWA;
3. Reauthorize VAWA's tribal grant programs and create a
reimbursement program for exercising Tribal Nations; and
4. Create a permanent authorization for U.S. Department of
Justice's Tribal Access to National Crime Information Program.
Building on Success and Filling Jurisdictional Gaps
Eight years ago, when Congress passed VAWA 2013, it included a
provision, known as Special Domestic Violence Criminal Jurisdiction
(SDVCJ), that reaffirmed the inherent sovereign authority of Indian
Tribal Governments to exercise criminal jurisdiction over certain non-
Indians who violate qualifying protection orders or commit domestic or
dating violence against Indian victims on tribal lands. \1\ Since
passage of VAWA 2013, NCAI has been providing technical assistance to
the Tribal Nations that are implementing the law. We have included as
an attachment to this testimony a detailed report that analyzes the
impacts of VAWA 2013's landmark tribal jurisdiction provision.
---------------------------------------------------------------------------
\1\ 25 U.S.C. 1304.
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This examination of Tribal Nations' exercise of SDVCJ shows that
VAWA is working as Congress intended. The law has enhanced the ability
of Tribal Nations to combat domestic violence against Indian women,
while at the same time protecting non-Indians' rights in impartial,
tribal forums. \2\ By exercising SDVCJ, many Tribal Nations have
increased safety and justice for victims who had previously seen little
of either. Currently there are 28 Tribal Nations exercising SDVCJ
throughout the United States. Since 2013, Tribal Nations have made 396
arrests and prosecuted 227 defendants, which has led to 133
convictions. As the Department of Justice (DOJ) testified before the
Senate Committee on Indian Affairs in 2016, SDVCJ has allowed Tribal
Nations to ``respond to long-time abusers who previously had evaded
justice'' \3\ and has given hope to victims and communities that safety
can be restored.
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\2\ See Angela R. Riley, Crime and Governance in Indian Country, 63
UCLA L. REV. 1564, 1572 (2016) (``[I]mplementation has been a success
in several respects. Tribes have provided defendants with the requisite
procedural protections, and the preliminary data reveal that the laws
are improving the safety and security of reservation residents.'').
\3\ Tracy Toulou, ``Director Tracy Toulou of the Office of Tribal
Justice Testifies Before the Senate Committee on Indian Affairs
Oversight Hearing on Draft Legislation to Protect Native Children and
Promote Public Safety in Indian Country,'' (May 18. 2016), https://
www.justice.gov/opa/speech/director-tracy-toulou-office-tribal-justice-
testifiessenate-committee-indian-affairs-0.
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The implementation of SDVCJ has had additional positive outcomes.
For many Tribal Nations, it has led to much-needed community
conversations about domestic violence. For others it has provided an
impetus to comprehensively update tribal criminal codes. Implementation
of SDVCJ has also resulted in increased collaboration among Tribal
Nations and between the local, state, federal, and tribal governments.
It has also revealed, however, places where federal administrative
policies and practices needed to be strengthened to enhance justice,
and it has shown where the jurisdictional framework continues to leave
victims-including victims of sexual violence, children, elders, and law
enforcement--vulnerable.
The Tribal Nations implementing SDVCJ report that children have
been involved as victims or witnesses in SDVCJ cases nearly 60 percent
of the time. These children have been assaulted or have faced physical
intimidation and threats, are living in fear, and are at risk for
developing schoolrelated problems, medical illnesses, post-traumatic
stress disorder, and other impairments. \4\ However, federal law
currently limits SDVCJ to crimes committed only against intimate
partners or persons covered by a qualifying protection order. The
common scenario reported by Tribal Nations is that they are only able
to charge a non-Indian batterer for violence against the mother, and
can do nothing about violence against the children. Instead, Tribal
Nations are only able to refer these cases to state or federal
authorities, who may not pursue them.
---------------------------------------------------------------------------
\4\ See U.S. Department of Justice, ATTORNEY GENERAL'S ADVISORY
COMMITTEE ON AMERICAN INDIAN AND ALASKA NATIVE CHILDREN EXPOSED TO
VIOLENCE, REPORT OF THE ADVISORY COMMITTEE ON AMERICAN INDIAN AND
ALASKA NATIVE CHILDREN EXPOSED TO VIOLENCE: ENDING VIOLENCE SO CHILDREN
CAN THRIVE (Nov. 2014).
---------------------------------------------------------------------------
This frustration is further compounded by the prevalence and
severity of this problem. According to DOJ, American Indian and Alaska
Native children suffer exposure to violence at rates higher than any
other race in the United States. \5\ This violence has immediate and
long-term effects, including: increased rates of altered neurological
development; poor physical and mental health; poor school performance;
substance abuse; and overrepresentation in the juvenile justice system.
Children who experience abuse and neglect are at higher risk for
depression, suicidal thoughts, and suicide attempts. Indian youth have
the highest rate of suicide among all ethnic groups in the U.S., and
suicide is the second-leading cause of death (after accidental injury)
for Indian youth aged 15-24. \6\ Due to exposure to violence, Indian
children experience post-traumatic stress disorder at a rate of 22%-the
same levels as Iraq and Afghanistan war veterans and triple the rate of
the rest of the population. \7\
---------------------------------------------------------------------------
\5\ Id.
\6\ SAMHSA, National Survey on Drug Use and Health, 2003.
\7\ AG Advisory Committee, supra, note 12, at 38.
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Title IX in H.R. 1620--the Violence Against Women Act
Reauthorization Act of 2021 reaffirms tribal jurisdiction over certain
non-Indians who commit crimes against Indian children in Indian
Country. NCAI supports the strong tribal provisions in the House-passed
bill.
H.R. 1620 Title IX would also address another significant gap in
VAWA 2013. Since SDVCJ is limited to domestic violence, dating
violence, and protection order violations, Tribal Nations lack
jurisdiction to charge a non-Indian offender for crimes that may occur
within the context of the criminal justice process. These crimes might
include resisting arrest, assaulting an officer, witness tampering,
juror intimidation, or obstruction of justice. Several Tribal Nations
have reported assaults on their officers or bailiffs committed by non-
Indian SDVCJ defendants that they are unable to prosecute. Domestic
violence cases are both the most common and the most dangerous calls
that law enforcement responds to creating an obvious public safety
concern. Tribal Nations are also not able to prosecute attendant
crimes. In the course of investigations, tribal law enforcement
officers often discover evidence of drug crimes or property crimes, but
these cannot be included in the prosecution.
Tribal Nations are also unable to prosecute crimes of sexual
assault, trafficking, and stalking. A 2016 study from the National
Institute for Justice (NIJ), found that approximately 56 percent of
Indian women experience sexual violence within their lifetime, with 1
in 7 experiencing it in the past year. \8\ Nearly 1 in 2 report being
stalked. \9\ Contrary to the general population where rape, sexual
assault, and intimate partner violence are usually intra-racial, Indian
women are more likely to be raped or assaulted by someone of a
different race. 96 percent of Indian women and 89 percent of male
victims in the NIJ study reported being victimized by a non-Indian.
\10\ Indian victims of sexual violence are three times as likely to
have experienced sexual violence by an interracial perpetrator as non-
Hispanic White victims. \11\ Similarly, Indian stalking victims are
nearly 4 times as likely to be stalked by someone of a different race,
with 89 percent of female stalking victims and 90 percent of male
stalking victims reporting inter-racial victimization. \12\ The higher
rate of inter-racial violence would not necessarily be significant if
it were not for the jurisdictional complexities unique to Indian
Country and the limitations imposed by federal law on tribal authority
to hold non-Indians accountable for crimes they commit on tribal lands.
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\8\ Andre B. Rosay, Nat'l Inst. of Justice, Violence Against
American Indian and Alaska Native Women and Men: 2010Findings from the
National Intimate Partner and Sexual Violence Survey, U.S. Dep't of
Justice 11 (2016), available athttps://www.ncjrs.gov/pdffiles1/nij/
249736.pdf.
\9\ See Id., at 59
\10\ Id., at 18.
\11\ Id., at 29.
\12\ Id., at 32.
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A recent example from the Sault Sainte Marie Tribe of Chippewa
Indians, located in Michigan, illustrates how these gaps in the law
have real consequences for Indian victims. A non-Indian man in an
intimate relationship with a tribal citizen moved in with her and her
16 year-old daughter. After the man began making unwanted sexual
advances on the girl, sending inappropriate text messages, and on one
occasion groping the daughter. The Tribal Nation charged the defendant
with domestic abuse and attempted to tie the sexual assault against the
daughter to a pattern of abuse against the mother. The tribal court
dismissed the charges for lack of jurisdiction and the defendant left
the victim's home. Four months later, he was arrested by city police
for kidnapping and repeatedly raping a 14 year-old tribal citizen. This
kidnapping and rape of a child could have been prevented if the Tribal
Nation had the ability to exercise jurisdiction in the first case.
H.R. 1620 Title IX also include sexual assault, stalking, and
trafficking crimes committed by non-Indians. NCAI strongly urges the
inclusion of this language in the bipartisan Senate VAWA bill.
NCAI adopted resolutions SPO-16-037 and ECWS-19-005, calling for
full reaffirmation of tribal authority to address crime on tribal lands
and for Congress to reauthorize VAWA with key tribal provisions
(attached). As this Congress moves forward with reauthorization of
VAWA, NCAI urges this Committee to include language in Title IX that
would help ensure that the life-saving provisions of VAWA 2013 are more
broadly available to protect victims of violence in tribal communities.
NCAI calls on all members of this Committee to co-sponsor a bipartisan
Senate VAWA bill. The Indian women, children, and elders in your states
and across the U.S. cannot wait any longer for justice.
Ensuring all 574 Tribal Nations Have the Ability to Exercise Criminal
Jurisdiction Under VAWA
VAWA's 2013 reauthorization did not cover all 574 Tribal Nations
and left out Tribal Nations located in the state of Maine and the state
of Alaska. This must be rectified in VAWA's next reauthorization. In
the case of Maine, VAWA 2013 failed to expressly mention Tribal Nations
located in the state. Maine has claimed that due to the Maine Indian
Claims Settlement Act, the failure to expressly include Maine in VAWA
2013 prevents Tribal Nations in Maine from exercising SDVCJ. Tribal
Nations located in Maine and tribal domestic violence coalitions have
worked to educate state policymakers on VAWA and the need to reaffirm
tribal jurisdiction over non-Indian perpetrators. In 2019 the Maine
legislature passed a bill to reaffirm some domestic violence criminal
jurisdiction over non-Indians for two of the four Tribal Nations
located in Maine. Title IX in H.R. 1620 fixes this problem by expressly
including all Tribal Nations located in Maine and would reaffirm their
inherent jurisdiction over crimes covered in 2013 VAWA and future VAWA
reauthorizations.
In the case of Alaska, due to the way SDVCJ is constructed, tribal
jurisdiction only extends to ``Indian country.'' ``Indian country'' is
a legal term meaning that the land that is held in trust by the federal
government for the Indian Tribal Government and is where Tribal Nations
can exercise SDVCJ. Under the Supreme Court's 1998 decision in Venetie
only 1 of the 229 Tribal Nations located in Alaska have land considered
to be ``Indian country'' under the Alaska Native Claims Settlement Act.
\13\
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\13\ See Alaska v. Native Vill. of Venetie Tribal Gov't, 522 U.S.
520.
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While there is tremendous diversity among all Tribal Nations, it is
worth noting that many of the 229 Tribal Nations in Alaska experience
extreme conditions that differ significantly from Tribal Nations
outside Alaska. Most of the Alaska Native villages are located in
remote areas that are often inaccessible by road and have no local law
enforcement presence. The Tribal Law and Order Commission found that
``Alaska Department of Public Safety (ADPS) officers have primary
responsibility for law enforcement in rural Alaska, but ADPS provides
for only 1.0-1.4 field officers per million acres.'' \14\ Without a
strong law enforcement presence, crime regularly occurs with impunity.
Victims live in small, close-knit communities where access to basic
criminal justice services are non-existent and health care is often
provided remotely through telemedicine technology. Providing
comprehensive services and justice to victims in these circumstances
presents unique challenges. In many of these communities, tribal
citizens receive services in informal ways. Domestic violence victims,
for example, may be offered shelter in a home that is a known ``safe
house'' in the village or they and their children must be flown out of
the village for their own safety. As this Committee moves forward with
VAWA reauthorization, we encourage you to work closely with tribal
leaders from Alaska Native Villages to include provisions that will
address the needs of Alaska Native victims.
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\14\ A Roadmap for Making Native America Safer: Report to the
President and Congress of the United States (November 2013), available
at http://www.aisc.ucla.edu/iloc/report/.
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NCAI, along with Tribal Nations in Maine and Alaska, have called on
Congress to reaffirm their jurisdiction over non-Indians so they can
offer Indian victims the same protections that are currently afforded
to victims located in the 48 other states.
VAWA's Tribal Grant Programs and the Need to Establish a
Reimbursement Program
In addition to the challenges created by jurisdictional
complexities and limits on tribal authority, the safety of Indian women
continues to be undermined by a lack of resources for victim services
and tribal criminal justice systems. In previous reauthorizations of
VAWA, Congress has created several new grant programs for Indian Tribes
including the Grants to Tribal Governments Program, the Tribal Sexual
Assault Services Program, the Tribal Coalitions Program, and the Tribal
Jurisdiction Program. These programs have made a significant difference
in tribal communities and should be reauthorized, however, these
programs are simply not sufficient alone to meet the substantial needs
in Indian Country.
In addition to reauthorizing the current VAWA grants, the Committee
should include a tribal reimbursement program for SDVCJ implementing
Tribal Nations. When Tribal Nations apply for the current Tribal
Jurisdiction Program, they are unable to predict several factors
related to SDVCJ implementation, for example how many crimes will occur
over the next grant period or medical cost of non-Indians in tribal
custody. Tribal and Bureau of Indian Affairs (BIA) detention facilities
general rely on the Indian Health Service (IHS) to provide health care
to inmates. This is not usually an option for non-Indian defendants
since they are generally ineligible for care at IHS. Neither the BIA
nor the IHS receive appropriated funds for non-Indian correctional
health care purposes. Although the federal government provides health
care in Bureau of Prisons (BOP) and Immigration and Customs Enforcement
(ICE) detention facilities using Public Health Service Commissioned
Corps Officers, none of these personnel work in BIA jails. Questions
remain about who has the obligation to cover these costs and where
health services will be provided. For Tribal Nations that have their
own corrections facilities, or contract directly with county facilities
to arrange for detention, detention-related healthcare costs are a
significant challenge.
One of the non-Indian SDVCJ defendants at Eastern Band of Cherokee
Indians, for example, required extensive medical care while in tribal
custody, which ended up costing the Tribal Nation more than $60,000.
These types of costs are simply prohibitive for many Tribal Nations,
and several have reported that the uncertainty about health care for
non-Indian inmates is why the Tribal Nations are not proceeding with
implementation SDVCJ.
The Office on Violence Against Women allows a limited amount of
inmate health care costs to be included in their grant program to
support SDVCJ implementation, but few implementing Tribal Nations have
received these grants and as mentioned earlier these costs are hard to
predict. Therefore, Congress must include a reimbursement program for
Tribal Nations in the next reauthorization of VAWA, to cover the wide
ranging and unpredictable costs and provide a path forward for more
Tribal Nations to protect their communities.
While we understand that it is likely outside the scope of what
will be addressed in a VAWA reauthorization bill, Congress must amend
the Victims of Crime Act (VOCA) and ensure that Tribal Nations have a
permanent set aside from the Crime Victims Fund (CVF), which would
provide much-needed funding to provide services and compensation to
victims of violence in tribal communities. The tribal needs for VOCA
funding is discussed in greater detail in testimony that NCAI submitted
in conjunction with an oversight hearing held by the Senate Committee
on Indian Affairs in 2015 on ``Addressing the Need for Victim Services
in Indian Country'' (attached). In 2018 appropriators included a tribal
set aside out of the CVF, which they have continued doing for the last
four years. This funding has been incredibly helpful to victims and
survivors across in Indian Country; however, the funding relies on
appropriators including the set aside on an annual basis. Tribal
Nations were happy to see the Senate pass a VOCA funding fix 100 to 0
this year and it is now the time for Congress to pass the next VOCA fix
to establish a permanent tribal set aside in the bill.
DOJ's TAP Program
VAWA 2005 and the Tribal Law & Order Act of 2010 both included
provisions directing the Attorney General to permit Indian Tribes to
enter information into and obtain information from federal criminal
information databases. This has been a long-standing issue that Tribal
Nations have raised for years. In response to these concerns, in 2015
DOJ announced the Tribal Access Program for National Crime Information
(TAP), which provides eligible Tribal Nations with access to the
Criminal Justice Information Services systems. There are now 108 Tribal
Nations participating in TAP, which will greatly facilitate their
ability to enter protection orders and criminal history into the
federal databases.
Because DOJ is using existing funding for the TAP program,
eligibility is currently limited to Tribal Nations with a sex offender
registry or with a full-time tribal law enforcement agency. There are
many Tribal Nations, particularly in Public Law-280 jurisdictions like
California and Alaska, however, who do not meet these criteria but who
do have tribal courts that issue protection orders. For these
protection orders to be effective and protect victims, the issuing
Tribal Nation needs to be able to enter them into the protection order
file of the National Crime Information Center. A dedicated funding
stream should be created for expanding the TAP program and making it
available to all interested Tribal Nations who meet the requirement.
All Tribal Nations should have the ability to access federal databases
not only for the purpose of obtaining criminal history information for
criminal or civil law purposes, but also for entering protection orders
and other relevant information, including National Instant Criminal
Background Check System disqualifying events, into the databases. NCAI
support the TAP language included in Title IX of H.R. 1620 and urges
the Senate to include the language in the bipartisan Senate VAWA bill.
Conclusion
Public safety has been the leading concern of tribal leaders
throughout the country for several years. NCAI strongly encourages
Congress to take action on all of the fronts that we have identified
above. Taken together-removing the gaps in tribal jurisdiction,
ensuring all 574 Tribal Nations can exercise criminal jurisdiction
under VAWA to protect everyone in tribal communities, ensuring there
are resources available for VAWA implementation and victim services,
and expanding tribal access to federal criminal databases-we can
dramatically change the environment for criminal activity on Indian
reservations. Our goal and our mission is to send the message that
domestic violence, sexual assault, child abuse, elder abuse, stalking,
and trafficking will not be tolerated on tribal lands. This effort will
bring great benefits to tribal communities and our neighbors in public
safety, but also in health, productivity, economic development, and the
well-being of our people. We thank you in advance, and look forward to
working with each of you to pass a bipartisan VAWA bill that includes
all of strong and necessary tribal provisions above.
Attachments have been retained in the Committee files.
The Chairman. Thank you very much.
Chief Judge FourStar, please proceed.
STATEMENT OF HON. STACIE FOURSTAR, CHIEF JUDGE, FORT PECK
ASSINIBOINE AND SIOUX TRIBES
Ms. FourStar. [Greeting in Native tongue.] Good day, my
relatives. My name is Stacie FourStar. I am the Chief Judge of
the Fort Peck Assiniboine and Sioux Tribes. Thank you,
Chairman, Vice Chairman and Committee members, for holding this
hearing today.
I am providing testimony on behalf of the reauthorization
of VAWA. Fort Peck has implemented since March of 2015.
Initially, we were one of five pilot tribes.
Prior to 2013, we had consistently had reports of domestic
violence of non-Indians on Indians being under-prosecuted or
not prosecuted at all. The crime is a domestic violence, it is
a Federal misdemeanor. And the Federal Government did not have
the time to prosecute those crimes, because of major crimes
that had been occurring on the Fort Peck Indian Reservation.
So since we have implemented VAWA, we have had many
successes. We have had a couple challenges. But I want to
highlight some of those successes through my testimony.
I will give you a little bit of stats and data. We have had
45 VAWA cases under special jurisdiction since 2015, with a
total of 37 defendants. We have re-offenders and defendants
with multiple charges. The criminal charges are partner family
member assault and violations of criminal protection orders.
The Fort Peck Tribes have conducted two jury trials that
consisted of Indian and non-Indian jurors. We have had two
acquittals from those two jury trials. We have had nine guilty
pleas on the record and defendants have actually opted into
diversionary programs that have been offered through the
restorative justice measures that the Fort Peck Tribes have
implemented.
Although we cannot prosecute crimes against children when
they are involved with the domestic situation between a non-
Indian and Indian, we do keep the stats on that as well. So of
those 45 cases, we have had 21 cases that involved children
that we were unable to prosecute, but we could offer services
to those families. We have also had 19 cases that reported drug
and/or alcohol use that was involved with the primary offenses.
We have had reports of law enforcement that have been engaged
with the non-Indian defendant and unable to prosecute those
crimes as well.
Some of the specific successes that we have had at Fort
Peck, they have been funded through grant programs through the
Federal Government. We have a SAUSA, a Special Assistant U.S.
Attorney, who is primarily here to prosecute the domestic
violence crimes, along with coordinating between the tribes and
the U.S. Attorney's office. We also have a public defender's
office with an attorney on staff who is able to be appointed as
counsel for the defendant, not only for non-Indians but for
Indians as well. That was a change that we made along with our
implementation.
We also have grant programs that have funded DV data
collection, software programs for case management. We have an
offender accountability program. We have civil legal advocate
services for victims and their families. And we have had an
overwhelming response to the jury pools. We have a jury pool
system that has been put in place along with the county
representatives. We have had great communication; we have had
willingness of participation. So the jury trials do represent a
fair cross-section of our communities on the Fort Peck Indian
Reservation.
Fort Peck Tribal Court maintains a website; it is FPTC.org.
I would like you all to take the opportunity to look at that,
to look at the tribal laws, to see what we have available open
to the public at no cost.
The tribal-State relationships that we have built and
maintain along with VAWA have only begun to open up more
opportunities for both jurisdictions, tribal and State. The
Fort Peck Tribes have had a successful cross-deputization law
enforcement agreement in place since 1999. This agreement is
with the county sheriff's department, Montana Highway Patrol,
and the City of Wolf Point, along with the Fort Peck Tribal law
enforcement officers. This agreement has allowed us to enforce
each other's laws and to provide aid to one another. The
agreement has also assisted with the smooth transition of the
special jurisdiction on the Fort Peck Indian Reservation.
Montana has established the first Native American Domestic
Violence Fatality Review Team. I would also ask that those of
you, please take a look at that and see the statistics that are
overwhelming in Montana alone.
In closing, I understand that authorizing tribes' special
jurisdiction over non-Indians is only one portion of the VAWA
reauthorization. But it is a vital instrument to public safety
and to effectively addressing domestic violence in Indian
Country. Now is the time to move forward collectively.
Thank you. [Phrase in Native tongue].
[The prepared statement of Ms. FourStar follows:]
Prepared Statement of Hon. Stacie Fourstar, Chief Judge, Fort Peck
Assiniboine and Sioux Tribes
I would like to thank the Chairman, Vice Chairman and committee
members for holding this hearing. I am Stacie FourStar, a tribal member
of the Assiniboine & Sioux Tribes of the Fort Peck Indian Reservation
in Montana, and I serve as the Chief Judge for the Fort Peck Tribes.
Today I am providing testimony on behalf of the Fort Peck Tribes in
support of the reauthorization of VAWA. The Fort Peck Tribes have been
exercising special domestic violence criminal jurisdiction (SDVCJ)
since 2015. Initially, we were one of five Indian tribes to attain full
pilot project status under VAWA 2013.
The testimony will focus on:
The historical context of domestic violence issues on the Fort
Peck Indian Reservation prior to VAWA 2013 and the
jurisdictional maze
The successes and challenges of SDVCJ on the Fort Peck Indian
Reservation
Restorative justice measures and programs that have been
implemented to enhance SDVCJ
Tribal-state relationships and the Fort Peck Tribes Cross
Deputization Agreement
The Historical Context
Fort Peck Indian Reservation spans over four counties in northeast
Montana. With over 2 million acres of land base, the reservation
closely borders Canada and North Dakota. There are over 14,000 enrolled
tribal members with half of them residing on the reservation. The total
population of people living within the exterior boundaries of the
reservation is 14,000, comprised of one-half Indian and one-half non-
Indian persons.
Prior to VAWA 2013, Fort Peck Tribes had no authority to prosecute
crimes committed by non-Indian persons. A non-Indian spouse could abuse
their Indian spouse and there was no criminal consequence. The Tribe
had no jurisdiction to prosecute the non-Indian and the State cannot
prosecute the non-Indian because the victim is Indian. There were
instances of non-Indians being arrested and charged by the State for a
crime of disorderly conduct just to get the abuser away from the victim
and allow the abuser time to cool off while the victim sought
protective services. Only the federal government had jurisdiction to
prosecute a crime of domestic violence between a non-Indian and Indian
on the reservation. The charge of DV is a federal misdemeanor, meaning
it was of low to no priority with the U.S. Attorney's Office.
Since 2015, the Fort Peck Tribes have worked with stakeholders
locally and nationally to develop a comprehensive approach to domestic
violence and specifically to the special domestic violence criminal
jurisdiction over non-Indians. The Fort Peck Tribes provide an attorney
for defendants through our Public Defender's office and have on staff a
law trained judge to sit on all VAWA cases. The Fort Peck Tribes have a
jury pool that consists of Indian and non-Indian jurors that represent
a fair cross section of our communities.
The implementation of SDVCJ under VAWA 2013 has allowed the Fort
Peck Tribes to create a domestic violence orientated restorative
justice model that has improved local relationships, as well as the
Tribe's relationship with state and federal entities.
Successes and Challenges of SDVCJ
The Fort Peck Tribes have prosecuted 45 VAWA cases under SDVCJ
since March 2015, with a total of 37 defendants. We have repeat
offenders and defendants with multiple charges. The criminal charges
under SDVCJ are partner family member assault (PFMA) and violations of
protection orders. The Fort Peck Tribes have conducted two jury trials
that resulted in two acquittals. We have nine guilty pleas on the
record and defendants who have opted into diversionary programs or
deferred prosecution.
Although we cannot prosecute crimes against non-Indians when
children are involved with the domestic violence cases, we do track the
data based on law enforcement reporting. Of the 45 VAWA cases
prosecuted, there were 21 cases involving children that could not be
prosecuted. There were also 19 cases that reported drugs and/or alcohol
involved with the primary offenses. Since the Fort Peck Tribes have
implemented SDVCJ under VAWA 2013, we have had no federal referrals and
no federal declinations to prosecute non-Indians for domestic violence
crimes committed on the reservation.
Successes of VAWA implementation with the Fort Peck Tribes are
highlighted through our restorative justice initiatives. Under our
Justice for Families grant, we provide services to defendants through
an offender accountability program and we provide legal services to
victims at no cost. The Fort Peck tribal court developed a domestic
violence docket in order to give priority in court scheduling to all DV
cases.
Fort Peck Tribes have a Special Assistant U.S. Attorney (SAUSA)
assigned to VAWA criminal cases and coordinates as a liaison between
the Tribes and the U.S. Attorney's Office. Effectively eliminating the
need for federal prosecution of non-Indian perpetrator DV crimes,
allowing the USAO to focus on major crimes on the Fort Peck Indian
Reservation. A grant was also obtained to purchase case management
software for the prosecutor's office and collect data for DV matters.
An employee was hired to develop and execute training for law
enforcement and create a plan of coordinated community response to
domestic violence.
Another success is the ability of the Fort Peck Tribes to provide
effective assistance of counsel to all domestic violence defendants at
no cost to the defendant. We have a Public Defender office with an
attorney who is appointed to represent all non-Indian SDVCJ defendants,
and they can also represent Indian DV defendants.
The Fort Peck Tribes developed a jury pool system with the
assistance of the local county government to ensure that we have a fair
representation of our community members, Indian and non-Indian, to
serve as jurors for VAWA trials. We have had great participation from
the non-Indian residents of the reservation who have willingly answered
juror questionnaires and have appeared for jury duty.
Fort Peck Tribes participate in the Tribal Access Program (TAP)
which gives us the ability to share information with other
jurisdictions and provide assistance to them in a timely manner. The
Fort Peck Tribal Court maintains a website www.fptc.org that houses the
Comprehensive Code of Justice (CCOJ) that includes all tribal laws of
the Fort Peck Tribes. It is open to the public and contains a wealth of
information.
Challenges the Fort Peck Tribes have encountered are medical costs
of incarcerated non-Indians. Fort Peck Tribes maintain a tribal jail
through a 638 contract with the Bureau of Indian Affairs. Our first
VAWA defendant accumulated over $60,000 in medical expenses due to his
pre-existing health conditions. The Tribe covered the costs but have
continued to explore other options to assist with medical care of non-
Indian defendants. We also utilize alternatives to incarceration, such
as house arrest or release with conditions.
Restorative Justice Measures
Fort Peck Tribes are active in pursuing restorative justice
measures by implementing programs to assist with offender
rehabilitation and victim advocacy services. Since 2015, the Fort Peck
Tribal Court has applied for and received federal funding of
approximately 2.5 million toward specific domestic violence initiatives
to include prosecution under SDVCJ, data collection of DV crimes, case
management software, training for law enforcement, coordinated
community response to DV, offender accountability, victim legal
services and the creation of a domestic violence docket. Most of our
restorative justice implementations are highlighted under the successes
of SDVCJ.
The Fort Peck Tribes work toward rehabilitation of families and
partner relationships to enable individuals to have the tools to break
the cycle of domestic violence.
Tribal-State Relationships
Since 1999, the Fort Peck Tribes have had a successful cross
deputization agreement between the Tribes' law enforcement, the county
Sheriff's department, the Montana Highway Patrol and the city of Wolf
Point. The agreement has allowed a smooth transition with SDVCJ and
empowered tribal and state jurisdictions to enforce each other laws and
provide aid to one another.
Montana established the nation's first Native American Domestic
Violence fatality review team (NADVFRT). The team began reviewing cases
in 2014. As I member of the team, I see and hear first-hand the
devastating and lifetime affects domestic violence has on the family
and communities. Fort Peck alone has had five homicides (2007-2016)
reviewed by the Montana DV fatality review commission and the NADVFRT.
The fatality review commission seeks to reduce homicides caused by
family violence and identify gaps in protecting domestic violence
victims. The commission released a report in 2017, showing that Native
Americans remain victims of intimate partner homicide at a
disproportionate rate in Montana. Natives are approximately 7 percent
of the state's population, but make up 16 percent of intimate partner
homicides and 15 percent of intimate partner victims.
In closing, I understand that authorizing Tribes special
jurisdiction over non-Indians is only one portion of the VAWA
reauthorization but it is a vital instrument to public safety and to
effectively addressing domestic violence in Indian Country. Now is the
time to move forward collectively. Thank you for your time and
attention.
The Chairman. Thank you, Judge FourStar.
Professor Reese, please proceed with your testimony.
STATEMENT OF ELIZABETH A. REESE, PROFESSOR, STANFORD LAW SCHOOL
Ms. Reese. Kunda wo ha, thank you, to the Chairman and
Members of the Committee for inviting me to testify today. Navi
towa hahweh Yunpovi. Navi Americana hahweh Elizabeth Reese. Nah
Nambe Owingeh we ang oh mu.
My name is Elizabeth Reese, Yunpovi, and I am from the
Pueblo of Nambe. I hold degrees in political science and
political theory from Yale and from the University of Cambridge
and a law degree from Harvard. I am now a law professor at
Stanford, where I teach and write about trial law, Federal
Indian law, constitutional law, and civil rights law.
But I was asked to testify here today not only because of
my academic expertise but because of my professional
experience. Before becoming an academic, I was an attorney at
the National Congress of American Indians, where I worked
closely with the first tribes who were implementing expanded
criminal jurisdiction under VAWA 2013.
I talked on a regular basis with the tribal prosecutors,
judges, and defense counsel. I explained the intricacies of
this law, its requirements, its limitations, more times than I
can count. I tracked data from the implementing tribes and
listened first-hand to the harrowing stories about what it was
like to be on the front lines of those prosecutions. Then I
took all of that and I wrote it up into the five-year report
published in 2018 that has been cited so many times today
already.
In my written testimony I discuss at length many of the key
takeaways from that report, including the need to increase
VAWA's funding as well as its scope to other crimes against
women. But in my remarks today, however, I will focus on why it
makes particular sense to expand VAWA to adjacent criminal
conduct and respond to some concerns about the constitutional
rights of non-Indians in tribal courts.
To begin, currently tribes cannot charge defendants with
any of the crimes that happen alongside the domestic violent
event that they are actually prosecuting, such as violence
against children, drug possession, assault on law enforcement,
or just a simple DUI that happens while fleeing the scene.
Expansion to adjacent crimes would create a more equitable
system for prosecutors and defense counsel to navigate. That is
because the vast majority of criminal cases in the United
States are resolved not at trial, but by plea-bargaining. One
of the most common tools that prosecutors and defense counsel
have when negotiating a plea is that there are often multiple
charges of criminal conduct. Taking a serious or minor offense
off the table allows the two sides to arrive at a result that
they can both live with.
Without the full power to charge an offender with all of
the crimes that they are suspected of committing, both sides
are stuck with just that one offense, domestic violence, a
charge which is notoriously difficult to prosecute in court,
because it relies on the cooperation of often highly
traumatized and reticent witnesses.
Violent crime is messy. Granting tribes the power to
prosecute just one kind of crime simply doesn't reflect the
reality of how crime happens or the tools that people in the
criminal justice system need to do their jobs.
Now, despite the truly unacceptable levels of violence
against Native women, change has been slow, in part due to
concern about the rights of non-Indians in tribal courts. To
that, I have two responses. The first is to clarify the law on
this matter since these concerns are rooted in several
fundamental misunderstandings of the law.
To begin, although the Constitution itself does not apply
to tribal governments, the Indian Civil Rights Act particularly
as amended by the Tribal Law and Order Act and VAWA 2013
extends all of the relevant constitutional protections in a
criminal court proceeding to non-Indian defendants. Congress
created these protections and provided the powerful remedy of
habeas corpus. As such, non-Indian defendants in tribal court
already enjoy the same protection from unlawful detentions as
they would in any other American court.
That leads me to my second response to those who may be
worried about the fairness or adequacy of the justice system
that tribes are running. That is a simple reminder that tribal
governments are American governments, too, and that as such,
they are no less worthy of our trust, respect and dignity. Like
any other government in this Country, tribes are just a group
of your fellow American citizens, simply trying their best to
do what is best for the people that they are responsible for.
They are not perfect.
But we ought to shy away from the continued unbefitting
distrust of tribal governments as somehow more inherently
suspect or less capable of dispensing equal justice. They, must
like you, are trying in good faith to make and enforce laws
that help people thrive and protect them from harm. It is high
time that we trusted them to do that.
I look forward to questions from the Committee.
[The prepared statement of Ms. Reese follows:]
Prepared Statement of Elizabeth A. Reese, Professor, Stanford Law
School
Kunda wo ha, (thank you), to the Chairman and Members of the
Committee for inviting me to testify today. Navi towa hahweh Yunpovi.
Navi Americana hahweh Elizabeth Reese. Nah Nambe Owingeh we ang oh mu.
My name is Elizabeth Reese, Yunpovi, and I am from the Pueblo of Nambe.
I hold degrees in political science and political theory from Yale and
the University of Cambridge and a law degree from Harvard. I am an
Assistant Professor of Law at Stanford Law School, where I teach and
write about American Indian tribal law, federal Indian law, federal
constitutional law, and civil rights law.
I was asked to testify here today not only because of my academic
expertise but because of my professional experience. Before becoming an
academic, I worked as an attorney at the National Congress of American
Indians (NCAI), where I was the primary attorney responsible for
coordinating NCAI's work providing technical assistance to the tribal
governments across the country that were working to implement the
Violence Against Women Reauthorization Act of 2013's (VAWA 2013)
expanded criminal jurisdiction over domestic violence cases involving
non-Indians.
I am here today to tell you what I know about the successes of what
has come to be known as VAWA 2013's Special Domestic Violence Criminal
Jurisdiction (SDVCJ), the need to do more, and to offer my expert
opinion on the legal questions that cloud and complicate this picture.
I. VAWA 2013 SDVCJ's Successes
In my role at NCAI, I worked closely with the first tribes who were
implementing expanded criminal jurisdiction under VAWA 2013. While I
worked particularly closely with the handful of tribes who were
receiving the DOJ grant funding that had been appropriated along with
VAWA 2013 for implementation, it was also my job to support the rest of
the tribes throughout the country who were taking on the task of these
prosecutions entirely at their own expense. I talked on a regular basis
with tribal prosecutors, judges, and defense counsel from across the
country from tribes that were at every stage of the implementation
process. I helped advise tribes as they rewrote their legal codes to
comply with this statute. I explained the intricacies of this law, its
requirements, and its limitations more times than I can count. I
tracked data from the implementing tribes and listened firsthand to the
harrowing stories about what it was like to be on the front lines of
these prosecutions. And then, on the five-year anniversary of VAWA
2013, I wrote it all up into a comprehensive report documenting the
one-year pilot project, and the first three years after the statue took
nation-wide effect. \1\ In that report, I worked with colleagues and
collaborating organizations to agree on a set of detailed substantive
findings that broadly supported the effectiveness of the law at
achieving its key goal-allowing tribes to prosecute domestic violence
offenders. When I wrote that report in March of 2018, NCAI was only
aware of 18 tribes exercising expanded criminal jurisdiction, and there
had been 143 arrests of 128 defendants which led to 74 convictions. As
of September 2021, that number has increased to 28 tribes who have made
at least 396 arrests of 227 defendants, leading to 133 convictions. \2\
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\1\ NAT'L CONG. OF AM. INDIANS, VAWA 2013'S SPECIAL DOMESTIC
VIOLENCE CRIMINAL JURISDICTION FIVE-YEAR REPORT (2018) [hereinafter
VAWA 2013 REPORT].
\2\ Email from Esther Labrado, Legal Manager and Policy Lead--Legal
& Governance, National Congress of American Indians, to author (Dec. 6,
2021, 11:33 AM) (on file with author).
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Not only were the tribes able to do all of this work to bring
justice to their communities, but they were able to do so while
carefully safeguarding the rights of non-Indian defendants. As I heard
about time and again, many tribes provide far beyond the floor of what
is required of them. In many instances, non-Indian defendants in tribal
courts experience a justice system that has far more time for them, and
that treats them and their families with more individualized services
and, frankly, care, than they are used to receiving in the state or
federal system. For example, tribes in the initial few years sent 51
percent of the non-Indian defendants to batterer intervention or
another rehabilitation program. \3\
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\3\ VAWA 2013 REPORT at 20.
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A particular case from the Alabama Coushatta Tribe of Texas sticks
out to me. When I spoke with the tribal prosecutor, she described the
non-Indian defendant in that case--not as an outsider--but as a
community member, and the mother of five tribal children. She spoke
about how hard she tried to keep the woman's case in tribal court. In
tribal court, she would be able to work out a plea deal that addressed
her underlying drug problem and provided her with mental health
counseling. This plan kept her clean and out of jail, building toward
reuniting her with her children. If the same defendant was prosecuted
in state court, not only would that kind of care be resource or time
prohibitive, but she would have likely received a longer sentence due
to her criminal history with drug possession. \4\
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\4\ Id. at 21.
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Moreover, the law had the perhaps unintended effect of creating an
impetus for positive reforms, creative legal innovations with benefits
beyond the borders of Indian Country, \5\ collaboration, and
communication across tribal governments as well as other sovereigns.
\6\ However, the report also carefully documented the many ways in
which VAWA 2013 did not go far enough and the frustrations that tribal
governments had with the current limitations in the law.
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\5\ Id. at 61-70 (describing tribal courts' different
implementation and code choices as ``laboratories of justice''); see
Elizabeth Reese, The Other American Law, 73 STAN. L. REV. 55, 588-594
(2021) (explaining how the decision to interpret VAWA 2013's
requirement that tribal jury pools represent a fair cross section of
their communities, including non-Indians, as allowing for tribal
flexibility to use lists of non-Indian community members such as
spouses, employees, and lessees rather than simply non-Indian residents
as an innovative idea with applications to other geographic areas
throughout the United States that struggle with diversifying their jury
pools).
\6\ VAWA 2013 REPORT at 32-37 (discussing tribal law reforms--
particularly in the realm of victims' rights and safety--as well as the
increased collaboration between tribes and stronger relationships built
with state and federal partners).
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II. The Need To Do More To Protect Native Women
Since VAWA 2013 was passed, the National Institute of Justice
issued a 2016 report showing that the problem was even worse than we
thought. The rates of domestic and sexual violence against American
Indian and Alaska Native women are staggering. More than 4 in 5
American Indian and Alaska Native women--84.3 percent--have experienced
intimate partner violence, sexual violence, or stalking in their
lifetimes. And the vast majority of them experience violence at the
hands of a non-Native perpetrator, including 96 percent of victims of
sexual violence and 89 percent of stalking victims. American Indian and
Alaska Native women are 5 times more likely to experience violence by
an interracial partner as non-Hispanic white women, and 1.7 times more
likely than white women to have experienced violence in the past year.
\7\ VAWA 2013 and the financial supports provided therein was only the
beginning of what is needed to address this problem.
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\7\ NAT'L INST. OF JUST., VIOLENCE AGAINST AMERICAN INDIAN AND
ALASKA NATIVE WOMEN AND MEN: 2010 FINDINGS FROM THE NATIONAL INTIMATE
PARTNER AND SEXUAL VIOLENCE SURVEY (May 2016).
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A. Increase Funding to Support Tribal Governments
The number one reason that more tribal governments are not
prosecuting under VAWA 2013 is because they cannot afford it. Criminal
justice systems are very expensive. And tribal governments throughout
this country are struggling financially without anything close to
adequate support from the federal government. \8\ I would be happy to
return to this committee another time to provide testimony on the
historical roots, demographic realities, and legal complexities \9\
that all compound to create the untenable status quo of how tribal
governments are funded--it is indeed an unsustainable reality that
ought to trouble us all. However, for now, all I will say is that for
many tribal communities, it is not that they lack the will or ability,
it is that the cost of reworking or ramping up the scale of their
criminal justice systems is daunting. In order to prosecute under VAWA
2013, many tribes must rework their codes, hire additional prosecutors,
defense attorneys, and judges, contract for incarceration and inmate
healthcare, and make countless other changes to comply with law. \10\
Take a look at the cost to a state or the federal government for each
arrest, prosecution, police officer, judge, jail, healthcare costs for
detainees, transportation, and everything in between all the way down
to keeping the lights on. It is just as expensive for tribes to grow
their justice systems and take on this work as any other government. We
ought to be thinking about budgetary support on those terms.
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\8\ See U.S. COMM'N ON CIVIL RIGHTS, A QUIET CRISIS: FEDERAL
FUNDING SHORTFALL AND UNMET NEEDS IN INDIAN COUNTRY (July 2003).
\9\ Tribes are unable to effectively collect funds the primary way
that most governments are able to, through taxes, thanks to a series of
legal decisions and policy choices. They are unable to collect property
taxes since reservation lands are held in trust by the federal
government. Tribes are able to use sales and excise taxes to a limited
degree, though their efforts to impose such taxes over non-Indians are
often challenged through litigation, Atkinson v. Shirley, 532 U.S. 645
(2001), or de-facto limited by the imposition of concurrent state
taxation, Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989);
Tulalip Tribes v. Washington, 349 F. Supp. 3d 1046 (W.D. Wash. 2018).
The urgent need for tribal economic development responds to this need
for alternative funds. See Matthew L.M. Fletcher, In Pursuit of Tribal
Economic Development as a Substitute for Reservation Tax Revenue, 80
N.D. L. REV. 759, 771-74 (2004).
\10\ VAWA 2013 REPORT at 29-30.
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Therefore, not only is it my recommendation that this committee
consider proposing legislation that reaffirms the grant funding to
support tribes who are seeking to implement SDVCJ, but I suggest
increasing it. And what they need is not another competitive grant
program for discrete and limited projects, but additional, steady
streams of funding that more tribes can use to do things like hire
additional staff, expand infrastructure, and generally keep the lights
on.
B. Expand the Scope of Tribal Jurisdiction Over Non-Indians Under VAWA
1. It Is Senseless and Dangerous to Keep Tribes from Prosecuting the
Many Similar Crimes Against Native Women
I also suggest expanding the number of offenses available under the
statute. Having the power to prosecute such a limited set of offenses
and limited kind of offenders forces a senseless and frustrating
powerlessness upon tribal governments. While prosecuting domestic and
dating violence cases, tribes consistently come across other kinds of
similar, but not covered crimes, or crimes that happen alongside their
VAWA SDVCJ cases. \11\ Tribes have the knowledge, will, and capacity to
do something about these crimes, and lack only the permission. This
powerlessness can have tragic and preventable consequences.
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\11\ Id. at 22 (discussing a workplace sexual assault case that
Pascua Yaqui was unable to charge although the assailant had sufficient
ties to the community because it was not within the context of a prior
romantic relationship).
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As it was told to me by the victim advocates and court officials at
Sault Ste. Marie Tribe, a non-Indian man who was dating a tribal member
made unwanted sexual advances on her 16- year-old daughter. He sent
inappropriate text messages and stood outside their house. On one
occasion he groped the daughter and told her not to tell anyone. When
mother and daughter came forward asking for help, the tribe tried to
charge the defendant with domestic abuse- attempting to characterize
the sexual assault against the daughter as part of a pattern of abusing
her mother. But, the tribal court, mindful of limits of the law,
dismissed the charges for lack of jurisdiction since the girl was not
in a domestic or dating relationship with the defendant. Four months
later, he was arrested by county police for kidnapping and repeatedly
raping another 14-year-old tribal member at an off-reservation hotel.
\12\ This rape was preventable. The tribe knew that this individual was
a danger to the community--particularly to young girls--and had victims
willing to come forward. The only thing stopping them from protecting
their community was they lacked the precise permission of the United
States Congress. Federal law has not yet said that it is ok for the
local police, prospectors, and judges to do anything about these crimes
being done to their own people-that happen right in front of them. So
they have to sit back and do nothing.
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\12\ Id. at 24-25.
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2. It Is Ineffective, Inefficient, and Problematic to Prevent Tribes
from Charging and Negotiating Plea Bargains That Include
Adjacent Criminal Conduct
At the very least, Congress ought to expand tribal criminal
jurisdiction to include similar crimes that go to the heart of the
violence against women that this law is intended to address, such as
sexual assault, stalking, and sex trafficking, and the kinds of crimes
that are the most common adjacent offenses. These offenses often occur
along with the domestic violence or dating violence crimes that tribes
already have jurisdiction over. Across the initial few years of VAWA
2013 cases documented in my report, for example, 58 percent of
incidents involved children, \13\ and 51 percent of incidents involved
drugs or alcohol. \14\ But currently, tribes cannot charge defendants
with many of these co-occurring offenses, including violence against
children, drug possession, or assault on law enforcement. \15\
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\13\ Id. at 24.
\14\ Id. at 26.
\15\ Id. at 23.
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An expansion to adjacent crimes would create a more equitable
system for prosecutors and defense counsel to navigate. The vast
majority of criminal cases in the United States are resolved, not at
trial, but by plea bargaining. One of the most common tools that
prosecutors and defense counsel have when negotiating a plea is that
there are often multiple charges of criminal conduct brought. Taking
one or another more serious or minor offense off the table allows the
two sides to arrive at a result they can both live with. Without the
full power to charge an offender with all of the crimes they are
suspected of committing, both sides are stuck with just the one charge:
domestic violence, a charge which is notoriously difficult to prove in
court and which relies on the cooperation of often highly traumatized
and reticent witnesses. Crimes such as a DUI when fleeing the scene of
a domestic assault or an assault on the arresting police officer are
often easier, simpler, and less difficult options for prosecutors to
work with, particularly because they are less traumatizing for domestic
violence victims. \16\ Violent crime rarely unfolds in a neat fashion
such that only one crime fits the set of events and everyone is on the
same page about the alleged offender's guilt and the appropriate
punishment. Granting tribes the power to prosecute only one kind of
crime simply doesn't reflect the reality of how crime happens or the
tools people in the criminal justice system use to do their jobs. As
one attorney from a prosecuting tribe described it to me, forcing
attorneys to work within such a limited legal framework is akin to
requiring them to do their jobs ``with one hand tied behind their
back.'' \17\
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\16\ Id. at 26-27 (describing instances of such adjacent crimes
going unprosecuted and the difficulties it creates for tribal
prosecutors).
\17\ Id. at 22.
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In truth, Congress should simply restore full concurrent
jurisdiction over non-Indian defendants for tribal governments, keeping
in mind that the 1-to-3-year sentencing limitations put in place by the
Tribal Law and Order Act already do a tremendous amount of work to
limit what tribes can do when it comes to the most serious offenses.
\18\ That would be clearer and eminently more workable. And it would be
safer and far more effective because it would be informed by the
realities of how criminal cases are investigated and prosecuted. Think
of the officers who show up on the scene to answer an 9-1-1 call, when
the facts of what happened aren't yet clear. Having the authority to
conduct an open-ended investigation helps those officers to do their
jobs. But that's not what happens in Indian Country. Instead, the
officer's authority or what court needs to issue a warrant can turn on
things like Indian status or even a couple's relationship status. As
Justice Kavanaugh--quoting a group of U.S. Attorneys describing this
system last summer--said at a Supreme Court oral argument recently, the
jurisdictional system in Indian Country is an ``indefensible morass of
complex, conflicting, and illogical commands layered in over decades
via congressional policies and court decisions and without the consent
of tribal nations.'' \19\
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\18\ 25 U.S.C. 1302(a)(7), (b).
\19\ Transcript of Oral Argument at 56, Cooley v. United States,
593 U.S. __ (2021) (Kavanaugh, J.) (No. 19-1414) (quoting Brief for
Former United States Attorneys as Amici Curiae Supporting Petitioner at
8-9).
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III. The Legal Foundation for Tribal Criminal Jurisdiction Over Non-
Indians and the Processes and Rights That Protect Non-Indian
Defendants
Despite this ``morass,'' and the truly unacceptable levels of
violence against Native women, change has been slow. When the prospect
of expanding tribal criminal jurisdiction as a potential solution for
this untenable status quo has been raised in the past, I know that
there has been concern for the rights of non-Indians being tried in
tribal courts, or the underlying constitutional validity of
congressional action. I have encountered reticence about tribal courts
prosecuting non-Indians, because of concern that they would not have
the protections of the federal Constitution in tribal courts. To that,
I have two responses. The first is to clarify the law on this matter
since these concerns are rooted in several fundamental
misunderstandings of the law. The second is a simple reminder that
tribal governments are American governments too, and as such they are
no less worthy of our trust, respect, and dignity.
A. No Further Protections or Oversight is Necessary: VAWA 2013 Already
Ensures That Non-Indian Defendants in Tribal Courts are
Protected by Constitutionally Equivalent Rights
To begin with, the Indian Civil Rights Act (ICRA), particularly as
amended by the Tribal Law and Order Act (TLOA) and VAWA 2013, extends
all of the relevant constitutional protections in a criminal court
proceeding to non-Indian defendants. \20\ The Supreme Court recently
described the provisions contained in ICRA as ``require[ing] tribes to
ensure `due process of law,'. . . accord[ing] defendants specific
procedural safeguards resembling those contained in the Bill of Rights
and the Fourteenth Amendment.'' \21\ These protections include the
basic right to due process of law; \22\ freedom from illegal or
warrantless search or seizure; \23\ a prohibition on double jeopardy;
\24\ a right against self-incrimination; \25\ the right to a speedy
trial and to confront witnesses; \26\ the right to a jury trial; \27\
the right to indigent defense; \28\ the right to effective assistance
of counsel; \29\ the prohibition on bills of attainders; \30\ and the
right not to be subjected to cruel or unusual punishment, excessive
fines, or excessive bail. \31\
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\20\ 25 U.S.C. 1302-1304.
\21\ U.S. v. Bryant, 579 U.S. 140, 156-57 (2016). The Court went on
to conclude that: ``Proceedings in compliance with ICRA, Congress
determined, and we agree, sufficiently ensure the reliability of
tribalcourt convictions.'' Id. at 157.
\22\ 25 U.S.C. 1302(a)(8).
\23\ 25 U.S.C. 1302(a)(2).
\24\ 25 U.S.C. 1302(a)(3).
\25\ 25 U.S.C. 1302(a)(4).
\26\ 25 U.S.C. 1302(a)(6).
\27\ 25 U.S.C. 1302(a)(10), 1304(d)(3).
\28\ 25 U.S.C. 1302(c)(2).
\29\ 25 U.S.C. 1302(c)(1).
\30\ 25 U.S.C. 1302(a)(9).
\31\ 25 U.S.C. 1302(a)(2).
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Congress has created these protections and provided the remedy of
habeas corpus. \32\ Tribes are also legally required to notify all
their detainees of their right to file a habeas petition to contest
their detention as a violation of their rights. \33\ Just like the
equivalent guarantees in the Constitution, these protections exist on
the books, ready to spring into action when they are transgressed and
then invoked by an aggrieved citizen. Nothing else beyond the legal
promise of the right and the provision of a remedy is needed to ensure
that tribes are adequately providing the rights that they are required
to under the law. Indeed, no more than we do to make sure that the
county courts in Illinois are complying with the federal constitutional
rights they are required to afford their defendants. Both systems
already work the same way. The writ of habeas corpus is available in
both instances, \34\ and so defendants are able to contest any
violation of their equivalent constitutional rights protections that
result in unlawful detention, just as they would a contest a similar
violation of their constitutional rights in state court. \35\ We can
trust that tribal court systems take just as seriously their duty to
interpret and provide adequate rights protections to defendants, \36\
when they are raised immediately or in the course of a direct appeal.
And we can certainly trust that people don't want to stay in prison,
particularly when their rights have been violated. If there were
rampant rights violations in tribal courts, we can rest assured that we
would know about it.
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\32\ 25 U.S.C. 1303
\33\ 25 U.S.C. 1304(e)
\34\ 25 U.S.C. 1303 (extending the writ of habeas corpus to any
person to test the legality of detention ordered by an Indian tribe);
U.S. Const. art. I, 9, cl. 2; 28 U.S.C. 2254(a).
\35\ 28 U.S.C. 2254(a).
\36\ Mark D. Rosen, Multiple Authoritative Interpreters of Quasi-
Constitutional Federal Law: Of Tribal Courts and the Indian Civil
Rights Act, 69 FORDHAM L. REV. 479, 522 (2000) (``Additional evidence
demonstrates that tribal courts take their task of construing ICRA
seriously. This evidence is the attentiveness tribal courts give to
federal court precedents when construing ICRA's sister terms in the
Bill of Rights, as well as the tendency of tribal courts to depart from
federal interpretations only after articulating good reasons to do so.
Indeed, analysis of the case law reveals that tribal courts have
assimilated many Anglo constitutional values even though they have
given the provisions varying applications.'').
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B. Tribal Governments Deserve to Be Trusted to Do Their Part Alongside
Other American Governments to Protect Native Women
My second response to those who may be worried about the fairness
or adequacy of the justice systems that tribes are running, is to share
what I came to realize while working so closely with tribal governments
throughout this country. It is at once so obvious and yet unfortunately
still so profound that it has become a large part of my academic career
to extend this insight to every corner of American law: Indian Tribes
are simply governments, just like any other in this country. They are
composed--not of ``outsiders''--but entirely of your fellow American
citizens. Like any other government, they are trying their best to do
what is best for the people they are responsible for. They are trying
to make laws and programs that help people thrive and protect them from
harm. They are not perfect. They are simply a group of American
citizens doing their best to shape laws and build systems that they and
their families will have to live by and be brought to justice under
when they cause harm. And it is high time we trusted them to do that.
When equivalent rights protections are already readily available
under existing federal law, requiring any additional federal agency
oversight of tribal governance, or earlier federal court intervention
beyond what we require of states is a waste of federal and tribal
resources. When a state is accused of violating a criminal defendant's
Constitutional rights, defendants are required to raise the issue first
in state court to give them the first opportunity to address and
rectify it. \37\ To subject tribal governments to any more supervision
or scrutiny than we do the other governments in this country is nothing
more than a paternalistic impulse rooted in colonially tinged distrust
of tribal governments as somehow more suspect or less capable of
dispensing equal justice. \38\ The ``jurisdictional maze'' of Indian
Country and lack of adequate protections for public safety already
makes Indian people feel like ``second-class citizens.'' \39\ We should
be weary of any programmatic change which would likewise communicate
that their governments are second-class governments.
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\37\ 28 U.S.C. 2254(b) (describing the state court exhaustion
requirement in habeas corpus petitions for violations of constitutional
rights).
\38\ Moreover, evidence suggests such concerns are completely
unwarranted. In a study of tribal court civil cases involving non-
Indian defendants, Professor Bethany Berger found that tribal courts
were nonetheless even-handed and fair. Bethany Berger, Justice and the
Outsider: Jurisdiction Over Nonmembers in Tribal Legal Systems, 37
ARIZ. ST. L.J. 1047 (2005); see also Rosen, supra note 36.
\39\ INDIAN L. & ORDER COMM'N, A ROADMAP FOR MAKING NATIVE AMERICA
SAFER: REPORT TO THE PRESIDENT & CONGRESS OF THE UNITED STATES v, viii-
ix (Nov. 2013) (describing the ``jurisdictional maze'' in Indian
Country that makes Indian people ``second-class citizens'' when it
comes to protection from crime, particularly because the local police &
law enforcement most closely connected to Indian Country are helpless
to prosecute a great deal of the crimes that they encounter).
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C. Congress Has the Power to Restore Tribal Criminal Jurisdiction Over
Non-Indians
Finally, there is the question of Congress' power to authorize
broader exercise of tribal criminal jurisdiction. It is settled law
that tribal sovereignty, including the power to prosecute all persons
who commit crimes within their territories, is inherent. \40\ It is
built into the government of the tribe, with permanent and deep roots
in their very existence as a government in their own right, as pre-
colonial self-governing peoples. However, it is also settled law, that
Congress-as a matter of both constitutional power and colonial
necessity--has plenary power over the scope of that sovereignty. \41\
Just as with state sovereignty, Congress cannot create or destroy
tribal sovereignty, but federal power can limit its exercise. \42\ But
Congress can, just as easily--and without complicating the source of
that underlying authority--remove the barrier placed on that power.
Congress did just that in VAWA 2013, and in the ``Duro Fix,'' \43\
which restored tribal power to prosecute non-member Indians. When the
Supreme Court examined Congress' decision to allow tribes to exercise
more of their original inherent authority to prosecute crimes committed
on their territory, it described that action as simply Congress
``removing restrictions imposed on the tribes' inherent sovereignty,''
\44\ and it upheld Congress' power to do so under the Constitution.
\45\
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\40\ United States v. Wheeler, 435 U.S. 313, 322-23 (1978).
\41\ Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903); United
States v. Kagama, 118 U.S. 375, 380 (1886).
\42\ Although there are, of course, many ways--including provisions
of the Constitution itself--which limit the exercise of state
sovereignty, federal law also recognizes that Congress' power to limit
the scope of state courts' jurisdiction. In Tafflin v. Levitt, the
Supreme Court held that though state courts otherwise have ``inherent
authority, and are presumptively competent, to adjudicate claims,''
they can ``by an explicit statutory directive, by unmistakable
implication from legislative history, or by a clear incompatibility
between state-court jurisdiction and federal interests'' be ``divested
of jurisdiction to hear [certain claims.]'' 493 U.S. 455, 458, 460
(1990) (quoting Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478
(1981)).
\43\ 25 U.S.C. 1301(2).
\44\ United States v. Lara, 541 U.S. 193, 207 (2004).
\45\ Lara, 541 U.S. at 210.
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Then, as here, Congress has not only the power to do something but
the responsibility.
Forty-three years ago, when the Supreme Court decided Oliphant v.
Suquamish--the case that removed tribal criminal jurisdiction over non-
Indians--the opinion's final paragraph acknowledged three important
things. First, that the concerns about tribal courts that motivated
parts of their decision might not even be well founded, particularly
after the passage of ICRA. Second, that their decision might have
drastic consequences for the ``prevalence of crime'' on reservations.
And finally, that it would be up to Congress to fix the mess they made,
if that indeed happened. \46\
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\46\ ``We recognize that some Indian tribal court systems have
become increasingly sophisticated and resemble in many respects their
state counterparts. We also acknowledge that with the passage of the
Indian Civil Rights Act of 1968, which extends certain basic procedural
rights to anyone tried in Indian tribal court, many of the dangers that
might have accompanied the exercise by tribal courts of criminal
jurisdiction over non-Indians only a few decades ago have disappeared.
Finally, we are not unaware of the prevalence of non-Indian crime on
today's reservations which the tribes forcefully argue requires the
ability to try non-Indians. But these are considerations for Congress
to weigh in deciding whether Indian tribes should finally be authorized
to try non-Indians.'' Oliphant v. Suquamish Indian Tribe, 435 U.S. 191,
211-12 (1978).
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And here we are, still largely sitting in this mess 43 years later,
after decades of Native women paying the highest price for the Supreme
Court's decision and Congress' inaction. It is time to get out of the
way and let tribal governments do as much as they can in the fight to
protect Native women. Our reasons for keeping them out of it are rooted
in fear, distrust, and assumptions about their capacity to soundly
administer the law that all ought to be long since in our past.
The Chairman. Thank you very much, Professor Reese.
Last, we have Michelle Demmert, Director of the Law and
Policy Center, Alaska Native Women's Resource Center, in
Fairbanks, Alaska. Please proceed.
STATEMENT OF MICHELLE DEMMERT, DIRECTOR, LAW AND POLICY CENTER,
ALASKA NATIVE WOMEN'S RESOURCE
CENTER
Ms. Demmert. Good afternoon. My name is Michelle Demmert. I
am an enrolled citizen and the former chief justice of Central
Council Tlingit and Haida Indian Tribes of Alaska Supreme
Court, and serve as the law and policy director for the Alaska
Native Women's Resource Center.
The rates of violence experienced by Alaska Natives are
shocking. Alaska ranks as one of the most dangerous places in
the Nation for women
This is especially true for Alaska Native women. While
Alaska Natives comprise approximately 90 percent of the State's
population, the Alaska Criminal Justice Commission reports that
46 percent of reported felony level sex offenses involve Alaska
Natives. Given the many barriers to reporting, we see this as
an underestimate.
Available data suggests that among other Indian tribes,
Alaska Native women suffer the highest rates of domestic and
sexual violence in the Country. Alaska has the highest number
of missing indigenous persons, too.
As of August 2021, 40 percent of the missing Alaska Native
and American Indian people in NamUs were from Alaska. These
missing women are the devastating manifestations of centuries
of oppression and broken systems that have failed to protect
Native women and children from birth to death for generations.
The combined impact of P.L. 280, the Supreme Court's
Venetie decision, and the timing of historical events in Alaska
leave us Natives dependent on the State for public safety and
justice. My written testimony discusses the legal framework in
Alaska. Today, I will focus on what this legal framework means
for Alaska Natives.
It can be difficult to understand a place in America where
you cannot call 911 for a quick response within minutes. Such
is the case in Alaska. We do not have a centralized 911 system,
and the State criminal justice and victim services are located
in a handful of urban areas, making them more theoretical than
real in rural Alaska.
Many villages lack law enforcement. We might have to leave
a message and wait hours and days and sometimes weeks for a
necessary response. Sometimes a response is nothing more than a
phone call saying that it doesn't rise to the level for an
investigation. Because we lack the necessary resources and the
infrastructure to manage these issues on our own, our children,
our children are often our first responders, and our tribal
leaders and advocates act as law enforcement and preserve crime
scenes.
I would like to share two examples. In a homicide case, it
took 11 hours for law enforcement to appear. The 13-year-old
victim's body laid outside across the street from the family's
home. Sometimes these crime scenes are like this for days on
end. We have lost our loved ones and are powerless to do
anything more than sit vigil, protecting a crime scene until
law enforcement arrives.
In a 2018 case, in a small, remote interior village, a
victim waited 17 days to get out of the village to safety.
During this time, the victim was treated at the clinic, called
Alaska State troopers located in a hub community one hour away
by plane. The weather was unflyable for three weeks. In
addition, she could not get to a regional medical clinic for
further treatment, and law enforcement could not get into the
community for an investigative report.
The circumstances described are repeated throughout remote
Alaska. They will continue until our local governments have the
authority and resources they need to address public safety.
As you have heard, many tribes outside Alaska have
successfully exercised jurisdiction over non-Indians who abuse
Native women since the passage of VAWA in 2013. Indian tribes
in Alaska were effectively excluded from that legislation
because of the use of the term Indian Country, which Alaska
tribes lack.
We have called on Congress to remove the legal barriers
denying Alaska Native victims of violence access to justice
from their own tribal governments. We are encouraged by current
efforts to do so. We support the creation of the pilot project
in Alaska.
Specifically, we recommend the creation, with Department of
Justice support, of an Alaska-specific inter-tribal Special
Domestic Violence Court Jurisdiction working group, a planning
phase with robust technical assistance for code drafting,
training, and court capacity building, and sufficient financial
support for costs related to both planning and implementation.
We strongly support proposed amendments to VAWA 2013
related to improvements for Special Domestic Violence Court
Jurisdiction. Thank you, thank you for releasing the discussion
draft today. It represents an important step forward, and we
appreciate the bipartisan work of the Chairman and Vice
Chairman Murkowski to reform the outdated Federal laws that
prevent tribal nations, including those in Alaska, from
protecting our communities.
In the Tlingit language, we have no words or descriptions
for violence within a family home. Restoring and enhancing
local tribal governmental capacity to respond to violence
against women provides greater local control, safety,
accountability and transparency. As a result, we will have
safer communities, and a pathway for long-lasting justice.
I look forward to providing additional feedback to the
Committee on the discussion draft.
Gunalcheesh. Haw'aa. Thank you.
[The prepared statement of Ms. Demmert follows:]
Prepared Statement of Michelle Demmert, Director, Law and Policy
Center, Alaska Native Women's Resource Center
My name is Michelle Demmert, and I am an enrolled citizen and the
former Chief Justice of Central Council Tlingit and Haida Indian Tribes
of Alaska's Supreme Court (Tlingit & Haida) and serve as the Law and
Policy Director for the Alaska Native Women's Resource Center (AKNWRC).
The Alaska Native Women's Resource Center is a nonprofit
organization dedicated to ending violence against women in partnership
with Alaska's 229 tribes and allied organizations.
My nation, Tlingit & Haida, is a federally recognized tribal
government with over 33,000 citizens worldwide, and has an active,
government-to-government relationship with the United States. The Tribe
serves 18 villages and communities spread over 43,000 square miles
within Southeast Alaska. More than 7,000 tribal citizens reside in
Juneau, with several thousand more located in Anchorage. Beyond that, a
significant number of tribal citizens reside in Washington State (more
than 6,000), and smaller numbers stretch into Oregon and the rest of
the world. Tlingit & Haida tribal citizens are among the largest, most
isolated, and most geographically dispersed tribal populations
nationwide. In Southeast Alaska, where the Tribe provides the majority
of its services, most communities have no roads in or out and must rely
on planes and boats for both day-to-day needs and emergencies. The
majority of Alaska's 229 tribes are similarly isolated.
The AKNWRC is a member of the National Congress of American
Indians' Task Force on Violence Against Women. Since its establishment
in 2003, the NCAI Task Force, which I cochaired from 2017-2020, has
assisted Indian tribes in advocating for national legislative and
policy reforms to strengthen tribal government authority and access
increased resources to safeguard the lives of American Indian and
Alaska Native women.
Thank you for inviting me to testify on behalf of the AKNWRC on the
essential role of the Violence Against Women Act (VAWA) in supporting
Alaska Native victims of domestic and sexual violence and strengthening
the response of Indian tribes in Alaska to these crimes in villages
across Alaska.
The challenges confronting Alaska Indian tribes in creating safe
villages for our citizens, specifically women, are distinct from any
other sovereign in the United States-Indian tribes, States,
Territories, or the federal government. In this testimony, I will
provide a brief explanation of how systemic barriers within the state
of Alaska undermine safety for Alaska Natives and exacerbate an already
dire situation for many Alaska Native women. I will also discuss how
the tribal provisions in VAWA 2013 have left Alaska Natives further
behind. Finally, I will address how the Violence Against Women
Reauthorization Act, H.R. 1620 and recommended reforms included in the
Alaska Tribal Public Safety Empowerment Act introduced last session, S.
2616, present a path forward that begin to address the unique
challenges in Alaska and will ultimately bring greater safety to Alaska
Native women.
Systemic Legal Barriers Confronting Alaska Indian Tribes
The 2013 Indian Law and Order Commission (ILOC) issued the Report,
``A Roadmap for Making Native America Safer'' and devoted a chapter to
the unique issues in Alaska. \1\ The Report found that the absence of
an effective justice system has disproportionately harmed Alaska Native
women who are continually targeted for all forms of violence.
\1\ A Roadmap for Making Native America Safer: Report to the
President and Congress of the United States (November 2013), available
at http://www.aisc.ucla.edu/iloc/report/.
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An instructive statement contained in the ILOC report concludes:
''The strongly centralized law enforcement and justice systems
of the State of Alaska . . . do not serve local and Native
communities adequately, if at all. The Commission believes that
devolving authority to Alaska Native communities is essential
for addressing local crime. Their governments are best
positioned to effectively arrest, prosecute, and punish, and
they should have the authority to do so-or to work out
voluntary agreements with each other, and with local
governments and the State on mutually beneficial terms.''
--Indian Law and Order Commission Report, 2013
We are encouraged that Congress is considering legislation that
recognizes that restoring safety for Alaska Native women requires
empowering Alaska Native tribal governments. This is consistent with
recommendations that have been made for decades to remove barriers in
federal law that limit the authority of tribal justice systems to
address violence in tribal communities. Unfortunately, Congressional
efforts over the last 10 years to empower tribal governments--including
VAWA 2013 and the Tribal Law & Order Act of 2010--have left Alaska
tribes behind. Alaska tribes are treated differently under U.S. law
largely because of the timing of Alaska statehood and the unique
structure of the Alaska Native Claims Settlement Act.
The Alaska Territory was purchased by the United States from Russia
in 1867. Three short years later, Congress prohibited the President
from ``treating'' with tribal governments. \2\ As a result, there are
no treaties with tribes in Alaska. Instead, between 1891-1936 reserves
in Alaska were established by Executive Order, or in the case of the
Annette Islands reserve, by act of Congress.
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\2\ 25 U.S.C. 71. During this time, it is notable that the Civil
War had just ended, and the country was in the process of the
``Reconstruction Era,'' a time which the United States was
reintegrating into the Union the states that had seceded and
determining the legal status of African Americans. Alaska Territory was
a far-off world not part of this focus.
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Alaska was a territory for almost a century before becoming a state
during a time known as the Termination Era of federal Indian policy
(mid-1940s to mid-1960s). \3\ The Termination Era was a period of
policymaking focused on ending federal obligations to Indian tribes
with the ultimate aim of dissolving tribal governance structures and
lands and fully assimilating Native people into the dominant culture.
The policy has been widely repudiated, but many of today's challenges
are the direct result of Termination Era actions that have never been
undone. Public Law 83-280 (1953) (PL 280) was enacted during the
Termination Era and transferred to certain states federal criminal
jurisdiction over Indians living on tribal lands. Before PL 280 was
enacted, the federal and tribal governments shared jurisdiction,
exclusive of the states, over almost all civil and criminal matters
involving Indians on tribal lands. A month after Alaska became a state
in 1958, \4\ the provisions of PL 280 were extended to Alaska as a
``mandatory'' state.
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\3\ 68 Stat. 795; Pub. L. 85-615, 1, Aug. 8, 1958.
\4\ Public Law 85-508 (July 7, 1958).The statehood act was signed
into law by the President on July 7, 1958. On January 3, 1959, the
President signed the official proclamation admitting Alaska as the 49th
state.
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At the time of statehood, Alaska had several ``Executive Order''
Reservations and Native townsites, which were set aside for the benefit
and use of ``Indians'' or ``Eskimos.'' The Alaska Natives were active
in advancing their rights and engaged in governance with the Alaska
Native Brotherhood (1912) and the Alaska Native Sisterhood (1915).
Through their efforts, the first civil rights act in the country was
adopted while Alaska was still a Territory. \5\ In the 1960s, land
rights became a primary issue in Alaska. With the discovery of oil, the
federal government wanted to end any question of land status for
Natives and gain access to the rich oil reserves.
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\5\ House Bill 14, the Antidiscrimination Act of 1945.
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The Alaska Native Claims Settlement Act (ANCSA) \6\ came at the
tail end of the Termination Era. ANCSA created a new and novel approach
to tribal land tenure. Rather than recognize sovereign tribal lands,
ANCSA created for-profit corporations and transferred tribal lands in
fee to these entities to manage more than 40 million acres of land.
ANCSA divided the state into 12 regional corporations and over 200
village corporations that would identify with their regional
corporation. Many of these villages had corresponding tribal village
governments but, with the passage of ANCSA, no meaningful or recognized
land base. After ANCSA, the only remaining Alaska reservation is the
Annette Island Reserve in Southeast Alaska. \7\
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\6\ 43 U.S.C. 1601 et. seq. (1971).
\7\ 18 U.S.C. 1162 (Except as otherwise provided in sections 1154
and 1156 of this title,; 28 U.S.C. 1360.Pursuant to ANCSA, two Native
corporations were established for the Neets'aii Gwich'in, one in
Venetie, and one in Arctic Village. In 1973, those corporations elected
to make use of a provision in ANCSA allowing Native corporations to
take title to former reservation lands set aside for Indians prior to
1971, in return for forgoing the statute's monetary payments and
transfers of non-reservation land. See 1618(b). The United States
conveyed fee simple title to the land constituting the former Venetie
Reservation to the two corporations as tenants in common; thereafter,
the corporations transferred title to the land to the Native Village of
Venetie Tribal Government (the Tribe). However, the analysis of their
land status is beyond the scope of this discussion.
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Following the enactment of ANCSA, several decades of confusion
about the status and territorial authority of Alaska tribal governments
ensued. Ultimately, the tribal status of Alaska Natives was confirmed,
but the jurisdiction of the tribes was severely limited by Alaska v.
Native Village of Venetie Tribal Government, 522 U.S. 520 (1998), a
case in which the U.S. Supreme Court held that the lands transferred by
ANCSA do not meet the definition of ``Indian country'' under federal
law. As a practical matter, this decision has meant that with the
exception of the Annette Island Reservation, there is virtually no
recognized ``Indian country'' in Alaska. \8\
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\8\ The Venetie decision did not address whether other lands in
Alaska, including Indian allotments and Native townsites, are ``Indian
country.''
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As a term in federal law, ``Indian country'' defines a confined
area of territorial jurisdiction tied to a tribe. The term ``Indian
country'' means:
''(a) all land within the limits of any Indian reservation
under the jurisdiction of the United States government,
notwithstanding the issuance of any patent, and including
rights-of-way running through the reservation, (b) all
dependent Indian communities within the borders of the United
States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of
a state, and (c) all Indian allotments, the Indian titles to
which have not been extinguished, including rights-of- way
running through the same.'' \9\
\9\ 18 U.S.C. 1151.
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Most federal programs and statutes reference eligibility of
``Indian country'' for certain programs. While federal programs have
expanded their definitions for Alaska Native tribes to take advantage
of most programs as ``dependent Indian communities,'' the lack of true
legally defined ``Indian country'' and corresponding defined
jurisdiction, continues to create a dangerous situation in Alaska and
for tribal governments to protect their women and children.
In addition, without lands recognized as ``Indian country,'' Alaska
tribes have very little ability to tax or engage in economic
development opportunities that may be available to tribes outside
Alaska. Alaska tribes have also been deprived of consistent and
predictable tribal court federal appropriations. As a result, Alaska
tribes lack the revenue typically available to other tribal governments
to fund and sustain essential government infrastructure and services
such as a court or police force. All Alaska tribes are in a similar
position and must find innovative ways to raise government revenue and
to leverage other resources to sustain their tribal courts, public
safety, and victim services. Because of this resource dilemma,
available grants for developing and sustaining programs are a matter of
life or death for Alaska Native women and tribes.
The combined impact of PL 280 and the Venetie decision leave Alaska
Natives dependent on the state of Alaska for public safety and justice.
Alaska tribal communities are at the mercy of the state to provide
justice services. Unfortunately, state services are centered in a
handful of Alaskan urban areas, making them more theoretical than real
in rural Alaska. The Indian Law and Order Commission found that
``Alaska Department of Public Safety (ADPS) officers have primary
responsibility for law enforcement in rural Alaska, but ADPS provides
for only 1.0-1.4 field officers per million acres.'' \10\ Without a
meaningful law enforcement presence, crime regularly occurs with
impunity. In addition, the maze of jurisdictional issues, the remote
nature of many tribal communities, and other systemic barriers in
Alaska create extremely dangerous conditions for Alaska Native women
across the entire state, and especially those living in our small,
remote resource-poor communities. Without the extension of state
services and resources to address the disparities in rural tribal
communities, the State of Alaska has failed Alaska Native women,
children, and families.
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\10\ A Roadmap for Making Native America Safer: Report to the
President and Congress of the United States (November 2013), available
at http://www.aisc.ucla.edu/iloc/report/.
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It is nearly impossible to convey this situation and the traumatic
hardships constantly faced by Alaska Native women and families to
people, lawmakers, and leaders who have not visited rural Alaska. They
cannot envision a place in America where you cannot call 911 and have a
response within minutes. But in Alaska, we do not have a centralized
911 system--if we need services, we have to determine who to call--do
we need emergency medical help or law enforcement services? We often do
not have a police presence in the Village and rely on state troopers
stationed many air miles away. We might have to leave a message and
wait hours, days, and sadly weeks for a necessary response. Sometimes
the response is nothing more than a phone call saying that it doesn't
rise to the level warranting an investigation. The message we receive
repeatedly is that the state justice system devalues us as Native
women. In a highly publicized case, Justin Scott Schneider, an
Anchorage man, violently attacked a Native woman. Schneider was charged
with kidnapping, strangling the victim until she became unconscious
then masturbating on her. This man pled guilty and yet served no jail
time. \11\ Why would we trust such a system to help us?
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\11\ https://www.cnn.com/2018/09/21/us/alaska-assault-man-no-
sentence/index.html While this crime occurred in an urban area, this
sentence shows how access to justice fails our tribal people.
---------------------------------------------------------------------------
Again, the current crisis and spectrum of violence committed
against Alaska Native women is a result of systemic barriers created
through historic laws and policies of federal Indian law. Alaska Indian
tribes lack and desperately need access to both tribal and state
justice services. Many tribes have no advocacy services, law
enforcement, no 911, no state official they could conceive of raising a
complaint to, given the separation of geography, language, and culture.
The jurisdictional barriers in Alaska create extremely dangerous
conditions for our small, remote communities. The dire and life-
threatening circumstance can be overcome through legislative reforms
and adequate funding of Indian tribes in Alaska to respond to violence
against women. We have beautiful communities, cultures and people that
deserve the resources that all other communities have available.
The Spectrum of Violence Against Alaska Native Women
The rates of violence experienced by Alaska Natives are horrific.
Alaska often ranks as the most dangerous place in the nation for women.
\12\ This is particularly true for Alaska Native women. \13\ The ILOC
found that Alaska Native women are overrepresented and have the highest
rates of victimization for any population of women by 250 percent.
While Alaska Natives comprise approximately 19 percent of the state
population, according to a 2017 report from the Alaska Criminal Justice
Commission, 46 percent of reported felony level sex offenses involved
Alaska Natives. \14\ Among other Indian Tribes, Alaska Native women
suffer the highest rates of domestic and sexual violence in the
country. \15\
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\12\ See, e.g., ``Missing or murdered? In America's deadliest
state, one family is still searching for answers,'' USA Today, June 25,
2019, available at https://www.usatoday.com/in-depth/news/nation/2019/
06/25/deadliest-statewomen-alaska-rape-and-murder-too-common-domestic-
violence-rape-murder-me-too-men/1500893001/.
\13\ ``Alaska Native Women Suffer the Highest Sexual Assault Rates
in the Country,'' The Crime Report, Feb. 2, 2021, available at https://
thecrimereport.org/2021/02/05/alaska-native-women-suffer-highest-
sexual-assault-rates-in-thecountry/
\14\ Alaska Criminal Justice Commission, ``Sex Offenses: A Report
to the Alaska State Legislature,'' April 5, 2019, pg. 10.
\15\ A Roadmap for Making Native America Safer: Report to the
President and Congress of the United States at 41 (November 2013),
available at http://www.aisc.ucla.edu/iloc/report/.
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The outrage and anguish of the Native families who have lost loved
ones to violence--whose mothers, daughters, sisters, and aunties have
disappeared or been murdered--has recently propelled a conversation
about missing and murdered indigenous women to the national level. But
these deaths, these missing women, are the devastating manifestation of
centuries of oppression and broken systems that have failed to protect
Native women and children from birth to death for generations. Alaska
has the highest number of missing Indigenous persons. As of August
2021, out of the 743 missing Alaska Native and American Indian people
in the National Missing and Unidentified Persons System (NamUs), 292 of
those were from Alaska. \16\ Alaska is considered one of the most
violent states, with Anchorage as one of the most violent cities. \17\
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\16\ https://namus.nij.ojp.gov/sites/g/files/xyckuh336/files/
media/document/namus-stats-ai_an-report-august-2021.pdf
\17\ When Men Murder Women 4 (Violence Policy Center 2019).Missing
and Murdered Indigenous Women and Girls 12. The Seattle-based Urban
Indian Health Institute reports that Alaska is among the top ten states
with the highest number of missing and murdered AI/AN.(Seattle Urban
Indian Health Institute 2018).
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Domestic violence and sexual assault survivors in Alaska Native
villages are often left without any means to seek help and justice for
the crimes against them because many villages lack advocacy services
and law enforcement. When law enforcement finally arrives, sometimes
the evidence is stale, or the chain of custody can no longer meet
applicable legal standards, and the case cannot be prosecuted. In
addition, tribal victims of domestic violence may need to leave their
home village to seek safety for themselves and their children.
We have 229 federally recognized tribes and nearly 40 percent lack
full time law enforcement, so when a crime occurs, we have to wait
hours, sometimes days and in extreme weather situations, weeks. We also
lack the necessary authority and infrastructure to manage these issues
on our own. As a result, with the challenges of travel during extreme
weather, our children are often our first responders, and our tribal
leaders and advocates act as law enforcement and preserve crime scenes.
In many communities, women self-organize to provide informal safe
houses for women in danger from domestic violence. When state law
enforcement does appear, there is such distrust of them, and the
investigations are often done poorly by these state officials and can
take years to see a result, if ever. Some examples:
In a homicide case, it took 11 hours for law enforcement to
appear. The body of the 13-year-old victim laid outside across
the street from the family home. Sometimes these crime scenes
are like this for days on end. We have lost our loved ones and
are powerless to do anything more than protect a crime scene
until law enforcement arrives.
Another example is a rape that occurred more than 5 years ago.
The rape kit was finally tested, and a perpetrator was found.
This is extraordinary- the vast majority of rape victims have
no access to a forensic exam- and could be seen as a success
story. But the delays in testing the rape kit meant that the
small community lived in fear for years knowing that there was
a rapist among them. Now that a perpetrator was charged, more
than five years later, the victim/survivor who had worked to
move on and rebuild her life is now asked to endure the trial
that she had thought would never happen.
In a 2018 case in a small remote interior village, a victim
waited 17 days to get out of the village to safety. During this
time, the victim was treated at the clinic and called law
enforcement (Alaska State Troopers) located in a hub community
one hour away by plane. The weather was unflyable for 3 weeks
and the victim could not get a charter plane to pick her up so
she could go to a neighboring village to visit relatives. In
addition, she could not get to a regional medical clinic for
further treatment, and law enforcement could not get into the
community for an investigative report. There was no safe home
or safe housing available and so she waited, afraid that her
partner would find out that she was trying to leave. Whether a
tribe has advocacy services or public safety personnel makes a
difference if victims have support and someone to call for
help.
For more than 6 hours the Village of Kake was in lockdown mode
because of an active shooter incident until law enforcement
arrived and took the person into custody.
A 14-year-old girl was raped by a young man in a village
without law enforcement. Everyone in the girl's family (and
village), especially the child, was scared and had to wait
several months for the troopers to make an arrest. In the
meantime, the alleged rapist lived two doors down from her
home. Eventually, there was an arrest, but it was unknown if
there was ever a prosecution.
None of these communities had law enforcement within their
communities.
Studies such as the National Institute of Justice, Research Report
on the Violence Against American Indian and Native Women and Men,
document the dire safety circumstances confronting Native victims of
domestic and sexual violence. Nationally, 38 percent of Native victims
are unable to receive necessary services compared to 15 percent of non-
Hispanic white female victims. \18\ Given the remote location of many
Alaska Native communities, this disparity is certainly even more
pronounced in Alaska. The young woman described above waited in fear
for more than two weeks to get to safety. The circumstances described
above are repeated in variation ad nauseam throughout remote Alaska.
These are the daily harms perpetuated by the exclusion of tribes in
Alaska from exercising special domestic violence criminal jurisdiction.
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\18\ Rosay, Andre B., ``Violence Against American Indian and Alaska
Native Women and Men,'' NIJ Journal 277 (2016): 38-45, available at
http://nij.gov/journals/277/Pages/violence-against-american-indians-
alaska-natives.aspx.
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The Exclusion of Indian Tribes in Alaska from Exercising Special
Domestic Violence Criminal Jurisdiction
Many tribes, since the passage of VAWA 2013, have successfully
exercised jurisdiction over non-Indians who abuse Native women.
Unfortunately, when VAWA was reauthorized in 2013, Indian tribes in
Alaska were effectively excluded and denied the life-saving benefits of
exercising Special Domestic Violence Criminal Jurisdiction (SDVCJ). We
have called on Congress to remove the legal barriers denying Alaska
Native victims of violence access to justice from their own tribal
governments, and we are encouraged by current efforts to do so.
I had the privilege of working with many of the tribes exercising
SDVCJ as part of the Intertribal Working Group on Special Domestic
Violence Criminal Jurisdiction established by the U.S. Department of
Justice. These tribes have held serial offenders accountable and have
brought justice and safety to hundreds of victims and their families.
They have done so while upholding the due process rights of all
defendants in tribal courts. Unfortunately, the same access to safety
and justice is denied to Alaska Native victims of domestic violence
because section 904 of VAWA 2013 limits the restored exercise of the
special domestic violence criminal jurisdiction to tribes to certain
crimes committed in ``Indian country.''
Yet, while the federal law continues to tie the hands of Alaska
tribal governments, the State does not have the resources to provide
the level of justice needed in tribal communities. And ultimately, the
State is not the local, tribal authority. From a 2016 NIJ report, we
learned that American Indian and Alaska Native women are 3 times more
likely to experience sexual violence by an interracial perpetrator than
non-Hispanic White-only females. \19\ Alaska Indian tribes need to be
able to exercise special domestic violence criminal jurisdiction to
address these staggering statistics by providing protection for the
lives of their women, children, and families.
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\19\ Id. at 18.
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Proposed Amendments of H.R. 1620 and the Alaska Safety Empowerment Act
We are pleased to see and support the proposed tribal amendments
for Alaska Indian tribes included in the House, Violence Against Women
Reauthorization Act, H.R. 1620, and the previously introduced Alaska
Tribal Public Safety Empowerment Act and urge the Senate to introduce a
companion or similar bill to reauthorize VAWA.
H.R. 1620 begins to address the jurisdictional challenges and dire
circumstances facing Alaska Native women. It recognizes a tribe's
territorial jurisdiction equivalent to the corresponding village
corporation's land base and traditional territory. Alaska's own
Representative Don Young voted in favor of H.R. 1620's expanded
jurisdictional definition of the pilot project to include ``all lands
within any Alaska Native village with a population that is at least 75
percent Alaska Native.'' In addition, removing the requirement of
``Indian country'' to enforce a protection order would assist Alaska
Tribal villages and strengthen their efforts to enforce protection
order violations without confusion.
We understand that the jurisdictional situation in Alaska is
complex, and we support the creation of a Pilot Project in Alaska so
that more than just 1 of the 229 federally recognized tribes can
exercise Special Criminal Jurisdiction (SCJ). The pilot project could
be conducted similarly to the implementation of SDVCJ after the passage
of VAWA 2013. We recommend:
1) the creation, with DOJ support, of an Alaska specific
Intertribal SDVCJ Working Group;
2) a planning phase with robust technical assistance to assist
with code drafting, training, and court capacity building; and
3) appropriate financial support for costs related to both
planning and implementation.
Until the unique legal framework in Alaska is addressed, Alaska
Tribes, except Metlakatla, are largely left without inclusion in this
important legislation that recognizes the inherent authority of a tribe
to prosecute violent crimes against women. Authority alone, however,
will not solve the problem. While federal funding for tribal justice
systems nationally has never been close to what is needed to provide a
base level of services, it has been virtually non-existent in Alaska.
Alaska Native villages need resources to develop their criminal justice
infrastructure.
Limitations of VAWA 2013 Special Domestic Violence Criminal
Jurisdiction
I would also like to address the need for amendments to VAWA 2013's
SDVCJ provisions more generally. Despite the successes of special
domestic violence criminal jurisdiction, there are gaps in the law.
Under VAWA 2013, tribal prosecutors are unable to charge defendants for
crimes related to abuse or endangerment of a child; for sexual assault,
stalking or trafficking committed by a stranger or acquaintance; or for
crimes that a defendant might commit within the criminal justice system
like assault of an officer, resisting arrest, obstruction of justice,
or perjury.
The tribes prosecuting non-Indians report that children are
involved in their cases as victims and witnesses over 60 percent of the
time. These children deserve justice. A 2016 study from the National
Institute for Justice (NIJ), found that approximately 56 percent of
Native women experience sexual violence within their lifetime, with 1
in 7 experiencing it in the past year. \20\ Nearly 1 in 2 report being
stalked. \21\
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\20\ Andre B. Rosay, Nat'l Inst. of Justice, Violence Against
American Indian and Alaska Native Women and Men: 2010 Findings from the
National Intimate Partner and Sexual Violence Survey, U.S. Dep't of
Justice 11 (2016), available at https://www.ncjrs.gov/pdffiles1/nij/
249736.pdf.
\21\ Id., at 29.
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Unlike the general population where rape, sexual assault, and
intimate partner violence are usually intra-racial, Native women are
more likely to be raped or assaulted by someone of a different race.
NIJ found that 96 percent of Native women and 89 percent of male
victims reported being victimized by a non-Indian. \22\ Native victims
of sexual violence are three times as likely to have experienced sexual
violence by an interracial perpetrator as non-Hispanic White victims.
\23\ Similarly, Native stalking victims are nearly 4 times as likely to
be stalked by someone of a different race, with 89 percent of female
stalking victims and 90 percent of male stalking victims reporting
inter-racial victimization. \24\
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\22\ Id., at 18.
\23\ Id., at 29.
\24\ Id., at 32.
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Provisions contained in H.R. 1620 would amend 25 U.S.C. 1304 to
include sexual assault, stalking, and trafficking crimes committed in
Indian Country. It would untie the hands of tribal governments and
allow them to extend the same protections to victims of sexual violence
and stalking as are available to domestic violence victims. All victims
of sexual violence, child abuse, stalking, trafficking, and assaults
against law enforcement officers deserve the same protections that
Congress afforded to domestic violence victims in VAWA 2013, including
victims in Alaska Native villages.
The United States has a federal Indian trust responsibility to the
first people of the United States. In several cases discussing the
trust responsibility, the Supreme Court has used language suggesting
that it entails legal duties, moral obligations, and the fulfillment of
understandings and expectations that have arisen over the entire course
of the relationship between the United States and the federally
recognized tribes. Indian tribes in Alaska have a desperate need for
the reforms included in H.R. 1620 to address the continued legacy of
the spectrum of violence committed against Alaska Native women since
the U.S. asserted authority over our Nations.
We strongly support the amendments to VAWA 2013 that recognize:
Native children and law enforcement personnel involved in
domestic violence incidents on tribal lands are equally in need
of the protections that were extended to adult domestic
violence victims in VAWA 2013;
the need to close another loophole in the SDVCJ provision of
VAWA 2013 to ensure that Tribes have authority to prosecute
sexual assault, sex trafficking, and stalking crimes; and
most significantly to Alaska Native women and victims of
domestic violence the importance of filling the gaps in
jurisdiction that continue to leave Native women and children
in Alaska without adequate protection on tribal lands.
Tribal Access Program
HR 1620 included a permanent authorization for the DOJ's Tribal
Access Program (TAP). TAP has provided law enforcement and tribes with
direct access to more effectively serve and protect their nation's
citizens by ensuring the exchange of critical data across the Criminal
Justice Information Services (CJIS) systems and other national crime
information systems. While the program has grown tremendously during
the few years of its existence, there are still challenges for Alaska
tribes who often lack the necessary infrastructure to meet CJIS's
requirements. In addition, we need a legislative fix that addresses the
concerns of CJIS about tribal access to federal databases for Tribal
governmental purposes. Currently, access may be authorized through
federal statutes providing some access for certain situations to tribes
and then deferring to state law to define and provide access. Tribes
should be able to utilize the databases as any other governmental
agency. I will first address the needs of Alaska tribes and then go
into the amendments needed for all tribes.
First, Alaska tribes should be able to participate in TAP through
an Intertribal structure if that is what they choose. For example, two
or more participating Tribes should be authorized to participate
jointly in the TAP program. \25\ For many tribes, pooling resources or
establishing intertribal court systems is an effective and efficient
way to meet the needs of their communities. Any Tribes that want to
join the pilot program and TAP as an inter-tribal consortium should be
able to do so freely by meeting the general requirements and entering
an MOU. The currently authorizing structure of TAP precludes most
Intertribal groups, especially if the designated agency is a non-
profit, that would organize together in Alaska. CJIS, the Federal
Bureau of Investigations, and National Crime Information Center should
be challenged to find a solution that works for the needs of Alaska
Native communities and be solution oriented rather than just protecting
an archaic system.
---------------------------------------------------------------------------
\25\ A Tribal organization (as defined in section 4 of the Indian
Self-Determination and Education Assistance Act (25 U.S.C. 5304))
should be able to be the designated agency for the purposes of TAP.
---------------------------------------------------------------------------
In addition, American Indian and Alaska Tribes should be able to
legislate access to TAP databases to address the needs of their
governments just as the federal and state governments do. We need to
amend federal law to authorize the sharing of this information with
tribal governments for any legitimate purpose. Federal laws allow
tribes to investigate people who will work with children, but it does
not allow access for people who work with our elders or vulnerable
adults. Similarly, most tribes require elected officials, and key
personnel to obtain background checks. A state can legislate to
authorize this access; in contrast a tribe does not have direct access
and often has to use channelers or use Lexis/Nexus. Many states are
legislating around data entry and collection of MMIW issues. A tribe
that wanted to do the same would be unable to fully implement their
laws, because no general federal statute gives tribes this level of
access and determination. An amendment is needed to 28 USC 534, which
is an appropriations statute from the `90s that has been codified and
provides the means for states to legislate the purposes for which
background checks can be done. A simple fix is to amend 28 USC 534 by
adding ``tribal'' after state and other database statutes that include
``state'' but leave out tribes. Also, the TAP program needs permanent
funding to ensure it is not discontinued.
We strongly support the amendments to VAWA 2013 that provide for:
access of all tribes to the TAP;
creation of a dedicated permanent funding stream for expanding
the TAP program;
tribal access to federal databases not only to obtain criminal
history information for criminal or civil law purposes, but
also for entering protection orders, missing person reports,
and other relevant information into the database, such as NICS
disqualifying events;
allow tribes to legislate to authorize direct access to
databases for any legitimate purpose, such as data entry and
collection of MMIW related issues by amending 28 USC 534 to add
``tribal'';
creation of tribal technical assistance programs and regional
training for tribal judges and law enforcement to access, use,
input information into the NCIC and other national databases;
creation of a multidisciplinary task force with significant
tribal participation (not less than 70 percent); to identify
the outstanding barriers tribes face in acquiring full access
to federal criminal history; and
requiring the federal agencies responsible for these database
systems to develop options for all tribes and their designated
agency regardless of whether they have law enforcement or
participate in the Adam Walsh Act.
Bureau of Prisons Pilot Project
The Bureau of Prisons (BOP) pilot project \26\ should be expanded
and made permanent. The Tribal Law and Order Act provided for the use
of the federal prisons to house inmates convicted of certain crimes
with longer sentences imposed. However, by the time tribes were able to
exercise the TLOA measures, the BOP pilot project was nearly over. In
addition, it was limited to violent crimes and sentences greater than
one year and one day. With the passage and implementation of VAWA 2013,
the ITWG Tribes have raised issues and challenges around detaining
SDVCJ defendants in tribal or BIA facilities using self-governance
funds and providing health care for non-Indian defendants. Expanding
the BOP pilot program to cover SDVCJ defendants, in addition to the
other felony level crimes previously covered, would significantly help
tribes in keeping their communities safe.
---------------------------------------------------------------------------
\26\ 25 U.S.C. 1302 (2010).
---------------------------------------------------------------------------
Conclusion
Since the enactment of VAWA in 1995, each reauthorization of VAWA,
has resulted in significant victories in support of the tribal
authority and secured resources needed for increasing the safety of
Native women across the United States. The AKNWRC strongly supports
reauthorization of the Violence Against Women Act and H.R. 1620, which
passed the House on March 17, 2021. Indian tribes have consistently
called for the amendments and important lifesaving enhancements
contained in H.R. 1620. We urge the Senate Committee on Indian Affairs
to support the introduction of a companion or similar bill in the
Senate.
There is a unique opportunity to recognize these issues and make
corrections to the laws. In Lingit Yoo X'at ngi, the Tlingit Language,
as with other language groups in Alaska, we had no words or description
for violence within a family home. We had traditional forms of justice
that kept our community in check and women valued as the life-giver of
the family. We had community justice, which we are now returning to.
Restoring and enhancing local, tribal governmental capacity to respond
to violence against women provides greater local control, safety,
accountability, and transparency. As a result, we will have safer
communities and a pathway for long-lasting justice. We believe it is
critical that we work together to change laws, policies, and that the
federal government creates additional funding opportunities to address
and eradicate the disproportionate violence against our women.
We encourage you to continue these reforms to restore the safety of
Native women and all victims of domestic and sexual violence and their
right to live in peace within their villages. Our tribal governments
are the frontline, and we need the federal government to uphold its
responsibilities to assist us in safeguarding the lives of Native
people by respecting our inherent authority while also adequately
funding its trust and treaty responsibilities.
Gunalcheesh! Haw'aa! Thank You!
Attachments have been retained in the Committee files.
The Chairman. I have been in politics for more than 20
years now. I have been to a lot of hearings. This was maybe the
most impressive panel that I have ever heard. So I want to
thank each of the individual testifiers for their clarity, for
their advocacy, and for helping us to build the legislative
record.
Mr. Garriott, can you talk about cross-deputization? By the
way, I am going to ask a lot of questions, so I would like
everybody to be as brief as possible. Talk about cross-
deputization, why it works and why it seems to be increasing as
a practiced.
Mr. Garriott. Thank you, Chairman. Cross-deputization, as
many know, there is a maze that is incredibly difficult to
understand and even more incredibly difficult to implement for
law enforcement around jurisdiction. On one side of the line,
depending on the victim, depending on the jurisdiction,
depending on the perpetrator, it might be tribal jurisdiction.
On another side of the line, it might be State jurisdiction.
Cross-deputization allows tribes and State law enforcement
to be deputized in another jurisdiction so that they can
eliminate those jurisdictional gaps. It is a practice that is
gaining more and more increased use by tribes. I think that is
an incredible testament to the effectiveness and the solutions
that it can offer.
The Chairman. Thank you very much.
Ms. Randall, we know there have been zero valid habeas
corpus petitions filed, and zero due process claims since 2013.
Tell me, has special jurisdiction been a success?
Ms. Randall. Absolutely, Senator. It has been a success for
those individuals who have finally gotten the justice that they
need, as well as for the communities that can interrupt
perpetrators who may have been acting with impunity.
Significantly, it has been a success in protecting
defendants' rights as well. As you noted, with no valid habeas
cases, as well as the rates of acquittals and dismissals show
how careful tribes have been with implementation. That is why
this Committee must expand recognition to other crimes.
The Chairman. Thank you. And a follow-up on this issue,
Professor Reese. Just for the record, is special criminal
jurisdiction constitutional?
Ms. Reese. Thank you. Absolutely.
When I am asked that question, I think about it on two
levels. First, whether or not Congress sort of has the power to
do this, and the answer to that question is absolutely,
Congress has the power to do that, especially since the Supreme
Court decision in United States v. Lara affirmed that tribal
sovereignty is inherent, and that Congress has the ability to
reaffirm the existence of inherent sovereignty by passing
legislation which reauthorizes tribes to exercise a power, even
if they previously were not authorizing based on a Supreme
Court decision. In this case, and also in Lara, Oliphant. So
absolutely, you have the power to do this.
As similarly discussed in Lara, the only other question
would be if it implicates any other constitutional rights
concerns. But we have known for several hundred years now that
the Constitution does not apply to tribal governments in the
same way. So that is also not an issue.
But going above and beyond that, Congress has also created
equivalent constitutional rights protections through this
statute. So those sorts of underlying concerns are also
protected, and incorporated into this law, even though that
constitutional question itself isn't really implicated.
The Chairman. At the risk of being redundant, I want to ask
you to really make this point as clear as possible to anyone
who is watching this hearing what the Indian Civil Rights Act
does for defendants and for the justice system in Indian
Country. Because you mentioned it in your testimony, you are
referring to it now.
But I think it is a really key point as it relates to due
process, as a matter of principle and as a matter of law. I
would like you to flesh it out just a little bit.
Ms. Reese. Absolutely. It guarantees a long list of
equivalent protections that are guaranteed to the rest of the
citizens of the United States in courts of law. So I will go
ahead and list out these protections that the Indian Civil
Rights Act, the Tribal Law and Order Act and VAWA 2013 sort of
when combined guarantee to non-Indian defendants.
That includes the protection to the basic right to due
process of law, the freedom from an illegal or warrantless
search or seizure, the prohibition against double jeopardy, the
right against self-incrimination, the right to a speedy trial
and confront witnesses, the right to a jury trial, the right to
indigent defense, the right to effective assistance of counsel,
the prohibition on bills of attainder, the right to not be
subject to cruel or unusual punishment, excessive fines or
fees.
This is the entire gamut of the things that the
Constitution does to protect the rights of defendants when they
are being prosecuted for a crime. That is the full list of the
things that were written up into this statute to protect non-
Indian defendants in this court system. Any time that one of
those things, if it were to happen, result in an unlawful
detention or incarceration of someone, they are protected by
the writ of habeas corpus.
The Chairman. Thank you very much.
My final question before an additional round, Mr. Garriott,
we have heard about the high cost of implementation. I am
wondering what the Department is doing to assist tribes in
implementation. All of this is great as authorizing language.
But it does seem to me, it doesn't seem to me, it is obvious to
me, that it is a resource question, too. It is a how do you
cover the jurisdictions that are so vast. I am thinking about
Alaska in particular, but really in Indian Country everywhere
you have this problem of staffing, of having a person on the
ground.
How do you help? How can you help?
Mr. Garriott. Mr. Chairman, thank you for the question. As
you have touched on, resources is an issue and a challenge that
we hear all the time from our tribal partners and those that we
work with on the ground.
Thus far, since 2019, we have funded 115 tribal court
positions, which includes tribal judges, prosecutors and other
court personnel across the Country to help tribes have some of
the resources they need on the implementation side.
I would also point to our Fiscal Year 2022 budget request,
which is a total of $507 million, which represents an increase
of $58 million over Fiscal Year 2021. A big part of this budget
request puts boots on the ground and it will begin assisting
tribes to better provide law enforcement for their communities
and better protect their citizens.
The Chairman. Thank you very much.
Senator Cortez Masto?
STATEMENT OF HON. CATHERINE CORTEZ MASTO,
U.S. SENATOR FROM NEVADA
Senator Cortez Masto. Thank you, Mr. Chairman, and to the
Ranking Member, I cannot thank you enough for having this
conversation today on such an important issue.
It is so clear that the Violence Against Woman Act needs to
be passed and a Special Domestic Violence Criminal Jurisdiction
is essential to protecting our Native communities. I strongly
believe that Congress must not only reauthorize VAWA, but
strengthen it to ensure that tribes can effectively prosecute
crimes against women, children, and law enforcement in Indian
Country. So I am going to focus my questions around that.
But I want to follow up on what Chairman Schatz started
with. Let me ask this question. President Sharp, how many more
tribes do you think would be interested in implementing special
criminal jurisdiction if they have the resources and support
that they need to do so? I am curious if you have an answer for
that.
Ms. Sharp. Yes, I would say out of the 574 tribal nations,
the remaining, which is hundreds of tribal nations, would be
interested, if we had the resources.
Senator Cortez Masto. Right. And my understanding is there
is only, is it 28 now that have the ability?
Ms. Sharp. Yes.
Senator Cortez Masto. Okay, so we need more, we need to do
more.
Let me ask you this. You heard what Principal Deputy
Assistant Secretary Garriott said. Do you think, based on the
resources that he says are available, that that is enough? What
more should we be considering in Congress to provide the
resources that are necessary to give more of our tribal nations
across the Country the opportunity to protect their own?
Ms. Sharp. Yes. In just listening to his response, clearly,
we don't have even close to the scale of resources necessary to
implement the spirit and intent of what Congress is trying to
accomplish here. One can only look to the U.S. Commission on
Civil Rights, a report called Broken Promises that was
delivered to Congress almost three years now. They detailed not
one Federal agency is living up to its trust responsibility. We
are woefully and chronically underfunded across every sector
including our criminal justice system.
So we definitely have a large-scale need in Indian Country
to implement VAWA.
Senator Cortez Masto. Thank you.
Ms. Demmert, in your testimony you mentioned that children
have been involved as victims or witnesses in Special Domestic
Violence Criminal Jurisdiction cases nearly 60 percent of the
time. To me, that is just unacceptable that children are
falling through the cracks of laws meant to combat violence in
Indian Country.
When it comes to the safety and the health of our Native
children, how important is it for Congress to expand the
current special tribal jurisdiction to cover more crimes? Can
you talk a little bit about what crimes that are not covered
that in essence are where children are victims that we should
be looking to protect their interests?
Ms. Demmert. Thank you for the question, Senator Cortez
Masto.
I don't believe I said that about children, I said our
children are first responders. Fortunately, I did work for a
tribe that implemented domestic violence jurisdiction back in
2013 as one of the first three tribes.
In that, our children, in our first year, I think we had 11
cases, and in 9 of those cases children were victims of
violence. In one case, we had a child who was trying to get, as
a first responder, trying to get the father off of her mother
and the child was tossed aside and had to, I believe probably
called for the police.
That is just an example. All of these cases frequently
involved children being present and being participants of the
violence that is committed against the mother.
In another case, we had a case where the mother was held
hostage for a few days, and a knife was being thrown at her. He
made her, the mother held a child in her arms while he threw
knives at her. Fortunately, that case ended up being picked up
by the U.S. Attorneys Office. So the child did see justice.
But in so many other cases, there is not justice. In
Alaska, in particular, I just want to bring it back to that,
our children are the first responders, have to call for help,
and we don't have law enforcement. Often, we have volunteer
medics.
So the parade of horribles are horrible. But we have
beautiful communities that we want to protect and safeguard. So
gunalcheesh for the question. I hope I answered it.
Senator Cortez Masto. You did. Thank you.
Let me talk a little bit, and you touched on this as well.
I know from my time as attorney general that domestic violence
calls are some of the most dangerous calls that police officers
can respond to as well. Director Randall, your testimony
discusses the very real safety concerns that tribal law
enforcement officers have when they are responding to these
kinds of calls.
Right now, what happens if a tribal officer is responding
to a domestic violence call, and the non-Indian suspect attacks
the officer?
Ms. Randall. Without jurisdiction, the Federal Government
must respond. This can really empower perpetrators to commit
acts of violence, knowing that a Federal response could be
hours away. In the case of Alaska, responses could be days
away.
As you note, these are dangerous calls for law enforcement
officers. This is a crucial part of VAWA to include.
Senator Cortez Masto. To include coverage of protection?
Ms. Randall. To include coverage of protection, absolutely.
Senator Cortez Masto. Thank you.
Secretary Garriott, your testimony mentions that expanding
tribal criminal jurisdiction beyond domestic violence crimes
would be a significant step toward ending the crisis of missing
and murdered indigenous women and children. Can you talk a
little bit about this? How will reauthorizing and strengthening
VAWA help ensure we are using all available tools that we need
to keep Native women and children safe?
Mr. Garriott. Thank you for the question. This is an issue
that is of particular concern and is very important to the
Secretary and to the Department.
Expanding criminal jurisdiction to cover a wide variety of
crimes, as we have heard, is incredibly important, not only for
children and for law enforcement, but also expanding the crimes
to include not just coverage of protection orders and domestic
violence, but sex trafficking and others, dating violence and
other crimes as well.
As we know, there is no one simple kind of crime. We need
to have full coverage to ensure that our tribes, our law
enforcement officers, children, have full protection.
Senator Cortez Masto. [Presiding.] Thank you. And thank
you, again, this is an incredible panel. I so appreciate your
advocacy on such an important issue that needs to pass
Congress.
Standing in for the Chair, I am going to call on Senator
Smith who is next. She is joining us virtually.
STATEMENT OF HON. TINA SMITH,
U.S. SENATOR FROM MINNESOTA
Senator Smith. Yes, that is right. Thank you, Chair Cortez
Masto. Thanks to all of you. I am just so grateful for this
important panel.
I want to start by thanking Chair Schatz and Vice Chair
Murkowski for your work on this bipartisan agreement to
reauthorize the tribal provisions of the Violence Against Women
Act.
I also want to thank you, them, for including my Justice
for Native Survivors of Sexual Violence Act, which would expand
tribal criminal jurisdiction to include crimes of dating and
sexual violence, sex trafficking, stalking, and obstruction of
justice by non-Native offenders on tribal lands. The many
conversations I have had with folks in Minnesota have convinced
me that this measure is really essential to addressing the
crisis, really the epidemic of violence against Native women.
I would like to focus my questions on that. I will start
with you, President Sharp. It is so good to see you again, even
virtually.
We of course both know that more than four in five Native
women experience violence in their lifetimes. Many of them are
victimized by non-Native offenders. This ongoing crisis of
missing and murdered indigenous women and people across the
Country is so, so severe.
I believe that my Justice for Native Survivors of Sexual
Violence Act, which is included in this bipartisan agreement,
would help to address this. Could I ask you to speak to that?
Could you talk to how that expanded tribal jurisdiction would
help tribes to address the crisis of missing and murdered
indigenous women?
I want to say, since I have been running today, forgive me
if I am asking a question that is repetitive of others'
questions. But I really want to have a chance to visit with you
about this.
Ms. Sharp. Yes, absolutely. First of all, I want to thank
you for your leadership and your ability to see from our
perspective the real threat that all of these issues that you
are seeking to address mean to us. It is quite remarkable to
have someone with your level of advocacy around such critical
issues.
So yes, this would definitely go a long way to help. The
way in which it would help the missing and murdered indigenous
women's crisis, I think is important for everyone to
understand, our women and our girls are being targeted by
perpetrators. They know there is a weakness. They know there is
a void, a jurisdictional void.
So those girls who are targeted for trafficking, those
women who not only have dating relationships but absolute
strangers that come onto tribal lands, as well as law
enforcement who seek to protect them, these provisions would
ensure that those gaps in our missing and murdered indigenous
women's crisis would be met, that we would be able to fill
those gaps and ensure that we have justice in these critical
areas. Because we are being targeted.
So thank you for your leadership and recognizing that and
trying to help solve that with us. [Phrase in Native tongue].
Senator Smith. Thank you. I think people don't realize the
extent to which Native women live in a justice-free zone, where
they are targeted. It is no accident; it is a feature of our
system that Native women are targeted in this way. It is our
obligation, our moral obligation to address that. I appreciate
your comments.
Governor Chavarria, it is good to see you. As a New Mexico-
born Senator, I am so happy to see the visual behind you as
well. Greetings to you, and everybody at Santa Clara.
I was wondering if you could talk about how the expanded
jurisdiction your tribe implemented has helped you to address
the crisis of missing and murdered indigenous people. Could you
comment on how the expanded jurisdiction in this bipartisan
agreement would help to further address this challenge?
Mr. Chavarria. Thank you, Chairman, members of the
Committee, Senator, I appreciate that question.
What is very important is that have to we recognize the
VAWA reauthorization, when it expired, we did a permanent
authorization as was mentioned by the witnesses here to expand
that tribal jurisdiction over the crimes against our children.
Here in Santa Clara, we currently have multiple generations
living in one household, that includes grandpa and grandma.
And also law enforcement personnel, sexual assault crimes
committed by strangers [indiscernible] safety, that access to
the justice services for victims of crime is very essential.
So it is important that all the discussions happening today
will help fulfill the life safety and welfare of our entire
community within our pueblo community. Without that, it makes
it challenging. So you have that opportunity right now to help
us within our judicial system, our law enforcement but also as
our tribal government to implement this for the life safety and
welfare of our entire community, Senator.
Senator Smith. Thank you very much. I want to just say how
grateful I am for Senator Ben Ray Lujan's leadership on this
issue as well. I don't know if Senator Lujan has had an
opportunity to ask his questions yet. But I want to nod to his
leadership. We are so grateful for him.
Madam Chair, I will yield back if you have others in line.
I have one other question if you don't.
Senator Murkowski. [Presiding.] I think we have a full
slate, Senator Smith. Thank you for your interest in this. We
appreciate it.
Senator Smith. Thank you.
Senator Murkowski. Thank you.
I am going to jump in here if I may, as I am next in line.
This is directed to you, Michelle. Thank you again for your
ongoing leadership, not only over the years but over the
decades as you are working to protect vulnerable Native women
throughout the State of Alaska.
We have heard continuously here about the gaps that need to
be addressed. I think there is no better area to look at the
chasm that exists when it comes to the inability to protect,
currently protect people in so many of our Native villages.
You have some unique experience within the DOJ intertribal
working group for the lower 48 tribes. So you have had an
opportunity to observe, down in the lower 48, and then
extrapolate how we can make things better in Alaska. Resources,
obviously, are important. Funding is important for training.
Funding is important on so many levels.
What more can we be doing specifically in enhancing our
efforts? Is it supporting the intertribal participation in the
pilots to accommodate economies of scale? Is it building across
jurisdictional collaboration? I am kind of second guessing that
it might be all of the above. But if you can speak to what more
we can be doing specifically to address these gaps there in
Alaska.
Ms. Demmert. [Phrase in Native tongue], Chair Murkowski. We
so appreciate your leadership in this bill as well as other
important bills such as the Boarding School Bill.
As to your question, thank you so much for it. It is all of
the above. Think about it. Since statehood over 60 years ago,
P.L. 280 has been in effect, meaning the State has had
jurisdiction. What has happened, we as indigenous women have
been horrifically unsafe. We have some of the worst DV rates,
the worst murder rates, the highest missing Native rates. Our
victims are too often left without any justice, or it is
delayed and that revictimizes us.
I am a survivor of childhood sexual assault from someone
that was abused in boarding schools. The State has had 62 years
to show their competencies. Give us time and similar resources;
don't tie our hands. We have beautiful communities, beautiful
traditions and deserve better.
We are State and Federal citizens, in addition to our
tribal citizenship. Principal Deputy Director Randall explained
in her testimony how successful the ITWG is. The tribes can
exchange views, information, and advice about how they can best
exercise Special Domestic Violence Court Jurisdiction, combat
domestic violence, attend meetings, webinars, share ideas,
materials, challenges, and best practices.
In ITWG, I participated as a point of contact for one of
the first three tribes. It was a wealth of information.
Virginia Davis at NCAI and others like her were amazing. The
support they provided in the dialogue that we exchanged was
simply one of a kind and should be replicated whenever
possible.
Gunalcheesh, Senator Murkowski. You are just so
appreciated.
Senator Murkowski. As you are, gunalcheesh.
Let me direct my next question to our Principal Deputy
Assistant Secretary Garriott. It was good to see the BIA
disbursing about $30 million to tribes in P.L. 280 States, even
though BIA doesn't execute the 638 contracts and the compacts
for public safety and justice.
What I am hoping to learn is how we can navigate some of
these roadblocks to public safety and access that we have in
Alaska, recognizing that we are a P.L. 280 State. Is there some
kind of an internal policy out there that doesn't allow BIA to
receive public safety and justice funding in States like Alaska
that are P.L. 280? I am trying to figure out this funding piece
of it. Because in addition to serving on the authorizing, I am
also on the appropriating side of this. So help me out.
Mr. Garriott. Absolutely, and thank you, Vice Chairman.
As somebody who has been to Alaska several times, I
understand a lot of the unique challenges. It is good to see my
home State Senator. I thought I knew rural, coming from South
Dakota, but it is a different ball game up in Alaska.
As you noted, resources are a challenge. One thing that I
would point to is that there is a line item within our budget
that is specifically reserved for funding P.L. 280 court
systems. In 2019, that was funded at $13 million, and in 2021,
it was funded at $15 million.
In addition to that, we continue to provide training and
technical assistance to assist Native villages in standing up
their own court systems. Right now, about 130 of the 229
villages have court systems. We are looking to continue our
work to help those villages stand up their court systems.
Senator Murkowski. I will have further questions, Mr.
Chairman. Thank you.
The Chairman. [Presiding.] Senator Cantwell.
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman. I definitely
want to thank you and Senator Murkowski both for holding this
important hearing.
Washington State has one of the highest numbers of murdered
and missing indigenous women. I definitely always applaud the
Seattle Indian Health Board for their work on this, and my
colleagues who are here today, who have fought so hard on
getting legislation implemented.
I think we are here because we still see the crisis, and we
still see that we are, I think, the issue is short of
resources. I think that what we are saying is we have
identified this problem; we want to do something about it. We
have put some resources on the table, but I think we are now
finding that the resources are not enough.
So I would like to hear from Ms. Randall, definitely want
you to come to Washington State, if you will, and meet with our
various law enforcement communities. I would like to hear from
you and NCAI President Fawn Sharp about what is the real crisis
at hand. Is it resources? Is it the tribal court system? What
is it that we need at this moment to further accelerate helping
to protect women in Indian Country?
Ms. Randall. Thank you, Senator. I would be honored to
visit and sit with folks. The Department of Justice sees the
need for really broad response to MMIP. After the Tribal
Nations summit, our Deputy Attorney General set up a steering
committee across DOJ that will include both grant-making and
prosecution. We need that holistic response.
It is also important that when we are talking about tribal
problems that we are meeting them with tribal solutions. So
consulting with the tribes has got to be a really key part of
making important and strategic decisions going forward.
We are coordinating, of course, with the Not Invisible Act
Commission and bringing, I think, significant resources to
bear. The Department has requested additional funding in the
President's budget. We look forward to our work together to
identify strategic specific resources.
Senator Cantwell. President Sharp?
Ms. Sharp. Yes, good to see you virtually, Senator. Thank
you for the question.
I think you raise an important connection. When you
consider missing and murdered indigenous women and the boarding
school crisis that we are seeing, as well as these issues of
violence against our women and girls, it is all related. It is
generation after generation of tribal nations not only not
securing the resources that the United States should uphold
pursuant to treaties and its trust responsibility, but our own
inability to raise revenues through systems of taxation.
As we are entering sort of a post-COVID time of redefining
our economies, and trying to restore our economies, it is
critically important that Congress consider not only supporting
and honoring our treaty and trust responsibility, but the
economic agenda that tribal nations see for providing the
resources that we should be doing as an attribute of our
inherent sovereignty. We have all kinds of recommendations
related to tax policy, economic policy, international trade
related to green and renewable energy.
Indian Country is a target-rich environment to unlock an
economy. But we just need the support of Congress. Thank you.
Senator Cantwell. Thank you. I assume you are referring to
the issues of prosecution on tribal reservations. But there is
nothing that is holding us back from larger prosecutions of
these crimes involving, that aren't actually occurring on the
reservation land. Is that correct?
Ms. Sharp. That is absolutely correct, yes.
Senator Cantwell. Ms. Randall, do you have a comment about
that?
Ms. Randall. I can't comment on any ongoing prosecutions. I
know that my colleagues at the Executive Office of the U.S.
Attorneys have been investing significant resources into these
cases.
Senator Cantwell. I haven't drilled down on every detail,
but I am pretty sure the reason why the Seattle Indian Health
Board did this study and analysis is because, and we have one
of the highest rates of missing and murdered indigenous women,
is that it is right there in Puget Sound. And they just happen
to be, a very large percentage of them, Alaska Natives.
So this is a population that doesn't live on tribal land,
and yet they have become victims of these horrific crimes. So I
would love for you to come to Seattle. Maybe Senator Murkowski
and I will join you and we will do something to bring focus to
this.
But separate, we definitely get the separate issue, because
have all been involved with VAWA and the more empowering of DOJ
working with Indian Country on tribal courts and that process,
to make sure that Federal law is enforced on Indian Country
land. We get that.
But for us, this is a multi-pronged issue, and again,
obviously impacting non-Native American women as well. Being on
a corridor like I-5 helps accelerate some of these problems.
So we would love to figure out ways to take the next step
here and the enforcement of this law.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Cantwell.
Senator Hoeven?
STATEMENT OF HON. JOHN HOEVEN,
U.S. SENATOR FROM NORTH DAKOTA
Senator Hoeven. Thank you, Mr. Chairman.
Deputy Director Randall, in your experience, how have the
provisions included in the 2013 reauthorization of VAWA been
beneficial for tribes?
Ms. Randall. Yes, Senator, they have been beneficial by
allowing tribes to often hold repeat offenders accountable.
Tulalip has an example where the perpetrator had had 19 prior
contacts with tribal police before SDVCJ was passed. So this
helped solve, this helps keep the whole community safe in
addition to finding justice for those survivors.
Senator Hoeven. Under the 2013 VAWA, what is covered under
the SDVCJ? What does that include?
Ms. Randall. Domestic violence, dating violence, and
certain protection orders.
Senator Hoeven. Are there areas of criminal jurisdiction
that you believe should be expanded for tribes, and if so, why?
Ms. Randall. Yes, Senator. As we have heard so compellingly
today, crimes that occur often in conjunction with domestic
violence, such as crimes against children, are crucial to be
able to prosecute. Also sexual assault, sex trafficking,
assault of law enforcement.
Senator Hoeven. Thank you.
Assistant Secretary Little Elk Garriott, I understand there
are currently 28 tribes that have implemented VAWA Special
Domestic Violence Criminal Jurisdiction, SDVCJ. In your
experience, what considerations does a tribe undertake when
determining whether to elect this jurisdiction?
Mr. Garriott. Thank you. When a tribe decides to assert
this jurisdiction, there are a number of provisions and actions
that it has to take from its standpoint, including making sure
that its law-and-order code is in place, and that it meets
those requirements. And that also, it has access to the
resources that it needs.
Our part at Indian Affairs really focuses around technical
assistance and training to assist those tribes in standing up
their court system so that they can implement those provisions.
Senator Hoeven. Why aren't there more tribes that have
adopted this jurisdiction?
Mr. Garriott. Anecdotally, we can say that it is a large
undertaking, and that again, ensuring that when a tribe makes
this decision that they have the resources, also the political
will. And again, ensuring that they are feeling comfortable
from a tribal government perspective to stand this up, that
their court is fully staffed and has adequate resources that it
needs.
Senator Hoeven. So is it primarily resources? Do you expect
more tribe to do it?
Mr. Garriott. Resources is definitely a challenge. We have
continued to provide training and there has been a tremendous
response. We have provided training to over 3,300 participants.
There are a number of tribes that are contemplating this. I
don't have the exact number. But I think as we have heard some
of the other witnesses eloquently discuss, there is a definite
and strong desire for tribes to begin going down this road and
asserting their inherent jurisdiction.
Senator Hoeven. For Governor Chavarria, as a tribe that has
implemented Special Domestic Violence Criminal Jurisdiction,
could you talk about your tribe's experiences with the
implementation?
Mr. Chavarria. Thank you, Chairman, and members of the
Committee. At Santa Clara Pueblo, we opted in because for
generations we recognized the damage done by domestic violence.
It was very critical to understand, Chairman, Senator, that it
makes our tribal court into a Federal court system. So because
of those reasons, it took Santa Clara a number of years to
implement VAWA, because we had to adopted similar measures to
take concrete actions to meet the Federal standard for
implementation of VAWA.
These were all administrative, burdensome, and costly to
undertake. As one example, we had to implement standards for
updating our facilities. Unfortunately, Senator, we had a
mobile home and it was mouse infested. So we h ad to reach out
to the Department of Justice Office of Tribal Justice and
Bureau of Justice Administration for some funds to renovate and
expand our courthouse.
The facility standard that we had to meet in order to
implement VAWA was we had to have a secure, healthy facility
with [indiscernible], a detention room for alleged offenders,
expand our public seating, our community education room, our
jury [indiscernible] and jury deliberation room, modern
recording devices, fire and safety upgrades, and disability
accessibility.
So those are the reasons why those take time and are
challenging for tribes to implement this. Because the issue is
to include Federal funding. Without Federal funding, it is very
important, because we had to use funding to hire legally
trained prosecutors, defense attorneys.
Again, build these facilities, so that we are meeting the
Federal requirement of turning our tribal courthouse into a
Federal courthouse, into the very important initiative to
protect the life saving welfare of our entire community,
Senator.
Senator Hoeven. Thank you, Governor. That is a very
striking background you have there. I just wanted to compliment
you on it.
Thank you, Mr. Chairman.
The Chairman. Senator Lujan.
Senator Lujan. And Senator Hoeven, we will invite you to
New Mexico, sir. We will take you there personally. With your
permission, Governor, we will do that. I look forward to
getting you out to New Mexico, sir.
I was proud to introduce the Native Youth and Tribal
Officer Protection Act to provide more support and authority
under Special Domestic Violence Criminal Jurisdiction over non-
Indians in domestic violence situations involving children and
tribal law enforcement. The bill will help pueblos and tribes
like Santa Clara make their communities safer and reduce
violence against their most vulnerable members.
Governor Chavarria, yes or no, is it true that the pueblos
still cannot prosecute crimes against children and tribal law
enforcement officers when non-Indians commit domestic violence?
Mr. Chavarria. Yes, Chairman, and members of the Committee.
Senator Lujan. And Governor Chavarria, yes or no, is it
true that neither the State nor Federal law enforcement
authorities prosecuted a domestic violence case on the pueblo
when a non-Indian assaulted a responding tribal officer?
Mr. Chavarria. Yes, Chairman, and members of the Committee.
Senator Lujan. Chief Judge FourStar, yes or no, does the
Fort Peck Assiniboine and Sioux Tribe have domestic violence
cases come before tribal courts that they could not prosecute
because of the limited VAWA jurisdiction over children and
tribal officers?
Ms. FourStar. Yes, that is true.
Senator Lujan. And Governor Chavarria, yes or no, would you
agree that legislation is needed to expand special criminal
jurisdictions for tribal courts to be able to prosecute non-
Indians that commit domestic violence crimes on tribal lands
against children and tribal law enforcement?
Mr. Chavarria. Yes, Chairman, and members of the Committee.
Senator Lujan. Governor Chavarria, yes or no, did your
pueblo need to seek additional Federal funding outside the VAWA
grant program to meet Federal standards to implement special
criminal jurisdiction?
Mr. Chavarria. Yes, Chairman, and members of the Committee.
Senator Lujan. And Professor Reese, would you agree that
additional Federal funding is critical for tribal public safety
generally, and particularly for tribes that opt to exercise
VAWA special criminal jurisdiction?
Ms. Reese. Absolutely.
Senator Lujan. And Ms. Randall, yes or no, in tribal
consultation, have tribes cited the need to amend VAWA to
increase funding to exercise Special Domestic Violence Criminal
Jurisdiction, and help more tribes participate in the program?
Ms. Randall. Yes, they have, Senator.
Senator Lujan. President Sharp, the 2018 NCAI report on
Five Years of Special Domestic Violence Criminal Jurisdiction
notes that implementation of the law revealed serious
limitations in the law. President Sharp, yes or no, does the
report note that current statute prevents tribes from
prosecuting crimes against children and law enforcement?
Ms. Sharp. Yes.
Senator Lujan. And President Sharp, yes or no, do you
believe expanding tribes' ability to prosecute crimes against
children and tribal law enforcement is a needed expansion of
the 2013 VAWA law?
Ms. Sharp. Yes.
Senator Lujan. Governor Chavarria, I wanted to give you a
minute or so just to explain some of the additional challenges
that you have faced that you hope that additional VAWA
legislation or reauthorization should be able to cover.
Mr. Chavarria. Chairman, members of the Committee, yes, and
for a long time, Senator, we recognized the damage of domestic
violence. Without Federal aid and protection for funding to
build up our internal capacity to protect our law enforcement
officers, grandma, grandpa, entire households, including
myself. As a tribal governor, I also respond to these calls,
because it impacts our entire community.
So it is very critical, Chairman and members of the
Committee, that we expand the current VAWA to include all the
officers, tribal officials, children, grandpa and grandma, to
include our tribal court system to have that jurisdiction to
prosecute these non-Native offenders within our tribal court
system.
We cannot have a lawless community. That hurts all of us.
So this is very critical, Senator, that we continue to help you
look at, to include the Indian Civil Rights Act and the
Domestic Violence Section, again mandate the requirements that
are costly. With the support of Federal funding, Senator, our
pueblo is undertaking the training of victim advocates, law
enforcement, prosecutors, public defenders. With that said,
Senator, members of the Committee, this is all Federal funding
that is critical that we can meet these challenges to implement
this to the full standard.
Senator Lujan. Thank you, Governor Chavarria, and thank
you, Chair. I yield back.
The Chairman. Thank you. Senator Daines?
STATEMENT OF HON. STEVE DAINES,
U.S. SENATOR FROM MONTANA
Senator Daines. Chairman Schatz, thank you, Vice Chair
Murkowski, for holding this very important hearing on the
Violence Against Women Act as it relates to the tribal
provisions. It is a topic of great importance for so many
Montanans, including myself.
Thank you, Chief Judge FourStar, for joining us from
Poplar, Montana. We have a couple of great Montanans here
today, from Fort Belknap, I see Terry Brockie back there, and I
think it is Tuffy Helgeson back there, if I can see him behind
his cowboy hat. Welcome. Good to have you here.
I will tell you, before I make the rest of my comments and
ask my questions, I am proud to sit here as a supporter of the
VAWA reauthorization of 2013. I remember having women from
Indian Country coming into my office and sitting down and
telling me their story. It was very persuasive and helpful in
coming to my own decision to vote in favor of the VAWA
reauthorization of 2013.
I think VAWA has been a critical piece of legislation in
combatting the missing and murdered indigenous women crisis. In
fact, I am encouraged by the bipartisan work that is being done
in the Committee and the current direction of the negotiations.
It has been hung up a few times, and I think we have to get
these tribal provisions right, and I think we are headed in the
right direction.
That said, I will tell you it is disheartening to see some
partisan politics going on with the underlying bill, to push an
unconstitutional version that was passed by the House.
Democrats by extension are holding up any hope at a bipartisan
deal with the underlying bill by pushing it and pushing an
unconstitutional version that was passed by the House. The
reason is because there are provisions there that will attempt
to strip Montanans of their second amendment rights. The larger
package that passed the U.S. House in March contains language
that would stifle Montanans right to keep and bear arms.
The current conversation circulating around VAWA includes
President Biden's unconstitutional gun control agenda
surrounding the so-called boyfriend loophole. As H.R. 1620
shows, the apparent cost of closing this new loophole is to,
number one, enact retroactive lifetime gun bans for misdemeanor
offenses, two, create Federal ex parte gun bans, and three,
fund and train police agencies to seize guns from these new
retroactively prohibited gun owners.
Should a misdemeanor stand as the line crossed for an
individual to lose a constitutional right? That is an important
question. Should Americans be deprived of a constitutional
right without first facing their accuser in a court of law?
This current language would essentially create red flag gun
confiscation orders in States that have never passed on by
adding an ex parte gun ban to restraining order laws, meaning
an individual could lose their right to bear arms without even
knowing it.
On top of that, this bill subsidizes the prosecution
misdemeanor gun bans, and enforcement of these newly co-opted
gun confiscation laws. We don't need more infringements on the
right to keep and bear arms. We need to restore it. There was a
recent Wall Street Journal article just from September about 50
percent of new gun buyers are women. Historically it has been
about 10 to 20 percent for decades, until the last two years,
50 percent approximately of all new U.S. gun buyers are women.
There is a reason for that. They want to be able to protect
themselves.
Women do not need more gun control. Gun rights are women's
rights. Yet my colleagues are using an important piece of
legislation I believe is a Trojan horse for gun control
legislation that otherwise would never, ever be passed. It is
imperative that we as a legislative body put some of these pet
projects aside. Let's remove this language from VAWA and get
back to the bipartisan nature of the conversation and
negotiations, and let's get VAWA reauthorized again.
Chief Judge FourStar, what are some of the biggest
challenges combatting violence against women in Indian Country?
Ms. FourStar. The challenges that we have experienced at
Fort Peck is [no audio].
Senator Daines. Judge, we have lost your sound.
Ms. FourStar. Can you hear me okay now?
Senator Daines. Yes, we can hear you fine. Thank you.
Ms. FourStar. Some of the challenges that we have
experienced at Fort Peck is incarceration, incarceration that
may be justice to some but not all. So Fort Peck has looked at
other alternatives. We do have our own jail. It is a 638
program. It is a tribal jail, but it is facilitated for long
term incarceration.
But with VAWA, it isn't so much incarceration that seems to
be at the forefront of what our victims are telling us as they
are coming in. It is restorative justice, it is rehabilitation.
Because they all remain members of the community, and they have
families. They want the family unit to remain together.
So that is why we have focused on more of the alternatives
to sentencing. But the challenge that we did have at the very
beginning was medical costs for those that were incarcerated.
It wasn't the issue of incarcerating or providing for them. It
was just the medical costs that came with pre-existing health
conditions prior to them being in our custody.
But as some of the other members have mentioned, funding is
always an issue. But I have to say at Fort Peck funding wasn't
the issue for us, because we had already started with the
Tribal Law and Order Act in becoming compliant with that. So we
already had a lot of those effective assistance of counsel,
attorney prosecutor, we had a lot of those in place.
So it was just a matter of how fast we could move with it.
Thank you, Senator.
Senator Daines. Chief Judge FourStar, thank you. Thank you
for your service there at Poplar, and also for your continued
progress in the 638 transition. Thank you, Chairman Schatz.
The Chairman. Senator Rounds.
STATEMENT OF HON. MIKE ROUNDS,
U.S. SENATOR FROM SOUTH DAKOTA
Senator Rounds. Thank you, Mr. Chairman.
First, I want to thank all of you for being with us here
today. I would like to especially thank our distinguished
witness from the great State of South Dakota, Principal Deputy
Assistant Secretary Little Elk. It is good to see you, and I am
very pleased to see you here with us today. I look forward to
hearing about your experiences and your insight into how VAWA
has impacted our tribes and Native communities in South Dakota
and elsewhere as well, as you have been here and learned.
My first question, though, is for Chief Judge FourStar. I
understand some reauthorization efforts for the Violence
Against Women Act have discussed the value of expanding tribal
jurisdiction over non-members for additional crimes. In your
experience presiding over cases in your tribal court system,
would expanded jurisdiction help or hinder your tribe's
capacity to handle an increased caseload?
Ms. FourStar. Definitely help. To expand it to include
children, law enforcement, we have even talked about drugs and
alcohol. To be able to provide the services that are needed for
the offenders, the victims and all of those that are affected
by the crimes.
With the expansion, it wouldn't put any undue hardships on
the Fort Peck Tribes. It is just going to elevate what we can
do for our communities. Because at the present time, although
we can provide services, we can't necessarily provide the
defendant with the offender accountability that they may need
in regard to what has been occurring with the children.
With the law enforcement, I just want to say really quick
that with our cross-deputization agreement, it has been
successful, it has been in effect since 1999. We have offered
the SLEC, the Special Law Enforcement Commission, the criminal
justice force, so that those that are cross deputized who
enforce tribal law with this commission, they are able to fall
under the umbrella of a Federal prosecution if needed, if they
are to be assaulted.
That is one of the gap-fillers that we have attempted to
use at Fort Peck, because we cannot prosecute those crimes when
law enforcement is involved with a non-Indian offender. Thank
you, Senator.
Senator Rounds. Thank you.
Assistant Secretary Little Elk, you have been in this new
role now for a few months. I would like to get your perspective
on common barriers the Department sees with regard to the
tribe's ability to implement Special Domestic Violence Criminal
Jurisdiction. As I understand it, in South Dakota, only the
Sisseton Wahpeton Oyate and the Standing Rock Sioux Tribe have
taken the steps to implement this special jurisdiction.
I know you touched on it a little bit earlier, but I am
just curious, with regard to our local tribes, why haven't
other tribes in our home State implemented this expanded
jurisdiction? What do you see as options that might make it
more available to them?
Mr. Garriott. Without taking the risk of speaking on behalf
of our tribes in South Dakota, I can only speak from limited
experience. But overall, from a national perspective, I think
that one of the things that we consistently hear from tribes
through various tribal consultations, including the tribal
budget advisory committee and other forums in which we get to
engage and hear directly from tribal leaders, is the resource
challenges.
This is one of the reasons why in our Fiscal Year 2022
budget request we have asked for an additional $58 million for
justice services for a total of $507 million overall. The bulk
of that, those resources, of that request, really goes toward
increased staffing for law enforcement services on the ground,
with an additional $5 million for tribal courts and tribal
court O&M areas.
Again, anecdotally, I think that many tribes are moving or
looking to make sure that their law enforcement services, that
their detention centers and that their court systems are
adequately staffed, and fully functional before taking on
additional, before asserting additional sovereignty and
jurisdiction to take on the provisions in VAWA.
Senator Rounds. Thank you, sir. Thank you, Mr. Chairman.
The Chairman. Senator Moran.
STATEMENT OF HON. JERRY MORAN,
U.S. SENATOR FROM KANSAS
Senator Moran. Chairman Schatz, thank you. Thank you and
Ranking Member Murkowski for holding this oversight hearing. I
supported VAWA in 2013 and I look forward to building on the
tribal provisions that were contained in it. I thank our
witnesses for being here today.
I am the ranking member of the Commerce Justice Science
Appropriations Subcommittee. The importance in this arena is
the Department of Justice. I would like to direct my questions
in regard to some of the appropriation issues.
Senator Cortez Masto asked one of the issues I was
interested in. The nearest FBI field office to a field in
Kansas is not quite 90 minutes away. I appreciate your question
and I appreciate the information received from the answers.
But distance is always a problem for us in Kansas. Our
tribal lands are not located close to any cities. So it is a
significant challenge.
This is a question I would direct to any and all. Let me
start with Ms. Randall. I will ask you this question first. You
mentioned the President's request for increasing funding at the
Office of Violence Against Women's tribal-specific grant
programs by $46 million. What gaps have you identified that
that additional funding would fill?
Ms. Randall. Thank you, Senator. One really targeted piece
of funding would be for tribal special U.S. attorneys. That
prosecutorial role is a gap that we would like to fill. We
would provide more funding for tribal governments overall. That
is to implement everything from victim services to supporting
tribal law enforcement.
I think also very important is tribal jurisdiction. We do
have a specific program to help tribes implement, tribes who
haven't started yet to implement that jurisdiction, to do so.
Senator Moran. Ms. Randall, you mentioned also in your
written testimony that the Fiscal Year 2022 CJS bill includes
new funding for tribal special assistant U.S. attorneys. You
mentioned that is something still on the want list. But perhaps
you can discuss with me a little more about the importance of
this program.
Ms. Randall. Absolutely. Tribal special U.S. attorneys are
cross designated to be able to bring cases with a tribal
expertise in the Federal court, working incredibly closely as
members of the U.S. attorney team. We have seen in many States
that this allows the Federal Government, through this program,
to bring significantly more prosecutions than we might be able
to otherwise, and to have the expertise of the tribal
prosecutor who has been cross designated.
Senator Moran. I assume that tribal law and Federal law and
State law regarding tribes is a significant specialty, not that
every attorney would know. I certainly would know that those
who have experience either as tribal members or strong
association with tribes would have a better understanding of
cultural and other issues that would be of significant
importance.
Does the U.S. attorney in this circumstance, does a U.S.
attorney select those individuals that work for the U.S.
attorney?
Ms. Randall. You are exceeding my specialized area of
expertise, Senator. We would love to take that back and make
sure that we have all the right details for you.
Senator Moran. Okay. I would be glad to hear more.
I would point out that Senator Schatz and Senator Murkowski
are members, as you would know, of the subcommittee that
appropriates that we are talking about. I look forward to
working with them as we continue our efforts first to get this
fiscal year completed and as we look forward to next year.
Thank you for your answer.
Ms. Randall. Thank you.
The Chairman. Senator Moran, full disclosure, the Vice
Chair and I were just praising you behind your back.
[Laughter.]
Senator Moran. I am surprised at your willingness to admit
that.
[Laughter.]
The Chairman. Vice Chair Murkowski.
Senator Murkowski. Thank you, Mr. Chairman. To our
colleague who is so adeptly spearheading CJS, thank you. We
will work on these initiatives.
I wanted to ask just one final question to Professor Reese.
But first, Ms. Randall, I want to acknowledge the announcement
you have made saying we are going to have this consultation,
the annual consultation in Alaska. We look forward to welcoming
you and being part of those. Thank you for that.
Ms. Randall, we have all cited your report. Thank you for
dealing with some of the concerns that so many had expressed
following VAWA 2013. Despite the statistics, despite the
report, there is still that doubt. You used the word distrust.
I think there is still some concern. I certainly hear it in
Alaska when we talk about the prospects for the pilot that we
have outlined in our draft legislation.
I really appreciate that you have succinctly stated that,
look, first what we have to do is clarify the law because
concerns are rooted in, you say, several fundamental
misunderstandings of that law. I think that is correct. The
second is a simple reminder that tribal governments are
American governments, too, worthy of our trust and dignity.
Your final statement is worth repeating. For those who
would suggest that we shouldn't be moving forward with this
special jurisdiction, Professor Reese states, ``Our reasons for
keeping them out of it are rooted in fear, distrust, and
assumptions about their capacity to soundly administer the law
that all ought to be long since in our past.'' I certainly
agree with them. But I know we are still dealing with some of
these ghosts of the past.
So I would ask, and it is directed to you, Professor Reese,
but I would also be willing to hear from our Administration
witnesses as well, as to what else is it that we have to do to
gain the trust, to assure that there is a level of capacity
that can be met? Certainly with our proposal in the Alaska
project, there is an effort where the attorney general works
with the tribes to determine those that will be able to provide
systems that fully protect defendants' rights under Federal
law. There are protections that we feel we have incorporated,
but still we meet this resistance.
Is it just fear of the unknown, even though these have been
in place for eight years? What more do we need to do? Because I
have some convincing with some colleagues who are not sure that
this is going to be too experimental, that this justice will be
too experimental.
My response right now is, in many cases there is no
justice. That is the experiment that is happening, is no
justice. So I am willing to engage in some pilot projects that
maybe push things out a little bit more beyond people's comfort
zone. Because right now, right now, people, women, are
vulnerable. They are being destroyed because we don't have
these protections. So we have to do something different.
Help me out with how we get beyond the distrust of this. I
will turn to you, Professor, first.
Ms. Reese. Absolutely. Thank you for the question and for
the kind remarks about my testimony.
I would say that you could do several things, one of which
is to take them to Indian Country, take them to Judge Stacie's
courtroom and show off the amazing room that she is doing to
provide justice for the people of her community. Because I
think really seeing Indian Country in action, and justice in
action, does so much more to generate that kind of trust than
all of the possible rights protections and laws that we could
write up, when really if what we are talking about is just
skepticism that is more deeply rooted, as you have said. So I
would suggest that, if possible.
But I would also, as you also said, right now there is no
justice. So of course, certainly trying something is necessary.
But also to remind folks not to hold tribal governments to
an unfair and unrealistically high standard of perfection
before we let them try out justice over fellow American
citizens. I think if we expect them to be something that is in
effect like perfect, infallible, always delivering perfect
rights, that is not fair. That is not the way court systems in
the United States work. What happens in State courts as well is
that there are laws on the books that ensure that citizens are
protected when they mess up. That is how laws and protections
work. It is to make sure that citizens are protected because
courts aren't perfect.
So I think the same thing is in place in Indian Country. We
have these laws to protect and recognize that courts won't be
perfect all the time. They are run by people. But they are
necessary for justice.
Senator Murkowski. And we have in fact in place the Federal
protections that are already afforded in law. It is not as if
there is no due process that is at play here.
Mr. Chairman, thank you so much for this hearing, and for
all of the witnesses. To your point, I think it has been
extraordinarily testimony that the Committee has received. I
look forward to working with all of my colleagues as we work to
advance this restoration of justice through VAWA. Thank you.
The Chairman. Thank you, Vice Chair Murkowski. I want to
thank the staff, I want to thank the advocates, I want to thank
the leaders in Indian Country, our testifiers, the
Administration, everybody who is moving forward with this
legislation. We are on our way.
If there are no more questions for our witnesses, witnesses
may also submit follow-up written questions for the record. The
hearing record will be open for two weeks.
I want to thank all of the witnesses for their time and
their testimony.
This hearing is adjourned.
[Whereupon, at 4:34 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of the Port Gamble S'Klallam Tribe
Chairman Schatz, Vice Chairman Murkowski, and members of the Senate
Committee on Indian Affairs, my name is Jeromy Sullivan and as the
Chairman of the Port Gamble S'Klallam Tribe (Tribe) I am pleased to
offer testimony on the 2013 Violence Against Women Act (VAWA) and the
urgent need to reauthorize VAWA with stronger provisions for Tribal
Nations. The Tribe also supports and endorses the testimony provided by
the National Congress of American Indians (NCAI), including the four
priorities NCAI identified for the upcoming bipartisan VAWA
reauthorization:
1. Include amendments to the Special Domestic Violence Criminal
Jurisdiction (SDVCJ), 25 U.S.C. 1304, that will fill
jurisdictional gaps and ensure that the provision fully
achieves its purpose.
2. Ensure and reaffirm that all 574 Tribal Nations can exercise
criminal jurisdiction through VAWA.
3. Reauthorize VA W A's Tribal grant programs and create a
reimbursement program for Tribal Nations exercising SDVCJ.
4. Create a permanent authorization for the U.S. Department of
Justice's (DOJ) Tribal Access Program for National Crime
Information (TAP).
Background
The Port Gamble S'Klallam Tribe is a sovereign Tribal Nation
comprised of over 1,342 citizens located on the northern tip of the
Kitsap Peninsula in Northwest Washington State. The 1855 Point No Point
Treaty reserved hunting, fishing, and gathering rights for our Tribe,
and the United States agreed to respect our Tribal sovereignty and to
protect and provide for the well-being of our people. The United
States, therefore, has both treaty and trust obligations to protect our
lands and resources and provide for the health and well-being of our
citizens, obligations that are even more solemn when discussing the
safety of our Tribal women and girls.
Filling Jurisdictional Gaps
As the NCAI noted in its testimony, the SDVCJ included in VAWA 2013
reaffirmed the inherent sovereign authority of Tribal Nations to
exercise criminal jurisdiction over non-Indian offenders who commit
certain domestic violence crimes against Indian people on Tribal lands.
This change in federal law has made real differences in Indian Country,
including tangential benefits such as increased collaboration among
Tribal Nations and between local, state, federal, and Tribal
governments. With SDVCJ, no longer can many abusers come onto Tribal
lands and evade justice.
However, the intervening years since 2013 have revealed
jurisdictional gaps in the law. Currently, federal law restricts SDVCJ
to extend only to non-Indians who commit crimes against intimate
partners or persons covered by a qualifying protection order. In an
all-too-frequent scenario, this means that Tribal Nations can prosecute
an individual for violence against a mother, but can do nothing about
the associated violence against her children. In over half.--nearly 60
percent--of SDVCJ cases, children are victims or witnesses. Under
current federal law, Tribal Nations are not able to offer those
children protection or justice by prosecuting the offender. This only
compounds the already-severe rates of exposure to violence among Native
children, who experience post-traumatic stress disorder at a rate
comparable to war veterans and triple the rate of the rest of the
population.
Our children are not the only ones left without justice under VAWA
2013. Under the current law, Tribal Nations are unable to pursue crimes
such as sexual assault, trafficking, and stalking--nor are we able to
protect Tribal police officers and the very integrity of our criminal
justice systems. Unlike other populations, Native people are much more
likely to experience interracial (as opposed to intra-racial) sexual
violence, which puts heightened emphasis on the need for Tribal Nations
to have the ability to prosecute non-Indian offenders. Many of the
crimes Native people face--over half ofNative women experience sexual
violence in their lifetimes, while nearly half report being stalked-do
not fit neatly into a SDVCJ category, leaving Tribal Nations powerless
to hold anyone accountable.
Even for those crimes that do fall within the current scope of
SDVCJ, Tribal Nations are unable to prosecute non-Indians for crimes
incident to the criminal justice process, such as assaulting a Tribal
police officer or witness tampering. This erodes the integrity of
Tribal justice systems and our ability to secure a fair and robust
process for our citizens.
We join the NCAI in strongly urging the inclusion of provisions
addressing these jurisdictional gaps in the bipartisan Senate VAWA
bill.
Ensuring and Reaffirming all 574 Tribal Nations' Ability to Exercise
SDVCJ
An unfortunate consequence of VAWA 2013 has stemmed from the
interpretation of its language to exclude certain Tribal Nations and
geographic regions. As the NCAI discussed in its testimony, Tribal
Nations in Maine and Alaska have been unable to exercise SDVCJ due to
this issue.
We join the NCAI in calling on Congress to reaffirm all Tribal
Nations' ability to exercise SDVCJ over non-Indian offenders so that
Tribal Nations in Maine and Alaska can offer victims the same
protections already afforded to victims in the other 48 states.
Reimbursing Tribal Nations for Exercising SDVCJ
In addition to the aforementioned challenges, a continuing lack of
resources for Tribal criminal justice systems and victim services
undermines the ability to protect Tribal citizens. Tribal Nations face
unique issues in raising governmental resources because--unlike other
forms of government--we lack a traditional tax base. The grant programs
created in previous reauthorizations of VAWA have helped, but are still
insufficient to meet the substantial needs in Indian Country.
Cost is a major factor deterring Tribal Nations from implementing
SDVJC out of concern for unpredictable costs, such as health care for
non-Indian inmates in Tribal custody that Tribal programs are unable to
provide due to their non-Indian status. A reimbursement fund would help
fulfill the United States' trust and treaty obligations by helping more
Tribal Nations assume criminal jurisdiction over non-Indians in order
to improve the safety of our communities and our ability to protect our
most vulnerable citizens.
Along with the NCAI, we support the creation of a fund that would
reimburse Tribal Nations for expenses incurred in exercising and
implementing SDVJC. We also endorse the NCAI's proposal to amend the
Victims of Crime Act (VOCA) to ensure that Tribal Nations have a
permanent set-aside from the Crime Victims Fund (CVF), which would
provide much-needed services and compensation to victims of violence in
Tribal communities.
Ensuring All Tribal Nations' Permanent Access to National Crime
Information
In 2015, DOJ announced the Tribal Access Program for National Crime
Information (TAP), which provides eligible Tribal Nations with the
ability to enter and obtain information from federal criminal
information databases. There are now 108 Tribal Nations participating
in TAP, and with this access Tribal Nations can enter protection orders
and criminal history into federal databases.
However, more should be done to ensure that all Tribal Nations are
able to access the databases. Current law restricts access to Tribal
Nations with a sex offender registry or with a fulltime Tribal law
enforcement agency, but many Tribal Nations--especially those in Public
Law 280 jurisdictions like California and Alaska--do not meet these
criteria but nevertheless operate Tribal courts that issue protection
orders. The orders cannot be expected to effectively protect victims if
they do not appear in the appropriate federal criminal database.
Funding is one limitation to expanding TAP access. We join the NCAI
in calling for the creation of a dedicated funding stream for expanding
the TAP program and making it available to all interested Tribal
Nations to access both for obtaining and for entering information.
Conclusion
We all want safe communities. Our mission in endorsing the NCAI's
testimony is to make sure Tribal sovereignty is recognized and Tribal
governments have the tools we need to ensure safe communities and
protect our vulnerable citizens. The Port Gamble S'Klallam Tribe thanks
the Committee for the work it is doing for Indian Country on these
important issues.
______
Prepared Statement of the United South and Eastern Tribes Sovereignty
Protection Fund
On behalf of the United South and Eastern Tribes Sovereignty
Protection Fund (USET SPF), we are pleased to provide the Senate
Committee on Indian Affairs (SCIA) with the following testimony for the
record of the SCIA Oversight Hearing, ``Restoring Justice: Addressing
Violence in Native Communities through VAWA Title IX Special
Jurisdiction.'' Given the urgency around reauthorizing the Violence
Against Women Act (VAWA) with provisions that close critical gaps in
Tribal Special Domestic Violence Criminal Jurisdiction (SDVCJ), we
appreciate the convening of this hearing and the recently released
bipartisan discussion draft of Title IX provisions. USET SPF joins SCIA
Leadership in calling for the immediate Senate passage of a bill that
contains these vital features, ensuring that the United States fulfills
more of its trust and treaty obligations to Tribal Nations by better
recognizing our inherent sovereignty.
USET SPF is a non-profit, inter-tribal organization advocating on
behalf of thirty-three (33) federally recognized Tribal Nations from
the Northeastern Woodlands to the Everglades and across the Gulf of
Mexico. \1\ USET SPF is dedicated to promoting, protecting, and
advancing the inherent sovereign rights and authorities of Tribal
Nations and in assisting its membership in dealing effectively with
public policy issues.
---------------------------------------------------------------------------
\1\ USET SPF member Tribal Nations include: Alabama-Coushatta Tribe
of Texas (TX), Aroostook Band of Micmac Indians (ME), Catawba Indian
Nation (SC), Cayuga Nation (NY), Chickahominy Indian Tribe (VA),
Chickahominy Indian Tribe-Eastern Division (VA), Chitimacha Tribe of
Louisiana (LA), Coushatta Tribe of Louisiana (LA), Eastern Band of
Cherokee Indians (NC), Houlton Band of Maliseet Indians (ME), Jena Band
of Choctaw Indians (LA), Mashantucket Pequot Indian Tribe (CT), Mashpee
Wampanoag Tribe (MA), Miccosukee Tribe of Indians of Florida (FL),
Mississippi Band of Choctaw Indians (MS), Mohegan Tribe of Indians of
Connecticut (CT), Monacan Indian Nation (VA), Nansemond Indian Nation
(VA), Narragansett Indian Tribe (RI), Oneida Indian Nation (NY),
Pamunkey Indian Tribe (VA), Passamaquoddy Tribe at Indian Township
(ME), Passamaquoddy Tribe at Pleasant Point (ME), Penobscot Indian
Nation (ME), Poarch Band of Creek Indians (AL), Rappahannock Tribe
(VA), Saint Regis Mohawk Tribe (NY), Seminole Tribe of Florida (FL),
Seneca Nation of Indians (NY), Shinnecock Indian Nation (NY), Tunica-
Biloxi Tribe of Louisiana (LA), Upper Mattaponi Indian Tribe (VA) and
the Wampanoag Tribe of Gay Head (Aquinnah) (MA).
---------------------------------------------------------------------------
For far too long, the United States has neglected its public safety
obligations to Tribal Nations--both by failing to recognize and promote
our inherent sovereign authorities, as well as failing to devote
adequate resources to law enforcement and judicial infrastructure. This
has created a crisis in Indian Country, as our people go missing and
are murdered, and are denied the opportunity for safe and healthy
communities enjoyed by other Americans. Now, with the reauthorization
of VAWA years overdue, Tribal Nations face critical gaps in the
exercise of SDVCJ, to the detriment of our people and public safety.
While we ultimately seek the restoration of full criminal jurisdiction
over our lands, Title IX represents important advancements toward a
future in which our children, women, elders, and all Native people can
live in healthy, vibrant communities without fear of violence knowing
that justice will be served.
High Rate of Crime in Indian Country is Directly Attributable to U.S.
Policy
As you are well aware, Indian Country currently faces some of the
highest rates of crime, with Tribal citizens 2.5 times more likely to
become victims of violent crime and Native women, in particular,
subject to higher rates of domestic violence and abuse. Many of the
perpetrators of these crimes are non-Native people. The reasons behind
the increased crime in Indian Country are complicated, but the United
States holds much of the responsibility and that is at the root of
today's challenges.
Historical Trauma Caused by United States Policies and Actions
Increased crime in Indian Country flows, first and foremost, from
the shameful policies of the United States. The United States spent
centuries working to eradicate Tribal Nations and cultures, and its
policies of termination and assimilation have caused ongoing trauma for
Native people. As a result of these policies, the federal government
prohibited exercise of our cultural practices, kidnapped our children,
and took actions to limit the exercise of our inherent sovereign rights
and authorities. Dehumanization of Native people over time is a tool to
justify harms done to us--including colonizing our land. It
marginalizes us in a way that makes us invisible within our own lands.
And the larger society is desensitized to us, turning a blind eye to
its role in continued injustices to our people and our governments.
Failure of United States to Recognize Tribal Nations' Sovereign
Criminal
Jurisdiction
A primary reason for increased crime in Indian Country is the gap
in jurisdiction stemming from the United States' failure to recognize
our inherent criminal jurisdiction, allowing those who seek to do harm
to hide in the darkness away from justice. When Tribal Nations are
barred from prosecuting offenders and the federal government fails in
the execution of its obligations, criminals are free to offend
repeatedly. This gap is the United States' own doing.
Tribal Nations are political, sovereign entities whose status stems
from the inherent sovereignty we have as self-governing peoples, pre-
dating the founding of the Republic. A critical aspect of our inherent
sovereignty is jurisdiction over our land and people, including
inherent jurisdiction over crimes. Early Supreme Court decisions
recognized this broad jurisdictional authority. See, e.g., United
States v. Wheeler, 435 U.S. 313 (1978); Ex parte Crow Dog, 109 U.S. 556
(1883). And Tribal Nations exercised jurisdiction over everyone who set
foot on our lands, in parity with other units of government.
But the United States has slowly chipped away at Tribal Nations'
jurisdiction. At first, it found ways to put restrictions on the
exercise of our inherent rights and authorities. And eventually, as its
power grew, the United States shifted from acknowledging Tribal
Nations' inherent rights and authorities to treating these rights and
authorizes as grants from the United States. With this shift in
mindset, recognition of our inherent sovereignty diminished, including
our jurisdictional authorities.
For example, in the 1978 decision of Oliphant v. Suquamish Indian
Tribe, the Supreme Court struck what may be the biggest and most
harmful blow to Tribal Nations' criminal jurisdiction. In that case, it
held Tribal Nations lacked criminal jurisdiction over non-Native
people, even for crimes committed within Indian Country. 435 U.S. 191
(1978). It based this harmful decision on the faulty reasoning that-
while Supreme Court precedent recognizes that Tribal Nations possess
aspects of our inherent sovereignty unless expressly divested--in the
case of criminal jurisdiction over non-Native people the exercise of
such inherent sovereignty was simply impractical for the United States.
It said that, while Tribal Nations' jurisdiction flows from our
inherent sovereignty, continued existence of criminal jurisdiction over
non-Native people would be ``inconsistent'' with Tribal Nations'
status, where our inherent sovereignty is now ``constrained so as not
to conflict with the interests of [the United States'] overriding
sovereignty.'' Id. at 208-10. Not only is this decision immoral and
harmful, it is also illogical, as other units of government, such as
states, exercise criminal jurisdiction over non-citizens present in
their boundaries as a matter of routine. It is this very exercise of
jurisdiction that keeps everyone safe--something that is clearly in the
United States' best interests. Following Oliphant, Tribal Nations were
barred from exercising criminal jurisdiction over non-Native peoples'
crimes on our own land and against our own people--an authority held by
virtually every other unit of government in this country.
Congress, in the Indian Civil Rights Act, also acted to restrict
Tribal Nations' criminal jurisdiction. Under the Indian Civil Rights
Act, regardless of the crime, Tribal Nations were prohibited from
imposing more than one year of incarceration and a $5,000 fine for an
offense. 25 U.S.C. 1302(a)(7)(B). After this statute was enacted,
Tribal Nations were not able to exercise criminal jurisdiction even
over our own people in excess of the relatively low penalty amounts.
Some have even argued the Major Crimes Act bars Tribal Nations'
jurisdiction over serious crimes committed by our own people.
The United States justifies its failure to recognize Tribal
Nations' inherent sovereign power with legal fictions that satisfy its
own interests. The federal government has continually moved to deny our
authority, as it sought to build systems to reflect its assumed
supremacy. It does not have this authority, and there are very real and
practical consequences of the United States' wrongful taking of Tribal
Nations' criminal jurisdiction; including leaving a vacuum that allows
crime to grow unabated and the very need for the legislation this body
is considering.
These failures on behalf of the United States must be addressed in
order to resolve the issue of crime in Indian Country and enable Tribal
Nations to exercise our inherent authority as governments to care for
our people. The benefits of safe, healthy, and prosperous Tribal
communities stretch far beyond Indian Country. By recognizing Tribal
Nations' inherent criminal jurisdiction over our land, the United
States would facilitate our ability to function side-by-side with other
sovereign entities in the fight to keep all Americans safe.
Chronically Unmet Trust and Treaty Obligations
The federal government's trust and treaty obligations are the
result of the millions of acres of land and extensive resources ceded
to the U.S.--oftentimes by force--in exchange for which it is legally
and morally obligated to provide benefits and services in perpetuity,
including those related to public safety in Indian Country. At no point
has the government fully delivered upon these obligations. This is
especially true in the law enforcement context, where the United States
has failed to fully recognize our inherent sovereignty and at the same
time, has not invested in the infrastructure necessary to fulfill this
obligation.
The federal government has long failed to allocate the resources
necessary to fill the void left by its refusal to recognize Tribal
Nations' criminal jurisdiction over our land. Each time a crime takes
place, the legal jurisprudence created by the United States requires a
time consuming and complicated analysis necessary to determine who has
jurisdiction. This determination requires an analysis of the
perpetrator, the victim, the land on which the crime took place, the
type of crime, and whether any statute applies that shifts the
jurisdictional analysis, such as a restrictive settlement act. This
murkiness leads to lost time--which can be deadly when a Native person
is in danger. And even when it is clear that the federal government has
jurisdiction over a particular crime and the Tribal Nation does not,
prosecutors often decline to prosecute, citing lack of resources or
evidence. This, in combination with a lack of Tribal Nation access to
crime information, leaves known perpetrators walking free in Indian
Country, now armed with the knowledge that they are impervious to the
law.
Additionally, the chronic underfunding of Tribal public safety
programs leaves many Tribal Nations without the personnel and other
infrastructure necessary to combat crime in Indian Country. For
example, Indian Country's police staffing does not meet the national
police coverage standards. In FY 2020, Indian Country only had 1.9
officers per 1,000 residents compared to an average of 3.5 officers per
1,000 residents nationwide. Again, cooperation across governmental
entities, including with Tribal Nations, can help resolve police
staffing issues.
The federal government is not upholding its trust responsibility
and obligations to provide the funding necessary for Tribal Nations to
exercise enhanced sentencing and expanded criminal jurisdiction under
the Tribal Law and Order Act (TLOA) and the Tribal Nation provisions of
the 2013 reauthorization of the Violence Against Women Act (VAWA). For
Tribal Nations to fully exercise these authorities, Congress mandated
that we must first put into place certain procedural protections for
defendants. At the same time, following centuries of termination and
assimilationist policy, the federal government has consistently, and
chronically underfunded line items and accounts dedicated to rebuild
and support judicial infrastructure in Indian Country. It is incumbent
upon the federal government to ensure Tribal Nations have funding and
other resources to comply with these procedural requirements.
7Restrictive Settlement Acts
Some Tribal Nations, including some USET SPF member Tribal Nations,
are living under restrictive settlement acts that further limit the
ability to exercise criminal jurisdiction over our lands. These
restrictive settlement acts flow from difficult circumstances in which
states demanded unfair restrictions on Tribal Nations' rights in order
for the Tribal Nations to have recognized rights to their lands or
federal recognition. When Congress enacted these demands by the states
into law, it allowed for diminishment of certain sovereign authorities
exercised by other Tribal Nations across the United States.
Some restrictive settlement acts purport to limit Tribal Nations'
jurisdiction over their land or to give states jurisdiction over Tribal
Nations' land, which is itself a problem. But, to make matters worse,
there have been situations where a state has wrongly argued the
existence of the restrictive settlement act prohibits application of
later-enacted federal statutes that would restore to Tribal Nations
aspects of our jurisdictional authority. In fact, some USET SPF member
Tribal Nations report being threatened with lawsuits should they
attempt to implement TLOA's enhanced sentencing provisions. Congress is
often unaware of these arguments when enacting new legislation. USET
SPF asserts that Congress did not intend these land claim settlements
to forever prevent a handful of Tribal Nations from taking advantage of
beneficial laws meant to improve the health, general welfare, and
safety of Tribal citizens. We would like to further explore short- and
long-term solutions to this problem with the Committee.
Past Congressional Actions to Recognize Tribal Nations' Sovereign
Jurisdiction
Congress can and has--at the urging of Indian Country-taken steps
to remove the restrictions the United States placed on Tribal Nations'
exercise of our inherent sovereign criminal jurisdiction. Through these
actions, Congress has moved to legally recognize our inherent
authorities even after the United States acted to stomp them out. For
example, although the Supreme Court initially ruled Tribal Nations lack
criminal jurisdiction over Native people who are not their own
citizens, Duro v. Reina, 495 U.S. 676 (1990), Congress swiftly restored
that inherent jurisdiction, 25 U.S.C. 1301(2), and the Supreme Court
recognized its restoration, United States v. Lara, 541 U.S. 193 (2004).
In 2010, Congress enacted TLOA to amend the Indian Civil Rights
Act. See 25 U.S.C. 1302. It increased the penalties a Tribal Nation
may impose in cases where we have jurisdiction--allowing incarceration
sentences of up to three years and a $15,000 fine per offense, with up
to nine years of incarceration per criminal proceeding. 25 U.S.C.
1302(a)(7)(C)-(D), (b). But TLOA requires Tribal Nations to provide
certain procedural rights to defendants in order to exercise this
enhanced sentencing. 25 U.S.C. 1302(c).
In 2013, Congress included Tribal provisions when it reauthorized
VAWA. See 25 U.S.C. 1304. Through VAWA, Congress restored the
exercise of criminal jurisdiction (called special domestic violence
criminal jurisdiction (SDVCJ)) over non-Native people in limited
circumstances related to domestic and dating violence. 25 U.S.C.
1304(b)(1). VAWA allows participating Tribal Nations to exercise SDVCJ
over Indian Country crimes that: are dating or domestic violence
(defined to require a certain type of relationship) or in furtherance
of certain protection orders, 25 U.S.C. 1304(a)(1), (2), (5); when
the victim or perpetrator is Native, 25 U.S.C. 1304(b)(4)(a); and
when the perpetrator has certain ties to the Tribal Nation, 25 U.S.C.
1304(b)(4)(B). Like TLOA, VAWA requires Tribal Nations to provide
certain procedural rights to defendants to exercise SDVCJ, including
the right to a trial. 25 U.S.C. 1304(d).
The Tribal Nations that have been able to exercise jurisdiction
under VAWA report success in bringing perpetrators to justice and
keeping our people safe. As the Department of Justice (DOJ) testified
before this Committee in 2016, VAWA has allowed Tribal Nations to
``respond to long-time abusers who previously had evaded justice.''
During the Oversight Hearing, SCIA Leadership also underscored that
since the enactment of SDVCJ, there have been zero legitimate habeas
petitions and zero claims related to non-Native defendants being
deprived of due process as Tribal Nations exercise SDVCJ.
VAWA Must Be Updated to Address Gaps in SDVCJ and Ensure all Tribal
Nations are Included
Although they are steps in the right direction, these existing laws
do not do enough to provide for the exercise Tribal Nations' criminal
jurisdiction, which rightfully belongs to us as a function of our
inherent sovereignty. And they do not do enough to protect Native
people from the violence that lives in the void left by limitations
placed on Tribal Nations' exercise of criminal jurisdiction. Indeed, as
Tribal Nations have implemented SDVCJ in the years following the 2013
VAWA Reauthorization, Tribal Nations have been unable to prosecute co-
occurring crimes or those that do not fall within the strict definition
of ``domestic violence.'' In addition, SDVCJ and other features of the
2013 VAWA are not currently accessible by all federally recognized
Tribal Nations. We support and appreciate the direction taken by the
draft Title IX legislation, as it seeks to more fully deliver upon
trust and treaty obligations, and look forward to working with SCIA to
further refine its language.
Sexual Violence, Stalking, and Human Trafficking
The VAWA Title IX draft would extend Tribal Nations' restored
jurisdiction over non-Native people, as authorized under VAWA, to
include crimes related to sexual violence, stalking, and human
trafficking. In this way, it would recognize Tribal Nations' inherent
sovereign authority to exercise criminal jurisdiction over our lands to
address a critical gap in the SDVCJ under VAWA.
According to a 2016 study by the National Institute for Justice,
approximately 56 percent of Native women experience sexual violence in
their lifetime, with one in seven experiencing that violence within the
past year. Almost one in two Native women report being stalked. And the
vast majority of these perpetrators are non-Native, preventing Tribal
Nations from exercising criminal jurisdiction over them outside VAWA.
However, VAWA as currently enacted does not extend to these crimes,
which Tribal Nations, DOJ, and others involved in implementation of
VAWA's SDVCJ have reported as an oversight in the drafting of the law.
One such area is its application to sexual violence outside of a
domestic relationship. Title IX would extend VAWA's SDVCJ to include
sex trafficking, sexual violence, and stalking. It would also add
crimes of related conduct, defined to include violations of a Tribal
Nation's criminal law occurring in connection with the exercise of VAWA
SDVCJ.
Crimes Against Children and Tribal Law Enforcement
Title IX would address another serious gap in the SDVCJ VAWA
provision by ensuring that it includes crimes against children and law
enforcement officers--again, in recognition of our inherent sovereign
rights and authorities. Currently, VAWA's SDVCJ does not extend to
children involved in cases where a Tribal Nation is otherwise
exercising VAWA's SDVCJ. Tribal Nations implementing VAWA report that
children have been involved as victims or witnesses in nearly 60
percent of the instances in which they exercised VAWA's SDVCJ, VAWA
does not protect them.
Yet another oversight in the drafting of VAWA is its
inapplicability to police officers involved in cases where a Tribal
Nation is otherwise exercising VAWA's SDVCJ. Implementing Tribal
Nations have reported assaults on officers and other personnel involved
in the criminal justice system. Domestic violence cases are the most
common and most dangerous calls to which law enforcement respond, and
VAWA does not give Tribal Nations the tools to protect officers when
they carry out VAWA's SDVCJ. The Eastern Band of Cherokee Indians, for
example, reported that a perpetrator during arrest under VAWA's SDVCJ
threatened to kill officers and carry out a mass shooting and later
struck a jailer--none of which was actionable under VAWA's SDVCJ. To
remedy this problem, the Title IX draft would amend VAWA to extend
jurisdiction to crimes committed against a Tribal Nation's officer or
employee in the course of carrying out VAWA's SDVCJ for covered crimes
that violate Tribal Nation law in Indian Country where the Tribal
Nation has jurisdiction. Additionally, the draft language would ensure
crimes beyond actual assault are actionable under VAWA. It would do so
by clarifying that attempts at and threats of physical force that
violate a Tribal Nations' laws are covered.
Confirm Application of SDVCJ to All Tribal Nations
As described above, a number of USET SPF member Tribal Nations,
both those with jurisdictions adjacent to the state of Maine and those
who live adjacent to other states within our region, are forced to
govern under restrictive settlement acts (RSAs), which challenge their
ability to exercise SDVCJ. We urge SCIA to more fully examine this
issue and work to ensure that Title IX applies to all federally
recognized Tribal Nations, including all those USET SPF member Tribal
Nations subject to RSAs.
Tribal Reimbursement Program
USET SPF also supports the establishment of a reimbursement program
for Tribal Nations exercising SDVCJ as an additional step toward
honoring trust and treaty obligations. The federal government is
obligated to assist us in rebuilding our governmental infrastructure,
including judicial and other infrastructure related to the exercise of
SDVCJ. Tribal Nations should not be forced to absorb the unpredictable
and sometimes excessively high costs associated with SDVCJ, including
the medical costs of incarcerated non-Natives. The creation of the
reimbursement program will provide certainty for those Tribal Nations
currently exercising SDVCJ, as well as for those who are interested in
exercising this authority, but for whom unanticipated costs may be a
prohibitive factor.
Access to Criminal Databases and Information
We also agree that Title IX should address lack of access to
federal criminal databases, as well as generally increase the sharing
of federal crime information with Tribal Nations. The draft of Title IX
would ensure all Tribal Nations can access the Tribal Access Program
(TAP) which facilitates access to the National Crime Information Center
database for law enforcement. Through VAWA, Tribal Nations were
authorized to access the National Crime Information Center database,
but DOJ did not facilitate this access until launching the TAP pilot
project in 2015. TAP allows Tribal criminal justice agencies to
strengthen public safety, solve crimes, conduct background checks, and
offer greater protection for law enforcement by ensuring the exchange
of critical data across the Criminal Justice Information Services
(CJIS) systems.
Many Tribal Nations remain on the waitlist to access TAP. The Title
IX would require DOJ to ensure that all Tribal law enforcement
officials have access to the National Crime Information Center. It
would also codify TAP and authorize additional funding for the program,
which we continue to support. We appreciate that the Senate version of
Title IX contains $6 million authorization-double that of the House.
Conclusion
The public safety crisis facing Tribal Nations and our people is
directly attributable, at least in part, to U.S. policies of
colonialism, termination, and assimilation, as well as the chronic
failure to deliver upon the trust responsibility and obligations. These
policies stole our homelands, tried to steal our cultures, and limited
our ability to exercise our inherent sovereign rights and authorities.
The United States, including all branches of government must act to
provide parity to Tribal Nations in the exercise of our inherent
sovereign rights and authorities. Our people cannot remain invisible
and forgotten, as Tribal Nations work to navigate the jurisdictional
maze that has grown up around Indian Country while the United States
turns a blind eye.
USET SPF continues to support the provisions of the Title IX draft
and believes it represents a major step in the right direction toward
the United States recognizing Tribal Nations' inherent sovereign rights
and authorities. This legislation better recognizes Tribal Nations'
inherent sovereign right to exercise criminal jurisdiction over our
land, and it provides additional resources the United States owes to
keep our people safe.
As sovereign governments, Tribal Nations have a duty to protect our
citizens, and provide for safe and productive communities. This cannot
truly be accomplished without the full restoration of criminal
jurisdiction to our governments through a fix to the Supreme Court
decision in Oliphant. While we call upon the Senate to take up and pass
a VAWA reauthorization containing the features found in the Title IX
draft language, we strongly urge this Committee to consider how it
might take action to fully recognize Tribal criminal jurisdiction over
all persons and activities in our homelands for all Tribal Nations.
Only then will we have the ability to truly protect our people. We
thank you for holding an important hearing and look forward to further
opportunities to discuss improved public safety in Indian Country.
______
Prepared Statement of Hon. Jeromy Sullivan, Chairman, Port Gamble
S'Klallam Tribe
Dear Chairman Schatz and Vice-Chairwoman Murkowski: As Tribal
Chairman of the Port Gamble S'Klallam Tribe (Tribe), I am writing to
support and provide comments on the bipartisan Violence Against Women
Act (VAWA) Title IX--SAFETY FOR INDIAN WOMEN discussion draft released
on December 8, 2021. The Tribe also supports the comments offered by
the National Congress of American Indians (NCAI) and incorporates them
by reference into our own. Tribal communities continue to suffer from
the highest crime victimization rates in the country, and the
bipartisan Title IX discussion draft includes desperately needed
reforms. Our Tribe is dedicated to improving the safety and welfare of
our Tribal citizens, and it is in that spirit we offer the following
comments.
Background
The Port Gamble S'Klallam Tribe is a sovereign Tribal Nation
comprised of over 1,342 citizens located on the northern tip of the
Kitsap Peninsula in Northwest Washington State. The 1855 Point No Point
Treaty reserved hunting, fishing, and gathering rights for our Tribe,
and the United States agreed to respect our Tribal sovereignty and to
protect and provide for the wellbeing of our people. The United States,
therefore, has both treaty and trust obligations to protect our lands
and resources and provide for the health and well-being of our
citizens, obligations that are even more solemn when discussing the
safety of our Tribal women and girls.
Nearly two-thirds of our citizens live on our Reservation. Native
women, men, girls, and boys living in our community face many
challenges to their physical safety and mental well-being. The threats
are in the form of restricted access to rural maternal healthcare
services, adequate housing, and food security, and continue into
adolescence and adulthood in the form of high rates of physical,
emotional, and sexual violence, substance abuse, and unmet mental and
behavioral health needs. When coupled with the jurisdictional
limitations that further complicate the delivery of limited public
safety and victim services on our Reservation, it becomes clear that
additional resources and targeted political actions are urgently needed
to protect our citizens.
Being a self-governance Tribe has fundamentally shaped how we
address public health and safety matters impacting our community,
including how we implement VAWA. We maximize the use of federal funds,
tailor programs to meet local needs, and take advantage of our own
extensive on-Reservation network to provide services, but more needs to
be done. Many of the crimes targeted by VAWA are committed by non-
Indians, and we need to amend federal law to improve access to justice
and safety for victims in our communities. Below, we highlight
provisions from the discussion draft and some recommended changes that
we think are vital and must be included in the final bipartisan VAWA
reauthorization bill.
1. Expanding Tribal Jurisdiction over Non-Indian Offenders via
``Special Tribal Criminal Jurisdiction''
VAWA 2013's expansion of Tribal Nations' criminal jurisdiction over
certain non-Indian domestic violence offenders has had significant
impacts in Indian Country, strengthening Tribal Nations' ability to
protect our people. However, substantial jurisdictional gaps impede the
law's effectiveness. Because VAWA 2013's Special Domestic Violence
Criminal Jurisdiction (SDVCJ) covers only non-Indians who commit crimes
against intimate partners or persons covered by a qualifying protection
order, Tribal Nations have been unable to protect the children who are
often associated with such crimes (either as witnesses or victims
themselves) and the law enforcement officials who respond to them.
Additionally, SDVCJ's narrow scope has left victims of human
trafficking, stalking, and sexual violence outside the context of an
intimate relationship without recourse.
A 2016 report by the National Institute of Justice found that over
80 percent of American Indians and Alaska Natives will be a victim of
intimate partner violence, sexual violence, or stalking in their
lifetime. The study also found that 90 percent of these victims were
victimized by a non-Indian perpetrator. Our children are particularly
impacted by this violence and are 50 percent more likely to experience
child abuse and sexual abuse than white children. The Tribal Nations
implementing VAWA 2013 report that children have been involved as
victims or witnesses in their cases nearly 60 percent of the time. It
is particularly important that the final bipartisan VAWA bill
recognizes that children are equally in need of the protections that
were extended to adult domestic violence victims in VAWA 2013.
The bipartisan Title IX discussion draft resolves these issues by
expanding SDVCJ to ``Special Tribal Criminal Jurisdiction'' with
additional covered crimes, including assault of Tribal justice
personnel, child violence, obstruction of justice, sexual violence, sex
trafficking, and stalking. We strongly support the inclusion of these
provisions in the final Senate bill.
Recommended changes: We ask that the Title IX discussion draft be
amended to include crimes against elders, which was a category of
restored jurisdiction included in the House bill, H.R. 1620, but not
the bipartisan Senate Committee on Indian Affairs discussion draft. Our
elders are an integral part of our Tribal communities. They carry our
cultures and traditions, and we must ensure that they are not left
behind in this reauthorization of VAWA.
Additionally, we strongly recommend amending the draft language on
page 10 to remove the requirement that assaults on Tribal justice
personnel must be tied to a ``covered crime.'' That language may
require a Tribal Nation to first prove the underlying covered crime
before being able to prosecute the assault, which does not fully fix
the public safety concern of police officers or detention personnel. We
ask that the language fully cover all assaults of tribal justice
personnel and not mention anything related to a ``covered crime.''
2. Reaffirming All Tribal Nations' Ability to Exercise Expanded
Criminal Jurisdiction
Another unfortunate result of VAWA 2013 has been the inability of
certain Tribal Nations--specifically those in Maine and Alaska--to
exercise expanded criminal jurisdiction. The bipartisan Title IX
discussion draft resolves this by expressly including Tribal Nations in
Maine and creating a pilot program to address the unique needs in
Alaska, where Alaska Native women are overrepresented among domestic
violence victims by 250 percent and make up 47 percent of reported rape
victims in the state, yet 1 in 3 rural Alaskan communities have no law
enforcement presence. We strongly support the inclusion of these
provisions in the final Senate bill and the inclusion of all Tribal
Nations in VAWA.
3. Reimbursement for Costs Associated with Exercising Expanded Criminal
Jurisdiction
Despite the expansion of Tribal criminal jurisdiction in VAWA 2013,
the cost of implementation has been an impediment for many Tribal
Nations. The bipartisan Title IX discussion draft resolves this by
creating a funding stream with dedicated appropriations the Attorney
General may use to reimburse Tribal Nations for costs associated with
implementation, including expanding Tribal court and law enforcement
capacity and providing health care for inmates. We strongly support the
inclusion of these provisions in the final Senate bill.
Recommended change: We ask that that reimbursement program language
be expanded to include reimbursements for trial and appellate courts
(including facilities maintenance, renovation, and rehabilitation).
Additionally, the time for the Attorney General to develop regulations
for the program should be shortened from within one year to within six
months after the effective date to ensure that this important program
is implemented quickly to address the urgent need in Indian Country.
4. Strengthening the Tribal Access Program for National Crime
Information (TAP)
The U.S. Department of Justice (DOJ) announced the TAP program in
2015, which allows Tribal Nations to both access information from
federal criminal databases and to enter information, such as protection
orders and criminal history, into those databases as well. Over 108
Tribal Nations participate in the program now, and it is critical to
ensuring that Tribal protection orders and other judgments are
enforceable. However, a lack of funding has been an impediment to many
Tribal Nations' participation in the program, along with certain
restrictions precluding Tribal Nations without a sex offender registry
or a full-time law enforcement agency from participating.
The bipartisan Title IX discussion draft resolves these issues by
creating funding streams with dedicated appropriations for Tribal
Nations to participate in the TAP program, removing restrictions from
participation, and ensuring that Tribal law enforcement officials have
the ability to enter information as well as obtain it from national
criminal databases. Relatedly, it also allows Tribal Nations to utilize
the Bureau of Prisons (BOP) to house defendants serving sentences of
more than one year. We strongly support the inclusion of these
provisions in the final Senate bill.
Conclusion
We fully support the purpose of Title IX, which is to strengthen
Tribal sovereignty and reaffirm Tribal jurisdiction over non-Indian
perpetrators. We also support providing additional resources to address
violence against all Native women.
Thank you for the opportunity to submit written comments on the
bipartisan Title IX discussion draft. We urge all members of the Senate
Committee on Indian Affairs to support the discussion draft's
provisions and to co-sponsor a full bipartisan Senate bill that
incorporates recommended changes. Our mission in providing these
comments and endorsing NCAI's comments is to ensure that Tribal
sovereignty is recognized and Tribal governments have the tools we need
to protect our citizens and communities. On behalf of the Port Gamble
S'Klallam Tribe, I thank you for the work you have done for the Tribe
and for Indian Country.
______
Tribal Law and Policy Institute
December 21, 2021
Dear Senator Schatz, Senator Murkowski, and all members of the Senate
Committee on Indian Affairs:
The Tribal Law and Policy Institute (TLPI) is a 100 percent Native
American operated non-profit corporation organized to design and
deliver education, research, training, and technical assistance
programs which promote the enhancement of justice in Indian country and
the health, well-being, and culture of Native peoples. We believe that
tribes and individual Native people suffer from ongoing unjust policies
and practices that have worked to prevent fully empowering tribes as
sovereigns and Native people as self-reliant citizens. Therefore, we
seek to empower tribal communities to build upon inherent strengths as
sovereign nations and protect their ancestral homelands, tribal
members, and tribal jurisdiction.
As such, it is our privilege to submit this letter in support of
the bipartisan Violence Against Women Act (VAWA) Title IX--SAFETY FOR
INDIAN WOMEN discussion draft released on December 8, 2021, which
includes important provisions that will improve safety and justice in
tribal communities. Tribal communities continue to suffer from the
highest crime victimization rates in the country, and the reforms
included in the bipartisan Title IX discussion draft are desperately
needed today.
A 2016 report by the National Institute of Justice found that over
80 percent of American Indians and Alaska Natives will be a victim of
intimate partner violence, sexual violence, or stalking in their
lifetime. The study also found that 90 percent of these victims were
victimized by a non-Indian perpetrator. Sadly, Indian children are
particularly impacted by this violence and are 50 percent more likely
to experience child abuse and sexual abuse than white children. The
complicated jurisdictional framework at play in Indian country and
Alaska continues to undermine safety for American Indian and Alaska
Native victims of violence.
Tribal Nations have been exercising jurisdiction over non-Indian
domestic violence offenders under VAWA 2013 for over 8 years.
Exercising Tribal Nations have held serial offenders accountable and
have brought justice and safety to hundreds of victims and their
families while upholding the due process rights of all defendants in
tribal courts. Despite these successes, perpetrators still find gaps in
the law. Victims of sexual violence, child abuse, stalking,
trafficking, elder abuse, and assaults against law enforcement officers
deserve the same protections that Congress affords to domestic violence
victims on tribal lands in VAWA 2013.
It is particularly important that the final bipartisan VAWA bill
recognizes that Indian children are equally in need of the protections
that were extended to adult domestic violence victims in VAWA 2013. The
Tribal Nations implementing VAWA 2013 report that children have been
involved as victims or witnesses in their cases nearly 60 percent of
the time. However, federal law failed to restore tribal jurisdiction to
prosecute these crimes. The Title IX discussion draft language would
restore this category of jurisdiction and allow tribes to protect
Indian children in their tribal justice systems.
We ask that the Title IX discussion draft be amended to include
crimes against elders, which was a category of restored jurisdiction
included in the House bill, H.R. 1620, but not the bipartisan Senate
Committee on Indian Affairs discussion draft. Indian elders are an
integral part of tribal communities to whom we owe respect and care.
Indian elders carry their cultures and traditions, and we must ensure
that they are not left behind in this reauthorization of VAWA.
We also appreciate that the Title IX discussion draft recognizes
that VAWA 2013 inadvertently left tribal police officers and detention
personnel at risk. Domestic violence cases are both the most common and
the most dangerous calls that law enforcement receives. Several Tribal
Nations have reported assaults on their officers or bailiffs committed
by non-Indian defendants, but as of now, Tribal Nations remain unable
to prosecute these crimes, as assaults on law enforcement was not a
restored category of jurisdiction in VAWA 2013. This creates an obvious
public safety concern. In order to ensure that the Title IX discussion
draft fully rectifies this issue, we strongly recommend amending the
draft language on page ten to remove the requirement that the assault
must be tied to a ``covered crime.'' Requiring that the assault of the
tribal justice personnel be tied to a ``covered crime'' may require the
Tribal Nation to first prove the underlying covered crime before they
could prosecute for the assault, which does not fully fix the public
safety concern of police officers or detention personnel. This creates
significant confusion that likely would have to be worked out in the
courts. We ask that the language fully cover all assaults of tribal
justice personnel and not mention anything related to a ``covered
crime.''
Section 904 provides a local solution for the local problem of
criminal victimization in Indian country. We are pleased to see that
the bipartisan Title IX discussion draft continues to build on VAWA's
promise and includes key priorities that have been identified by Tribal
Nations to further enhance safety for victims in tribal communities.
The Title IX discussion draft clarifies that Tribal Nations in
Maine are included in the law and creates a pilot project to address
the unique needs in Alaska. We fully support the inclusion of all
Tribal Nations in VAWA. Alaska Native women are over-represented among
domestic violence victims in Alaska by 250 percent and make up 47
percent of reported rape victims in the state, yet 1 in 3 rural Alaskan
communities have no law enforcement presence. The Title IX discussion
draft includes a pilot project that will enable a limited number of
Tribal Nations in Alaska to exercise special tribal criminal
jurisdiction over certain crimes that occur in Alaska villages.
In addition to the lifesaving provisions outlined above, the
bipartisan Title IX discussion draft creates a reimbursement program
under which the Attorney General may reimburse Tribal Nations for
expenses incurred in exercising special tribal criminal jurisdiction.
We would ask that that reimbursement program language be expanded to
include reimbursements for trial and appellate courts (including
facilities maintenance, renovation, and rehabilitation.) Additionally,
the time for the Attorney General to develop regulations for the
program should be shortened from within one year to within six months
after the effective date to ensure that this important program is
implemented quickly to address the urgent need in Indian Country.
The Title XI discussion draft also allows Tribal Nations to utilize
the Bureau of Prisons (BOP) to house defendants serving sentences of
more than one year and increases Tribal Nations' access to the National
Crime Information Database. Both of these additions to VAWA will go a
long way towards ensuring Tribal Nations are able to implement this
restored jurisdiction fully and most effectively.
We fully support the purpose of Title IX, which is to strengthen
tribal sovereignty and reaffirm tribal jurisdiction over non-Indian
perpetrators. We also support providing additional resources to address
violence against all Native women. However, the new language in the
Section 901 Findings and Purposes, which adds Native Hawaiians, urban
Indians communities, Native Americans, and Native American communities,
jeopardizes the long-term enforcement of the law and detracts from the
key purpose of Title IX. For those reasons we strongly recommend that
all Native Hawaiian, urban Indian communities, Native American, and
Native American communities language be removed from Section 901. The
language in Section 901 should solely focus on American Indians, Alaska
Natives, and Indian tribes in order to protect tribal sovereignty,
which is consistent with the purpose of the Title IX.
We urge all members of the Senate Committee on Indian affairs to
support the provisions included in the bipartisan Title IX discussion
draft and to become a co-sponsor of the full bipartisan Senate VAWA
bill that incorporates all of the discussion draft provisions and our
recommended changes.
Sincerely,
Jerry Gardner, Executive Director
______
Pascua Yaqui Tribe of Arizona
December 21, 2021
Dear Senator Schatz, Senator Murkowski, and all members of the Senate
Committee on Indian Affairs:
I write on behalf of the Pascua Yaqui Tribe of Arizona to support
the bipartisan Violence Against Women Act (VAWA) Title IX--SAFETY FOR
INDIAN WOMEN discussion draft released on December 8, 2021, which
includes important provisions that will improve safety and justice in
tribal communities. Tribal communities continue to suffer from the
highest crime victimization rates in the country, and the reforms
included in the bipartisan Title IX discussion draft are desperately
needed today.
A 2016 report by the National Institute of Justice found that over
80 percent of American Indians and Alaska Natives will be a victim of
intimate partner violence, sexual violence, or stalking in their
lifetime. The study also found that 90 percent of these victims were
victimized by a nonIndian perpetrator. Sadly, Indian children are
particularly impacted by this violence and are 50 percent more likely
to experience child abuse and sexual abuse than white children. The
complicated jurisdictional framework at play in Indian country and
Alaska continues to undermine safety for American Indian and Alaska
Native victims of violence.
Tribal Nations have been exercisingjurisdiction over non-Indian
domestic violence offenders under VAWA 2013 for over 8 years. The
Pascua Yaqui Tribe is one of the first three pilot tribes to implement
VAWA's Special Domestic Violence Criminal Jurisdiction (SDVCJ).
Exercising Tribal Nations have held serial offenders accountable and
have brought justice and safety to hundreds of victims and their
families while upholding the due process rights of all defendants in
tribal courts. Despite these successes, as outlined below, perpetrators
still find gaps in the law. Victims of sexual violence, child abuse,
stalking, trafficking, elder abuse, and assaults against law
enforcement officers deserve the same protections that Congress affords
to domestic violence victims on tribal lands in VAWA 2013.
It is particularly important that the final bipartisan VAWA bill
recognizes that Indian children are equally in need of the protections
that were extended to adult domestic violence victims in VAWA 2013. The
Tribal Nations implementing VAWA 2013 report that children have been
involved as victims or witnesses in their cases nearly 60 percent of
the time. However, federal law failed to restore tribal jurisdiction to
prosecute these crimes. The Title IX discussion draft language would
restore this category of jurisdiction and allow us to protect our
Indian children in our tribal justice systems.
We ask that the Title IX discussion draft be amended to include
crimes against elders, which was a category of restored jurisdiction
included in the House bill, H.R. 1620, but not the bipartisan Senate
Committee on Indian Affairs discussion draft. Indian elders are an
integral part of our tribal communities to whom we owe respect and
care. Indian elders carry our cultures and traditions, and we must
ensure that they are not left behind in this reauthorization of VAWA.
We also appreciate that the Title IX discussion draft recognizes
that VAWA 2013 inadvertently left our tribal police officers and
detention personnel at risk. Domestic violence cases are both the most
common and the most dangerous calls that law enforcement receives.
Several Tribal Nations have reported assaults on their officers or
bailiffs committed by non-Indian defendants, but as of now, Tribal
Nations remain unable to prosecute these crimes as assaults on law
enforcement was not a restored category of jurisdiction in VAWA 2013.
This creates an obvious public safety concern. In order to ensure that
the Title IX discussion draft fully rectifies this issue, we strongly
recommend amending the limiting draft language on page ten related to
``covered crime,'' and instead include language that fully covers all
assaults of tribal justice personnel and not mention anything related
to a ``covered crime.''
Section 904 provides a local solution for the local problem of
criminal victimization in Indian country. We are pleased to see that
the bipartisan Title IX discussion draft continues to build on VAWA's
promise and includes key priorities that have been identified by Tribal
Nations to further enhance safety for victims in tribal communities.
The Title IX discussion draft clarifies that Tribal Nations in
Maine are included in the law and creates a pilot project to address
the unique needs in Alaska. We fully support the inclusion of all
Tribal Nations in VAWA. Alaska Native women are over-represented among
domestic violence victims in Alaska by 250 percent and make up 47
percent of reported rape victims in the state, yet 1 in 3 rural Alaskan
communities have no law enforcement presence. The Title IX discussion
draft includes a pilot project that will enable a limited number of
Tribal Nations in Alaska to exercise special tribal criminal
jurisdiction over certain crimes that occur in Alaska villages.
In addition to the lifesaving provisions outlined above, the
bipartisan Title IX discussion draft creates a reimbursement program
under which the Attorney General may reimburse Tribal Nations for
expenses incurred in exercising special tribal criminal jurisdiction.
We would ask that that reimbursement program language be expanded to
include reimbursements for trial and appellate courts (including
facilities maintenance, renovation, and rehabilitation.) Additionally,
the time for the Attorney General to develop regulations for the
program should be shortened from within one year to within six months
after the effective date to ensure that this important program is
implemented quickly to address the urgent need in Indian Country.
These are urgent needs because the first responsibility of any
government, tribal or otherwise, is the safety and protection of its
people. Protecting victims of violent crime, domestic violence, and
sexual assault is about justice and safety, and it is also about
fairness, equity, and dignity. Violent behavior against intimate
partners or vulnerable family members by tribal citizens or non-Indians
and missing and murdered family members are matters that can no longer
tolerated. It is time to intensify our shared efforts to prevent and
combat domestic violence, particularly against American Indian and
Alaska Native women and ensure that all cases of domestic violence are
investigated, perpetrators prosecuted, and victims provided with
appropriate remedies. We must guarantee the right, in law and practice,
to access to justice. Jurisdictions lacking proper resources,
coordination, communication, and accountability is the primary reason
for victims being neglected, criminals escaping punishment, and for the
human rights crisis of Missing and Murdered Indigenous Women, and Girls
(MMIWG).
Congress should continue to work with the Biden Administration to
reauthorize and amend VAWA to fully restore tribal inherent criminal
and civil jurisdiction, through a full ``Oliphant-Fix,'' and should
support and reaffirm tribal civil and criminal jurisdiction over all
wrongdoers, for all federally recognized Indian tribes that wish to
exercise such jurisdiction. Recently, the Supreme Court in US. v.
Cooley, re-affirmed the constitutional authority of Congress to restore
the Tribal jurisdiction that Oliphant previously erased, concluding
that ``[i]n all cases, tribal authority remains subject to the plenary
authority of Congress.'' \1\
---------------------------------------------------------------------------
\1\ United States v. Cooley, 141 S. Ct. 1638 (2021); See also,
McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).
---------------------------------------------------------------------------
Currently, SDVCJ under VAWA 2013 is limited to only crimes of
domestic violence, dating violence, or violations of an order of
protection committed in Indian Country, where the defendant is a spouse
or intimate partner of a tribal member. VAWA does not permit tribal
prosecutions unless the defendant has ``sufficient ties to the Indian
tribe,'' meaning he/she must either reside in the Indian country of the
prosecuting tribe, be employed in the Indian country of the prosecuting
tribe or be the spouse or intimate partner of a member of the
prosecuting tribe. The proposed VAWA Reauthorization will certainly
help address some of the gaps to cover children and other ancillary
crimes a VAWA defendant may commit. However, now that tribes are
required to guarantee all aspects of due process that states do, there
is no longer any reason why additional restoration of inherent criminal
and civil jurisdiction of tribal courts should be delayed. Full
restoration would help ensure fairness, safeguard tribal communities,
and help clear up long standing jurisdictional problems.
In 1978, the Supreme Court upheld a decision in Oliphant v.
Suquamish Tribe (1978) that effectively removed tribal authority to
prosecute non-Indian criminal offenders. \2\ This Supreme Court
decision has had a wide range of negative impacts on tribal
communities, especially concerning community safety and health.
According to Oliphant, the task of prosecuting non-Indians for crimes
committed within reservations belonged to the state or federal
government. However, the state and federal governments lack the time
and resources to properly prosecute crimes. Problems tied to
jurisdiction since Oliphant led to an inadequate legal response to
crimes, allowing violence against women and judicial and health
inequities to fester uncontrolled in Indian Country for decades. Tribes
were unable to fully address crimes committed by non-Indians, in
particular domestic violence, and inaction by the state and federal
governments have left victims of crime without justice. \3\
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\2\ Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
\3\ Prior to the 2013 reauthorization of VAWA, the federal
government declined to prosecute 75 percent of violent crimes reported
in Indian Country--67 percent of intimate partner violence (IPV) crimes
were crimes of sexual violence (Amnesty International, 2010). This lack
of justice and health equity led to underreporting from American Indian
women. Additionally, women who did decide to report were left in a
vulnerable state because of the lack of repercussions for crimes
related to IPV. Three distinct, yet interrelated, issues arose from
Oliphant led to the inequities described, including lack of federal
action to address violence by non-Indians on reservations, another is
impunity or lack of deterrence for abusers, and the third is lack of
protection, remedy, and justice for victims. The Oliphant v. Suquamish
decision created a gaping hole in jurisdiction.
---------------------------------------------------------------------------
On March 7, 2013, President Obama signed into law the Violence
Against Women Reauthorization Act of 2013. \4\ Title IX of VAWA 2013,
entitled ``Safety for Indian Women,'' contains section 904 (Tribal
Jurisdiction over Crimes of Domestic Violence) and section 908 (Pilot
Project). \5\ It included the SDVCJ provision that provides tribes with
limited jurisdiction over nonIndian perpetrators of crimes of domestic
violence, dating violence, and violations of protection orders. The
purpose of the law was to decrease domestic violence in Indian Country,
strengthen the capacity of Indian tribes to exercise their inherent and
restored sovereign power to administer justice and control crime, and
to ensure that perpetrators of domestic violence are held accountable
for their criminal behavior. \6\
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\4\ Public Law 113--4, 127 Stat. 54 (2013); see Remarks on Signing
the Violence Against Women Reauthorization Act of 2013, 2013 Daily
Comp. Pres. Docs. 139 (Mar. 7, 2013).
\5\ Section 908(b)(l) provided that tribes generally cannot
exercise Special Domestic Violence Criminal Jurisdiction (SDVCJ) until
at least two years after the date ofVAWA 2013's enactment-that is, on
or after March 7, 2015. However, section 908(b)(2) established a
``Pilot Project'' that authorized the Attorney General, in the exercise
of his discretion, to grant a tribe's request to be designated as a
``participating tribe'' on an accelerated basis and to commence
exercising SDVCJ on a date (prior to March 7, 2015) set by the Attorney
General, after coordinating with the Secretary of the Interior,
consulting with participating tribes, and concluding that the tribe's
criminal justice system has adequate safeguards in place to protect
defendants' rights under the Indian Civil Rights Act of 1968, as
amended by VAWA 2013. Under VAWA SDVCJ authority a tribe must protect
the rights of defendants under the Indian Civil Rights Act of 1968,
including the right to due process, which requires including a fair
cross-section of the community injury pools which does not
systematically exclude non-Indians. Further, the due process rights
also require informing defendants detained by a tribal court of their
right to file federal habeas corpus petitions.
\6\ See S. Rep. No. 112-153, at 8-11, 32 (2012); see also S. 1763,
112th Cong., at 1-2 (as reported by the S. Comm. on Indian Affairs,
Dec. 27, 2012) (title listing bill's purposes); H.R. 757, 113th Cong.,
at 1 (2013) (same).
---------------------------------------------------------------------------
Three initial tribes, including the Pascua Yaqui Tribe (PYT) in
Arizona, were selected and certified by the Department of Justice to
pilot the implementation of VAWA 2013's SDVCJ. \7\ The passing of VAWA
2013 was a success that is celebrated to this day and implementation of
VAWA 2013, coupled with the tools of the ``Tribal Law & Order Act of
2010'' (TLOA), is having a positive impact in Indian Country. Recent
VAWA and TLOA restored authority provided measured tools that foster
longstanding policies of tribal self-determination and tribal self-
governance. It is wholly consistent with the federal government's trust
responsibility and the policy pendulum swing towards autonomy, economic
self-sufficiency, and the protection and preservation of Native
American land and culture.
---------------------------------------------------------------------------
\7\ Confederated Tribes of the Umatilla Indian Reservation; Pascua
Yaqui Tribe; and The Tulalip Tribe. https://www.govinfo.gov/content/
pkg/FR-2014-02-12/pdf/2014-03023.pdf
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As one of the first tribes to implement VAWA SDVCJ, the PYT has
conducted 101 investigations of domestic violence perpetrated by 64
non-Indian defendants (57 male, 7 female). There have been 80 cases
charged in the Pascua Yaqui Tribal Court, resulting in 37 convictions.
\8\ Intrinsic case-related data has been collected and reported but
data on the health impacts experienced by victims, their families, and
the community have not been collected. Our experience tells us that
with VAWA, we have a long-term solution that is tied directly to tribal
historic authority of protecting our people. Tribes know best about
what policies and enforcement strategies work in tribal communities.
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\8\ In part, as a result of the legal analysis of ``domestic
violence'' in the United State Supreme Court decision in US. v.
Castleman, a total of 32 cases were dismissed and 21 were declined for
evidentiary reasons.
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The domestic violence cases investigated and prosecuted by the
Pascua Yaqui Tribe are significant, because they highlight crimes that
were never prosecuted before the implementation of VAWA 2013's SDVCJ.
They are not intra-racial crimes; they are crimes committed by non-
Native perpetrators and the cases provide evidence of a serious
jurisdictional gap that still exists in Arizona and across Indian
Country. The Tribe is excited and committed to collaborating with its
state and federal partners to ensure the public safety of its community
through restored jurisdiction. SDVCJ is a positive step forward to
ensuring the safety of community and is necessary to ensure that there
are no safe havens for criminals.
We have learned that the tribal provisions of VAWA 2013, provide a
mechanism for Tribes to afford the victims of domestic violence the
maximum protection that the law currently provides. The safety of
victims of domestic violence and drug and alcohol related crimes became
easier to address through the increased intervention of Tribal law
enforcement, Tribal Special Assistant U.S. Attorneys (SAUSA), and
support from federal investigative partners and U.S. Attorney Tribal
Liaisons. Systemic disparate treatment and inherent structural bias for
Indian Country victims and communities has begun to be adjusted and is
now fairer and more just within Indian communities.
We have also learned that the rightful starting place to reverse
historical jurisdictional problems and injustices in Indian Country is
strong tribal court systems. Although the historical and legal
responsibility to prosecute major crimes has fallen to the federal
government since 1885, prior to that time, Indian tribes largely
maintained their own traditional criminal and civil mechanisms in
Indian Country. Tribes are in the best position to close jurisdictional
gaps and remove safe havens for lawbreakers. Criminal investigations
occur at the local level. Local government is the best government to
prosecute cases to protect Indian Country's mothers, fathers,
daughters, sons, sisters, brothers, aunts, uncles and grandparents.
Additionally, VAWA Bureau of Indian Affairs (BIA) funded training,
hosted by implementing Tribes have informed State, Tribal, and Federal
courts, helping to increase regional cooperation and coordination among
jurisdictions. \9\ Intimate partner violence is a crossjurisdictional
matter, the prosecution of non-Indian domestic violence offenders by
Tribal courts requires the sharing of offender criminal history
information, orders of protection, gun prohibitions pursuant to the
Brady Act, \10\ warrants, and information about offenders being
monitored on pretrial release or who have been convicted and are
serving a term of tribal probation in the surrounding counties or
municipalities. The sharing of crime information is being enhanced by
the implementation of the Department of Justice, Tribal Access Program
(TAP) by VAWA SDVCJ Implementing Tribes. \11\
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\9\ 25 U.S.C. 3612(c)( 4)(2000). The Tribal Justice Support
Division of the Office of Justice Services, Bureau of Indian Affairs,
is statutorily mandated to support and provide opportunities for
coordination and corporation between Tribal and State Judiciary
systems.
\10\ The Brady Handgun Violence Prevention Act of 1993 (Brady Act)
requires the use of the National Instant Criminal Background Check
System (NICS) by federally licensed firearms dealers to determine
whether a prospective firearm transfer to individuals applying to
receive or possess firearms would violate state or federal law. The
NICS is a computerized system designed to immediately make such a
determination by conducting a search of available records. A NICS check
searches by name and descriptive data for matching records in three
databases, the NCIC which contains information on wanted persons and
protection orders, the Interstate Identification Index (III) which
contains criminal history records, and the NICS Indices which contains
the names of prohibited persons as defined in the Brady Act. The NICS
Indices contains information that may not be available in the NCIC or
the III of persons prohibited from receiving firearms under federal or
state law. The NCIC's Protection Order File (POF) was established in
accordance with the Violence Against Women Act (VAWA), and in support
of the Violent Crime Control and Law Enforcement Act which permits
information from the NCIC databases, including protection orders, to be
disseminated to civil and criminal courts for use in domestic violence
and stalking cases. The VAWA also authorizes state and federal criminal
justice agencies to enter information into the POF for the purpose of
protecting persons from domestic violence and stalking. Additionally,
the VAWA amended the Gun Control Act of 1968, making it unlawful for
any person who is subject to a qualifying protection order to ship,
transport, possess, or receive any firearm.
\11\ Available at https://www.justice.gov/tribal/tribal-access-
program-tap, last visited December 21, 2021. Due to structural
obstacles, most Tribes are still unable to upload or share data on
MMIWG, Missing Persons, Violent offenders, Orders of Protection, or
Domestic Violence court orders/convictions. Tribes need registration/
data systems, policies, technical infrastructure, training, procedures,
and necessary laws or codes to facilitate prosecutions, investigations,
reporting, and submissions to NCIC/NSOR for aggregate data collection
and/or publishing.
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The training provides an overview of the Violence Against Women Act
(VAWA), to help with successful implementation and address violent
crime generally, promote working relationships with state and federal
partners, and provides guidance on issues related to victims of crime
and the enforcement of orders of protection. Information sharing
between tribal judicial systems and state judicial systems is
imperative for the proper function of courts operating in a cross-
jurisdictional environment. In Arizona, where tribal jurisdiction is
often challenging, TribalState Court collaboration has shown to be a
promising strategy utilized to reduce jurisdictional conflict, build
relationships, and provide cross-jurisdictional education and
resources.
Pascua Yaqui VAWA Implementation
On March 7, 2013, VAWA 2013 was signed into law by President Obama.
On June 26, 2013, the U.S. Attorney for the District of Arizona, John
Leonardo, visited the Pascua Yaqui Tribe and toured the tribal court
facility. The Tribe expressed an interest in the implementation of
Special Domestic Violence Criminal Jurisdiction. On July 09, 2013, the
Tribal Chairman submitted a letter to the Department of Justice's, Mr.
Tracy Toulou, as a preliminary expression of interest in exercising
SDVCJ and asked to be designated as a participating Tribe. On July 15,
2013, the Pascua Yaqui Tribe was one of approximately 27 federally
recognized Indian tribes that timely sent ``preliminary expressions of
interest'' in participating in the Pilot Project. By doing so, tribes
expressed an interest in participating in both Phase One and Phase Two
of the Pilot Project.
The Department of Justice launched the Intertribal Technical-
Assistance Working Group on Special Domestic Violence Criminal
Jurisdiction (ITWG), as part of Phase One of the Pilot Project. The
ITWG is a voluntary working group of designated tribal representatives
who exchange views, information, and advice, peer-to-peer, about how
tribes may best exercise SDVCJ, combat domestic violence, recognize
victims' rights and safety needs, and safeguard defendants' rights.
Since the launch tribal representatives continue to participate in a
series of teleconferences, participated as panelists, and participated
in ITWG in-person meetings.
On December 30, 2013, the Tribe submitted an extensive application
to the DOJ to be designated a Pilot Tribe and to start exercising SDVCJ
(Phase II). \12\ On February 6, 2014, the Tribe received official
notice that the Tribe was designated a participating Pilot Tribe
authorized to exercise SDVCJ. \13\ The Pascua Yaqui Tribe SDVCJ Pilot
status story was picked up and released locally, statewide, and
nationally, via press release by the White House. \14\ On February 12,
2014, VAWA Pilot information was posted for notice in the Federal
Register by the Department of Justice. \15\ Official Tribal notice was
sent out via global e-mail to all tribal government and casino
enterprise employees, as well as being posted on the official Pascua
Yaqui Tribal Internet site on February 6th, 2014. On February 10th,
2014, the Arizona Daily Star ran a front-page story that circulated to
238,000 readers in Southern Arizona, including the City of Tucson. The
story was also posted on their online news site. The online AZSTARNET
has a reach of 1 million independent views per month and has
approximately 12 million page views per month. \16\ The Pascua Yaqui
press release was shared online through a leading Internet Indian
Country legal news blog called ``Turtle Talk,'' it was posted on
February 7, 2014. \17\
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\12\ Available at https://www.justice.gov/sites/default/files/
tribal/legacy/2014/02/06/appl-guestionnaire-pascuayagui.pdf. Last
visited December 21, 2021.
\13\ Available at http://www.justice.gov/tribal/docs/letter-to-
pascua-yagui.pdf. Last visited December 21, 2021.
\14\ Available at http://www.whitehouse.gov/blog/2014/02/06/moving-
forward-protect-native-american-women-justicedepartment-announces-vawa-
2013-, last visited December 21, 2021, Department of Justice (Attorney
General) http://www.justice.gov/opa/pr/2014/February/14-ag-126.html,
the U.S. Attorney for the District of Arizona, http://www.justice.gov/
usao/az/pressreleases/2014/PR02062014Vawa.html
\15\ Fed. Reg. Volume 79, Number 29 (Wednesday, February 12,
2014)][Notices][Pages 8487-8488] Federal Register Online via the
Government Printing Office [www.gpo.gov] [FR Doc No: 2014-03023] http:/
/regulations.justia.com/regulations/fedreg/2014/02/l2/2014-03023.html
See also 78 Fed. Reg. 71645 (Nov. 29, 2013)
\16\ Available at http://azstarnet.com/news/local/pascua-yagui-
gain-added-power-to-prosecute-some-non-indians/aiticle34l7ac6ec683-
50d4-9a55-cc386524c468.html. Last visited December 21, 2021.
\17\ Available at http://turtletalk.wordpress.com/2014/02/07/
pascua-yagui-press-release-re-vawa-pilot-program-selection/. Last
visited December 21, 2021.
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On February 20, 2014, the Pascua Yaqui Tribe was one of three
Tribes to begin exerc1smg Special Domestic Violence Criminal
Jurisdiction over non-Indian perpetrators of domestic violence. \18\ On
July 2, 2014, for the first time since 1978 when the U.S. Supreme Court
stripped tribal governments of their criminal authority over non-
Indians, the Pascua Yaqui Tribe obtained the first conviction of a non-
Indian, a twenty-six-year-old Hispanic male, for the crime of domestic
violence assault committed on the Pascua Yaqui Reservation. On May 9,
2017, the Pascua Yaqui Tribe's Tribal Court was the location of the
first jury trial conviction of a non-Indian defendant under VAWA. Frank
Jaimez was the first non-Indian defendant to be convicted by a jury in
tribal court for a tribal charge of domestic violence. This was the
first non-Indian defendant jury trial conviction in a tribal court in
40 years due to VAWA 2013's SDVCJ. The 19-year-old Hispanic male was
convicted of committing an act of domestic violence against his wife,
an enrolled Yaqui tribal member.
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\18\ The Pascua Yaqui Tribe has a modem, professional and highly
functional criminal justice system with the following services
available: Tribal Courts, Appellate Courts, pre-trial services,
probation, prosecution and a public defender's office, as well as
police, detention and victim services. The system is very responsive to
public safety needs as well as affording offenders all the protections
of due process. The Tribal Court has one Chief Judge and two associate
judges. The Appellate Court has one Chief Justice. The Prosecutor's
Office has one Chief Prosecutor, four Deputy Prosecutors, and four lay
Advocates. The Public Defender's Office is composed of one Chief Public
Defender, three attorneys, and one lay advocate. In addition, the Tribe
contracts with outside attorneys as needed for conflict counsel. The
Probation Department has one Chief Probation Officer and three
probation officers. The Probation caseload monitors both adult
probationers and juvenile probationers. Despite the existing tribal
justice infrastructure, there is broad community support for developing
a more collaborative, problem-solving approach and more alternatives to
incarceration. In 1978, the Tribe was originally subject to Arizona
State jurisdiction under 25 U.S.C. 1300f(c) and PL280. In 1985, the
State of Arizona retroceded criminal & civil jurisdiction. Between 1985
and 1988, the Department of Interior operated the Pascua Yaqui tribal
court system through a ``Court of Indian Offenses,'' a ``CFR'' Court
operated by the Bureau of Indian Affairs, (B.I.A.). In 1988, the Tribe
took over the Tribal Court from the B.I.A. through a 638 contract. In
1991, the Tribe hired three Tribal police officers who served alongside
the B.I.A. officers. In 1998, The Tribe signed a 638 agreement with the
B.I.A. to direct its own law enforcement services. In 1997, the Tribe
started the Pascua Yaqui Victim Services program. Currently, the Tribe
employs nineteen uniformed patrol officers who are certified by Arizona
P.O.S.T as State certified officers and most are federal Special Law
Enforcement Commissioned (SLEC) certified officers. Three of the
officers are Criminal Investigators. The Tribe also employs a number of
victim advocates. The Tribe is also served by the Federal Bureau of
Investigation (F.B.I.) (Phoenix Division), for assistance with major
criminal investigations. In 1993, the Tribe entered into a User
Agreement with the Arizona Department of Public Safety (DPS) for
limited NCIC and ACJIS criminal information access. In 2005, the Tribe
entered into an Intergovernmental Agreement with Pima County to
participate in the Pima County Regional Special Weapons and Tactics
(SWAT) Team program for police SWAT services. In 2006, the Tribe
approved an Intergovernmental Agreement with Arizona DPS for crime
laboratory services for the purpose of examining and processing
evidence collected during criminal investigations. In 2009, the Tribe
entered into an Intergovernmental Agreement (IGA) with the Pima County
Sheriffs Department for participation in the Spillman Records
Management System and Computer Aided Dispatch System in order to
enhance their limited access to ACJIS, NCIC, ALETS, NLETS, and MVD
databases. In 2010, the Tribe entered into an IGA with Pima County to
take part in the Pima County Wireless Integrated Network (PCWIN). PCWIN
provides improved public emergency services and regionally coordinated
mutual aid.
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Since implementation, the Pascua Yaqui Tribe has investigated over
100 cases and formally charged over 80 cases involving non-Indian males
and non-Indian females, mostly from the State of Arizona, who were
involved in dozens of reported domestic violence crimes. It is
important to note that prior to VAWA 2013, these are cases that were
historically being ignored or declined by federal authorities.
The Pascua Yaqui Tribe has had significant success holding non-
tribal Domestic Violent offenders accountable for offenses committed on
the reservation. The 100+ investigations have been perpetrated by 64
defendants, and of these defendants, there have been at least 34
instances of them committing subsequent offenses after their first
arrest. At least one of these repeat offenders had been previously
prosecuted federally. The cases include violent injuries such as hair
dragging, strangulation, bruising, closed fist strikes to the face, and
throwing fire. The violent actions of non-Indian and violent major
crime offenders are not traditional, they are not cultural, and they
are not the norm for the community. Tribes know best about what
policies and enforcement strategies work in tribal communities, and so
giving tribes greater jurisdiction allows them to continue their duty
of protecting their people and community.
One continued frustration about the current legislation that the
newly proposed language aims to address is the Tribe's inability to
charge non-Indians for acts of domestic violence where the victim is a
child or elder (grandparent). Given the Pascua Yaqui tribe's
multigenerational household demographics, this is a large and
significant gap in the law for this tribe and certainly many others.
There have been approximately 32 children present during the acts of
domestic violence at Pascua Yaqui. These children range in age from
infant to 11 years old. Some of them have been witnesses to domestic
violence, the reporting party of the domestic violence act(s), and
victims themselves. This gap in jurisdiction prevents the Tribe from
protecting the most vulnerable and impressionable of their people,
children, and take the necessary steps to stop the cycle of trauma.
Other typical situations of domestic violence give rise to
circumstances which would otherwise be chargeable crimes, had the
perpetrator been tribal or if the crime occurred off the reservation
and the State handled the prosecution. Increasing jurisdiction for
tribes could serve to correct injustices, such as:
A non-tribal offender was arrested for domestic violence, but
there was a secondary victim present, i.e., the sister of the
original victim. The Tribe was unable to issue any charges
relating to the victimization of the sister due to lack of
jurisdiction.
The Tribe also lacked jurisdiction in a case where the
Defendant, who was on probation for a VAWA-related offense,
violated the terms and conditions of his probation specifically
prohibiting his possession and/or use of narcotic drugs. There
were no allegations that the Defendant committed any new
domestic violence related offenses against a tribal member. The
case was ultimately declined as the Defendant's possession/use
of narcotic drugs did not fall within in the limited scope of
SDVCJ jurisdiction, even as a probation violation.
In another case, during the pendency of a VAWA investigation,
the victim had a new boyfriend who is a tribal officer, and the
Defendant made threats against him. However, the Tribe could
not charge the threats against the new boyfriend, even though
he is a Tribal officer, due to lack of jurisdiction.
In other cases, in which there was probable cause for DY-
disorderly conduct offense, but not physical violence, the
Tribe could not prosecute, as this presented a Castleman issue.
Thus, all these cases could not be charged. This does not mean
there is no domestic violence occurring in the home, but that the Tribe
is limited in its response to the domestic violence and other violence
as a result of the limited legislation and this public safety problem
requires a legislative fix.
The Pascua Yaqui Tribe's criminal justice system is proving to be
on par with any other jurisdictions. The Tribe has held 3 jury trials,
with a mixed pool of jurors. The trials resulted in both a conviction
and acquittals, thus demonstrating that the Tribe has the ability to
safeguard due process rights for Defendants. The Tribe is committed to
collaborating with its state and federal partners to keep the safety of
its community and expand jurisdiction. While VAWA-SDVCJ was a positive
step forward to ensure that there are no safe havens for criminals,
additional jurisdiction is needed and the proposed language in Title IX
is a necessary positive step. The Pascua Yaqui Tribe has demonstrated
that the Tribe can successfully arrest, investigate, detain, sentence,
and hold a fair trial for any accused. There is no reason to continue
to limit Indian Country or the Pascua Yaqui Tribe's ability to protect
the people in their communities from non-Indian offenders. We look
forward to being able to enhance our public safety response with the
jurisdiction expansions in the proposed Title IX legislation.
We fully support the purpose of Title IX, which is to strengthen
tribal sovereignty and reaffirm tribal jurisdiction over non-Indian
perpetrators. We also support providing additional resources to address
violence against all Native women.
We urge all members qf the Senate Committee on Indian affairs to
support the provisions included in the bipartisan Title IX discussion
draft and to become a co-sponsor of the full bipartisan Senate VAWA
bill that incorporates all of the discussion draft provisions and our
recommended changes.
Sincerely,
Peter Yucupicio, Chairman
______
Sac and Fox Tribe of the Mississippi in Iowa
Dear Chair Schatz and Vice-Chair Murkowski:
I write on behalf of the Sac and Fox Tribe of the Mississippi in
Iowa to support the bipartisan Violence Against Women Act (VAWA) Title
IX--SAFETY FOR INDIAN WOMEN discussion draft which includes important
provisions that will improve safety and justice in tribal communities.
As a Tribe implementing VAWA 2013 Tribal jurisdiction, I can attest
that these proposed changes in the law are impo11ant to making tribal
communities safer.
As the Conunittee has well-documented, Tribal communities continue
to suffer from the highest crime victimization rates in the country,
and the reforms included in the bipartisan Title IX discussion draft
are desperately needed today. A 20 I 6 report by the National Institute
of Justice fow1d that over 80 percent of American Indians and Alaska
Natives will be a victim of intimate partner violence, sexual violence,
or stalking in their lifetime. The study also found that 90 percent of
these victims were victimized by a non-Indian perpetrator. Sadly,
Indian children are particularly impacted by this violence and are 50
percent more likely to experience child abuse and sexual abuse than
white children. The complicated jurisdictional framework at play in
Indian country and Alaska continues to undermine safety for American
Indian and Alaska Native victims of violence. Thus, clarifying that a
Tribe's expanded jurisdiction includes these crimes is vital.
We are also so appreciative that your draft legislation recognizes
that Indian children are equally in need of the same protections that
were extended to adult domestic violence victims in VAWA 2013. The
Tribal Nations implementing VAWA 2013 report that children have been
involved as victims or witnesses in their cases nearly 60 percent of
the time. We ask that the Title IX discussion draft include the
provision from the House bill, H.R. 1620, to include crimes against
elders. Elders are an integral part of our tribal communities to whom
we owe respect and care. We are also hopeful that the measure will
include the VAWA Reauthorization with Key provisions that recognize
Tribes' inherent jurisdiction over all crimes against law enforcement,
detention, and court personnel--not only those that are deemed
``covered crimes''.
We also suppo11 the new grant program to reimburse Tribal Nations
for expenses incurred in exercising special tribal criminal
jurisdiction and the extension of the Bureau of Prisons program first
authorized in the Tribal Law Order Act. Finally, we support the
expanded tribal access to the National Crime Information Database. This
is important to addressing the plague of missing and murdered
indigenous women in America.
Please let me know if there is anything I can do, as the Chairman
of the Sac and Fox Tribe of the Mississippi in Iowa, to suppo11 your
efforts. Again, we appreciate your leadership in drafting this
important measure and look forward to working with you in the New Year.
Sincerely,
Vern Jefferson, Chairman
______
Northern Arapaho Business Council
December 22, 2021
Dear Senator Schatz, Senator Murkowski, and all members of the Senate
Committee on Indian Affairs: I write on behalf of the Northern Arapaho
Tribe to support the bipartisan Violence Against Women Act (VAWA) Title
IX--SAFETY FOR INDIAN WOMEN discussion draft released on December 8,
2021, which includes important provisions that will improve safety and
justice in tribal communities. Tribal communities continue to suffer
from the highest crime victimization rates in the country, and the
reforms included in the bipartisan Title IX discussion draft are
desperately needed today.
A 2016 report by the National Institute of Justice found that over
80 percent of American Indians and Alaska Natives will be a victim of
intimate partner violence, sexual violence, or stalking in their
lifetime. The study also found that 90 percent of these victims were
victimized by a non-Indian perpetrator. Sadly, Indian children are
particularly impacted by this violence and are 50 percent more likely
to experience child abuse and sexual abuse than white children. The
complicated jurisdictional framework at play in Indian country and
Alaska continues to undermine safety for American Indian and Alaska
Native victims of violence.
Tribal Nations have been exercising jurisdiction over non-Indian
domestic violence offenders under VAWA 2013 for over 8 years.
Exercising Tribal Nations have held serial offenders accountable and
have brought justice and safety to hundreds of victims and their
families while upholding the due process rights of all defendants in
tribal courts. Despite these successes, perpetrators still find gaps in
the law. Victims of sexual violence, child abuse, stalking,
trafficking, elder abuse, and assaults against law enforcement officers
deserve the same protections that Congress affords to domestic violence
victims on tribal lands in VAWA 2013.
It is particularly important that the final bipartisan VAWA bill
recognizes that Indian children are equally in need of the protections
that were extended to adult domestic violence victims in VAWA 2013. The
Tribal Nations implementing VAWA 2013 report that children have been
involved as victims or witnesses in their cases nearly 60 percent of
the time. However, federal law failed to restore tribal jurisdiction to
prosecute these crimes. The Title IX discussion draft 2 language would
restore this category of jurisdiction and allow us to protect our
Indian children in our tribal justice systems.
We ask that the Title IX discussion draft be amended to include
crimes against elders, which was a category of restored jurisdiction
included in the House bill, H.R. 1620, but not the bipartisan Senate
Committee on Indian Affairs discussion draft. Indian elders are an
integral part of our tribal communities to whom we owe respect and
care. Indian elders carry our cultures and traditions, and we must
ensure that they are not left behind in this reauthorization of VAWA.
We also appreciate that the Title IX discussion draft recognizes
that VAWA 2013 inadvertently left our tribal police officers and
detention personnel at risk. Domestic violence cases are both the most
common and the most dangerous calls that law enforcement receives.
Several Tribal Nations have reported assaults on their officers or
bailiffs committed by non-Indian defendants, but as of now, Tribal
Nations remain unable to prosecute these crimes as assaults on law
enforcement was not a restored category of jurisdiction in VAWA 2013.
This creates an obvious public safety concern. In order to ensure that
the Title IX discussion draft fully rectifies this issue, we strongly
recommend amending the draft language on page ten to remove the
requirement that the assault must be tied to a ``covered crime.''
Requiring that the assault of the tribal justice personnel be tied to a
``covered crime'' may require the Tribal Nation to first prove the
underlying covered crime before they could prosecute for the assault,
which does not fully fix the public safety concern of police officers
or detention personnel. This creates significant confusion that likely
would have to be worked out in the courts. We ask that the language
fully cover all assaults of tribal justice personnel and not mention
anything related to a ``covered crime.''
Section 904 provides a local solution for the local problem of
criminal victimization in Indian country. We are pleased to see that
the bipartisan Title IX discussion draft continues to build on VAWA's
promise and includes key priorities that have been identified by Tribal
Nations to further enhance safety for victims in tribal communities.
The Title IX discussion draft clarifies that Tribal Nations in
Maine are included in the law and creates a pilot project to address
the unique needs in Alaska. We fully support the inclusion of all
Tribal Nations in VAWA. Alaska Native women are over-represented among
domestic violence victims in Alaska by 250 percent and make up 47
percent of reported rape victims in the state, yet 1 in 3 rural Alaskan
communities have no law enforcement presence. The Title IX discussion
draft includes a pilot project that will enable a limited number of
Tribal Nations in Alaska to exercise special tribal criminal
jurisdiction over certain crimes that occur in Alaska villages.
In addition to the lifesaving provisions outlined above, the
bipartisan Title IX discussion draft creates a reimbursement program
under which the Attorney General may reimburse Tribal Nations for
expenses incurred in exercising special tribal criminal jurisdiction.
We would ask that that reimbursement program language be expanded to
include reimbursements for trial and appellate courts (including
facilities maintenance, renovation, and rehabilitation.) Additionally,
the time for the Attorney General to develop regulations for the
program should be shortened from within one year to within six months
after the effective date to ensure that this important program is
implemented quickly to address the urgent need in Indian Country. The
Title XI discussion draft also allows Tribal Nations to utilize the
Bureau of Prisons (BOP) to house defendants serving sentences of more
than one year and increases Tribal Nations' access to the National
Crime Information Database. Both of these additions to VAWA will go a
long way towards ensuring Tribal Nations are able to implement this
restored jurisdiction fully and most effectively.
We fully support the purpose of Title IX, which is to strengthen
tribal sovereignty and reaffirm tribal jurisdiction over non-Indian
perpetrators. We also support providing additional resources to address
violence against all Native women. However, the new language in the
Section 901 Findings and Purposes, which adds Native Hawaiians, urban
Indians communities, Native Americans, and Native American communities,
jeopardizes the long-term enforcement of the law and detracts from the
key purpose of Title IX. For those reasons we strongly recommend that
all Native Hawaiian, urban Indian communities, Native American, and
Native American communities language be removed from Section 901. The
language in Section 901 should solely focus on American Indians, Alaska
Natives, and Indian tribes in order to protect tribal sovereignty,
which is consistent with the purpose of the Title IX.
We urge all members of the Senate Committee on Indian affairs to
support the provisions included in the bipartisan Title IX discussion
draft and to become a co-sponsor of the full bipartisan Senate VAWA
bill that incorporates all of the discussion draft provisions and our
recommended changes.
Sincerely,
Jordan Dresser, Chairman
______
Sacramento Native American Health Center, Inc. (SNAHC)
December 22, 2021
Dear Chairman Schatz and Vice Chairman Murkowski:
Thank you for the opportunity to provide comments on the Violence
Against Women Act (VAWA) reauthorization discussion draft. On behalf of
Sacramento Native American Health Center, Inc. (SNAHC) in Sacramento,
California, we hereby submit our written comments and recommendations
in response to the tribal title draft \1\ and larger bill. SNAHC is a
non-profit 501 (c)(3) Federally Qualified Health Center located in
Downtown Sacramento. SNAHC is community-owned and operated; a Board of
Directors governs the center. SNAHC is committed to enhancing the
quality of life by providing a culturally competent, holistic, and
patient-centered continuum of care. SNAHC's dedicated team of highly
trained clinicians offer a wide range of services, including adult
medicine, pediatrics, behavioral health, laboratory, dental care,
substance abuse services, wellness programs, nutrition, herbalism, and
diabetes care.
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\1\ Discussion draft of Title IX of VAWA: https://
www.indian.senate.gov/sites/default/files/KEN21B05.pdf
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Comments
Urban Indian Organizations (UIOs) like ours provide much more than
just health services to American Indians and Alaska Natives including
but not limited to the Special Supplemental Nutrition Program for
Women, Infants, and Children (WIC), housing services, social services,
community advocacy, and other resources to victims of domestic
violence. Many UIOs conduct home visits and are at the front-line to
identify domestic violence and other risk factors for Missing and
Murdered Indigenous People (MMIP). Urban Indian inclusion in VAWA is
important to strengthen these critical services provided at UIOs for
American Indians/Alaska Natives (AI/ANs), and the National Council of
Urban Indian Health (NCUIH) has advocated for urban Indians to be added
in the Senate draft bill. This is a huge accomplishment given that the
House bill on VAWA (H.R. 1620) excluded UIOs and urban Indian
communities.
During the White House Tribal Nations Summit last month, President
Biden signed an Executive Order (E.O.) \2\ on addressing the crisis of
MMIP with UIO inclusion. The E.O. specifically mentions the Department
of Health and Human Services (HHS) and the Secretary of the Interior
conferring with UIOs on developing a comprehensive plan to support
initiatives related to MMIP. NCUIH and UIOs support urban confer among
federal agencies on policies that impact urban AI/ANs and have been
working on an urban confer bill \3\ that recently passed the House
(406-17) with overwhelming support. The E.O also highlights the need
for improved data surrounding this crisis as it relates to urban Indian
communities. NCUIH has, and continues to, advocate for gathering more
data on AI/AN communities and Missing and Murdered Indigenous People.
On July 2, 2021, NCUIH submitted comments to the Department of Justice
on Savannah's Act requesting UIOs and urban Indians to be incorporated
into improving data relevancy, access, and resources. We look forward
to participating in that effort and we hope that VAWA will help us
combat this epidemic in Indian country.
---------------------------------------------------------------------------
\2\ Executive Order on Improving Public Safety and Criminal Justice
for Native Americans and Addressing the Crisis of Missing or Murdered
Indigenous People: https://www.whitehouse.gov/briefing-room/
presidential-actions/2021/11/15/executive-order-on-improving-public-
safety-and-criminal-justice-for-native-americans-and-addressing-the-
crisis-of-missing-or-murdered-indigenous-people/
\3\ Urban Indian Health Confer Act: https://www.congress.gov/117/
meeting/house/114098/documents/BILLS-1175221ih.pdf
---------------------------------------------------------------------------
SNAHC would like to express appreciation for the inclusion of urban
Indians in 11 locations of the Senate draft bill. We respectfully ask
you retain the following provisions in the final Senate bill:
Bill Amendment: SEC. 101. Stop Grants
--Part T of title I of the Omnibus Crime Control and Safe
Streets Act of 1968 (34 U.S.C. 10441 et seq.) is amended--
--(25) paying any fees charged by any governmental authority
for furnishing a victim or the child of a victim with any of
the following documents:
``(B) An identification card issued to the individual by a
State or Tribe, that shows that the individual is a resident of
the State or a member of the Tribe.''; and
--(B) in Subsection (d)--
--i) in paragraph (1)-
--II) in subparagraph (D), by inserting ``, urban Indian
communities, and Native Hawaiian communities'' after
``assisting Indian tribes''; (ii) in paragraph (2)-
--I) in subparagraph (A)(iii), by inserting ``, urban Indian
communities, and Native Hawaiian communities'' after ``provide
services to Indian tribes''; and
--II) in subparagraph (B), by inserting ``, urban Indian
communities, and Native Hawaiian communities'' after ``in areas
where Indian tribes'';
Bill Amendment: SEC. 105. Outreach and Services to Underserved
Population Grants.
--Section 120 of the Violence Against Women and Department of
Justice Reauthorization Act of 2005 (34 U.S.C. 20123) is
amended--
--(2) in subsection (b)(3), by inserting ``urban Indian,
Native Hawaiian,'' before ``or local organization'';
Bill Amendment: SEC. 108. Enhancing Culturally Specific
Services for Victims of Domestic Violence, Dating Violence,
Sexual Assault, and Stalking
--Section 121 of the Violence Against Women and Department of
Justice Reauthorization Act of 2005 (34 U.S.C. 20124) is
amended-
--``(4) DISTRIBUTION.--Of the total amount available for
grants under this section, not less than 40 percent of such
funds shall be allocated for programs or projects that
meaningfully address non-intimate partner relationship sexual
assault.'';
(3) in subsection (c)--
--(A) in paragraph (1), by striking ``and'' at the end;
--(B) in paragraph (2), by striking the period at the end and
inserting ``; and''; and
--(C) by adding at the end the following:
--``(3) tribal nonprofit organizations, Native Hawaiian
organizations, and urban Indian organizations.'';
Bill Amendment: SEC. 110. Pilot Program on Restorative
Practices.
--a) IN GENERAL.--The Violence Against Women Act of 1994 (title
IV of Public Law 103-322), as amended by section 205, is
further amended by adding at the end the following:
--``Subtitle R-Restorative Practices
--``SEC. 41801. PILOT PROGRAM ON RESTORATIVE PRACTICES.
``(a) DEFINITIONS.--In this section:
--``(2) ELIGIBLE ENTITY.--The term `eligible entity' means-
--A) a State;
--B) a unit of local government;
--C) a tribal government;
--D) a tribal organization;
--E) a victim service provider;
--F) an institution of higher education (as defined in
section 101(a) of the Higher Education Act of 1965 (20 U.S.C.
1001(a)); and
--G) a private or public nonprofit organization, including
--(i) a tribal nonprofit organization; and
--ii) a faith-based nonprofit organization.
Bill Amendment: SEC. 302. Creating Hope through Outreach,
Options, Services, and Education (CHOOSE) for Children and
Youth
--Section 41201 of the Violence Against Women Act of 1994 (34
U.S.C. 12451) is amended--
--2) in subsection (c)--
(A) in paragraph (1)(A)--
--(ii) by inserting ``Native Hawaiian organization, urban
Indian organization,''
before ``or population-specific community-based organization''; and
Bill Amendment: SEC. 506. Expanding Access to Unified Care.
--(f) Authorization of Appropriations.--
--2) Set-Aside.--Of the amount appropriated under this
subsection for a fiscal year, the Secretary shall reserve 15
percent of such amount for purposes of making grants to
entities that are affiliated with Indian Tribes or Tribal
organizations (as defined in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5304)),
or Urban Indian organizations (as defined in section 4 of the
Indian Health Care Improvement Act (25 U.S.C.1603)). Amounts
reserved may be used to support referrals and the delivery of
emergency first aid, culturally competent support, and forensic
evidence collection training.
Bill Amendment: SEC. 507. Expanding Access to Forensics for
Victims of Interpersonal Violence
--(a) Definitions.--In this section:
--(9) URBAN INDIAN ORGANIZATION.--The term ``Urban Indian
organization'' has the meaning given such term in section 4 of
the Indian Health Care Improvement Act (25 U.S.C. 1603).
(b) Demonstration Grants for Comprehensive Forensic
Training.--
--(6) Authorization of Appropriations.--
--(B) Set-Aside.--Of the amount appropriated under this
paragraph for a fiscal year, the Secretary shall reserve 10
percent for purposes of making grants to support training and
curricula that addresses the unique needs of Indian Tribes,
Tribal organizations, Urban Indian organizations, and Native
Hawaiian organizations. Amounts so reserved may be used to
support training, referrals, and the delivery of emergency
first aid, culturally competent support, and forensic evidence
collection training.
Bill Amendment: SEC. 901. Findings and Purposes
--(b) Purposes.--The purposes of this subtitle are-
--3) to empower Tribal governments and Native American
communities, including urban Indian communities and Native
Hawaiian communities, with the resources and information
necessary to effectively respond to cases of domestic violence,
dating violence, stalking, sex trafficking, sexual violence,
and missing and murdered Native Americans; and
--4) to increase the collection of data related to missing
and murdered Native Americans and the sharing of information
among Federal, State, Tribal, and local officials responsible
for responding to and investigating crimes impacting Indian
Tribes and Native American communities, including urban Indian
communities and Native Hawaiian communities, especially crimes
relating to cases of missing and murdered Native Americans.
Closing
In closing, SNAHC would like to thank the members of the Senate
Committee on Indian Affairs for including urban AI/ANs in this
important piece of legislation. We urge Congress to continue its
support of all AI/ANs by retaining these provisions in the final VAWA
reauthorization.
Sincerely,
Britta Guerrero, CEO
______
Alliance of Tribal Coalitions to End Violence
December 22, 2021
Dear Senator Schatz, Senator Murkowski, and all members of the Senate
Committee on Indian Affairs:
I write to you today on behalf of the Alliance of Tribal Coalitions
to End Violence (ATCEV) to provide comments as solicited at the Senate
Committee on Indian Affairs hearing on December 8, 2021, to the
bipartisan Violence Against Women Act (VAWA) Title IX--SAFETY FOR
INDIAN WOMEN discussion draft. Tribal communities continue to suffer
the highest crime victimization rates in the country, and the reforms
included in the bipartisan Title IX discussion draft are desperately
needed, and urgently so.
As you are likely aware, American Indian and Alaska Native women
continue to suffer the highest rates of victimization in the country. A
2016 report by the National Institute of Justice found that over 80
percent of American Indians and Alaska Natives will be a victim of
intimate partner violence, sexual violence, or stalking in their
lifetime. The study also found that 90 percent of these victims were
victimized by a non-Indian perpetrator. Our Indian children are
particularly impacted. Research shows that American Indian and Alaska
Native children are 50 percent more likely to experience child abuse
and sexual abuse than white children. The complicated jurisdictional
framework at play in Indian country and Alaska continues to undermine
safety for American Indian and Alaska Native victims of violence and
creates a significant barrier to justice.
Section 901. Findings & Purposes
The purpose of Title IX is to strengthen tribal sovereignty and
reaffirm tribal jurisdiction over non-Indian perpetrators. ATCEV
supports additional resourcing to address violence against all Native
women. However, the new language in the Section 901. Findings and
Purposes addressing Native Hawaiians, urban Indians communities, Native
Americans, and Native American communities, jeopardizes the long-term
enforcement of the law and detracts from the key purpose of Title IX.
The language in Section 901 should solely focus on American Indians,
Alaska Natives, and Indian tribes to protect tribal sovereignty,
consistent with the purpose of the Title IX. ATCEV would recommend that
all Native Hawaiian, urban Indian communities, Native American, and
Native American communities language be removed from Section 901.
Section 902. Tribal Access Program and Section 903. Bureau of Prisons
ATCEV supports the Title XI discussion draft provision to allow
Tribal Nations to utilize the Bureau of Prisons (BOP) to house
defendants serving sentences of more than one year, and the provision
to increase Tribal Nations' access to the National Crime Information
Database. These additions are responsive to the testimony of tribal
leaders provided at the Government-to-Government Consultations and will
likely increase the safety of Indian women.
Section 904. Tribal Jurisdiction Over Covered Crimes
VAWA 2013 provided some semblance of justice for American Indian
victims restoring the inherent sovereign rights of Tribal Nations to
exercise special domestic violence criminal jurisdiction over non-
Indian offenders. However, victims of sexual violence, child abuse,
stalking, trafficking, elder abuse, and assaults against law
enforcement officers deserve the same protections that Congress
afforded to domestic violence victims on tribal lands in VAWA 2013.
ATCEV applauds the expansion of the crimes in which Tribal Nations can
hold non-Indian perpetrators accountable in the discussion draft but
would propose the final Senate Title IX provisions also include the
crimes against elders. The elder crimes were included in the House
bill, H.R. 1620, but is not included in the discussion draft presented
at the Senate Committee on Indian Affairs December 8, 2021. Indian
elders are an integral part of our tribal communities to whom we owe
respect and care. Indian elders carry our cultures and traditions, and
we must ensure that they are not left out of a VAWA reauthorization,
similar to how sexual assault victims and child victims of domestic
violence were left out of VAWA 2013.
ATCEV would also suggest that in order to ensure that the Title IX
discussion draft fully protects our law enforcement and correctional
personnel, the removal of the requirement that these assaults be tied
to a ``covered crime.'' Requiring that the assault of the tribal
justice personnel be tied to a ``covered crime'' may require a Tribal
Nation to first prove the underlying covered crime before prosecution
for the assault, which does not fully address the public safety concern
of police officers or detention personnel as expressed as a need by the
exercising Tribes.
ATCEV acknowledges and supports the language in the Title IX
discussion draft that clarifies Tribal Nations in Maine are included in
the law.
With regard to reimbursement program addressed in the bipartisan
Title IX discussion draft under which the Attorney General may
reimburse Tribal Nations for expenses incurred in exercising special
tribal criminal jurisdiction, the ATCEV would like to relay what we
have hear from the field, requesting that the program be expanded to
include reimbursements for trial and appellate courts (including
facilities maintenance, renovation, and rehabilitation), and that the
time to develop regulations for the program be shortened from within
one year to within six months to ensure expedient access of the program
to Tribes.
Subtitle B--Alaska Tribal Public Safety Empowerment
ATCEV fully supports creates a pilot project to address the unique
needs in Alaska. For years, Tribal leaders, tribal coalition directors,
advocates, victim survivors and their families in Alaska have shared
stories and have beg for recognition of and solutions to the atrocities
they experience in Alaska with regards to domestic violence and sexual
assault. Alaska Native women are over-represented among domestic
violence victims in Alaska by 250 percent and make up 47 percent of
reported rape victims in the state, yet 1 in 3 rural Alaskan
communities have no law enforcement presence. The Title IX discussion
draft includes a pilot project that will enable a limited number of
Tribal Nations in Alaska to exercise special tribal criminal
jurisdiction over certain crimes that occur in Alaska villages. We are
excited about this improvement and attention provided our Alaska Native
relatives.
Thank you for your work to improve the Violence Against Women
Act.Please feel free to call upon me should I or the tribal coalition
leaders be able to provide you with information on the crimes of
domestic and sexual violence in Indian Country and Alaska.
Respectfully,
DAWN R. STOVER, Executive Director
______
Tohono O'odham Nation
December 22, 2021
Dear Chairman Schatz, Vice Chair Murkowski, and honorable members of
the Senate Committee on Indian Affairs:
On behalf of the Tohono O'odham Nation (the Nation), I write to
express the Nation's support of the Violence Against Women Act (VAWA)
Title IX--Safety for Indian Women discussion draft (Title IX discussion
draft) recently released by the Senate Committee on Indian Affairs
(``the Committee''). The Title IX discussion draft includes important
provisions that will improve safety and justice in tribal communities.
Tribal communities continue to suffer from the highest crime
victimization rates in the country, and the reforms included in the
Title IX discussion draft are desperately needed today.
In a 2016 report prepared for the National Institute of Justice,
the Report analyzed findings from a 2010 National Intimate Partner and
Sexual Violence Survey that over 80 percent of American Indians and
Alaska Native women and men have experienced violence in their
lifetime. \1\ The report also highlighted that 97 percent of these
victims were victimized by a non-Indian perpetrator. \2\ Sadly, Indian
children are particularly impacted by this violence and are 50 percent
more likely to experience child abuse and sexual abuse than white
children. The complicated jurisdictional framework at play in Indian
country and Alaska continues to undermine safety for American Indian
and Alaska Native victims of violence.
---------------------------------------------------------------------------
\1\ Andre B. Rosay, Violence Against American Indian and Alaska
Native Women and Men, a report prepared for the National Institute of
Justice, Department of Justice, at 2 (May 2016), available at https://
www.ojp.gov/pdffiles1/nij/249736.pdf.
\2\ Id. at 46, Figure 6.1.
---------------------------------------------------------------------------
Tribal Nations have been exercising jurisdiction over non-Indian
domestic violence offenders under the VAWA enacted in 2013 (VAWA 2013)
for over 8 years. Tribes currently exercising the special domestic
violence criminal jurisdiction under VAWA 2013 have held serial
offenders accountable and have brought justice and safety to hundreds
of victims and their families while upholding the due process rights of
all defendants in tribal courts. Despite these successes, perpetrators
still find gaps in the law. Victims of sexual violence, child abuse,
stalking, trafficking, elder abuse, and assaults against law
enforcement officers all deserve the same protections that Congress
affords to domestic violence victims on tribal lands in VAWA 2013.
It is particularly important that any version of the VAWA bill
recognizes that Native American children are equally in need of the
protections that were extended to adult domestic violence victims in
VAWA 2013. The Tribal Nations implementing VAWA 2013 report that
children have been involved as victims or witnesses in their cases
nearly 60 percent of the time. However, federal law failed to restore
tribal jurisdiction to prosecute these crimes. The Title IX discussion
draft language would restore this category of jurisdiction and allow
Tribal Nations to protect our children in our tribal justice systems.
The Nation respectfully asks that the Title IX discussion draft be
amended to include crimes against elders, which was a category of
restored jurisdiction included in the House bill, H.R. 1620, but not in
the Committee's Title IX discussion draft. Elders are an integral part
of our community to whom we owe respect and care. Elders carry our
cultures and traditions, and we must ensure that they are not left
behind in this reauthorization of VAWA.
The Title IX discussion draft recognizes that VAWA 2013
inadvertently left our tribal police officers and detention personnel
at risk. Domestic violence cases are both the most common and the most
dangerous calls that law enforcement receives. Several Tribal Nations
have reported assaults on their officers or bailiffs committed by non-
Indian defendants, but as of now, Tribal Nations remain unable to
prosecute these crimes as assaults on law enforcement were not a
category of jurisdiction restored in VAWA 2013. This creates an obvious
public safety concern. To ensure that the Title IX discussion draft
fully rectifies this issue, we strongly recommend amending the draft
language on page ten to remove the requirement that the assault must be
tied to a ``covered crime.'' Requiring that the assault of the tribal
justice personnel be tied to a ``covered crime'' may require Tribal
Nations to first prove the underlying covered crime before they can
prosecute for the assault, which does not fully address the public
safety concerns relating to police officers or detention personnel.
This would also create significant confusion that likely would have to
be resolved in the courts. We ask that the language fully cover all
assaults of tribal justice personnel and not include any requirement
that the assault be related to a ``covered crime.''
Section 904 provides a local solution for the local problem of
criminal victimization in Indian country. The Nation appreciates that
the Title IX discussion draft continues to build on VAWA's promise and
includes key priorities to further enhance safety for victims in tribal
communities.
The Title IX discussion draft clarifies that Tribal Nations in
Maine are included in the law and creates a pilot project to address
the unique needs in Alaska. We fully support the inclusion of all
Tribal Nations in VAWA. Alaska Native women are over-represented among
domestic violence victims in Alaska by 250 percent and make up 47
percent of reported rape victims in the state, yet 1 in 3 rural Alaskan
communities have no law enforcement presence. The Title IX discussion
draft includes a pilot project that will enable a limited number of
Tribal Nations in Alaska to exercise special tribal criminal
jurisdiction over certain crimes that occur in Alaska villages.
The Title IX discussion draft creates a reimbursement program under
which the Attorney General may reimburse tribes for expenses incurred
in exercising special tribal criminal jurisdiction. The Nation believes
that it would be appropriate to expand that reimbursement program
language to include reimbursements for trial and appellate courts
(including facilities maintenance, renovation, and rehabilitation).
Additionally, the time for the Attorney General to develop regulations
for the program should be reduced from within one year to within six
months after the effective date, to ensure that this important program
is implemented quickly to address the urgent need in Indian Country.
The Title XI discussion draft also allows tribes to use the Bureau
of Prisons (BOP) to house defendants serving sentences of more than one
year and increases tribes' access to the National Crime Information
Database. Both of these additions to VAWA will go a long way towards
ensuring that the Nation is able to implement this restored
jurisdiction fully and most effectively.
The Nation fully supports the purpose of Title IX, which is to
strengthen tribal sovereignty and reaffirm tribal jurisdiction over
non-Indian perpetrators. We also support providing additional resources
to address violence against all Native women. However, the language
added to Section 901, Findings and Purposes, which adds Native
Hawaiians, urban Indians communities, Native Americans, and Native
American communities, jeopardizes the long-term enforcement of the law
and detracts from the key purpose of Title IX. For those reasons we
recommend that language pertaining to Native Hawaiian, urban Indian
communities, Native Americans, and Native American communities be
removed from Section 901. The language in Section 901 should solely
focus on American Indians, Alaska Natives, and Indian tribes in order
to use consistent terminology and protect tribal sovereignty, which is
consistent with the purpose of the Title IX.
The Nation supports the provisions included in the bipartisan Title
IX discussion draft and respectfully requests that members of the
Committee become co-sponsors of a full bipartisan Senate VAWA bill that
incorporates the Title IX discussion draft provisions and the suggested
changes outlined above.
Thank you for your time and consideration.
Sincerely,
Ned Norris, Jr., Chairman
______
Affiliated Tribes of Northwest Indians
December 21, 2021
Dear Senator Schatz, Senator Murkowski, and all members of the Senate
Committee on Indian Affairs:
I write on behalf of the Affiliated Tribes of Northwest Indians to
support the bipartisan Violence Against Women Act (VAWA) Title IX--
SAFETY FOR INDIAN WOMEN discussion draft released on December 8, 2021,
which includes important provisions that will improve safety and
justice in tribal communities. Tribal communities continue to suffer
from the highest crime victimization rates in the country, and the
reforms included in the bipartisan Title IX discussion draft are
desperately needed today.
A 2016 report by the National Institute of Justice found that over
80 percent of American Indians and Alaska Natives will be a victim of
intimate partner violence, sexual violence, or stalking in their
lifetime. The study also found that 90 percent of these victims were
victimized by a non-Indian perpetrator. Sadly, Indian children are
particularly impacted by this violence and are 50 percent more likely
to experience child abuse and sexual abuse than white children. The
complicated jurisdictional framework at play in Indian country and
Alaska continues to undermine safety for American Indian and Alaska
Native victims of violence.
Tribal Nations have been exercising jurisdiction over non-Indian
domestic violence offenders under VAWA 2013 for over 8 years.
Exercising Tribal Nations have held serial offenders accountable and
have brought justice and safety to hundreds of victims and their
families while upholding the due process rights of all defendants in
tribal courts. Despite these successes, perpetrators still find gaps in
the law. Victims of sexual violence, child abuse, stalking,
trafficking, elder abuse, and assaults against law enforcement officers
deserve the same protections that Congress affords to domestic violence
victims on tribal lands in VAWA 2013.
It is particularly important that the final bipartisan VAWA bill
recognizes that Indian children are equally in need of the protections
that were extended to adult domestic violence victims in VAWA 2013. The
Tribal Nations implementing VAWA 2013 report that children have been
involved as victims or witnesses in their cases nearly 60 percent of
the time. However, federal law failed to restore tribal jurisdiction to
prosecute these crimes. The Title IX discussion draft 2 language would
restore this category of jurisdiction and allow us to protect our
Indian children in our tribal justice systems.
We ask that the Title IX discussion draft be amended to include
crimes against elders, which was a category of restored jurisdiction
included in the House bill, H.R. 1620, but not the bipartisan Senate
Committee on Indian Affairs discussion draft. Indian elders are an
integral part of our tribal communities to whom we owe respect and
care. Indian elders carry our cultures and traditions, and we must
ensure that they are not left behind in this reauthorization of VAWA.
We also appreciate that the Title IX discussion draft recognizes
that VAWA 2013 inadvertently left our tribal police officers and
detention personnel at risk. Domestic violence cases are both the most
common and the most dangerous calls that law enforcement receives.
Several Tribal Nations have reported assaults on their officers or
bailiffs committed by non-Indian defendants, but as of now, Tribal
Nations remain unable to prosecute these crimes as assaults on law
enforcement was not a restored category of jurisdiction in VAWA 2013.
This creates an obvious public safety concern. In order to ensure that
the Title IX discussion draft fully rectifies this issue, we strongly
recommend amending the draft language on page ten to remove the
requirement that the assault must be tied to a ``covered crime.''
Requiring that the assault of the tribal justice personnel be tied to a
``covered crime'' may require the Tribal Nation to first prove the
underlying covered crime before they could prosecute for the assault,
which does not fully fix the public safety concern of police officers
or detention personnel. This creates significant confusion that likely
would have to be worked out in the courts. We ask that the language
fully cover all assaults of tribal justice personnel and not mention
anything related to a ``covered crime.''
Section 904 provides a local solution for the local problem of
criminal victimization in Indian country. We are pleased to see that
the bipartisan Title IX discussion draft continues to build on VAWA's
promise and includes key priorities that have been identified by Tribal
Nations to further enhance safety for victims in tribal communities.
The Title IX discussion draft clarifies that Tribal Nations in
Maine are included in the law and creates a pilot project to address
the unique needs in Alaska. We fully support the inclusion of all
Tribal Nations in VAWA. Alaska Native women are over-represented among
domestic violence victims in Alaska by 250 percent and make up 47
percent of reported rape victims in the state, yet 1 in 3 rural Alaskan
communities have no law enforcement presence. The Title IX discussion
draft includes a pilot project that will enable a limited number of
Tribal Nations in Alaska to exercise special tribal criminal
jurisdiction over certain crimes that occur in Alaska villages.
In addition to the lifesaving provisions outlined above, the
bipartisan Title IX discussion draft creates a reimbursement program
under which the Attorney General may reimburse Tribal Nations for
expenses incurred in exercising special tribal criminal jurisdiction.
We would ask that that reimbursement program language be expanded to
include reimbursements for trial and appellate courts (including
facilities maintenance, renovation, and rehabilitation.) Additionally,
the time for the Attorney General to develop regulations for the
program should be shortened from within one year to within six months
after the effective date to ensure that this important program is
implemented quickly to address the urgent need in Indian Country.
The Title XI discussion draft also allows Tribal Nations to utilize
the Bureau of Prisons (BOP) to house defendants serving sentences of
more than one year and increases Tribal Nations' access to the National
Crime Information Database. Both of these additions to VAWA will go a
long way towards ensuring Tribal Nations are able to implement this
restored jurisdiction fully and most effectively.
We fully support the purpose of Title IX, which is to strengthen
tribal sovereignty and reaffirm tribal jurisdiction over non-Indian
perpetrators. We also support providing additional resources to address
violence against all Native women. However, the new language in the
Section 901 Findings and Purposes, which adds Native Hawaiians, urban
Indians communities, Native Americans, and Native American communities,
jeopardizes the long-term enforcement of the law and detracts from the
key purpose of Title IX. For those reasons we strongly recommend that
all Native Hawaiian, urban Indian communities, Native American, and
Native American communities language be removed from Section 901. The
language in Section 901 should solely focus on American Indians, Alaska
Natives, and Indian tribes in order to protect tribal sovereignty,
which is consistent with the purpose of the Title IX.
We urge all members of the Senate Committee on Indian affairs to
support the provisions included in the bipartisan Title IX discussion
draft and to become a co-sponsor of the full bipartisan Senate VAWA
bill that incorporates all of the discussion draft provisions and our
recommended changes.
Respectfully,
Leonard Forsman, President
______
DENVER INDIAN HEALTH AND FAMILY SERVICES, INC.
December 22, 2021
Dear Chairman Schatz and Vice Chairman Murkowski:
Thank you for the opportunity to provide comments on the Violence
Against Women Act (VAWA) reauthorization discussion draft. On behalf of
On behalf of Denver Indian Health and Family Services, Inc. (DIHFS) in
Denver, Colorado, we hereby submit our written comments and
recommendations in response to the tribal title draft \1\ and larger
bill.
---------------------------------------------------------------------------
\1\ Discussion draft of Title IX of VAWA: https://
www.indian.senate.gov/sites/default/files/KEN21B05.pdf
---------------------------------------------------------------------------
Comments
Urban Indian Organizations (UIOs) like ours provide much more than
just health services to American Indians and Alaska Natives including
but not limited to the Special Supplemental Nutrition Program for
Women, Infants, and Children (WIC), housing services, social services,
community advocacy, and other resources to victims of domestic
violence. Many UIOs conduct home visits and are at the front-line to
identify domestic violence and other risk factors for Missing and
Murdered Indigenous People (MMIP). Urban Indian inclusion in VAWA is
important to strengthen these critical services provided at UIOs for
American Indians/Alaska Natives (AI/ANs), and the National Council of
Urban Indian Health (NCUIH) has advocated for urban Indians to be added
in the Senate draft bill. This is a huge accomplishment given that the
House bill on VAWA (H.R. 1620) excluded UIOs and urban Indian
communities.
During the White House Tribal Nations Summit last month, President
Biden signed an Executive Order (E.O.) \2\ on addressing the crisis of
MMIP with UIO inclusion. The E.O. specifically mentions the Department
of Health and Human Services (HHS) and the Secretary of the Interior
conferring with UIOs on developing a comprehensive plan to support
initiatives related to MMIP. NCUIH and UIOs support urban confer among
federal agencies on policies that impact urban AI/ANs and have been
working on an urban confer bill \3\ that recently passed the House
(406-17) with overwhelming support. The E.O also highlights the need
for improved data surrounding this crisis as it relates to urban Indian
communities. NCUIH has, and continues to, advocate for gathering more
data on AI/AN communities and Missing and Murdered Indigenous People.
On July 2, 2021, NCUIH submitted comments to the Department of Justice
on Savannah's Act requesting UIOs and urban Indians to be incorporated
into improving data relevancy, access, and resources. We look forward
to participating in that effort and we hope that VAWA will help us
combat this epidemic in Indian country.
---------------------------------------------------------------------------
\2\ Executive Order on Improving Public Safety and Criminal Justice
for Native Americans and Addressing the Crisis of Missing or Murdered
Indigenous People: https://www.whitehouse.gov/briefing-room/
presidential-actions/2021/11/15/executive-order-on-improving-public-
safety-and-criminal-justice-for-native-americans-and-addressing-the-
crisis-of-missing-or-murdered-indigenous-people/
\3\ Urban Indian Health Confer Act: https://www.congress.gov/117/
meeting/house/114098/documents/BILLS-1175221ih.pdf
---------------------------------------------------------------------------
DIHFS would like to express appreciation for the inclusion of urban
Indians in 11 locations of the Senate draft bill. We respectfully ask
you retain the following provisions in the final Senate bill:
Bill Amendment: SEC. 101. Stop Grants
--Part T of title I of the Omnibus Crime Control and Safe
Streets Act of 1968 (34 U.S.C. 10441 et seq.) is amended--
--(25) paying any fees charged by any governmental authority
for furnishing a victim or the child of a victim with any of
the following documents:
``(B) An identification card issued to the individual by a
State or Tribe, that shows that the individual is a resident of
the State or a member of the Tribe.''; and
--(B) in Subsection (d)--
--i) in paragraph (1)-
--II) in subparagraph (D), by inserting ``, urban Indian
communities, and Native Hawaiian communities'' after
``assisting Indian tribes''; (ii) in paragraph (2)-
--I) in subparagraph (A)(iii), by inserting ``, urban Indian
communities, and Native Hawaiian communities'' after ``provide
services to Indian tribes''; and
--II) in subparagraph (B), by inserting ``, urban Indian
communities, and Native Hawaiian communities'' after ``in areas
where Indian tribes'';
Bill Amendment: SEC. 105. Outreach and Services to Underserved
Population Grants.
--Section 120 of the Violence Against Women and Department of
Justice Reauthorization Act of 2005 (34 U.S.C. 20123) is
amended--
--(2) in subsection (b)(3), by inserting ``urban Indian,
Native Hawaiian,'' before ``or local organization'';
Bill Amendment: SEC. 108. Enhancing Culturally Specific
Services for Victims of Domestic Violence, Dating Violence,
Sexual Assault, and Stalking
--Section 121 of the Violence Against Women and Department of
Justice Reauthorization Act of 2005 (34 U.S.C. 20124) is
amended-
--``(4) DISTRIBUTION.--Of the total amount available for
grants under this section, not less than 40 percent of such
funds shall be allocated for programs or projects that
meaningfully address non-intimate partner relationship sexual
assault.'';
(3) in subsection (c)--
--(A) in paragraph (1), by striking ``and'' at the end;
--(B) in paragraph (2), by striking the period at the end and
inserting ``; and''; and
--(C) by adding at the end the following:
--``(3) tribal nonprofit organizations, Native Hawaiian
organizations, and urban Indian organizations.'';
Bill Amendment: SEC. 110. Pilot Program on Restorative
Practices.
--a) IN GENERAL.--The Violence Against Women Act of 1994 (title
IV of Public Law 103-322), as amended by section 205, is
further amended by adding at the end the following:
--``Subtitle R-Restorative Practices
--``SEC. 41801. PILOT PROGRAM ON RESTORATIVE PRACTICES.
``(a) DEFINITIONS.--In this section:
--``(2) ELIGIBLE ENTITY.--The term `eligible entity' means-
--A) a State;
--B) a unit of local government;
--C) a tribal government;
--D) a tribal organization;
--E) a victim service provider;
--F) an institution of higher education (as defined in
section 101(a) of the Higher Education Act of 1965 (20 U.S.C.
1001(a)); and
--G) a private or public nonprofit organization, including
--(i) a tribal nonprofit organization; and
--ii) a faith-based nonprofit organization.
Bill Amendment: SEC. 302. Creating Hope through Outreach,
Options, Services, and Education (CHOOSE) for Children and
Youth
--Section 41201 of the Violence Against Women Act of 1994 (34
U.S.C. 12451) is amended--
--2) in subsection (c)--
(A) in paragraph (1)(A)--
--(ii) by inserting ``Native Hawaiian organization, urban
Indian organization,''
before ``or population-specific community-based organization''; and
Bill Amendment: SEC. 506. Expanding Access to Unified Care.
--(f) Authorization of Appropriations.--
--2) Set-Aside.--Of the amount appropriated under this
subsection for a fiscal year, the Secretary shall reserve 15
percent of such amount for purposes of making grants to
entities that are affiliated with Indian Tribes or Tribal
organizations (as defined in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5304)),
or Urban Indian organizations (as defined in section 4 of the
Indian Health Care Improvement Act (25 U.S.C.1603)). Amounts
reserved may be used to support referrals and the delivery of
emergency first aid, culturally competent support, and forensic
evidence collection training.
Bill Amendment: SEC. 507. Expanding Access to Forensics for
Victims of Interpersonal Violence
--(a) Definitions.--In this section:
--(9) URBAN INDIAN ORGANIZATION.--The term ``Urban Indian
organization'' has the meaning given such term in section 4 of
the Indian Health Care Improvement Act (25 U.S.C. 1603).
(b) Demonstration Grants for Comprehensive Forensic
Training.--
--(6) Authorization of Appropriations.--
--(B) Set-Aside.--Of the amount appropriated under this
paragraph for a fiscal year, the Secretary shall reserve 10
percent for purposes of making grants to support training and
curricula that addresses the unique needs of Indian Tribes,
Tribal organizations, Urban Indian organizations, and Native
Hawaiian organizations. Amounts so reserved may be used to
support training, referrals, and the delivery of emergency
first aid, culturally competent support, and forensic evidence
collection training.
Bill Amendment: SEC. 901. Findings and Purposes
--(b) Purposes.--The purposes of this subtitle are-
--3) to empower Tribal governments and Native American
communities, including urban Indian communities and Native
Hawaiian communities, with the resources and information
necessary to effectively respond to cases of domestic violence,
dating violence, stalking, sex trafficking, sexual violence,
and missing and murdered Native Americans; and
--4) to increase the collection of data related to missing
and murdered Native Americans and the sharing of information
among Federal, State, Tribal, and local officials responsible
for responding to and investigating crimes impacting Indian
Tribes and Native American communities, including urban Indian
communities and Native Hawaiian communities, especially crimes
relating to cases of missing and murdered Native Americans.
Closing
In closing, DIHFS would like to thank the members of the Senate
Committee on Indian Affairs for including urban AI/ANs in this
important piece of legislation. We urge Congress to continue its
support of all AI/ANs by retaining these provisions in the final VAWA
reauthorization.
Sincerely,
Adrianne Maddux, Executive Director
______
Tanana Chiefs Conference
December 21, 2021
Introduction and Background on TCC
Chairman Schatz, Vice Chairman Murkowski and Members of the Senate
Committee on Indian Affairs, thank you for the opportunity to provide
testimony for the record of the Committee's December 8, 2021 Oversight
Hearing on ``Restoring Justice: Addressing Violence in Native
Communities through VAWA Title IX Special Jurisdiction .'' My name is
Brian Ridley, I am a member of the Native Village of Eagle, and I have
the honor of serving as president of the Tanana Chiefs Conference
(TCC).
TCC is a non-profit intertribal consortium of 42 communities,
including 37 federally recognized tribes, located across Alaska's vast
interior. Headquartered in Fairbanks, Alaska, TCC serves approximately
18,000 tribal members over an area of about 235,000 square miles, which
is nearly the size of Texas. TCC is charged with advancing tribal self-
determination and enhancing regional Native unity with the goal to meet
the health and social service needs of tribes and tribal members
throughout the region. TCC is also home to the Tribal Protective
Services program that serves all victims of crime from/residing in the
TCC region.
VAWA/Alaska Challenges
The Violence Against Women Act (VAWA) is a pillar of the federal
government's response to domestic violence, sexual assault, dating
violence, and stalking. TCC has been actively engaged in the VAWA
reauthorization discussions to ensure that Congress understands the
unique challenges that our tribes face. Alaska Native women are
overrepresented in the domestic violence victim population by 250
percent. This unacceptable statistic is due, in part, to the remote
nature of many of Alaska's tribal communities, as well as complex
jurisdictional challenges and the lack of funding for public safety
programs in the villages.
Congress has worked to strengthen VAWA through each reauthorization
to take into account our increased understanding of gender-based
violence and the lack of access to justice that our rural and
Indigenous populations face. The last VAWA reauthorization in 2013
contained a provision authorizing the Special Domestic Violence
Criminal Jurisdiction (SDVCJ) for Indian tribes. However, the SDVCJ did
not apply to Indian tribes in Alaska, as the provision was limited to
certain crimes committed in ``Indian country.''
Relying primarily on the State of Alaska to provide public safety
and justice services has not worked well for Alaska Natives. The tribal
communities within the TCC region need the same access to law
enforcement and the authority to protect tribal members, especially
those living in remote villages. TCC is pleased that Congress and this
Committee are working diligently on VAWA reauthorizations that would
address the critical needs of Alaska Native communities.
H.R. 1620, VAWA Reauthorization Act of 2021
H. R.1620, the Violence Against Women Reauthorization Act of 2021,
is based on extensive outreach to survivors, direct service providers,
and other stakeholders. This bipartisan, House-passed bill maintains
protections for all victims, makes vital investments in sexual assault
prevention and services, and ensures sexual predators who prey on
Native women can be held accountable. It also invests in culturally
specific organizations, protects victims of domestic violence from
intimate partner homicide, provides alternatives to the legal system
for survivors who want them, and increases victims' access to safe
housing and economic stability.
TCC strongly supports the language in H.R. 1620 that aims to end
impunity for non-Native perpetrators of sexual assault, child abuse co-
occurring with domestic violence, stalking, sex trafficking, and
assaults on tribal law enforcement officers on tribal lands. TCC also
supports the bill's establishment of a pilot project to allow up to
five Indian tribes in Alaska to implement special tribal criminal
jurisdiction and, for that specific purpose, to redefine Indian country
to include certain lands in Alaska.
SCIA Discussion Draft of the VAWA Tribal Title
TCC commends Chairman Schatz and Vice Chairman Murkowski for
releasing their Discussion Draft of the VAWA Tribal Title. TCC supports
Subtitle B-Alaska Tribal Public Safety Empowerment, which aims to
empower Alaskan Tribal Governments to effectively respond to cases of
domestic violence, dating violence, stalking, sex trafficking, sexual
violence, and missing and murdered Alaska Natives. TCC applauds the
draft's establishment of a pilot program under which the Attorney
General shall designate not more than 5 Indian tribes per calendar year
as participating tribes to exercise the special tribal criminal
jurisdiction over all persons present in the village of the Indian
tribe. TCC believes that the pilot program will help to make our
villages safer, but jurisdiction alone is not enough unless it comes
with the means to implement it. The federal government has never
adequately funded law enforcement and court activities for tribes in
Alaska. Congress must work to provide more funding so that tribes have
the law enforcement personnel they need to keep their communities safe
and the courts that are necessary to maintain justice.
TCC Requests/Conclusion
In closing, the Tanana Chiefs Conference urges the Senate Committee
on Indian Affairs to continue working to incorporate the Draft Tribal
Title into the Senate's VAWA reauthorization bill. Further, TCC urges
the Senate to introduce a bipartisan VAWA reauthorization that builds
on the House-passed bill and meets the identified needs of survivors
and communities. The dangers are far too great for Congress to delay
the reauthorization of the Violence Against Women Act.
Sincerely,
Brian Ridley, President
______
Oneida Nation
December 22, 2021
Dear Senator Schatz, Senator Murkowski, and all members of the Senate
Committee on Indian Affairs:
On behalf of the Oneida Nation, please accept this letter to
support the bipartisan Violence Against Women Act (VAWA) Title IX--
SAFETY FOR INDIAN WOMEN discussion draft released on December 8, 2021,
which includes important provisions that will improve safety and
justice in tribal communities. Tribal communities continue to suffer
from the highest crime victimization rates in the country, and the
reforms included in the bipartisan Title IX discussion draft are
desperately needed today.
A 2016 report by the National Institute of Justice found that over
80 percent of American Indians and Alaska Natives will be a victim of
intimate partner violence, sexual violence, or stalking in their
lifetime. The study also found that 90 percent of these victims were
victimized by a non-Indian perpetrator. Sadly, Indian children are
particularly impacted by this violence and are 50 percent more likely
to experience child abuse and sexual abuse than white children. The
complicated jurisdictional framework at play in Indian country and
Alaska continues to undermine safety for American Indian and Alaska
Native victims of violence.
Tribal Nations have been exercising jurisdiction over non-Indian
domestic violence offenders under VAWA 2013 for over 8 years. Tribal
Nations exercising jurisdiction have held serial offenders accountable
and brought justice and safety to hundreds of victims and their
families, while upholding the due process rights of all defendants in
tribal courts. Despite these successes, perpetrators still find gaps in
the law. Victims of sexual violence, child abuse, stalking,
trafficking, elder abuse, and assaults against law enforcement officers
deserve the same protections that Congress affords to domestic violence
victims on tribal lands that are contained in VAWA 2013.
It is particularly important that the final bipartisan VAWA bill
recognizes that Indian children are equally in need of the protections
that were extended to adult domestic violence victims in VAWA 2013. The
Tribal Nations implementing VAWA 2013 report that children have been
involved as victims or witnesses in their cases nearly 60 percent of
the time. However, federal law failed to restore tribal jurisdiction to
prosecute these crimes. The Title IX discussion draft language would
restore this category of jurisdiction and allow us to protect our
Indian children in our tribal justice systems.
We ask that the Title IX discussion draft be amended to include
crimes against elders, which was a category of restored jurisdiction
included in the House bill, H.R. 1620, but contained in the bipartisan
Senate Committee on Indian Affairs discussion draft. Indian elders are
an integral part of our tribal communities to whom we owe respect and
care, as our elders carry our cultures and traditions. We must ensure
that they are not left behind in this reauthorization of VAWA.
We also appreciate that the Title IX discussion draft recognizes
that VAWA 2013 inadvertently left our tribal police officers and
detention personnel at risk. Domestic violence cases are both the most
common and the most dangerous calls that law enforcement receives.
Several Tribal Nations have reported assaults on their officers or
bailiffs committed by non-Indian defendants, and Tribal Nations remain
unable to prosecute these crimes, as assaults on law enforcement
personnel was not a restored category of jurisdiction in VAWA 2013.
This creates a significant public safety concern. To ensure that the
Title IX discussion draft fully rectifies this issue, we strongly
recommend amending the draft language on page ten to remove the
requirement that the assault must be tied to a ``covered crime.''
Requiring that the assault of the tribal justice personnel be tied to a
``covered crime'' may require the Tribal Nation to first prove the
underlying covered crime before they could prosecute for the assault,
which does not fully fix the public safety concern of police officers
or detention personnel. This creates significant confusion that likely
would have to be worked out in the courts. We ask that the language
fully cover all assaults of tribal justice personnel and not mention
anything related to a ``covered crime.''
Section 904 provides a local solution for the local problem of
criminal victimization in Indian country. We are pleased to see that
the bipartisan Title IX discussion draft continues to build on VAWA's
promise and includes key priorities that have been identified by Tribal
Nations to further enhance safety for victims in tribal communities.
The Title IX discussion draft clarifies that Tribal Nations in
Maine are included in the law and creates a pilot project to address
the unique needs in Alaska. We fully support the inclusion of all
Tribal Nations in VAWA. Alaska Native women are over-represented among
domestic violence victims in Alaska by 250 percent and make up 47
percent of reported rape victims in the state, yet 1 in 3 rural Alaskan
communities have no law enforcement presence. The Title IX discussion
draft includes a pilot project that will enable a limited number of
Tribal Nations in Alaska to exercise special tribal criminal
jurisdiction over certain crimes that occur in Alaska villages.
In addition to the lifesaving provisions outlined above, the
bipartisan Title IX discussion draft creates a reimbursement program
under which the Attorney General may reimburse Tribal Nations for
expenses incurred in exercising special tribal criminal jurisdiction.
We would ask that that reimbursement program language be expanded to
include reimbursements for trial and appellate courts (including
facilities maintenance, renovation, and rehabilitation). Furthermore,
we request that jury costs be included in the reimbursement program
language. Tribes must provide the defendant with a jury that reflects a
fair cross section of the community that does not systematically
exclude any distinctive group in the community, including non-Indians.
This means that Tribal and non-Tribal members will need to serve as
jurors. Unless Tribe's draft legislation addressing the issue, Tribal
Courts may be limited in their ability to ensure individuals comply
with the summons for jury duty. Therefore, Tribes may need to pay
jurors for their time to increase compliance and in order to ensure
that the defendant's rights are upheld. These costs should be eligible
for reimbursement. Additionally, the time for the Attorney General to
develop regulations for the program should be shortened from within one
year to within six months after the effective date to ensure that this
important program is implemented quickly to address the urgent need in
Indian Country.
The Title XI discussion draft also allows Tribal Nations to utilize
the Bureau of Prisons (BOP) to house defendants serving sentences of
more than one year and increases Tribal Nations' access to the National
Crime Information Database. Both of these additions to VAWA will go a
long way towards ensuring Tribal Nations are able to implement this
restored jurisdiction fully and most effectively. However, some BOPs
are located hours away from Tribal Courts; we request that costs
associated with using local jails to house individuals be reimbursed
when BOP facilities are not located near the Tribal Courts.
We fully support the intent of Title IX, which is to strengthen
tribal sovereignty and reaffirm tribal jurisdiction over non-Indian
perpetrators. We also support providing additional resources to address
violence against all Native women. However, the new language in the
Section 901 Findings and Purposes, which adds Native Hawaiians, urban
Indians communities, Native Americans, and Native American communities,
jeopardizes the long-term enforcement of the law and detracts from the
key purpose of Title IX. For those reasons we strongly recommend that
all Native Hawaiian, urban Indian communities, Native American, and
Native American communities language be removed from Section 901. The
language in Section 901 should solely focus on American Indians, Alaska
Natives, and Indian tribes in order to protect tribal sovereignty,
which is consistent with the purpose of the Title IX.
We urge the Senate Committee on Indian affairs to support the
provisions included in the bipartisan Title IX discussion draft and to
co-sponsor the full bipartisan Senate VAWA bill that incorporates all
of the discussion draft provisions and our recommended changes.
With a Good Mind, a Good Heart & Strong Fire,
Tehassi tasi Hill, Chairman
______
Native Peoples Action
December 22, 2021
Dear Senator Schatz, Senator Murkowski, and all members of the Senate
Committee on Indian Affairs:
I write on behalf of Native Peoples Action in support of the
bipartisan Violence Against Women Act (VAWA) Title IX--SAFETY FOR
INDIAN WOMEN discussion draft released on December 8, 2021, which
includes important provisions that will improve safety and justice in
tribal communities who continue to suffer from the highest rates of
crime victimization in the country. The reforms included in the
bipartisan Title IX discussion draft are desperately needed.
Native Peoples Action is a statewide Indigenous non-profit
organization in Alaska that strives to give voice to our ancestral
imperative to uplift our peoples and our traditional ways of life by
taking a stand, working together and mobilizing action. We do this
through ensuring Alaska Natives are heard in all levels of policy
making, by building stronger unity among Indigenous communities to
collectively advocate for the wellness of our peoples and our ways of
life, and by transforming social systems.
Alaska Natives and American Indians face disproportionate levels of
crime rates. A 2016 report by the National Institute of Justice found
that over 80 percent of American Indians and Alaska Natives will be a
victim of intimate partner violence, sexual violence, or stalking in
their lifetime. The study also found that 90 percent of these victims
were victimized by a non-Indigenous perpetrator. Sadly, Indigenous
children are particularly impacted by this violence and are 50 percent
more likely to experience child abuse and sexual abuse than white
children. The complicated jurisdictional framework in Indian country
and Alaska continues to undermine safety for American Indian and Alaska
Native victims of violence.
American Indians and Alaska Natives are 2.5 times as likely to
experience violent crimes and at least two times more likely to
experience rape or sexual assault crimes compared to all other races.
According to the Tribal Law and Order Act Commision Report, Alaska
Native women are over-represented in the domestic violence victim
population by 250 percent; they comprise 19 percent of Alaska's
population, but are 47 percent of reported rape victims in the State.
And among other Indian Tribes, Alaska Native women suffer the highest
rates of domestic and sexual violence in the country.
Tribes have been exercising jurisdiction over non-Indigenous
domestic violence offenders under VAWA 2013 for over 8 years.
Exercising Tribes have held serial offenders accountable and have
brought justice and safety to hundreds of victims and their families
while upholding the due process rights of all defendants in tribal
courts. Despite these successes, perpetrators still find gaps in the
law. Victims of sexual violence, child abuse, stalking, trafficking,
Elder abuse, and assaults against law enforcement officers deserve the
same protections that Congress affords to domestic violence victims on
tribal lands in VAWA 2013.
It is particularly important that the final bipartisan VAWA bill
recognizes that Indigenous children are equally in need of the
protections that were extended to adult domestic violence victims in
VAWA 2013. Federal law has failed to restore Tribal jurisdiction to
prosecute these crimes. The Title IX discussion draft language would
restore this category of jurisdiction and allow us to protect our
Indigenous children in our tribal justice systems.
We ask that the Title IX discussion draft be amended to include
crimes against Elders, which was a category of restored jurisdiction
included in the House Bill, H.R. 1620, but not the bipartisan Senate
Committee on Indian Affairs discussion draft. Indigenous Elders are an
integral part of our Tribal communities to whom we owe deep respect and
care. Indigenous Elders carry our cultures and traditions, and we must
ensure that they are not left behind in this reauthorization of VAWA.
We also appreciate that the Title IX discussion draft recognizes
that VAWA 2013 inadvertently left our tribal police officers and
detention personnel at risk. There have been reported assaults on
tribal officers during domestic violence calls that are committed by
non-Indian defendants, but as of now, tribal communities remain unable
to prosecute these crimes as assaults on law enforcement was not a
restored category of jurisdiction in VAWA 2013. This creates an obvious
public safety concern. In order to ensure that the Title IX discussion
draft fully rectifies this issue, we recommend amending the draft
language on page ten to remove the requirement that the assault must be
tied to a ``covered crime.'' Requiring that the assault of the tribal
justice personnel be tied to a ``covered crime'' may require the Tribes
to first prove the underlying covered crime before they could prosecute
for the assault, which does not fully fix the public safety concern of
police officers or detention personnel. This creates significant
confusion that likely would have to be worked out in the courts. We ask
that the language fully cover all assaults of tribal justice personnel
and not mention anything related to a ``covered crime.''
Section 904 provides a local solution for the local problem of
criminal victimization in Tribal communities. We are pleased to see
that the bipartisan Title IX discussion draft continues to build on
VAWA's promise and includes key priorities that have been identified by
Tribes to further enhance safety for victims in tribal communities.
The Title IX discussion draft clarifies that Tribal Nations in
Maine are included in the law and creates a pilot project to address
the unique needs in Alaska. We fully support the inclusion of all
Tribes in VAWA. Alaska Native women are over-represented among domestic
violence victims in Alaska by 250 percent and make up 47 percent of
reported rape victims in the state, yet 1 in 3 rural Alaskan
communities have no law enforcement presence. The Title IX discussion
draft includes a pilot project that will enable a limited number of
Tribes in Alaska to exercise special tribal criminal jurisdiction over
certain crimes that occur in Alaska villages.
In addition to the lifesaving provisions outlined above, the
bipartisan Title IX discussion draft creates a reimbursement program
under which the Attorney General may reimburse Tribes for expenses
incurred in exercising special tribal criminal jurisdiction. We would
ask that the reimbursement program language be expanded to include
reimbursements for trial and appellate courts (including facilities
maintenance, renovation, and rehabilitation.) Additionally, the time
for the Attorney General to develop regulations for the program should
be shortened from within one year to within six months after the
effective date to ensure that this important program is implemented
quickly to address the urgent need in Tribal communities.
We urge all members of the Senate Committee on Indian affairs to
support the provisions included in the bipartisan Title IX discussion
draft and to become a co-sponsor of the full bipartisan Senate VAWA
bill that incorporates the discussion draft provisions and our
recommended changes.
Gunalcheesh/Haw'aa/Quyana/Mahsi'Choo/Baasee'/Maasee'/Dogedinh/
Thank you,
Kendra Kloster, Executive Director
______
THE ASSOCIATION OF VILLAGE COUNCIL PRESIDENTS
December 21, 2021
Dear Chairman Schatz and Vice-Chairman Murkowski,
The Association of Village Council Presidents fully supports the
December 8, 2021 Discussion Draft of Title IX to the Violence Against
Women Act, and respectfully requests the prompt introduction and
passage of Title IX, especially subtitle B--Alaska Tribal Public Safety
Empowerment.
The Association of Village Council Presidents (AVCP) is the largest
tribal consortium in the Nation with 56 federally recognized tribes as
members. We are located in the Yukon-Kuskokwim Delta in Western Alaska,
which includes 48 villages along the Yukon River, Kuskokwim River, and
Bering Sea Coast spanning an area approximately the size of the State
of New York. AVCP provides community development, education, social
services, and advocacy for our member tribes and communities. This
includes advocating for our region's top priority, public safety.
In 2019, U.S. Attorney General Barr declared a law enforcement
emergency in rural Alaska. The majority of villages in our Region have
no full-time law enforcement and many have no law enforcement presence
at all. In rural Alaska, rates of domestic violence and physical
assault are 10 times higher than in the rest of the United States.
Despite the dire need for public safety, and often being the primary
governmental entity in the village, Alaska Tribes are not recognized as
having criminal jurisdiction over the individuals in our communities.
This is why Tribes and Tribal Organizations across Alaska,
including here in the Yukon-Kuskokwim Delta, support the proposed
Alaska Tribal Public Safety Empowerment subtitle (see the enclosed
resolution recently passed at our annual convention). Recognizing that
Alaska Tribes have inherent civil and criminal jurisdiction over all
Indians present within our village boundaries is a major step toward
ending the current public safety crisis. The pilot project for a
limited number of Alaska Tribes to exercise special criminal
jurisdiction over certain crimes that occur within their villages is
another step in the right direction. The Alaska Tribal Public Safety
Empowerment is essential to protecting our women and children and
making our communities safer.
In closing, thank you for your support and dedication in working
for Indian Country, including Alaska Tribes. We look forward to seeing
the Discussion Draft of Title IX, including the Alaska Tribal Public
Safety Empowerment, introduced very soon. Our tribes are not asking for
anything less or anything more than any other community in Alaska or
the United States.
Quyana,
Vivian Korthuis, CEO
Attachment: Resolution 21-09-01
TITLE: A Resolution in Support of the Alaska Tribal Public Safety
Empowerment Act
WHEREAS The Association of Village Council Presidents (AVCP) is the
recognized tribal organization and non-profit Alaska Native regional
corporation for its fifty-six member indigenous Native villages within
Western Alaska and supports the endeavors of its member villages; and
WHEREAS AVCP fully supports its member villages in all aspects of
their self-determination, health, and well-being; and
WHEREAS There is a public safety crisis in rural Alaska--
59 percent of adult women in Alaska have experienced intimate
partner violence, sexual violence, or both;
Reported rape in Alaska is 2.5 times the national average;
Alaska Natives comprise just 19 percent of the state
population, but 47 percent of reported rape victims;
In rural Alaska's tribal communities (and for Alaska Native
women living in urban areas) women reported rates of domestic
violence up to 10 times higher than in the rest of the United
States and physical assault victimization rates up to 12 times
higher;
More than 95 percent of all crimes committed in rural Alaska
can be attributed to alcohol; and
WHEREAS Tribes in rural Alaska have little to no public safety
resources to keep their tribal communities safe; and
WHEREAS Tribes rely on a patchwork of state law enforcement and
tribal law enforcement, which leaves gaps in service and instability
for tribal governments and tribal public safety employees; and
WHEREAS The interpretation of certain legislation regarding Indian
Country in Alaska has cast the status of Alaska tribes' criminal
jurisdiction into doubt; and
WHEREAS At the 2016 AVCP Annual Convention, the AVCP Region tribes
declared public safety as the region's number one priority; and
WHEREAS On June 28, 2019, Attorney General Barr declared a law
enforcement emergency in rural Alaska; and
WHEREAS On October 17, 2019, U.S. Senator Murkowski (R-AK)
introduced S. 2616, the Alaska Tribal Public Safety Empowerment Act
(``the Act'') legislation; and
WHEREAS The Act recognizes that, regardless of land title, Indian
tribes in Alaska have inherent civil and criminal jurisdiction over all
Alaska Natives present in their villages; and
WHEREAS The Act recognizes that Indian tribes in Alaska have full
civil jurisdiction within their villages to issue and enforce
protection orders involving any individual; and
WHEREAS The Act also creates a pilot program in Alaska in which the
Attorney General will select up to five tribes or inter-tribal
organizations each year to exercise general civil jurisdiction over all
persons within the village, plus criminal jurisdiction over all persons
for certain enumerated crimes; and
WHEREAS Alaska tribes have waited long enough for the devastating
impacts of a lack of public safety in their communities to be
addressed; and
WHEREAS Alaska tribes are asking for no more or no less than any
other community in the State of Alaska or in the United States.
NOW THEREFORE BE IT RESOLVED That the Association of Village
Council Presidents Full Board of Directors calls for the reintroduction
and passage of the Alaska Tribal Public Safety Empowerment Act.
NOW THEREFORE BE IT FURTHER RESOLVED That, to this end, the members
of the Alaska Congressional Delegation co-sponsor this legislation.
ADOPTED by the Members of the Association of Village Council
Presidents during the Association's fifty-seventh annual convention
held this 22nd day of September with a duly constituted quorum of
delegates present.
______
Eastern Band of Cherokee Indians
December 22, 2021
As Principal Chief of the Eastern Band of Cherokee Indians
(``EBCI'' and/or ``Eastern Band''), I write to provide our comments on
the Discussion Draft for Title IX of the Violence Against Women Act
(VAWA), as posted online on the Senate Committee on Indian Affairs'
website on December 8, 2021.
Tha EBCI is a Tribal Nation based in the mountains of Western North
Carolina. We are the Cherokee descendents who avoided forced removal
along the Trail of Tears, or who returned from the Indian Territory
after the march. About 15,000 people live on the Qualla Boundary, the
traditional name for the Eastern Band Cherokee Reservation, including
about 8,500 Eastern Band Cherokee citizens. Nearly all the land within
the exterior boundary of the Qualla Boundary is held in trust by the
United States for the Eastern Band.
On June 15, 2015, the Eastern Band implemented VAWA 904's Special
Domestic Violence Criminal Jurisdiction (SDVCJ). The Eastern Band has
its own court system, consisting of a trial court and an appellate
court (Supreme Court), and it own Office of Tribal Prosecutor (OTP). In
FY21, there were 2,119 criminal cases (including 30 juvenile cases)
filed in the Cherokee Court. These criminal cases constituted 71
percent or approximately two-thirds of all matters filed in the
Cherokee Court durin FY21. Approximately 1,497 criminal cases were
heard and disposed of in FY21. In addition, the EBCI has an in-house
Legal Assistance Office (LAO) that represents Tribal citizen plaintiffs
on civil domestic violence matters. In FY21, the LAO assisted with 90
matters referred by the DV program; 72 of these were requests for
domestic violence protective orders under EBCI law. . The Eastern Band
has also implemented the Tribal Law and Order Act (TLOA), including
enhanced sentencing. \1\
---------------------------------------------------------------------------
\1\ See 25 U.S.C. 1302 (b).
---------------------------------------------------------------------------
Overall, the Discussion Draft constitutes a bi-partisan achievement
that, if passed into law, will go a long way towards addressing the
epidemic of violence our Native women and children continue to suffer.
The Committee has done a commendable job drafting the Discussion Draft.
We have very few critiques or criticisms to offer. The EBCI applauds
the Members of the Committee, as well as their staff, for the
incredible work on this excellent Discussion Draft. Most notably, the
Discussion Draft builds upon the jurisdictional restoration provisions
of VAWA 2013 and expands the scope of restored tribal criminal
jurisdiction over non-Indian criminal conduct into much needed areas,
including assault on tribal justice personnel, child violence,
trafficking, sexual assault, obstruction of justice and more. While
Tribal Nations, including the EBCI, continue to advocate for a full
restoration of tribal criminal jurisdiction as a permanent fix to the
Supreme Court's 1978 decision in Oliphant v. Suquamish Indian Tribe,
any expanded recognition of the inherent jurisdiction of Tribal Nations
to protect their citizens on tribal lands constitutes an important
advancement in Indian country.
I. Scope of Covered Conduct
A. Definition of Domestic Violence
The EBCI considers the definition of ``domestic violence'' in Title
IX to be effective in that it refers to ``any violation of the criminal
law of the Indian tribe that has jurisdiction over the Indian country
where the violation occurs.'' \2\ It is crucial that Title IX's
definition of ``domestic violence'' be first and foremost centered on
the implementing tribe's own definition of ``domestic violence'' under
the tribe's own criminal law to ensure that the federal statutory
definition of ``domestic violence'' does not function as a
jurisdictional barrier. The EBCI applauds this definition.
---------------------------------------------------------------------------
\2\ Compare 25 U.S.C. 1304(a)(2) with definition found in
Discussion Draft 904(3)(B).
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We want to point out , however, that while the definition of
``domestic violence'' in the Discussion Draft is an improvement over
the existing definition, we advocate that the definition address
``reckless'' conduct as proposed in H.R. 1620. H.R. 1620 includes the
following language in its definition of ``domestic violence'': ``when
an offender recklessly engages in conduct that creates a substantial
risk of death or serious bodily injury to the victim''. \3\ The
addition of ``recklessly'' in the definition will reach more criminal
conduct than the Discussion Draft's definition and would be a welcome
inclusion.
---------------------------------------------------------------------------
\3\ Violence Against Women Act Reauthorization Act of 2021, H.R.
1620, 117th Cong. 903(4)(A) (2021).
---------------------------------------------------------------------------
We also suggest that Discussion Draft's definition of ``domestic
violence'' would be improved by including a reference to violence
committed against an elder. H.R. 1620 includes violence committed
against an elder ``as such term is defined by Tribal law'' in the
definition of domestic violence--a provision which the Discussion Draft
omits entirely. \4\ The EBCI fully supports the inclusion of elder
abuse in the final version of Title IX because, as it currently stands
under VAWA 2013, there is no restoration of tribal criminal
jurisdiction over elder abuse unless that abuse takes place in the
context of a dating or intimate partner relationship. According to the
World Health Organization, rates of elder abuse are highest in nursing
homes and long-term care facilities where abuse is often committed by
staff members, and elder abuse has continued to increase worldwide
during the COVID-19 pandemic. \5\ It is important that the final
version of Title IX remains sufficiently deferential to tribal law to
allow for tribal prosecution of elder abuse so that tribal communities
may combat the high rates of violence against tribal elders. Very
often, violence against our elders is committed by a non-dating or
intimate partner. The EBCI is of the opinion that elder abuse should be
expressly addressed within the definition of ``domestic violence.''
---------------------------------------------------------------------------
\4\ Id.
\5\ World Health Organization, ``Elder Abuse'' (October 4, 2021),
https://www.who.int/news-room/fact-sheets/detail/elder-abuse
---------------------------------------------------------------------------
We note that S. 2843 defines ``domestic violence'' in a way which
is even more deferential to tribal law than the Discussion Draft's
definition. S. 2843 also includes ``the use, threatened use, or
attempted use of violence'' proscribed by the Tribe as well as violence
committed by ``a person against an adult or child victim who is
protected from the acts of that person under the domestic or family
violence laws of the Indian tribe that has jurisdiction over the Indian
country where the violation occurs.'' \6\ By including provisions that
specifically state that a tribe may prosecute those who commit any
violent act against an adult or child victim who would be protected
from the same under tribal law, S. 2843 is more deferential to tribal
law in defining which crimes committed against children will fall
within the statutory defined category of restored tribal criminal
jurisdiction. The EBCI supports the inclusion of a definition of
``domestic violence'' that gives tribal law maximum deference and
greatest reach, to ensure that the federal definition of ``domestic
violence'' does not arbitrarily limit the kinds of domestic violence
cases that an implementing Tribe may prosecute.
---------------------------------------------------------------------------
\6\ Violence Against Women Act Reauthorization Act of 2019, S.
2843, 116th Cong. 903(2)(C) (2019-2020).
---------------------------------------------------------------------------
B. Assault of Tribal Justice Personnel
VAWA 2013 does not address assault of a tribal law enforcement or
correctional officer. The EBCI commends the Committee for including
special provisions in the Discussion Draft to address assault of tribal
justice personnel. Importantly, the Draft's definition of tribal
justice personnel as ``an individual authorized to act for, or on
behalf of, that Indian tribe'' \7\ is broad enough to encompass both
Indian and non-Indian tribal law officers, as many tribes have non-
Indian justice personnel who serve their tribal communities and should
be protected from violence. Answering a domestic violence call can be
one of the most dangerous calls a tribal law officer undertakes. At the
Eastern Band, we have experienced numerous tragedies where our law
officers are assaulted by a non-Indian perpetrator who is engaged in
committing a crime of domestic violence. Although the Eastern Band-
since implementing SDVCJ in 2015-has been able to prosecute a domestic
violence crime committed against a Native victim, we have been unable
to prosecute the crime committed when the perpetrator assaults our law
enforcement personnel. This seriously undermines public safety in our
community.
---------------------------------------------------------------------------
\7\ Discussion Draft 904(3)(B).
---------------------------------------------------------------------------
However, there is a potential issue with the Discussion Draft's
provision that provides protection for tribal justice personnel only
for certain situations specific to the scope of their duties. In
particular, the Discussion Draft provides protection under the law for
tribal justice personnel ``preventing, detecting, investigating, making
arrests relating to, making apprehensions for, or prosecuting a covered
crime.'' \8\ The use of ``covered crime'' could be problematic in
situations where a non-covered crime (such as arson) is being committed
by a non-Indian. In the Discussion Draft, if and when tribal justice
personnel arrive, and if there is an assault against a tribal law
officer, the Eastern Band would not be able to prosecute the assault
committed against our law officer. In this scenario, if the non-Indian
was not committing or was not in the process of committing a ``covered
crime'', the language in the Draft Discussion may lead to confusion in
tribal court as to whether or not jurisdiction has been established
over the offending non-Indian. The EBCI urges the Committee to clarify
this provision to avoid a situation where a non-Indian offender
assaults tribal justice personnel and yet, cannot be held accountable.
---------------------------------------------------------------------------
\8\ Id. (emphasis added).
---------------------------------------------------------------------------
C. Child Violence, Obstruction of Justice, Sex Trafficking, Sexual
Violence, and Stalking
The Discussion Draft significantly improves existing law by
expanding covered crimes to include child violence, obstruction of
justice, sex trafficking, sexual violence, and stalking. \9\ This
expansion is vital to ensuring the full scope of sexual and domestic
violence against Native women and children can be punished while tribes
await a full restoration of criminal jurisdiction over non-Indians.
---------------------------------------------------------------------------
\9\ Discussion Draft 904.
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II. Tribal Access Program
The Committee's version of Title IX does an excellent job of
expanding and funding tribal access to the national crime information
databases. \10\ It is vital that both the Bureau of Indian Affairs and
tribal law enforcement have access to, and the ability to use and move
information into, the National Crime Information Center and other
national databases, as the Discussion Draft provides. \11\ Importantly,
the Discussion Draft version does not require that a tribal justice
official have criminal jurisdiction over Indian country to be an
authorized law enforcement official for purposes of National Crime
Information Center access as such a requirement could significantly
impede the speedy retrieval of information for ongoing Indian country
investigations. The EBCI applauds the Committee's work to codify the
Tribal Access Program in a sustainable way.
---------------------------------------------------------------------------
\10\ Id. at 902.
\11\ Id.
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III. Grant Reimbursement Program
The Discussion Draft expands the scope of grants to tribal
governments currently covered in 25 U.S.C. 1304(f)-(h). \12\
Existing law provides only for ``grants'' as opposed to reimbursements.
This is a crucial distinction because under the existing framework,
tribes receive grant awards to fund their justice systems in an upfront
sum to provide funding for law enforcement, prosecution, trial and
appellate courts, probation systems, detention and correctional
facilities, alternative rehabilitation centers, culturally appropriate
services, and criminal codes and rules of procedure. \13\
---------------------------------------------------------------------------
\12\ Id. at 904.
\13\ 25 U.S.C. 1304(f)-(h).
---------------------------------------------------------------------------
The problem with requiring tribes to implement VAWA's restored
tribal criminal jurisdiction using upfront grant awards alone is that
there are often situations in which unexpected costs, such as inmate
healthcare costs, can arise during the course of implementation. An
unexpected inmate surgery can drastically affect the entire budgeting
plan for a fiscal year for a tribe and makes implementing VAWA's
restored jurisdiction prohibitive for many smaller tribes. The EBCI has
encountered this very issue with the existing grant program. We welcome
a reimbursement program for eligible expenses including healthcare
costs for persons charged.
Additionally, the EBCI supports the Discussion Draft's requirements
for timeliness and a necessary $25,000,000 in funding each fiscal year
through 2026, which significantly expands the availability of awards
and reimbursements for tribes. The Discussion Draft stipulates that a
decision on reimbursement or rejection of reimbursement will be reached
no later than 90 days after DOJ receives a qualified request from a
tribal government and that tribes will be notified no later than 30
days after they have gone past the maximum allowable reimbursement set
by the Department that the maximum has been reached. \14\ This
timeliness provision will ensure federal accountability in reimbursing
tribes for their expenses and provides tribes with a reasonable
expectation of when the funds will arrive. This is very important to
our ability to successfully implement VAWA Title IX.
---------------------------------------------------------------------------
\14\ Discussion Draft 904(f).
---------------------------------------------------------------------------
IV. Bureau of Prisons Tribal Prisoner Program
The Discussion Draft provides for a Bureau of Prisons Tribal
Prisoner Program, which is similar to provisions previously included in
the Tribal Law and Order Act (TLOA). \15\ A Bureau of Prisons Tribal
Program is critical to provide tribes with the ability to house
offenders in federal prisons when they are convicted in tribal court.
The EBCI previously used this provision in TLOA. TLOA has expired and
has yet to be re-authorized, so we are very thankful to see this
program codified now in VAWA. It is key that this be a full program, as
opposed to a pilot program, to avoid termination or expiration of the
program. The EBCI commends the Committee for including these provisions
and supports tribal efforts to participate in the Bureau of Prisons
Tribal Prisoner Program.
---------------------------------------------------------------------------
\15\ Discussion Draft 903.
---------------------------------------------------------------------------
V. Alaska Pilot Project Grant
The EBCI is very thankful to see that the Discussion Draft contains
provisions in Subtitle B ( 911-913) to improve Alaska tribal public
safety through the establishment of a Pilot Program for Special Tribal
Criminal Jurisdiction for Indian Tribes occupying Villages in Alaska.
\16\ The Alaska Pilot Program is desperately needed in VAWA 2021. As
the Discussion Draft notes, Alaska Native women are disproportionately
represented in the domestic violence victim population--by 250
percent--and suffer the highest rates of domestic and sexual violence
compared to the populations of other Indian tribes. EBCI wholeheartedly
supports the Alaska Pilot Program and defers to any comments that
tribes in Alaska may have to offer regarding the program provisions, as
well as any comments or feedback received by the Alaska Native Women's
Resource Center.
---------------------------------------------------------------------------
\16\ Discussion Draft 911-913.
---------------------------------------------------------------------------
VI. Inclusion of Tribes in Maine
The EBCI was dismayed to learn that tribes in Maine were left out
of VAWA 2013's SDVCJ, and the EBCI is thankful to see that VAWA's
restored tribal criminal jurisdiction has been extended to tribes in
Maine in this Discussion Draft. \17\ The EBCI believes strongly that
none of us are safe until all of us are safe, and there is no reason
for any federally recognized tribe to remain restricted in its ability
to exercise this restored jurisdiction.
---------------------------------------------------------------------------
\17\ Discussion Draft 904.
---------------------------------------------------------------------------
VII. Conclusion
In drafting a final version of Title IX, the Committee should
consider Congress's reasons for enacting VAWA Title IX in the first
instance-recognizing and affirming ``the powers of self-government . .
. includ[ing] the inherent power'' of tribes. \18\ The EBCI applauds
the work the Committee has done in its Draft to ensure that all
federally recognized tribes will be able to implement VAWA's restored
criminal jurisdiction, including tribes located in Alaska. Though there
are still minor changes to be made, the EBCI is confident that the
Committee's final version of Title IX will meaningfully update existing
law and empower tribes to seek justice in their communities. This
Discussion Draft, if it becomes law, will allow tribes to better
protect their citizens living within their borders and, ultimately,
will go a long ways towards addressing the epidemic of violence our
Tribal Nations and citizens face.
---------------------------------------------------------------------------
\18\ 25 U.S.C. 1304(b)(1).
---------------------------------------------------------------------------
Thank you to the leadership of both Chairman Schatz and Vice
Chairman Murkowski, and the work of your excellent staffs, for their
vision and leadership in making such an excellent Discussion Draft
possible. This is truly a historic moment.
Sgi,
Richard Sneed, Principal Chief
______
Fort Peck Assiniboine and Sioux Tribes' Red Bird Woman
Center
December 22, 2021
Dear Senator Schatz, Senator Murkowski, and all members of the Senate
Committee on Indian Affairs:
I write on behalf of the Fort Peck Assiniboine and Sioux Tribes'
Red Bird Woman Center to support the bipartisan Violence Against Women
Act (VAWA) Title IX--SAFETY FOR INDIAN WOMEN discussion draft released
on December 8, 2021, which includes important provisions that will
improve safety and justice in tribal communities. Tribal communities
continue to suffer from the highest crime victimization rates in the
country, and the reforms included in the bipartisan Title IX discussion
draft are desperately needed today.
A 2016 report by the National Institute of Justice found that over
80 percent of American Indians and Alaska Natives will be a victim of
intimate partner violence, sexual violence, or stalking in their
lifetime. The study also found that 90 percent of these victims were
victimized by a non-Indian perpetrator. Sadly, Indian children are
particularly impacted by this violence and are 50 percent more likely
to experience child abuse and sexual abuse than white children. The
complicated jurisdictional framework at play in Indian country and
Alaska continues to undermine safety for American Indian and Alaska
Native victims of violence.
Tribal Nations have been exercising jurisdiction over non-Indian
domestic violence offenders under VAWA 2013 for over 8 years.
Exercising Tribal Nations have held serial offenders accountable and
have brought justice and safety to hundreds of victims and their
families while upholding the due process rights of all defendants in
tribal courts. Despite these successes, perpetrators still find gaps in
the law. Victims of sexual violence, child abuse, stalking,
trafficking, elder abuse, and assaults against law enforcement officers
deserve the same protections that Congress affords to domestic violence
victims on tribal lands in VAWA 2013.
It is particularly important that the final bipartisan VAWA bill
recognizes that Indian children are equally in need of the protections
that were extended to adult domestic violence victims in VAWA 2013. The
Tribal Nations implementing VAWA 2013 report that children have been
involved as victims or witnesses in their cases nearly 60 percent of
the time. However, federal law failed to restore tribal jurisdiction to
prosecute these crimes. The Title IX discussion draft language would
restore this category of jurisdiction and allow us to protect our
Indian children in our tribal justice systems.
We ask that the Title IX discussion draft be amended to include
crimes against elders, which was a category of restored jurisdiction
included in the House bill, H.R. 1620, but not the bipartisan Senate
Committee on Indian Affairs discussion draft. Indian elders are an
integral part of our tribal communities to whom we owe respect and
care. Indian elders carry our cultures and traditions, and we must
ensure that they are not left behind in this reauthorization of VAWA.
We also appreciate that the Title IX discussion draft recognizes
that VAWA 2013 inadvertently left our tribal police officers and
detention personnel at risk. Domestic violence cases are both the most
common and the most dangerous calls that law enforcement receives.
Several Tribal Nations have reported assaults on their officers or
bailiffs committed by non-Indian defendants, but as of now, Tribal
Nations remain unable to prosecute these crimes as assaults on law
enforcement was not a restored category of jurisdiction in VAWA 2013.
This creates an obvious public safety concern. In order to ensure that
the Title IX discussion draft fully rectifies this issue, we strongly
recommend amending the draft language on page ten to remove the
requirement that the assault must be tied to a ``covered crime.''
Requiring that the assault of the tribal justice personnel be tied to a
``covered crime'' may require the Tribal Nation to first prove the
underlying covered crime before they could prosecute for the assault,
which does not fully fix the public safety concern of police officers
or detention personnel. This creates significant confusion that likely
would have to be worked out in the courts. We ask that the language
fully cover all assaults of tribal justice personnel and not mention
anything related to a ``covered crime.''
Section 904 provides a local solution for the local problem of
criminal victimization in Indian country. We are pleased to see that
the bipartisan Title IX discussion draft continues to build on VAWA's
promise and includes key priorities that have been identified by Tribal
Nations to further enhance safety for victims in tribal communities.
The Title IX discussion draft clarifies that Tribal Nations in
Maine are included in the law and creates a pilot project to address
the unique needs in Alaska. We fully support the inclusion of all
Tribal Nations in VAWA. Alaska Native women are over-represented among
domestic violence victims in Alaska by 250 percent and make up 47
percent of reported rape victims in the state, yet 1 in 3 rural Alaskan
communities have no law enforcement presence. The Title IX discussion
draft includes a pilot project that will enable a limited number of
Tribal Nations in Alaska to exercise special tribal criminal
jurisdiction over certain crimes that occur in Alaska villages.
In addition to the lifesaving provisions outlined above, the
bipartisan Title IX discussion draft creates a reimbursement program
under which the Attorney General may reimburse Tribal Nations for
expenses incurred in exercising special tribal criminal jurisdiction.
We would ask that that reimbursement program language be expanded to
include reimbursements for trial and appellate courts (including
facilities maintenance, renovation, and rehabilitation.) Additionally,
the time for the Attorney General to develop regulations for the
program should be shortened from within one year to within six months
after the effective date to ensure that this important program is
implemented quickly to address the urgent need in Indian Country.
The Title XI discussion draft also allows Tribal Nations to utilize
the Bureau of Prisons (BOP) to house defendants serving sentences of
more than one year and increases Tribal Nations' access to the National
Crime Information Database. Both of these additions to VAWA will go a
long way towards ensuring Tribal Nations are able to implement this
restored jurisdiction fully and most effectively.
We fully support the purpose of Title IX, which is to strengthen
tribal sovereignty and reaffirm tribal jurisdiction over non-Indian
perpetrators. We also support providing additional resources to address
violence against all Native women. However, the new language in the
Section 901 Findings and Purposes, which adds Native Hawaiians, urban
Indians communities, Native Americans, and Native American communities,
jeopardizes the long-term enforcement of the law and detracts from the
key purpose of Title IX. For those reasons we strongly recommend that
all Native Hawaiian, urban Indian communities, Native American, and
Native American communities language be removed from Section 901. The
language in Section 901 should solely focus on American Indians, Alaska
Natives, and Indian tribes in order to protect tribal sovereignty,
which is consistent with the purpose of the Title IX.
We urge all members of the Senate Committee on Indian affairs to
support the provisions included in the bipartisan Title IX discussion
draft and to become a co-sponsor of the full bipartisan Senate VAWA
bill that incorporates all of the discussion draft provisions and our
recommended changes.
Sincerely,
Susan Parker, Program Director
______
Indian Health Care Resource Center of Tulsa
December 21, 2021
Dear Chairman Schatz and Vice Chairman Murkowski:
Thank you for the opportunity to provide comments on the Violence
Against Women Act (VAWA) reauthorization discussion draft. On behalf of
Indian Health Care Resource Center in Tulsa, Oklahoma, we hereby submit
our written comments and recommendations in response to the tribal
title draft1 and larger bill.
Indian Health Care Resource Center provides cutting edge care for
almost 12,000 Native Americans annually. The wide array of integrated
services operates through a multidisciplinary, patient-centered,
medical home model of care. The one-stop shop houses the following
services: (1) Primary Care for all ages; (2) Internal Medicine; (3)
Pediatrics including well child; (4) Obstetrics; (5) Public Health
including a new COVID-19 and Immunization Clinic; (6) Optometry; (7)
Dentistry; (8) Pharmacy; (9) Laboratory; (10) Radiology including x-
ray, mammography, and ultra sound; (11) Behavioral Health; (12)
Substance Abuse Prevention and Treatment; (13) Systems of Care Wrap
Around Services; 14) Social service connection through medical social
workers; (15) Domestic violence prevention and intervention; (16)
Health Education and Wellness including diabetes management,
dietitians, and exercise; (17) Transportation, and (18) Programs for
Youth including suicide and drug abuse prevention and cultural
activities.
Comments
Urban Indian Organizations (UIOs) like ours provide much more than
just health services to American Indians and Alaska Natives including
but not limited to the Special Supplemental Nutrition Program for
Women, Infants, and Children (WIC), housing services, social services,
community advocacy, and other resources to victims of domestic
violence. Many UIOs conduct home visits and are at the front-line to
identify domestic violence and other risk factors for Missing and
Murdered Indigenous People (MMIP). Urban Indian inclusion in VAWA is
important to strengthen these critical services provided at UIOs for
American Indians/Alaska Natives (AI/ANs), and the National Council of
Urban Indian Health (NCUIH) has advocated for urban Indians to be added
in the Senate draft bill. This is a huge accomplishment given that the
House bill on VAWA (H.R. 1620) excluded UIOs and urban Indian
communities.
During the White House Tribal Nations Summit last month, President
Biden signed an Executive Order (E.O.) \2\ on addressing the crisis of
MMIP with UIO inclusion. The E.O. specifically mentions the Department
of Health and Human Services (HHS) and the Secretary of the Interior
conferring with UIOs on developing a comprehensive plan to support
initiatives related to MMIP. NCUIH and UIOs support urban confer among
federal agencies on policies that impact urban AI/ANs and have been
working on an urban confer bill \3\ that recently passed the House
(406-17) with overwhelming support. The E.O also highlights the need
for improved data surrounding this crisis as it relates to urban Indian
communities. NCUIH has, and continues to, advocate for gathering more
data on AI/AN communities and Missing and Murdered Indigenous People.
On July 2, 2021, NCUIH submitted comments to the Department of Justice
on Savannah's Act requesting UIOs and urban Indians to be incorporated
into improving data relevancy, access, and resources. We look forward
to participating in that effort and we hope that VAWA will help us
combat this epidemic in Indian country.
---------------------------------------------------------------------------
\2\ Executive Order on Improving Public Safety and Criminal Justice
for Native Americans and Addressing the Crisis of Missing or Murdered
Indigenous People: https://www.whitehouse.gov/briefing-room/
presidential-actions/2021/11/15/executive-order-on-improving-public-
safety-and-criminal-justice-for-native-americans-and-addressing-the-
crisis-of-missing-or-murdered-indigenous-people/
\3\ Urban Indian Health Confer Act: https://www.congress.gov/117/
meeting/house/114098/documents/BILLS-1175221ih.pdf
---------------------------------------------------------------------------
SNAHC would like to express appreciation for the inclusion of urban
Indians in 11 locations of the Senate draft bill. We respectfully ask
you retain the following provisions in the final Senate bill:
Bill Amendment: SEC. 101. Stop Grants
--Part T of title I of the Omnibus Crime Control and Safe
Streets Act of 1968 (34 U.S.C. 10441 et seq.) is amended--
--(25) paying any fees charged by any governmental authority
for furnishing a victim or the child of a victim with any of
the following documents:
``(B) An identification card issued to the individual by a
State or Tribe, that shows that the individual is a resident of
the State or a member of the Tribe.''; and
--(B) in Subsection (d)--
--i) in paragraph (1)-
--II) in subparagraph (D), by inserting ``, urban Indian
communities, and Native Hawaiian communities'' after
``assisting Indian tribes''; (ii) in paragraph (2)-
--I) in subparagraph (A)(iii), by inserting ``, urban Indian
communities, and Native Hawaiian communities'' after ``provide
services to Indian tribes''; and
--II) in subparagraph (B), by inserting ``, urban Indian
communities, and Native Hawaiian communities'' after ``in areas
where Indian tribes'';
Bill Amendment: SEC. 105. Outreach and Services to Underserved
Population Grants.
--Section 120 of the Violence Against Women and Department of
Justice Reauthorization Act of 2005 (34 U.S.C. 20123) is
amended--
--(2) in subsection (b)(3), by inserting ``urban Indian,
Native Hawaiian,'' before ``or local organization'';
Bill Amendment: SEC. 108. Enhancing Culturally Specific
Services for Victims of Domestic Violence, Dating Violence,
Sexual Assault, and Stalking
--Section 121 of the Violence Against Women and Department of
Justice Reauthorization Act of 2005 (34 U.S.C. 20124) is
amended-
--``(4) DISTRIBUTION.--Of the total amount available for
grants under this section, not less than 40 percent of such
funds shall be allocated for programs or projects that
meaningfully address non-intimate partner relationship sexual
assault.'';
(3) in subsection (c)--
--(A) in paragraph (1), by striking ``and'' at the end;
--(B) in paragraph (2), by striking the period at the end and
inserting ``; and''; and
--(C) by adding at the end the following:
--``(3) tribal nonprofit organizations, Native Hawaiian
organizations, and urban Indian organizations.'';
Bill Amendment: SEC. 110. Pilot Program on Restorative
Practices.
--a) IN GENERAL.--The Violence Against Women Act of 1994 (title
IV of Public Law 103-322), as amended by section 205, is
further amended by adding at the end the following:
--``Subtitle R-Restorative Practices
--``SEC. 41801. PILOT PROGRAM ON RESTORATIVE PRACTICES.
``(a) DEFINITIONS.--In this section:
--``(2) ELIGIBLE ENTITY.--The term `eligible entity' means-
--A) a State;
--B) a unit of local government;
--C) a tribal government;
--D) a tribal organization;
--E) a victim service provider;
--F) an institution of higher education (as defined in
section 101(a) of the Higher Education Act of 1965 (20 U.S.C.
1001(a)); and
--G) a private or public nonprofit organization, including
--(i) a tribal nonprofit organization; and
--ii) a faith-based nonprofit organization.
Bill Amendment: SEC. 302. Creating Hope through Outreach,
Options, Services, and Education (CHOOSE) for Children and
Youth
--Section 41201 of the Violence Against Women Act of 1994 (34
U.S.C. 12451) is amended--
--2) in subsection (c)--
(A) in paragraph (1)(A)--
--(ii) by inserting ``Native Hawaiian organization, urban
Indian organization,''
before ``or population-specific community-based organization''; and
Bill Amendment: SEC. 506. Expanding Access to Unified Care.
--(f) Authorization of Appropriations.--
--2) Set-Aside.--Of the amount appropriated under this
subsection for a fiscal year, the Secretary shall reserve 15
percent of such amount for purposes of making grants to
entities that are affiliated with Indian Tribes or Tribal
organizations (as defined in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5304)),
or Urban Indian organizations (as defined in section 4 of the
Indian Health Care Improvement Act (25 U.S.C.1603)). Amounts
reserved may be used to support referrals and the delivery of
emergency first aid, culturally competent support, and forensic
evidence collection training.
Bill Amendment: SEC. 507. Expanding Access to Forensics for
Victims of Interpersonal Violence
--(a) Definitions.--In this section:
--(9) URBAN INDIAN ORGANIZATION.--The term ``Urban Indian
organization'' has the meaning given such term in section 4 of
the Indian Health Care Improvement Act (25 U.S.C. 1603).
(b) Demonstration Grants for Comprehensive Forensic
Training.--
--(6) Authorization of Appropriations.--
--(B) Set-Aside.--Of the amount appropriated under this
paragraph for a fiscal year, the Secretary shall reserve 10
percent for purposes of making grants to support training and
curricula that addresses the unique needs of Indian Tribes,
Tribal organizations, Urban Indian organizations, and Native
Hawaiian organizations. Amounts so reserved may be used to
support training, referrals, and the delivery of emergency
first aid, culturally competent support, and forensic evidence
collection training.
Bill Amendment: SEC. 901. Findings and Purposes
--(b) Purposes.--The purposes of this subtitle are-
--3) to empower Tribal governments and Native American
communities, including urban Indian communities and Native
Hawaiian communities, with the resources and information
necessary to effectively respond to cases of domestic violence,
dating violence, stalking, sex trafficking, sexual violence,
and missing and murdered Native Americans; and
--4) to increase the collection of data related to missing
and murdered Native Americans and the sharing of information
among Federal, State, Tribal, and local officials responsible
for responding to and investigating crimes impacting Indian
Tribes and Native American communities, including urban Indian
communities and Native Hawaiian communities, especially crimes
relating to cases of missing and murdered Native Americans.
Closing
In closing, Indian Heath Care Resource Center would like to thank
the members of the Senate Committee on Indian Affairs for including
urban AI/ANs in this important piece of legislation. We urge Congress
to continue its support of all AI/ANs by retaining these provisions in
the final VAWA reauthorization.
Sincerely,
Carmelita Skeeter, CEO
______
Tulalip Tribe
December 21, 2021
Chairman Schatz and Vice-chair Murkowski and the members of the Senate
Committee on Indian Affairs,
I am a tribal judge for the Tulalip Tribes and a citizen of the
Chickasaw Nation. I am writing to you as a private citizen and not on
the behalf of the Tulalip Tribes or my own tribe, and not in my
official capacity as a judge. My views and opinions are my own and not
the official views and opinions of any other entity or organization and
offered for the purpose of bettering the law, as requested by the
Inter-Tribal Working Group.
As a tribal judge, I regularly exercise jurisdiction over a range
of crimes that occur on the reservation, including felony enhanced
sentence crimes under TLOA and special domestic violence crimes under
VAWA. The Tulalip Tribal Court was one of the original VAWA SDVCJ Pilot
Courts. Our Court has been exercising VAWA jurisdiction for some time
now.
I wanted to discuss briefly our experience here. At Tulalip, we
give due process protections of equal or greater degree than the
Federal government does. We are a respected Court locally. In addition
to my other dockets, I preside over the adult criminal wellness docket,
a type of drug court. Our criminal wellness program is a mentor Court
for the National Association of Drug Court Professionals (NADCP),
meaning other courts observe our dockets and we offer them mentorship
on how to implement their own programs. We do this not only for other
tribal courts, but for state courts as well, and we have received
excellent feedback about our operations from these courts, including
the state courts who have observed, and from our NADCP evaluations. We
have something to contribute and something to teach, and we are happy
to do so to create a better system for all of us.
We provide superior due process protections to everyone, not just
our VAWA clients. VAWA clients are treated like everyone else in our
Court; that is to say with dignity and respect. They appear on our
docket somewhat regularly, and yet Federal habeas petitions against our
VAWA jurisdiction have been virtually non-existent since we started
exercising special domestic violence jurisdiction as a Pilot Court. I
believe this is because VAWA clients would typically rather be
prosecuted here than in the State. That is for a variety of reasons,
including that we offer more services than the State. For instance, we
have an over-dose mapping program which in addition to gathering data
on local overdose deaths, is an outreach program which provides
clothing and toiletries to transient criminal defendants, and which
connects individuals with various other services and housing. They have
even been known to drive people to treatment on the other end of the
State when I order someone into treatment. We offer probation talking
circles, we conduct native crafting events in the courthouse, we have a
recovery house called The Healing Lodge, and have recently built a
tiny-home village for the homeless on the reservation. Recently,
Tulalip has begun providing hotel vouchers to the homeless during cold
weather. A typical person is much better off being prosecuted here than
elsewhere.
Of course I am always pleased to see the Senate make attempts to
correct the Federal government's historical errors in interfering with
our inherent jurisdiction and natural rights as a native people,
therefore I am happy to see the Senate's current VAWA reauthorization
attempt, which goes further than I would have predicted the Federal
government would go. (Then I again, we natives have learned not to
expect much from the Federal government, other than broken promises.)
Reauthorization and expansion of VAWA is certainly needed, and the
current proposed Senate bill is a major step in the right direction.
However, there are a few items in the bill that should be
corrected:
1. Assault on justice personal--This section says tribes can
only have jurisdiction over justice personnel in the context of
their duties enforcing ``covered crimes.'' This is confusing
and pointless. The bill should simply say that assaulting
justice personnel generally is a covered crime. I cannot think
of a single reason the Senate should want a situation where a
person can be prosecuted for assaulting a police officer
investigating a sexual assault, but not embezzlement or some
other non-covered crime. If a person is on the reservation
assaults a reservation police officer, judge, prosecutor, etc.
it is perfectly reasonable to expect to be prosecuted in a
reservation court.
2. There is no reimbursement for tribal courts listed in the
section on reimbursement. Virtually everyone else involved in
the justice system including treatment providers can be
reimbursed under the proposed reauthorization, but courts have
been strangely left out, even though we bare much of the cost.
I have to assume that was inadvertent, and I hope the Senate
corrects it.
3. Covered crimes should be broader. For instance, child
violence is covered but not child neglect or child
endangerment. I'm not sure why we should have jurisdiction over
someone who hits a child but not over someone who starves a
child. In addition, the covered crimes should also include
elder abuse and vulnerable adult abuse, among other crimes that
are especially egregious to native people. My people say our
children, elders, and vulnerable adults are living treasures. I
cannot fathom leaving our elders and vulnerable adults out of
the bills.
Regarding that last point, after the Senate finishes reauthorizing
and expanding VAWA, I hope Congress does not consider their work
accomplished regarding our tribal sovereignty and inherent
jurisdiction.
This bill is a band aid on a much larger problem. Every few years,
Congress puts another band aid on the problem, grows our jurisdiction a
little, and then forgets we exist. I am not going to look a gift horse
in the mouth, and I will say thank you for whatever our tribes can get.
Yet, the problem still persists. The problem is the fact that the
Federal government thinks it has any say over our jurisdiction to begin
with. We are separate sovereigns, with inherent plenary authority over
our reservations. No one can take that away from us. Not Congress. Not
the Supreme Court. My people, the Chickasaws, call ourselves
unconquered and unconquerable. Yet you pass legislation telling us
whether we have jurisdiction over our domain.
President George Washington gave my people certain assurances
himself. He wrote a letter to our great minko (king) Piaminko, who the
President called ``the Mountain Leader, Head Warrior, and First
Minister'', in which he reassured his ``brothers'' the Chickasaws that
the United States would uphold its treaties with the Chickasaws. The
word ``brothers'' was not lost on the Chickasaws. Before the
revolution, the Chickasaws referred to King George as our ``father'' as
a sign of respect to his status as king of his people. George
Washington knew this when he allied with us, and by calling us
``brothers'' he was signaling equality between us and the United
States. Washington told us in his letter that the U.S. was not
interested in our lands and ``if any bad people tell you otherwise they
deceive you, and are our enemies, and the enemies of the United
States.'' He asked us to ``hold fast the Chain of Friendship, and do
not believe any evil Reports against the justice and integrity of the
United States.'' Proclamation by the President, August 26, 1790, and
the President to the Chickasaw Nation, December 30, 1790, in The
Territorial Papers of the United States, ed. Clarence Edwin Carter, 28
vols. (Washington, D.C.: GPO 1934) 4:34, 41.
We were always to be equals. The future that Washington described
was not one where Congress dictated to us how to conduct ourselves on
our own land. Do you not trust us? You mete out a little bit of
jurisdiction now and then, when you want to remind us to hold our hands
out to you for more. Why not give us back the rest of our criminal
jurisdiction?
If you can trust us tribal judges with sexual assaults and domestic
violence, then why can't you trust us with shoplifts and drug
possession cases? Are we tribal judges competent to sentence people for
rapes, but incompetent to sentence them for unlawful camping or
littering?
To reference Harry Browne, the Federal government breaks our legs,
then gives us a crutch and says Tribes would not be able to walk
without the Federal government. We should not have to beg for our
jurisdiction back. The Federal government should have never interfered
with our jurisdiction to begin with.
6Oliphant v. Suquamish took our criminal jurisdiction over ``non-
Indians'' away in 1978. Not 1778 or 1878. 1978. Let that sink in.
Arguably one of the most racist court decisions in the history of this
country is a relatively modern decision. The entire premise of the
decision is tribal judges cannot be trusted with criminal jurisdiction
over all people who choose to commit crimes within the boundaries of
the reservation. They can only be trusted with jurisdiction over
natives. Why? Because the race of the person in front of us in court
matters? When else does it matter? Imagine if the Federal government
told the State of Washington they could only exercise criminal
jurisdiction over people of certain ethnicities. How would that go
over?
Before VAWA, the position of the Federal government was clear. The
Federal government effectively said natives who operate tribal courts
are incompetent to give people due process. The Federal government
prohibited us from exercising authority over ``non-Indians,'' because
apparently we should only be allowed to be incompetent to other
natives.
Then Congress eventually passed VAWA. You let us prove we are in
fact competent after all (and always were.) Only now that we have
proved that, instead of giving us back our jurisdiction over all people
who commit crimes on our reservations, you still hold most of it back.
Why? So that you can give us a little more in a few years when you want
to remind us who to vote for?
The Republicans on the committee should listen closely to this. The
Democrats will always get native votes if the Democrats get to keep
bringing up VAWA reauthorization every few years. They give us a little
bit, then throw a party. Then they do it all over again a couple years
later. Just give us all our jurisdiction back now and be done with it.
Natives will notice and remember.
The reasoning behind the decision to hold back most of our
jurisdiction is incoherent. I guarantee not a single Senator could
offer a reasonable argument why tribal judges should be allowed to
exercise full jurisdiction over sexual assault but not shoplifting, or
full jurisdiction over child violence but not unreasonable noise.
The Senate should not be haggling over whether to make covered
crimes narrow or slightly less narrow. The Senate should be debating
whether to give us all of our criminal jurisdiction back. If you really
cared about Indian country like you all claim to, then this would have
already been fixed.
We will take what little victories we can get. That is, after all,
how we have survived to this point. But we should not have to
constantly beg for what we have a right to. It is a travesty that the
Supreme Court has never overturned Oliphant v. Suquamish. Perhaps they
will someday. Yet, it is an even bigger travesty that the immediate
reaction of Congress to Oliphant did not involve legislation to fix it,
and still never has. The Congress of the United States is not helpless
to do anything about this.
Congress can give us our jurisdiction back any time. Congress
simply chooses not to. And every year that passes by is another year
you choose not to. And now 43 years have passed, and you are just now
letting us have jurisdiction over people that beat native kids.
How much time has to pass before you decide to fix the real
problem. Address the issues with this reauthorization and pass it.
Sure. Of course you should. The perfect should not be the enemy of the
good. And then next year get to work giving us back the rest of our
jurisdiction. You want to right the wrongs? That is what you were
elected to do. Right them. Right the whole wrong.
Thanks for your time.
Joshua Heath, Associate Judge
______
Butte Native Wellness Center
December 20, 2021
Dear Chairman Schatz and Vice Chairman Murkowski:
Thank you for the opportunity to provide comments on the Violence
Against Women Act (VAWA) reauthorization discussion draft. On behalf of
Butte Native Wellness Center in Butte, MT, we hereby submit our written
comments and recommendations in response to the tribal title draft1 and
larger bill. The Butte Native Wellness Center provides health, mental
health, substance abuse and wellness services to more than twelve
different tribes. Services are provided within a traditional framework
and are designed to accentuate the American Indian/Alaska Native
traditions.
Comments
Urban Indian Organizations (UIOs) like ours provide much more than
just health services to American Indians and Alaska Natives including
but not limited to the Special Supplemental Nutrition Program for
Women, Infants, and Children (WIC), housing services, social services,
community advocacy, and other resources to victims of domestic
violence. Many UIOs conduct home visits and are at the front-line to
identify domestic violence and other risk factors for Missing and
Murdered Indigenous People (MMIP). Urban Indian inclusion in VAWA is
important to strengthen these critical services provided at UIOs for
American Indians/Alaska Natives (AI/ANs), and the National Council of
Urban Indian Health (NCUIH) has advocated for urban Indians to be added
in the Senate draft bill. This is a huge accomplishment given that the
House bill on VAWA (H.R. 1620) excluded UIOs and urban Indian
communities.
During the White House Tribal Nations Summit last month, President
Biden signed an Executive Order (E.O.) \2\ on addressing the crisis of
MMIP with UIO inclusion. The E.O. specifically mentions the Department
of Health and Human Services (HHS) and the Secretary of the Interior
conferring with UIOs on developing a comprehensive plan to support
initiatives related to MMIP. NCUIH and UIOs support urban confer among
federal agencies on policies that impact urban AI/ANs and have been
working on an urban confer bill \3\ that recently passed the House
(406-17) with overwhelming support. The E.O also highlights the need
for improved data surrounding this crisis as it relates to urban Indian
communities. NCUIH has, and continues to, advocate for gathering more
data on AI/AN communities and Missing and Murdered Indigenous People.
On July 2, 2021, NCUIH submitted comments to the Department of Justice
on Savannah's Act requesting UIOs and urban Indians to be incorporated
into improving data relevancy, access, and resources. We look forward
to participating in that effort and we hope that VAWA will help us
combat this epidemic in Indian country.
---------------------------------------------------------------------------
\2\ Executive Order on Improving Public Safety and Criminal Justice
for Native Americans and Addressing the Crisis of Missing or Murdered
Indigenous People: https://www.whitehouse.gov/briefing-room/
presidential-actions/2021/11/15/executive-order-on-improving-public-
safety-and-criminal-justice-for-native-americans-and-addressing-the-
crisis-of-missing-or-murdered-indigenous-people/
\3\ Urban Indian Health Confer Act: https://www.congress.gov/117/
meeting/house/114098/documents/BILLS-1175221ih.pdf
---------------------------------------------------------------------------
SNAHC would like to express appreciation for the inclusion of urban
Indians in 11 locations of the Senate draft bill. We respectfully ask
you retain the following provisions in the final Senate bill:
Bill Amendment: SEC. 101. Stop Grants
--Part T of title I of the Omnibus Crime Control and Safe
Streets Act of 1968 (34 U.S.C. 10441 et seq.) is amended--
--(25) paying any fees charged by any governmental authority
for furnishing a victim or the child of a victim with any of
the following documents:
``(B) An identification card issued to the individual by a
State or Tribe, that shows that the individual is a resident of
the State or a member of the Tribe.''; and
--(B) in Subsection (d)--
--i) in paragraph (1)-
--II) in subparagraph (D), by inserting ``, urban Indian
communities, and Native Hawaiian communities'' after
``assisting Indian tribes''; (ii) in paragraph (2)-
--I) in subparagraph (A)(iii), by inserting ``, urban Indian
communities, and Native Hawaiian communities'' after ``provide
services to Indian tribes''; and
--II) in subparagraph (B), by inserting ``, urban Indian
communities, and Native Hawaiian communities'' after ``in areas
where Indian tribes'';
Bill Amendment: SEC. 105. Outreach and Services to Underserved
Population Grants.
--Section 120 of the Violence Against Women and Department of
Justice Reauthorization Act of 2005 (34 U.S.C. 20123) is
amended--
--(2) in subsection (b)(3), by inserting ``urban Indian,
Native Hawaiian,'' before ``or local organization'';
Bill Amendment: SEC. 108. Enhancing Culturally Specific
Services for Victims of Domestic Violence, Dating Violence,
Sexual Assault, and Stalking
--Section 121 of the Violence Against Women and Department of
Justice Reauthorization Act of 2005 (34 U.S.C. 20124) is
amended-
--``(4) DISTRIBUTION.--Of the total amount available for
grants under this section, not less than 40 percent of such
funds shall be allocated for programs or projects that
meaningfully address non-intimate partner relationship sexual
assault.'';
(3) in subsection (c)--
--(A) in paragraph (1), by striking ``and'' at the end;
--(B) in paragraph (2), by striking the period at the end and
inserting ``; and''; and
--(C) by adding at the end the following:
--``(3) tribal nonprofit organizations, Native Hawaiian
organizations, and urban Indian organizations.'';
Bill Amendment: SEC. 110. Pilot Program on Restorative
Practices.
--a) IN GENERAL.--The Violence Against Women Act of 1994 (title
IV of Public Law 103-322), as amended by section 205, is
further amended by adding at the end the following:
--``Subtitle R-Restorative Practices
--``SEC. 41801. PILOT PROGRAM ON RESTORATIVE PRACTICES.
``(a) DEFINITIONS.--In this section:
--``(2) ELIGIBLE ENTITY.--The term `eligible entity' means-
--A) a State;
--B) a unit of local government;
--C) a tribal government;
--D) a tribal organization;
--E) a victim service provider;
--F) an institution of higher education (as defined in
section 101(a) of the Higher Education Act of 1965 (20 U.S.C.
1001(a)); and
--G) a private or public nonprofit organization, including
--(i) a tribal nonprofit organization; and
--ii) a faith-based nonprofit organization.
Bill Amendment: SEC. 302. Creating Hope through Outreach,
Options, Services, and Education (CHOOSE) for Children and
Youth
--Section 41201 of the Violence Against Women Act of 1994 (34
U.S.C. 12451) is amended--
--2) in subsection (c)--
(A) in paragraph (1)(A)--
--(ii) by inserting ``Native Hawaiian organization, urban
Indian organization,''
before ``or population-specific community-based organization''; and
Bill Amendment: SEC. 506. Expanding Access to Unified Care.
--(f) Authorization of Appropriations.--
--2) Set-Aside.--Of the amount appropriated under this
subsection for a fiscal year, the Secretary shall reserve 15
percent of such amount for purposes of making grants to
entities that are affiliated with Indian Tribes or Tribal
organizations (as defined in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5304)),
or Urban Indian organizations (as defined in section 4 of the
Indian Health Care Improvement Act (25 U.S.C.1603)). Amounts
reserved may be used to support referrals and the delivery of
emergency first aid, culturally competent support, and forensic
evidence collection training.
Bill Amendment: SEC. 507. Expanding Access to Forensics for
Victims of Interpersonal Violence
--(a) Definitions.--In this section:
--(9) URBAN INDIAN ORGANIZATION.--The term ``Urban Indian
organization'' has the meaning given such term in section 4 of
the Indian Health Care Improvement Act (25 U.S.C. 1603).
(b) Demonstration Grants for Comprehensive Forensic
Training.--
--(6) Authorization of Appropriations.--
--(B) Set-Aside.--Of the amount appropriated under this
paragraph for a fiscal year, the Secretary shall reserve 10
percent for purposes of making grants to support training and
curricula that addresses the unique needs of Indian Tribes,
Tribal organizations, Urban Indian organizations, and Native
Hawaiian organizations. Amounts so reserved may be used to
support training, referrals, and the delivery of emergency
first aid, culturally competent support, and forensic evidence
collection training.
Bill Amendment: SEC. 901. Findings and Purposes
--(b) Purposes.--The purposes of this subtitle are-
--3) to empower Tribal governments and Native American
communities, including urban Indian communities and Native
Hawaiian communities, with the resources and information
necessary to effectively respond to cases of domestic violence,
dating violence, stalking, sex trafficking, sexual violence,
and missing and murdered Native Americans; and
--4) to increase the collection of data related to missing
and murdered Native Americans and the sharing of information
among Federal, State, Tribal, and local officials responsible
for responding to and investigating crimes impacting Indian
Tribes and Native American communities, including urban Indian
communities and Native Hawaiian communities, especially crimes
relating to cases of missing and murdered Native Americans.
Closing
In closing, Butte Native Wellness Center would like to thank the
members of the Senate Committee on Indian Affairs for including urban
AI/ANs in this important piece of legislation. We urge Congress to
continue its support of all AI/ANs by retaining these provisions in the
final VAWA reauthorization.
Sincerely,
Shannon Parker, Executive Director
______
Tulalip Tribes
December 20, 2021
Dear Senator Schatz, Senator Murkowski, and all members of the Senate
Committee on Indian Affairs:
On behalf of the Tulalip Tribes, we write to support the bipartisan
Violence Against Women Act (VAWA) Title IX--SAFETY FOR INDIAN WOMEN
discussion draft released December 8, 2021, which includes important
provisions that will improve safety and justice in tribal communities.
We will provide a brief overview of the Tulalip Tribes, its Special
Domestic Violence Criminal Jurisdiction (SDVCJ) Program, the gaps in
the 2013 we are experiencing, and offer ideas on how to improve your
discussion draft.
Background on the Tulalip Tribes
The Tulalip community is located on a 22,000-acre Reservation
bordering on the east to Interstate 5 corridor, 35 miles north of
Seattle. This area has recently experienced rapid population growth and
development. Tulalip has approximately 5,000 enrolled members, but most
Reservation residents are non-Indian due to the history of allotments.
Today, the Tribes or Tribal members hold approximately 60 percent of
the Reservation lands with the balance being in non-Indian ownership.
The large number of non-Indian residents on the Tulalip Indian
Reservation, the geographic location of the reservation, and the
economic activity on the reservation generated by the Tulalip Tribes
has contributed to an increased number of crimes committed against
members of the Tulalip Tribes, including missing tribal members and
human trafficking.
Special Domestic Violence Criminal Jurisdiction
The Violence Against Women Reauthorization Act of 2013 (VAWA 2013)
recognized tribal jurisdiction over certain non-Indians who commit
domestic violence crimes against Indians. The Tulalip Tribes and its
Tribal Court was one of the first three pilot project courts to
exercise Special Domestic Violence Criminal Jurisdiction (SDVCJ) over
non-Indians who commit domestic violence related crimes against Indians
under VAWA 2013 (25 USC 1304). As a pilot project tribe, compliance
with 2013 VAWA provisions was critical as we moved forward with SDVCJ
implementation. The Tulalip Tribes already had a number of 2013 VAWA
key requirements in place but we still took substantial efforts to
ensure compliance set forth in the law through the creation of a SDVCJ
advisory council who spent significant resources in updating codes,
court rules, policies, personnel and administrative capacity within the
tribal court, prosecutor office, and DV program, to support a
successful program. Tulalip also spent significant resources in program
development to ensure it had the appropriate staff to run a successful
Special Domestic Violence Criminal Jurisdiction (SDVCJ) program.
The Tulalip SDVCJ program has been a huge success. Since February
20, 2014, through December 31, 2019, we have had 36 defendants of age
range 18-54. 16 Caucasian, 6 African Americans, 7 Hispanic, 1 Middle
Eastern, 1 non-enrolled Canadian Indian, 2 non-enrolled Native
American, 3 mixed races. Out of 47 cases, there have been 16 case
convictions, 1 case acquittal, there are 12 cases pending, 12 cases
dismissed, 4 deferrals, 2 cases not filed.
Unfortunately, the exercise of SDVCJ has exposed numerous
jurisdictional gaps in the 2013 law that allow non-Indians to evade
prosecution for other crimes committed. These crimes range from child
abuse and assault, sexual assault, rape, sex trafficking, kidnapping,
and drug related crimes. Domestic Violence crimes against native women
do not take place in a vacuum and these crimes are going unpunished.
At Tulalip, the most glaring jurisdictional gap has been the
inability to prosecute crimes against children. Children are often in
the home and are the first responders to DV incidents, either coming to
the aid of their mother or being used as a physical pawn during an
incident. Indian children are often victims of crime and these crimes
are rarely, if ever, prosecuted by the State or U.S. Attorney. The non-
Indian is not prosecuted for these crimes because under the 2013 tribal
provisions we do not have jurisdiction to prosecute these crimes. The
tribes who have been exercising jurisdiction over non-Indians pursuant
to VAWA 2013 report that children are involved in their cases nearly 60
percent of the time as witnesses or victims. \1\ Indeed, well over half
of the cases prosecuted under Tulalip's SDVCJ program involved crimes
against children, and only one of these cases was prosecuted by the
federal government as mentioned above. The remainder of the cases at
Tulalip were not prosecuted. This is a grave injustice. Indian children
deserve the same protections afforded to non-Indian children and under
the current legal system Indian children do not receive those same
protections.
---------------------------------------------------------------------------
\1\ NCAI, ``VAWA 2013's Special Domestic Violence Criminal
Jurisdiction Five-Year Report,'' p. 28,(2018).
---------------------------------------------------------------------------
Under the Tulalip SDVCJ program, during 19 of the incidents, a
child or children were present, and 8 children were victims of crime.
Of the crimes in which children were victims of crime, only 1 case was
prosecuted because underlying crime transferred to federal court. The
State of Washington has not taken action on other crimes in which
children were victims.
For these reasons, we are optimistic to see that the final
bipartisan VAWA bill recognizes that Indian children are equally in
need of the protections that were extended to adult domestic violence
victims in VAWA 2013. Its is critical that jurisdiction is restored
that allows us to protect our Indian children in our tribal justice
systems.
We ask that the Title IX discussion draft be amended to include
crimes against elders, which was a category of restored jurisdiction
included in the House bill, H.R. 1620, but not the bipartisan Senate
Committee on Indian Affairs discussion draft. Indian elders are an
integral part of our tribal communities to whom we owe respect and
care. Indian elders carry our cultures and traditions, and we must
ensure that they are not left behind in this reauthorization of VAWA.
We also appreciate that the Title IX discussion draft recognizes
that VAWA 2013 inadvertently left our tribal police officers and
detention personnel at risk. Domestic violence cases are both the most
common and the most dangerous calls that law enforcement receives.
Several Tribal Nations have reported assaults on their officers or
bailiffs committed by non-Indian defendants, but as of now, Tribal
Nations remain unable to prosecute these crimes as assaults on law
enforcement was not a restored category of jurisdiction in VAWA 2013.
This creates an obvious public safety concern. In order to ensure that
the Title IX discussion draft fully rectifies this issue, we strongly
recommend amending the draft language on page ten to remove the
requirement that the assault must be tied to a ``covered crime.''
Requiring that the assault of the tribal justice personnel be tied to a
``covered crime'' may require the Tribal Nation to first prove the
underlying covered crime before they could prosecute for the assault,
which does not fully fix the public safety concern of police officers
or detention personnel. This creates significant confusion that likely
would have to be worked out in the courts. We ask that the language
fully cover all assaults of tribal justice personnel and not mention
anything related to a ``covered crime.'' Section 904 provides a local
solution for the local problem of criminal victimization in Indian
country. We are pleased to see that the bipartisan Title IX discussion
draft continues to build on VAWA's promise and includes key priorities
that have been identified by Tribal Nations to further enhance safety
for victims in tribal communities.
Additionally, we support the purpose of Title IX, which is to
strengthen tribal sovereignty and reaffirm tribal jurisdiction over
non-Indian perpetrators. We also support providing additional resources
to address violence against all Native women. However, the new language
in the Section 901 Findings and Purposes, which adds Native Hawaiians,
urban Indians communities, Native Americans, and Native American
communities, jeopardizes the long-term enforcement of the law and
detracts from the key purpose of Title IX. For those reasons we
strongly recommend that all Native Hawaiian, urban Indian communities,
Native American, and Native American communities language be removed
from Section 901. The language in Section 901 should solely focus on
American Indians, Alaska Natives, and Indian tribes in order to protect
tribal sovereignty, which is consistent with the purpose of the Title
IX.
We urge all members of the Senate Committee on Indian affairs to
support the provisions included in the bipartisan Title IX discussion
draft and to become a co-sponsor of the full bipartisan Senate VAWA
bill that incorporates all of the discussion draft provisions and our
recommended changes.
Thank you,
Teri Gobin, Chairwoman
______
Tangirnaq Native Village, Woody Island Tribal Council
December 21, 2021
Dear Chairman Schatz and Vice-Chairman Murkowski:
The Tangirnaq Native Village urges prompt introduction and passage
of the December 8, 2021 Discussion Draft of Title IX to the Violence
Against Women Act (VAWA), and specifically swift passage of subtitle
B--Alaska Tribal Public Safety Empowerment.
Alaska's public safety crisis and the disproportionate impact upon
Alaska Native people, particularly Alaska Native women and children, is
well-documented and known to each of you. I will not repeat the
horrifying statistics and data here.
The Tangirnaq Native Village joins countless Alaska tribes and
tribal organizations in urging Congressional action to address Alaska's
public safety crisis. Clarifying tribal jurisdiction over Indian people
in Alaska Native villages, and opening a pilot project to explore
tribal jurisdiction over domestic violence-related crimes committed by
non-Indians against Indian victims, is absolutely essential to
achieving public safety in Alaska Native villages; to protecting Indian
women and children from violence; and to holding offenders accountable.
Numerous federal reports document the current public safety crisis
that has long plagued Alaska Native communities. Alaska Tribes are best
suited to address this crisis, but only if Congress provides the
essential tools that will empower the tribes to do so. The Committee's
Discussion Draft provides these necessary tools.
Thank you for the opportunity to comment on the Discussion Draft.
And thank you for your efforts to secure the tools of justice and
safety, to empower Alaska Tribes to reduce violence in our own
communities and to promote justice, self-governance, and safety.
Quyanaa (thank you),
Alex Cleghorn, President
______
Rincon Band of Luiseno Indians
December 21, 2021
Dear Senator Schatz, Senator Murkowski, and all members of the Senate
Committee on Indian Affairs:
I write on behalf of the Rincon Band of Luiseno Indians to support
the bipartisan Violence Against Women Act (VAWA) Title IX--SAFETY FOR
INDIAN WOMEN discussion draft released on December 8, 2021, which
includes important provisions that will improve safety and justice in
tribal communities. Tribal communities continue to suffer from the
highest crime victimization rates in the country, and the reforms
included in the bipartisan Title IX discussion draft are desperately
needed today.
A 2016 report by the National Institute of Justice found that over
80 percent of American Indians and Alaska Natives will be a victim of
intimate partner violence, sexual violence, or stalking in their
lifetime. The study also found that 90 percent of these victims were
victimized by a non-Indian perpetrator. Sadly, Indian children are
particularly impacted by this violence and are 50 percent more likely
to experience child abuse and sexual abuse than white children. The
complicated jurisdictional framework at play in Indian country and
Alaska continues to undermine safety for American Indian and Alaska
Native victims of violence.
Tribal Nations have been exercising jurisdiction over non-Indian
domestic violence offenders under VAWA 2013 for over 8 years.
Exercising Tribal Nations have held serial offenders accountable and
have brought justice and safety to hundreds of victims and their
families while upholding the due process rights of all defendants in
tribal courts. Despite these successes, perpetrators still find gaps in
the law. Victims of sexual violence, child abuse, stalking,
trafficking, elder abuse, and assaults against law enforcement officers
deserve the same protections that Congress affords to domestic violence
victims on tribal lands in VAWA 2013.
It is particularly important that the final bipartisan VAWA bill
recognizes that Indian children are equally in need of the protections
that were extended to adult domestic violence victims in VAWA 2013. The
Tribal Nations implementing VAWA 2013 report that children have been
involved as victims or witnesses in their cases nearly 60 percent of
the time. However, federal law failed to restore tribal jurisdiction to
prosecute these crimes. The Title IX discussion draft language would
restore this category of jurisdiction and allow us to protect our
Indian children in our tribal justice systems.
We ask that the Title IX discussion draft be amended to include
crimes against elders, which was a category of restored jurisdiction
included in the House bill, H.R. 1620, but not the bipartisan Senate
Committee on Indian Affairs discussion draft. Indian elders are an
integral part of our tribal communities to whom we owe respect and
care. Indian elders carry our cultures and traditions, and we must
ensure that they are not left behind in this reauthorization of VAWA.
We also appreciate that the Title IX discussion draft recognizes
that VAWA 2013 inadvertently left our tribal police officers and
detention personnel at risk. Domestic violence cases are both the most
common and the most dangerous calls that law enforcement receives.
Several Tribal Nations have reported assaults on their officers or
bailiffs committed by non-Indian defendants, but as of now, Tribal
Nations remain unable to prosecute these crimes as assaults on law
enforcement was not a restored category of jurisdiction in VAWA 2013.
This creates an obvious public safety concern. In order to ensure that
the Title IX discussion draft fully rectifies this issue, we strongly
recommend amending the draft language on page ten to remove the
requirement that the assault must be tied to a ``covered crime.''
Requiring that the assault of the tribal justice personnel be tied to a
``covered crime'' may require the Tribal Nation to first prove the
underlying covered crime before they could prosecute for the assault,
which does not fully fix the public safety concern of police officers
or detention personnel. This creates significant confusion that likely
would have to be worked out in the courts. We ask that the language
fully cover all assaults of tribal justice personnel and not mention
anything related to a ``covered crime.''
Section 904 provides a local solution for the local problem of
criminal victimization in Indian country. We are pleased to see that
the bipartisan Title IX discussion draft continues to build on VAWA's
promise and includes key priorities that have been identified by Tribal
Nations to further enhance safety for victims in tribal communities.
The Title IX discussion draft clarifies that Tribal Nations in
Maine are included in the law and creates a pilot project to address
the unique needs in Alaska. We fully support the inclusion of all
Tribal Nations in VAWA. Alaska Native women are over-represented among
domestic violence victims in Alaska by 250 percent and make up 47
percent of reported rape victims in the state, yet 1 in 3 rural Alaskan
communities have no law enforcement presence. The Title IX discussion
draft includes a pilot project that will enable a limited number of
Tribal Nations in Alaska to exercise special tribal criminal
jurisdiction over certain crimes that occur in Alaska villages.
In addition to the lifesaving provisions outlined above, the
bipartisan Title IX discussion draft creates a reimbursement program
under which the Attorney General may reimburse Tribal Nations for
expenses incurred in exercising special tribal criminal jurisdiction.
We would ask that that reimbursement program language be expanded to
include reimbursements for trial and appellate courts (including
facilities maintenance, renovation, and rehabilitation.) Additionally,
the time for the Attorney General to develop regulations for the
program should be shortened from within one year to within six months
after the effective date to ensure that this important program is
implemented quickly to address the urgent need in Indian Country.
The Title XI discussion draft also allows Tribal Nations to utilize
the Bureau of Prisons (BOP) to house defendants serving sentences of
more than one year and increases Tribal Nations' access to the National
Crime Information Database. Both of these additions to VAWA will go a
long way towards ensuring Tribal Nations are able to implement this
restored jurisdiction fully and most effectively.
We fully support the purpose of Title IX, which is to strengthen
tribal sovereignty and reaffirm tribal jurisdiction over non-Indian
perpetrators. We also support providing additional resources to address
violence against all Native women. However, the new language in the
Section 901 Findings and Purposes, which adds Native Hawaiians, urban
Indians communities, Native Americans, and Native American
communities,jeopardizes the long-term enforcement of the law and
detracts from the key purpose of Title IX. For those reasons we
strongly recommend that all Native Hawaiian, urban Indian communities,
Native American, and Native American communities language be removed
from Section 901. The language in Section 901 should solely focus on
American Indians, Alaska Natives, and Indian tribes in order to protect
tribal sovereignty, which is consistent with the purpose of the Title
IX.
We urge all members of the Senate Committee on Indian affairs to
support the provisions included in the bipartisan Title IX discussion
draft and to become a co-sponsor of the full bipartisan Senate VAWA
bill that incorporates all of the discussion draft provisions and our
recommended changes.
Sincerely,
Bo Mazzetti, Tribal Chairman
______
Sault Ste. Marie Tribe of Chippewa Indians
December 21, 2021
Dear Chair Schatz and Vice-Chair Murkowski:
I write on behalf of the Sault Ste. Marie Tribe of Chippewa Indians
to support the bipartisan Violence Against Women Act (VAWA) Title IX--
SAFETY FOR INDIAN WOMEN discussion draft which includes important
provisions that will improve safety and justice in tribal communities.
As a Tribe implementing VAWA 2013 Tribal jurisdiction, I can attest
that these proposed changes in the law are important to making tribal
communities safer.
As the Committee has well-documented, Tribal communities continue
to suffer from the highest crime victimization rates in the country,
and the reforms included in the bipartisan Title IX discussion draft
are desperately needed today. A 2016 report by the National Institute
of Justice found that over 80 percent of American Indians and Alaska
Natives will be a victim of intimate partner violence, sexual violence,
or stalking in their lifetime. The study also found that 90 percent of
these victims were victimized by a non-Indian perpetrator. Sadly,
Indian children are particularly impacted by this violence and are 50
percent more likely to experience child abuse and sexual abuse than
white children. The complicated jurisdictional framework at play in
Indian country and Alaska continues to undermine safety for American
Indian and Alaska Native victims of violence. Thus, clarifying that a
Tribe's expanded jurisdiction includes these crimes is vital.
We are also so appreciative that your draft legislation recognizes
that Indian children are equally in need of the protections that were
extended to adult domestic violence victims in VAWA 2013. The Tribal
Nations implementing VAWA 2013 report that children have been involved
as victims or witnesses in their cases nearly 60 percent of the time.
We ask that the Title IX discussion draft include the provision from
the House bill, H.R. 1620, to include crimes against elders. Indian
elders are an integral part of our tribal communities to whom we owe
respect and care. We are also hopeful that the measure will include the
House bill's provision that recognizes Tribes' inherent jurisdiction
over all crimes against law enforcement, detention, and court personnel
not only those that deemed ``covered crimes''.
We also support the new grant program to reimburse Tribal Nations
for expenses incurred in exercising special tribal criminal
jurisdiction and the extension of the Bureau of Prisons (BOP) program
first authorized in the Tribal Law Order Act. Finally, we support the
expanded tribal access to the National Crime Information Database. This
is important to addressing the plague that is missing and murdered
indigenous women in America.
Please let me know if there is anything you need me to do I support
of your efforts from my role as Chairperson of my Tribe or from
leadership roles I serve through the United Tribes of Michigan, Midwest
Alliance of Sovereign Tribes, or the National Congress of American
Indians.
Again, we appreciate your leadership in drafting this important
measure and look forward to working with you in the New Year.
Respectfully,
Aaron A. Payment, Chairperson
______
Jamestown S'Klallam Tribe
December 22, 2021
Dear Senator Schatz, Senator Murkowski, and all members of the Senate
Committee on Indian Affairs:
I write on behalf of the Jamestown S'Klallam Tribe to support the
bipartisan Violence Against Women Act (VAWA) Title IX--SAFETY FOR
INDIAN WOMEN discussion draft released on December 8, 2021, which
includes important provisions that will improve safety and justice in
tribal communities.
Tribal communities continue to suffer from the highest crime
victimization rates in the country, and the reforms included in the
bipartisan Title IX discussion draft are desperately needed today. A
2016 report by the National Institute of Justice found that over 80
percent of American Indians and Alaska Natives will be a victim of
intimate partner violence, sexual violence, or stalking in their
lifetime. The study found that 90 percent of these victims were
victimized by a non-Indian perpetrator. Sadly, Indian children are
particularly impacted by this violence and are 50 percent more likely
to experience child abuse and sexual abuse than white children. The
complicated jurisdictional framework at play in Indian country and
Alaska continues to undermine safety for American Indian and Alaska
Native victims of violence.
Tribal Nations have been exercising jurisdiction over non-Indian
domestic violence offenders under VAWA 2013 for over 8 years including
our Tribe. Exercising Tribal Nations have held serial offenders
accountable and have brought justice and safety to hundreds of victims
and their families while upholding the due process rights of all
defendants in tribal courts. Despite these successes, perpetrators
still find gaps in the law. Victims of sexual violence, child abuse,
stalking, trafficking, elder abuse, and assaults against law
enforcement officers deserve the same protections that Congress affords
to domestic violence victims on tribal lands in VAWA 2013. It is
particularly important that the final bipartisan VAWA bill recognizes
that Indian children are equally in need of the protections that were
extended to adult domestic violence victims in VAWA 2013. The Tribal
Nations implementing VAWA 2013 report that children have been involved
as victims or witnesses in their cases nearly 60 percent of the time.
However, federal law failed to restore tribal jurisdiction to prosecute
these crimes.
The Title IX discussion draft 2 language would restore this
category of jurisdiction and allow us to protect our Indian children in
our tribal justice systems. We ask that the Title IX discussion draft
be amended to include crimes against elders, which was a category of
restored jurisdiction included in the House bill, H.R. 1620, but not
the bipartisan Senate Committee on Indian Affairs discussion draft.
Indian elders are an integral part of our tribal communities to
whom we owe respect and care. Indian elders carry our cultures and
traditions, and we must ensure that they are not left behind in this
reauthorization of VAWA. We appreciate that the Title IX discussion
draft recognizes that VAWA 2013 inadvertently left our tribal police
officers and detention personnel at risk. Domestic violence cases are
both the most common and the most dangerous calls that law enforcement
receives. Several Tribal Nations have reported assaults on their
officers or bailiffs committed by non-Indian defendants, but as of now,
Tribal Nations remain unable to prosecute these crimes as assaults on
law enforcement was not a restored category of jurisdiction in VAWA
2013.
This situation creates an obvious public safety concern. To ensure
that the Title IX discussion draft fully rectifies this issue, we
strongly recommend amending the draft language on page ten to remove
the requirement that the assault must be tied to a ``covered crime.''
Requiring that the assault of the tribal justice personnel be tied to a
``covered crime'' may require the Tribal Nation to first prove the
underlying covered crime before they could prosecute for the assault,
which does not fully fix the public safety concern of police officers
or detention personnel. This conflict creates significant confusion
that likely would have to be worked out in the courts. All Tribes ask
that the language fully cover all assaults of tribal justice personnel
and not mention anything related to a ``covered crime.''
Section 904 provides a local solution for the local problem of
criminal victimization in Indian country. We are pleased to see that
the bipartisan Title IX discussion draft continues to build on VAWA's
promise and includes key priorities that have been identified by Tribal
Nations to further enhance safety for victims in tribal communities.
The Title IX discussion draft clarifies that Tribal Nations in Maine
are included in the law and creates a pilot project to address the
unique needs in Alaska. Our Tribe fully supports the inclusion of all
Tribal Nations in VAWA. Alaska Native women are over-represented among
domestic violence victims in Alaska by 250 percent and make up 47
percent of reported rape victims in the state, yet 1 in 3 rural Alaskan
communities have no law enforcement presence.
The Title IX discussion draft includes a pilot project that will
enable a limited number of Tribal Nations in Alaska to exercise special
tribal criminal jurisdiction over certain crimes that occur in Alaska
villages. In addition to the lifesaving provisions outlined above, the
bipartisan Title IX discussion draft creates a reimbursement program
under which the Attorney General may reimburse Tribal Nations for
expenses incurred in exercising special tribal criminal jurisdiction.
We would ask that that reimbursement program language be expanded to
include reimbursements for trial and appellate courts (including
facilities maintenance, renovation, and rehabilitation.)
Additionally, the time for the Attorney General to develop
regulations for the program should be shortened from within one year to
within six months after the effective date to ensure that this
important program is implemented quickly to address the urgent need in
Indian Country.
The Title XI discussion draft allows Tribal Nations to utilize the
Bureau of Prisons (BOP) to house defendants serving sentences of more
than one year and increases Tribal Nations' access to the National
Crime Information Database. Both additions to VAWA will go a long way
towards ensuring Tribal Nations are able to implement this restored
jurisdiction fully and most effectively.
Our Tribe fully supports the purpose of Title IX, which is to
strengthen tribal sovereignty and reaffirm tribal jurisdiction over
non-Indian perpetrators. We support providing additional resources to
address violence against all Native women.
However, the new language in the Section 901 Findings and Purposes,
which adds Native Hawaiians, urban Indians communities, Native
Americans, and Native American communities, jeopardizes the long-term
Tribal enforcement authority of the law and detracts from the key
purpose of Title IX. For those reasons we urge that all Native
Hawaiian, urban Indian communities, Native American, and Native
American communities' language be removed from Section 901. The
language in Section 901 should solely focus on American Indians, Alaska
Natives, and Indian tribes' governmental authority to protect tribal
sovereignty and jurisdiction, which is consistent with the purpose of
the Title IX.
We urge the SCIA leadership and all members of the Senate Committee
on Indian Affairs to support the provisions included in the bipartisan
Title IX discussion draft and to become a co-sponsor of the full
bipartisan Senate VAWA bill that incorporates all the discussion draft
provisions and our recommended changes.
Sincerely,
W. Ron Allen, Tribal Chairman/CEO
______
Alaska Native Justice Center
Thank you to the Chairman and Members of the Committee for holding
an Oversight Hearing and releasing a discussion draft of Title IX that
strengthens the Violence Against Women Act (VAWA) to further recognize
and empower tribal governments--particularly in Alaska--to protect
Native people.
My name is Alex Cleghorn. I was born in Anchorage and grew up in
Fairbanks. Reflective of Alaska's unique history, I am a tribal citizen
of Tangirnaq Native Village and a shareholder of regional and village
Alaska Native Corporations. I have been an attorney for nearly twenty
years and my work has focused on representing tribes and tribal
organizations regarding self-determination and community health and
safety. I am licensed in California, Alaska and the courts of the
Central Council of Tlingit and Haida Indian Tribes of Alaska.
The Alaska Native Justice Center (ANJC) is an Alaska Native tribal
organization that serves as the primary provider of justice and victim
\1\ services for Alaska Native and American Indian (AN/AI) people in
Anchorage, Alaska. ANJC also partners with Alaska tribes to strengthen
self-determination and sovereignty to serve tribal citizens. ANJC has
been designated its tribal authority through Cook Inlet Region Inc.,
organized through the Alaska Native Claims Settlement Act and
recognized under Section 4(b) of the Indian Self-Determination and
Education Assistance Act (PL 93-638, 25 U.S.C. 450b).
---------------------------------------------------------------------------
\1\ Not everyone who has been affected by criminal activity wishes
to be referred to as a victim. Some might prefer the term ``survivor,''
for example. For the sake of clarity, however, these comments use the
term ``victim.''
---------------------------------------------------------------------------
ANJC was originally founded to address the lack of attention Native
women victims experienced in the Alaska justice system and the
disproportionate imprisonment of Alaska Native men. Today, our mission
continues to be Justice for Alaska Native people. The sobering fact and
unacceptable truth of the matter is that violence in Alaska, and
particularly violence against Alaska Native women, is at an epidemic
level. Even more concerning is that this epidemic--this crisis--is well
known, thoroughly documented and has clearly identified solutions.
ANJC writes in support of the testimony offered during the
Oversight Hearing. We further offer our support of the Discussion Draft
of Title IX--Safety for Indian Women and urge the Committee to adopt
the Discussion Draft, which has already been delayed too long. We also
take the opportunity to clearly lay out some of the complicated issues
related to funding, especially as it relates to the State of Alaska and
other P.L. 280 states.
I. Well Documented Public Safety Crisis In Alaska
Title IX includes findings that illustrate some the scope of the
public safety crises in Alaska. It is also important to recognize that
80 percent of Alaska Native women will experience violence in their
lifetimes \2\ and 55.6 percent of Alaska's sexual assault victims are
Alaska Native people. \3\ Additionally, we know that an overwhelming
number of sex offense cases reported in Alaska are not prosecuted. In
fact, the Alaska Department of Public Safety reports that in 2018-2019,
621 sex offense cases were referred to the Department of Law for
prosecution. Of those 621 cases, only 322 were actually accepted for
prosecution. \4\ This means that barely 50 percent of reported sex
offenses were accepted for prosecution. This is unacceptable. Alaska
Native women deserve better.
---------------------------------------------------------------------------
\2\ Andre Rosay, ``Violence Against Alaska Native and American
Indian Women and Men'' https://www.ncjrs.gov/pdffiles1/nij/249736.pdf.
\3\ https://dps.alaska.gov/getmedia/dec8c6c2-1db7-45fb-9401-
637932594882/Felony-Level-Sex-Offenses-2018
\4\ http://www.ajc.state.ak.us/acjc/docs/ar/2020.pdf.
---------------------------------------------------------------------------
While horrifying, even these stark numbers do not fully capture the
real picture for two reasons. First, the numbers recorded represent
those cases actually reported and do not reflect unreported offenses.
Second, the numbers do not consider the impact that these offenses have
on families, siblings, children, parents, and spouses, who are also
``victims'' and directly harmed by such offenses.
ANJC can reliably point to 40 years of reports and data collection
regarding public safety in Alaska that offer recommendations on how to
address the crisis. Years of written and oral testimony also serve to
provide a critical foundation for understanding the magnitude of the
crisis of violence against Native women and what can be done. Many
aspects of this crisis are well-documented. However, justice remains
inaccessible for Native women who are victims of violence.
Years of written and oral testimony point to a complicated maze of
injustice in Alaska. The familiar culprits are the jurisdictional
complexities stemming in part from Alaska's lack of reservations and
Alaska's status as a mandatory P.L. 280 state. Our unique status
contributes to a systematic lack of federal resources for Alaska tribal
public safety and tribal justice systems. Title IX provides the
Congressional action that is necessary to address this crisis. The time
is now.
II. Correcting Alaska's Unfair Exclusion From Special Domestic Violence
Criminal Jurisdiction (SDVCJ)
The 2013 Violence Against Women Act (VAWA) reauthorization afforded
tribes SDVCJ on Indian lands for crimes of domestic violence, dating
violence, and protection order violations. However, the SDVCJ language
in VAWA categorically excluded 228 of Alaska's 229 federally recognized
tribes, leaving only one tribe eligible to exercise SDVCJ. This lack of
tribal jurisdiction over non-Indian offenders in Alaska continues to
allow the perpetuation of disproportionate violence against Alaska
Native women.
Numerous federally established commissions have recommended the
removal of the barriers that currently inhibit the ability of Alaska
tribes to exercise criminal jurisdiction and utilize criminal remedies
when confronting the highest rates of violent crime in the country. We
are heartened by this Congressional effort within Title IX that is
designed to remove these barriers, including:
affirming the inherent criminal jurisdiction of Alaska
tribes;
supporting the development, enhancement, and sustainability
of Alaska tribal courts including full faith and credit for
Alaska tribal court orders;
enabling recognition of Alaska Native communities for public
safety purposes.
Title IX builds upon years of efforts to affirm Alaska tribes'
jurisdiction over people committing certain violent crimes. Most
recently this included the VAWA Reauthorization Act of 2021 (H.R. 1620)
and the Alaska Tribal Public Safety Empowerment Act, S. 2616
(introduced in the 116th Congress, 2019-2020). The Committee received
expert testimony about the successes of VAWA 2013 SDVCJ. Alaska Tribes
should no longer be shut out of this opportunity and the Discussion
Draft makes this necessary change.
III. Funding
Funding and access to funding should be as simple and flexible as
possible in order to assure effective dissemination and use of these
important resources. For many years, Alaska Tribes have shared the
challenges presented by competitive grant processes. The challenges
that accompany competitive grant processes are well documented. Chief
among them are concerns that sustained funding is never guaranteed, and
that funding losses or requirements to implement new approaches can
make it difficult to guarantee continuity in services and to allow
programs to reach their full potential. In Tribal communities, it can
take years for programs to mature and demonstrate positive impacts,
especially programs focused on prevention. The Committee should be well
aware that the vast majority of Alaska Tribes do not receive BIA Public
Safety and Justice funding, and therefore nearly all funding is through
competitive grants from the Department of Justice.
Alaska Tribes should be provided dedicated, annual noncompetitive
base funding to develop and sustain tribal court systems, assist in the
provision of public safety and related services, and assist with
intergovernmental agreements. Recent BIA studies have quantified the
appropriation necessary to bring tribal justice systems in P.L. 280
states up to par with non-P.L. 280 states. \5\ We commend the BIA for
this work and urge that Congressional appropriations are adequate to
address the public safety crisis. The appropriation should be explicit
that the funds must be allocated for law enforcement, public safety and
courts. Also, we suggest that there is an explicit prohibition that the
money cannot be allocated or diverted to Tribes in non-P.L. 280 states
and include language that provides that the funds will be allocated to
tribes in P.L. 280 states through the Tribes' existing 638 contract or
by the Tribe requesting a 638 contract for Public Safety and Justice
including law enforcement and courts.
---------------------------------------------------------------------------
\5\ See 160 Cong. Rec. H976405 (Dec. 11, 2014) (Explanatory
Statement).
---------------------------------------------------------------------------
At the oversight hearing the BIA representative confirmed that the
BIA does not have a policy of not executing 638 contracts and compacts
for Public Safety and Justice (PSJ) funding to tribes in P.L. 280
states. However, the BIA has not yet done so. Therefore, appropriations
should direct the BIA to revisit its practice of not executing 638
contracts and compacts for PSJ funding to tribes in P.L. 280 states
(except for Self-Governance tribes).
Because tribes in P.L. 280 states do not receive PSJ funding there
is no ``base (reoccurring annual) funding level'' or 638 contracts or
compacts in which to allocate a PSJ set aside--as occurred in the
American Rescue Plan Act. The BIA's recognition of this issue and final
disbursement plan for ARPA funding through the Social Services line
ensured that Alaska Tribes could address tribal safety needs that fall
outside of a formal law enforcement program. However, this is a
longstanding issue that can (and should) be addressed when
appropriations for PSJ are made in Alaska and other P.L. 280 states.
This approach will allow sustained funding so that programs do not
end with the end of a grant. Many programs take years to make an impact
in their targeted communities and the competitive grant cycle diverts
time, effort and resources from addressing the crisis to seeking
funding and complying with unnecessary and burdensome grant management
requirements. Funds should be as flexible as possible to address
endemic issues that will save lives. \6\
---------------------------------------------------------------------------
\6\ See ``Citizens hide from active shooters as Alaska fails to
deliver on 2019 promise of village troopers,'' Anchorage Daily News,
December 13, 2021, available at https://www.adn.com/alaska-news/rural-
alaska/2021/12/13/citizens-hide-from-active-shooters-as-alaska-fails-
to-deliver-on-2019-promise-of-village-troopers/.
---------------------------------------------------------------------------
The primary way to increase the effectiveness of the funding
distributed to Tribes is by easing the restrictions on the funding so
that Tribes can flexibly use the funds in the most effective way at the
local level. Tribes and Tribal Organizations know best how to address
this crisis, and funding restrictions inhibit Tribes' capacity to
deploy much needed funds.
Alaska Tribes need to be able to build and maintain public safety,
law enforcement, and Tribal justice infrastructure. Competitive grants
will always be a stop gap measure for Alaska Tribes when it comes to
Alaska's public safety crisis. There are successful models such as the
Tiwahe demonstration projects that could serve as an additional
framework for using contracting or compacting to address the need for
victim services, public safety, and law enforcement in Alaska. Alaska
Tribes, and all tribal governments, deserve to be trusted to do their
part alongside other American governments to protect Native women.
Title IX does just that.
Thank you for the opportunity to comment on the Discussion Draft.
Your efforts to remove the barriers that impede Alaska Tribe's efforts
to provide safety and justice are appreciated.
Alex Cleghorn, Senior Legal and Policy Director
______
National Congress of American Indians
December 21, 2021
Dear Senator Schatz, Senator Murkowski, and all members of the Senate
Committee on Indian Affairs:
I write on behalf of the National Congress of American Indians to
support the bipartisan Violence Against Women Act (VAWA) Title IX--
SAFETY FOR INDIAN WOMEN discussion draft released on December 8, 2021,
which includes important provisions that will improve safety and
justice in tribal communities. Tribal communities continue to suffer
from the highest crime victimization rates in the country, and the
reforms included in the bipartisan Title IX discussion draft are
desperately needed today.
A 2016 report by the National Institute of Justice found that over
80 percent of American Indians and Alaska Natives will be a victim of
intimate partner violence, sexual violence, or stalking in their
lifetime. The study also found that 90 percent of these victims were
victimized by a non-Indian perpetrator. Sadly, Indian children are
particularly impacted by this violence and are 50 percent more likely
to experience child abuse and sexual abuse than white children. The
complicated jurisdictional framework at play in Indian country and
Alaska continues to undermine safety for American Indian and Alaska
Native victims of violence.
Tribal Nations have been exercising jurisdiction over non-Indian
domestic violence offenders under VAWA 2013 for over 8 years.
Exercising Tribal Nations have held serial offenders accountable and
have brought justice and safety to hundreds of victims and their
families while upholding the due process rights of all defendants in
tribal courts. Despite these successes, perpetrators still find gaps in
the law. Victims of sexual violence, child abuse, stalking,
trafficking, elder abuse, and assaults against law enforcement officers
deserve the same protections that Congress affords to domestic violence
victims on tribal lands in VAWA 2013.
It is particularly important that the final bipartisan VAWA bill
recognizes that Indian children are equally in need of the protections
that were extended to adult domestic violence victims in VAWA 2013. The
Tribal Nations implementing VAWA 2013 report that children have been
involved as victims or witnesses in their cases nearly 60 percent of
the time. However, federal law failed to restore tribal jurisdiction to
prosecute these crimes. The Title IX discussion draft language would
restore this category of jurisdiction and allow us to protect our
Indian children in our tribal justice systems.
We ask that the Title IX discussion draft be amended to include
crimes against elders, which was a category of restored jurisdiction
included in the House bill, H.R. 1620, but not the bipartisan Senate
Committee on Indian Affairs discussion draft. Indian elders are an
integral part of our tribal communities to whom we owe respect and
care. Indian elders carry our cultures and traditions, and we must
ensure that they are not left behind in this reauthorization of VAWA.
We also appreciate that the Title IX discussion draft recognizes
that VAWA 2013 inadvertently left our tribal police officers and
detention personnel at risk. Domestic violence cases are both the most
common and the most dangerous calls that law enforcement receives.
Several Tribal Nations have reported assaults on their officers or
bailiffs committed by non-Indian defendants, but as of now, Tribal
Nations remain unable to prosecute these crimes as assaults on law
enforcement was not a restored category of jurisdiction in VAWA 2013.
This creates an obvious public safety concern. In order to ensure that
the Title IX discussion draft fully rectifies this issue, we strongly
recommend amending the draft language on page ten to remove the
requirement that the assault must be tied to a ``covered crime.''
Requiring that the assault of the tribal justice personnel be tied to a
``covered crime'' may require the Tribal Nation to first prove the
underlying covered crime before they could prosecute for the assault,
which does not fully fix the public safety concern of police officers
or detention personnel. This creates significant confusion that likely
would have to be worked out in the courts. We ask that the language
fully cover all assaults of tribal justice personnel and not mention
anything related to a ``covered crime.''
Section 904 provides a local solution for the local problem of
criminal victimization in Indian country. We are pleased to see that
the bipartisan Title IX discussion draft continues to build on VAWA's
promise and includes key priorities that have been identified by Tribal
Nations to further enhance safety for victims in tribal communities.
The Title IX discussion draft clarifies that Tribal Nations in
Maine are included in the law and creates a pilot project to address
the unique needs in Alaska. We fully support the inclusion of all
Tribal Nations in VAWA. Alaska Native women are over-represented among
domestic violence victims in Alaska by 250 percent and make up 47
percent of reported rape victims in the state, yet 1 in 3 rural Alaskan
communities have no law enforcement presence. The Title IX discussion
draft includes a pilot project that will enable a limited number of
Tribal Nations in Alaska to exercise special tribal criminal
jurisdiction over certain crimes that occur in Alaska villages.
In addition to the lifesaving provisions outlined above, the
bipartisan Title IX discussion draft creates a reimbursement program
under which the Attorney General may reimburse Tribal Nations for
expenses incurred in exercising special tribal criminal jurisdiction.
We would ask that that reimbursement program language be expanded to
include reimbursements for trial and appellate courts (including
facilities maintenance, renovation, and rehabilitation.) Additionally,
the time for the Attorney General to develop regulations for the
program should be shortened from within one year to within six months
after the effective date to ensure that this important program is
implemented quickly to address the urgent need in Indian Country.
The Title XI discussion draft also allows Tribal Nations to utilize
the Bureau of Prisons (BOP) to house defendants serving sentences of
more than one year and increases Tribal Nations' access to the National
Crime Information Database. Both of these additions to VAWA will go a
long way towards ensuring Tribal Nations are able to implement this
restored jurisdiction fully and most effectively.
We fully support the purpose of Title IX, which is to strengthen
tribal sovereignty and reaffirm tribal jurisdiction over non-Indian
perpetrators. We also support providing additional resources to address
violence against all Native women. However, the new language in the
Section 901 Findings and Purposes, which adds Native Hawaiians, urban
Indians communities, Native Americans, and Native American communities,
jeopardizes the long term enforcement of the law and detracts from the
key purpose of Title IX. For those reasons we strongly recommend that
all Native Hawaiian, urban Indian communities, Native American, and
Native American communities language be removed from Section 901. The
language in Section 901 should soley focus on American Indians, Alaska
Natives, and Indian tribes in order to protect tribal sovereignty,
which is consistent with the purpose of the Title IX. We urge all
members of the Senate Committee on Indian affairs to support the
provisions included in the bipartisan Title IX discussion draft and to
become a co-sponsor of the full bipartisan Senate VAWA bill that
incorporates all of the discussion draft provisions and our recommended
changes.
Sincerely,
Fawn Sharp, President
______
SONOSKY, CHAMBERS, SACHSE, MILLER & MONKMAN, LLP
December 21, 2021
Dear Chairman Schatz and Vice-Chairman Murkowski:
I write on behalf of the Tanana Chiefs Conference to urge prompt
introduction and passage of the December 8, 2021 Discussion Draft of
Title IX to the Violence Against Women Act, and to specifically urge
swift passage of subtitle B--Alaska Tribal Public Safety Empowerment.
Nothing speaks more powerfully to the need for this legislation
than the dozens of attached tribal leader letters written from every
corner of Alaska over the past several years. Cementing tribal
jurisdiction over Indian people in Alaska Native villages, and opening
a pilot project to explore tribal jurisdiction over domestic violence-
related crimes committed by non-Indians against Indian victims, is
absolutely essential to achieving law and order in Alaska Native
villages; to protecting Indian women and children from violence; and to
holding offenders accountable. History shows the current tragic law
enforcement vacuum that has long plagued Alaska Native communities.
Alaska tribes can fill that vacuum, but only if Congress provides the
essential tools that will empower the tribes to do so. The Committee's
Discussion Draft provides those vital tools.
Thank you for the opportunity to comment on the Discussion Draft.
And thank you for the light of hope that TCC's 15-year quest will at
long last be achieved: to empower Alaska tribes to reduce violence in
their own communities and to promote local accountability, self-
governance, and law and order.
Respectfully,
Lloyd B. Miller
Enclosures
The following letter was submitted for the record by the:
Alakanuk Native Village
Association of Village Council Presidents (AVCP)
Chevak Native Village
Chuathbaluk Native Village
Chuloonawick Native Village
Eek Native Village
Emmonak Native Village
Goodnews Bay Native Village
Hamilton Native Village
Kipnuk Native Village
Kwinhagak Native Village
Nunapitchuk Native Village
Nunam Iqua Native Village
Napaskiak Native Village
Napakiak Native Village
National Council of Urban Indian Health (NCUIH)
Nikolai Native Village
Nulato Native Village
Nunakauyak Traditional Council
Pitkas Point Native Village
Iqurmiut Traditional Council
Tununak Native Village
Tuntutuliak Native Village
Dear Senator Murkowski:
We write to express our deep appreciation and gratitude for your
introduction of the Alaska Tribal Public Safety and Empowerment Act, S.
2616. We also want to express our appreciation for the hard work your
staff put into helping craft this important legislation.
S. 2616 legislation recognizes the heartbreaking tragedy that
Alaska Native people face every day because of the violent crimes that
occur in our villages that are left unpunished and the perpetrators are
left to run free. We do not want to talk about this problem any longer.
We do not want to cry about this problem any longer. We do not want to
mourn any more victims. We want the tools to combat this problem.
S. 2616 recognizes the foundational role tribal governments must
play in finding solutions to this public safety crisis. S. 2616 gives
Alaska tribes a critical tool by acknowledging the inherent authority
and sacred duty our tribal governments possess to keep our communities
safe. The solutions to the current public safety crisis is to be found
in partnerships with state and federal law enforcement agencies, and S.
2616 recognizes that tribal governments must be foundational partners
in crafting these solutions.
In short, we know that crime is best addressed by the government
closest to the crime, and in an Alaska Native Village that is the
tribal government. We look forward to working with you, Senator
Sullivan and Congressman Young to secure final passage of this
important legislation to combat the crisis plaguing our communities.
______
PANEL DISCUSSION ON SOCIAL PROTECTION SYSTEMS
MARCH 12, 2019
63rd UNITED NATIONS COMISSION ON THE STATUS OF WOMEN (UNCSW)
Canadian Mission to the United Nations
Introduction. Thank you for the opportunity to participate in the
U.N.'s Panel Discussion on Social Protection Systems featuring
indigenous perspectives. My name is J. Michael Chavarria and I am the
Governor of the Pueblo of Santa Clara, also serving in the capacity of
the Chairman for the Eight Northern Indian Pueblos Council and Vice-
Chairman for the All Pueblo Council of Governors (APCG), which is
comprised of the leaders of the nineteen Pueblos of New Mexico and
Ysleta del Sur Pueblo in Texas. Together and individually, our
communities are dedicated to improving the safety and welfare of our
tribal citizens.
The Federal Trust Responsibility to Pueblos, Tribal Nations and
Indigenous Communities Must be Upheld. The United States has a trust
responsibility to protect the interests of indigenous peoples within
its borders. This trust responsibility is rooted in the political
government-to-government relationship that exists between the federal
government and tribal nations. The inherent sovereignty of tribal
nations to govern their internal affairs and community members is
recognized in the U.S. Constitution, Supreme Court precedent, federal
statutes, and treaties. Any meaningful investment in social protection
systems that are intended to advance and protect the interests of
indigenous peoples must reflect these founding principles.
Indigenous Peoples and Communities Face Untold Threats to Their
Physical Safety and Welfare. The threats begin in the womb in the form
of restricted access to maternal healthcare services, safe housing, and
inadequate nutrition for fetal development, and continue into
adolescence and adulthood in high rates of physical, emotional, and
sexual violence, human trafficking, substance/mental abuse, and
suicide. When coupled with the jurisdictional issues that further
complicate the delivery of limited public safety and victim services in
Indian Country, it becomes clear that additional resources and targeted
political actions are urgently needed to protect indigenous peoples in
America.
Question 1--- What works to address the social protection needs of
indigenous women and girls, including early childhood education,
maternal health, access to capital and job/skills training, access to
justice/legal services, and income assistance? Please provide examples
of programs and interventions that have been effective in your regions
and communities in protecting and empowering indigenous women and
girls.
Social Protections Must be Rooted in Traditional Values to be
Effective. I come from the Pueblo of Santa Clara, one of 19 Pueblos in
the State of New Mexico. For Pueblo women and girls, the practice of
our native traditions, customs, religion and, most importantly, our
languages, is essential to their overall well-being. These customs,
beliefs, and means of expression convey an individual's association to
and within the community and, thus, are pivotal to growing up in Pueblo
society. For example, women are taught of their traditional roles in
our communities as they give life, provide nourishment, and keep the
household together. Further, being respectful of your body and other
people is taught at a young age. However, the challenges contemporary
Pueblo People face in living both in our Native world and the Western
world have eroded this respect. There are individuals in our community
who have problems with alcohol and drugs who are not bad people, but
who forget the lessons rooted in their heritage and cause harm on to
others. The breakdown of traditional patterns contributes to gender
abuse and other violent crimes. Our Pueblo ways are not the ways of
violence against women. Embedding this message at the heart of all
social protection programs is vital to our peoples' wellbeing.
Peacekeepers Domestic Violence Program--Protects Individuals and
Strengthens the Community. The Santa Clara Tribal Police Department
operates the Peacekeepers Domestic Violence Program, administered with
the support of the Eight Northern Pueblos Council Inc. The Program
seeks to raise domestic violence awareness and advocates for systemic
changes in the criminal justice system and in the mindset of
perpetrators of violence. Domestic violence victims receive assistance
in completing orders of protection, locating emergency shelter, and
accessing vital resources such as support groups and referrals for
counseling, medical services, and financial services. Victim Advocates
are also provided to help individuals navigate the legal justice
system. Like many traditional programs, Peacekeepers does not look at
domestic violence issues in isolation. It also runs a Batterer's
Intervention Program built on the philosophy that individuals must take
responsibility for their actions. It teaches historical Native
perspectives on domestic violence and encourages participants to
examine their belief systems and adopt non-violence behaviors. Thus,
the Peacekeepers Program helps protect indigenous people in harmful
situations and prevent future instances of abuse by addressing root
causes.
Tribal Leadership and Community Groups. One of the most effective
means of encouraging mutual respect for indigenous women, men, girls,
and boys is by continual community engagement. Our Pueblo leaders
engage directly with youth--speaking to them directly from the heart on
their inherent value, Pueblo identity and unlimited potential to be
accomplished members of society. These efforts are also advanced by our
strong community groups. The Tewa Women United, for example, started in
1989 as a support group for indigenous women united in heart, mind, and
spirit. It is now a non-profit organization that encourages people to
be politically engaged to advance positive change with a goal of ending
all forms of violence against indigenous women and girls. The Coalition
to Stop Violence Against Native Women is also a force for good,
providing support, education and advocacy on behalf of Native women and
children.
Indian Head Start--A Multigenerational Approach to Indigenous
Resiliency and Achievement. Indian Head Start has been a vital part of
Head Start since its inception in 1965, and it is currently the most
important and successful federal program focused on the needs of Native
youth and families in early childhood education. Currently, Indian Head
Start and Early Head Start serves 22,379 children in more than 200
separate programs across 26 states. Our programs are unique in that
they tend to be located in rural communities that are often affected by
hardships such as poverty, high rates of crime, limited or non-existent
transportation networks, and limited financial and qualified personnel
resources. Indian Head Start strives to address these challenges
through a focus on the whole individual--including education, health,
language, and culture--as well as on the whole family and the whole
community, creating a vibrant and safe learning environment for our
Native children.
Indian Head Start is founded on a three-generational approach
provides an array of services tailored to meet the needs of children,
parents, and (increasingly) grandparents. For example, programs may
offer family nutrition or literacy workshops for parents and guardians.
For Indian Head Start, this model is especially important given the
critical role the program fills in addressing the unique needs of
Native children, parents, and communities. Indian Head Start empowers
Native women by providing parents with access to job assistance
trainings, healthcare services, and a reliable source of safe and
nurturing early childhood education. Native girls and boys are
empowered with self-esteem, high quality educational services, and
nutritional meals to support their healthy development.
Further, through the integration of culturally and linguistically
appropriate classroom practices, Indian Head Start empowers Native
communities to take the lead in preserving, revitalizing, and
reclaiming their heritage. This is achieved most commonly through the
integration of elders into the classroom. Elders are teachers and role
models in their communities who impart tradition, knowledge, culture,
and lessons--all of which have been proven to be key contributors to
Native student resiliency and success in later life. Further, for many
communities, elders represent the last stronghold of tribal languages
and traditions that were very nearly lost during the boarding school
and termination eras of federal Indian policy.
Question 2--What actions would strengthen social protection systems
and prevention mechanisms in order for indigenous women and girls to
live free from violence? What are the barriers or challenges in setting
up and maintaining social protection systems in indigenous communities
and what are examples of tools and approaches that have been most
effective in overcoming these barriers and challenges?
Integrating Traditional and Western Systems would Strengthen Social
Protections for All Indigenous People. Western society tends to
compartmentalize community services: social issues are addressed
separate from healthcare, which is approached apart from economic
development, which is segregated from education matters, and so on. In
contrast, indigenous societies tend to approach aspects of life and
community through a holistic lens that integrates social services,
physical welfare, spirituality, and education into a unified system. We
must make concerted effort to understand at how these Western and
indigenous systems overlap and react to each other in order to identify
and close gaps in social protection services. Entire systems must be
understood and changed, not just individual programs, to truly protect
all indigenous people.
Reauthorization of an Expanded Violence Against Women Act is
Urgently Needed to Build Internal Tribal Capacities. In the United
States, the Federal Government has exclusive jurisdiction over cases of
murder, sexual abuse, kidnapping, serious bodily assault, and certain
other crimes committed in Indian Country pursuant to the Major Crimes
Act, 18 U.S.C. 1153. The Violence Against Women Act authorized tribal
courts to exercise criminal jurisdiction over non-Native offenders who
commit domestic or dating violence against Native victims on tribal
lands--crimes that have been historically under-prosecuted in the
United States. VAWA's Special Domestic Violence Criminal Jurisdiction
is critical to ensuring that dangerous jurisdictional gaps are closed
by allowing tribal law enforcement to exercise jurisdiction over non-
indigenous offenders who commit certain crimes on tribal lands. VAWA
has enabled tribal nations to further justice in such cases by removing
cumbersome jurisdictional barriers from tribal courts. This special
jurisdiction also honors our tribal sovereignty by helping us to build
our internal justice capacities. To date, tribal nations exercising
their criminal jurisdiction under the Act have reported 143 arrests of
128 non-Native offenders that have led to 74 convictions, 5 acquittals,
and 24 pending cases (as of March 20, 2018). \1\
---------------------------------------------------------------------------
\1\ National Congress of American Indians, Special Domestic
Violence Criminal Jurisdiction Five-Year Report at 1 (March 20, 2018),
available at http://www.ncai.org/resources/ncai-publications/SDVCJ--5--
Year--Report.pdf.
---------------------------------------------------------------------------
VAWA authorization expired in February 2019. Any reauthorization
should include expanded tribal jurisdiction over crimes against
children, law enforcement personnel, or sexual assault crimes committed
by strangers to provide increased safety and access to justice services
for Native victims of crime. A strong, dependable local law enforcement
is critical for victims of crime to feel like they have support and an
opportunity to attain justice. A permanent reauthorization of VAWA is
vital to continuing these efforts. We recommend that any government
wishing to protect its indigenous women and girls study VAWA and its
implementation.
Empowering Women and Youth to Overcome Historical and Contemporary
Trauma. To effectively engage with indigenous communities in America,
one must also engage with a dark, long and painful history of trauma
and loss. Understanding all that we have persevered as indigenous
people since first contact helps us to prepare, mentally and
spiritually, for the seemingly never-ending struggles of the future.
One approach to addressing the impacts of historical and contemporary
trauma is through empowerment initiatives. These initiatives aim to
reconnect individuals with the expression of their indigenous
identities as well as beneficial social services to provide
participants with the tools they need for long-term success.
Building internal and external strength enables indigenous women to
stand up for their rights and self-worth, no matter the barriers or
challenges. Financial management seminars, self-defense courses,
educational scholarships, affordable childcare, and accessible crisis
shelters and transitional housing are the bricks with which women build
their own paths in life. We recommend that governments conduct research
into the job market and average working hours of women and mothers. The
information can then be used to better ensure that empowerment
initiatives take place during times that are accessible to the women
they are intended to serve. This could mean holding sessions at
different times of the day (such as early in the morning, right after
school, or before red-eye shifts begin), as well as at multiple
locations so that transportation concerns do not become a barrier. At
Santa Clara Pueblo, for example, many members are employed with shift
work. Providing services outside of the 8am-5pm schedule--such as
during nights and weekends--has enabled us to serve a much broader
segment of our population. International organizations, national
governments, and local entities can provide the necessary funding,
expertise, and resources to make these types of services available to
all.
Empowered women empower others, creating a ripple effect of
positive change in ways that cannot be predicted. For instance, the
recent election of Deb Haaland, a Laguna Pueblo member, and Sharice
Davids, a Ho-Chunk Nation member, to the United States House of
Representatives showed indigenous women and girls that they can--and
should--be leaders at the top levels of government. We are seeing ever
increasing levels of political activism among our indigenous women and
youth who are proud of their heritage, engage in traditional
ceremonies, and know how to navigate the complex dual systems of their
indigenous and American citizenship.
Coordination of Services is Key to Leveraging Available Resources.
Lack of coordination among governmental entities leads to gaps in
social protections and causes confusion, pain, and cynicism for victims
of crime as well as law enforcement personnel. Too often we have
invested significant resources in working with a federal or state
agency on an initiative, only to discover that another agency already
has a similar program in place. The lack of intra- and inter-
governmental communication and coordination harms the welfare of our
people. Several indigenous communities in New Mexico, for example, have
implemented a coordinated community response in which their tribal
courts, law enforcement, social services, and youth programs work
together to enhance services and provide a holistic response to
incidences of violence.
Data Collection and Dissemination on Missing and Murdered
Indigenous Women. The United States has had knowledge of the
existential threats facing indigenous women and girls for decades. Our
women and girls experience incidences of violence and abuse at rates
that far exceed the national average. In 2016 alone, over 5,700 cases
of missing indigenous women were reported to the National Crime
Information Center. The actual figure is likely much higher due to the
confluence of under-reporting of crimes in Indian Country and the lack
of official data on the issue. This epidemic must be addressed.
However, we cannot effectively respond to the crisis without access to
accurate data and timely reports in national crime information
databases. Standardized reporting protocols and inter-jurisdictional
guidance on responding to cases of missing and murdered indigenous
women is also key. This should be done in coordination with tribal
nations and law enforcement entities.
An example of a best practice in strengthening access to crime-
related data is the U.S. Department of Justice Tribal Access Program
(TAP). TAP provides tribal nations with access to essential law
enforcement data--such as fingerprint and identity verification
databases, investigative reports, and criminal records--that allow
tribal justice departments to better serve and protect their
communities. Yet only a handful of the 573 federally recognized tribes
are active participants. Interest in the program remains high and is
steadily increasing as tribal nations become aware of the beneficial
training and technology being offered. Expanded access to TAP and other
TAP-like resources translates into enhanced social protection systems
and prevention mechanisms to better safeguard our indigenous people.
Question 3--How can governments and/or civil society organizations
better support the development and maintenance of new and/or existing
social protection systems? Please recommend best practices. How can
they better create an emphatic dialogue with indigenous women and girls
in order to understand their worldview and traditional values and to
protect their human rights, foster their economic, political, social
and cultural empowerment being factors to support social protection
systems and indigenous women's adherence to them?
Community Engagement Must be at the Heart of Change. Santa Clara
Pueblo has been successful in its public safety endeavors by being
intentional in engaging with diverse stakeholders in the community.
While this type of in-depth engagement may take a longer amount of time
to complete, the outcome is exponentially beneficial. Community members
feel engaged in and represented by their government as they create a
shared vision for the Pueblo. That feeling of ownership in initiatives
helps sustain projects and policies through difficult times. For
example, in 2011, the Pueblo experienced a series of devastating
wildfires that ravaged our traditional lands and changed the livelihood
of the entire community. We started a program known as the KhapoKidz
Initiative to re-center our youth and ground them in healthy practices.
The Initiative did this by focusing on four pillars: (1) community
involvement; (2) holistic health practices; (3) reduced juvenile and
young adult crime; and (4) facilitate mentorship, leadership, and
educational opportunities. We are all vested in the same future--one
that is safer and healthier for our indigenous girls and boys.
Any meaningful effort to eliminate violence gender-based violence
must, at its heart, support culturally responsive outreach and
practices. Tribal nations have demonstrated time and again that where
programs are implemented with culturally responsive practices, positive
outcomes for individuals and the community follow. We have seen this in
the reduced recidivism rates for indigenous offenders placed in
facilities with culturally based rehabilitation services, in improved
academic outcomes for children exposed to culturally inclusive
curricula, as well as in the reduced prevalence of end-stage renal
disease under the Special Diabetes Program for Indians, among many
other examples. The U.S. federal government must ensure that, to the
maximum extent possible, all training and technical assistance, grant
opportunities, and other resources intended to reduce violence in
Indian Country support culturally responsive practices.
Supporting Tribal Leadership is a Fundamental Best Practice in
Maintaining Adequate Social Protection Systems. To put it simply,
tribal leaders must be allowed to lead. Positive action from our
leaders translates into the better protection of our most vulnerable
community members. Societal, political, and sometimes even economic
pressures to look the other way in cases of gender-based crimes
degrades the integrity of leaders and destroys the trust of victims
crying out for help. Distrust in leadership and law enforcement
destabilizes the foundation of community, leaving all exposed to the
dangers in the fault lines. At Santa Clara Pueblo, tribal leaders do
not interfere in criminal prosecution and justice matters. They trust
the procedures, laws, and personnel of the Pueblo to carry out a just
process. The clear separation of these areas helps to maintain the
community's trust in their elected officials and governmental system.
Jurisdictional Clarity is Key to Effective Law Enforcement.
Ambiguity as to which government is responsible for law enforcement
creates significant problems when a criminal incident arises. It can
contribute to the mishandling of evidence, inflict further trauma on a
victim, and thwart justice. Federal, state, and tribal governments must
work together through intergovernmental agreements and cross-
deputization agreements, among other measures, to ensure that there are
no jurisdictional gaps or misunderstandings. These types of agreements
are entered into following meaningful discussions between appropriate
leaders of each governmental entity. They also provide an opportunity
for leaders to identify other areas that contribute to the lack of
public safety in Indian Country--such as inadequate data and the
connection between incidences of gender-based violence and nearby land
development projects, such as fracking and pipelines. Tribal
governments and law enforcement agencies are invaluable resources given
the limited to non-existent national data on gender-based violence in
Indian Country. Yet, too often, the lines of communication between
federal, state, and tribal nations go unused and great harm is caused
by the silence. Candid conversations between these entities on
jurisdiction and other issues must take place regularly to promote
public safety in Indian Country.
Enforcement of Gender-Based and Domestic Violence Laws. As
discussed in detail above, VAWA has played an invaluable role in
furthering justice in Indian Country by empowering tribal nations to
prosecute non-indigenous people who commit certain crimes on tribal
lands. This law and others that are intended to protect women, girls,
and those who suffer from incidents of domestic violence must be
enforced to effect real change. Enforcement involves educating judges,
prosecutors, public defenders, law enforcement personnel, and
administrative staff in the justice system of not only the black letter
provisions of the law, but of the socio-economic and other underlying
factors that contribute to gender-based and domestic violence cases.
Enforcement must be approached holistically and without compromise.
It is important to remember that many tribal nations do not have
tribal justice departments and lack the resources to establish programs
on their own. While a plethora of federal resources exist to assist
tribal nations that have established law enforcement agencies or a
tribal court, very few--if any--federal funds are available to
facilitate the start-up process. Having experienced the benefits of
operating our own tribal justice department and tribal court system, we
stand with other tribal nations who wish to exercise this fundamental
aspect of tribal sovereignty but lack the immediate resources to
accomplish their goals. The federal government could better support the
development of new tribal courts and justice services, including law
enforcement departments, by creating a special program within the
Department of Justice that targets this issue.
We thank you for the opportunity to participate in this important
United Nations discussion. At the core of social protection for us as
Pueblo People is respectfully remembering who we are and where we are
from. Having this foundation in our Native identity and the sacredness
of the Power of Prayer is essential to sustaining a community that is
safe for all our members. Kuunda.
______
Yupiit of Andreafski
November 12, 2019
Dear Senator Murkowski:
I write on behalf of the Yupiit of Andreafski, a federally
recognized tribe located in St. Mary's, Alaska, to express our deep
appreciation and gratitude for your introduction of the Alaska Tribal
Public Safety and Empowerment Act, S. 2616. We also want to express our
appreciation for the hard work your staff put into helping craft this
important legislation.
S. 2616 legislation recognizes the heartbreaking tragedy that
Alaska Native people face every day because of the violent crimes that
occur in our villages that are left unpunished and the perpetrators are
left to run free. We do not want to talk about this problem any longer.
We do not want to cry about this problem any longer. We do not want to
mourn any more victims. We want the tools to combat this problem.
S. 2616 recognizes the foundational role tribal governments must
play in finding solutions to this public safety crisis. S. 2616 gives
Alaska tribes a critical tool by acknowledging the inherent authority
and sacred duty our tribal governments possess to keep our communities
safe. The solutions to the current public safety crisis is to be found
in partnerships with state and federal law enforcement agencies, and S.
2616 recognizes that tribal governments must be foundational partners
in crafting these solutions.
In short, we know that crime is best addressed by the government
closest to the crime, and in an Alaska Native village that is the
tribal government. We look forward to working with you, Senator
Sullivan and Congressman Young to secure final passage of this
important legislation to combat the crisis plaguing our communities.
Sincerely,
George Beans, Sr., Council President
______
Yakutat Tlingit Tribe
November 11, 2019
Dear Senator Murkowski:
I write on behalf of the Native Village of Yakutat/Yakutat Tlingit
Tribe to express our deep appreciation and gratitude for your
introduction of the Alaska Tribal Public Safety and Empowennent Act, S.
2616. We also want to express our appreciation for the hard work your
staff put into helping craft this important legislation.
S. 2616 legislation recognizes the heartbreaking tragedy that
Alaska Native people face every day because of the violent crimes that
occur in our villages that are left unpunished and the perpetrators are
left to run free. We do not want to talk about this problem any longer.
We do not want to cry about this problem any longer. We do not want to
mourn any more victims. We want the tools to combat this problem.
S. 2616 recognizes the foundational role tribal governments must
play in finding solutions to this public safety crisis. S.2616 gives
Alaska tribes a critical tool by acknowledging the inherent authority
and sacred duty our tribal governments possess to keep our communities
safe. The solutions to the current public safety crisis is to be found
in partnerships with state and federal law enforcement agencies, and S.
2616 recognizes that tribal governments must be foundational partners
in crafting these solutions.
In short, we know that crime is best addressed by the government
closest to the crime, and in an Alaska Native village that is the
tribal government. We look forward to working with you, Senator
Sullivan and Congressman Young to secure final passage of this
important legislation to combat the crisis plaguing our communities.
Thank you,
Nathaniel J. Moulton, Executive Director
______
Native Village of Kotlik
November 6, 2019
Dear Senator Murkowski:
I write on behalf of the Native Village of Kotlik to express our
deep appreciation and gratitude for your introduction of the Alaska
Tribal Public Safety and Empowennent Act, S. 2616. We also want to
express our appreciation for the hard work your staff put into helping
craft this important legislation.
S. 2616 legislation recognizes the heartbreaking tragedy that
Alaska Native people face every day because of the violent crimes that
occur in our villages that are left unpunished and the perpetrators are
left to run free. We do not want to talk about this problem any longer.
We do not want to cry about this problem any longer. We do not want to
mourn any more victims. We want the tools to combat this problem.
S. 2616 recognizes the foundational role tribal governments must
play in finding solutions to this public safety crisis. S.2616 gives
Alaska tribes a critical tool by acknowledging the inherent authority
and sacred duty our tribal governments possess to keep our communities
safe. The solutions to the current public safety crisis is to be found
in partnerships with state and federal law enforcement agencies, and S.
2616 recognizes that tribal governments must be foundational partners
in crafting these solutions. In short, we know that crime is best
addressed by the government closest to the crime, and in an Alaska
Native village that is the tribal government. We look forward to
working with you, Senator Sullivan and Congressman Young to secure
final passage of this important legislation to combat the crisis
plaguing our communities.
Sincerely,
Michael Hunt Sr., Tribal Chairman
______
Native Village of Kalskag
November 7, 2019
Dear Senator Murkowski:
I write on behalf of the Native Village of Kalskag to express our
deep appreciation and gratitude for your introduction of the Alaska
Tribal Public Safety and Empowennent Act, S. 2616. We also want to
express our appreciation for the hard work your staff put into helping
craft this important legislation.
S. 2616 legislation recognizes the heartbreaking tragedy that
Alaska Native people face every day because of the violent crimes that
occur in our villages that are left unpunished and the perpetrators are
left to run free. We do not want to talk about this problem any longer.
We do not want to cry about this problem any longer. We do not want to
mourn any more victims. We want the tools to combat this problem.
S. 2616 recognizes the foundational role tribal governments must
play in finding solutions to this public safety crisis. S.2616 gives
Alaska tribes a critical tool by acknowledging the inherent authority
and sacred duty our tribal governments possess to keep our communities
safe. The solutions to the current public safety crisis is to be found
in partnerships with state and federal law enforcement agencies, and S.
2616 recognizes that tribal governments must be foundational partners
in crafting these solutions. In short, we know that crime is best
addressed by the government closest to the crime, and in an Alaska
Native village that is the tribal government. We look forward to
working with you, Senator Sullivan and Congressman Young to secure
final passage of this important legislation to combat the crisis
plaguing our communities.
Sincerely,
Julia F. Dorris, Traditional Council President
______
Native Village of Chefornak
November 12, 2019
Dear Senator Murkowski:
I write on behalf of the Native Village of Chefornak to express our
deep appreciation and gratitude for your introduction of the Alaska
Tribal Public Safety and Empowennent Act, S. 2616. We also want to
express our appreciation for the hard work your staff put into helping
craft this important legislation.
S. 2616 legislation recognizes the heartbreaking tragedy that
Alaska Native people face every day because of the violent crimes that
occur in our villages that are left unpunished and the perpetrators are
left to run free. We do not want to talk about this problem any longer.
We do not want to cry about this problem any longer. We do not want to
mourn any more victims. We want the tools to combat this problem.
S. 2616 recognizes the foundational role tribal governments must
play in finding solutions to this public safety crisis. S.2616 gives
Alaska tribes a critical tool by acknowledging the inherent authority
and sacred duty our tribal governments possess to keep our communities
safe. The solutions to the current public safety crisis is to be found
in partnerships with state and federal law enforcement agencies, and S.
2616 recognizes that tribal governments must be foundational partners
in crafting these solutions. In short, we know that crime is best
addressed by the government closest to the crime, and in an Alaska
Native village that is the tribal government. We look forward to
working with you, Senator Sullivan and Congressman Young to secure
final passage of this important legislation to combat the crisis
plaguing our communities.
Sincerely,
Native Village of Chefornak
______
Native Village of Bill Moore's Slough
November 15, 2019
Dear Senator Murkowski:
I write on behalf of the Native Village of Bill Moore's Slough to
express our deep appreciation and gratitude for your introduction of
the Alaska Tribal Public Safety and Empowennent Act, S. 2616. We also
want to express our appreciation for the hard work your staff put into
helping craft this important legislation.
S. 2616 legislation recognizes the heartbreaking tragedy that
Alaska Native people face every day because of the violent crimes that
occur in our villages that are left unpunished and the perpetrators are
left to run free. We do not want to talk about this problem any longer.
We do not want to cry about this problem any longer. We do not want to
mourn any more victims. We want the tools to combat this problem.
S. 2616 recognizes the foundational role tribal governments must
play in finding solutions to this public safety crisis. S.2616 gives
Alaska tribes a critical tool by acknowledging the inherent authority
and sacred duty our tribal governments possess to keep our communities
safe. The solutions to the current public safety crisis is to be found
in partnerships with state and federal law enforcement agencies, and S.
2616 recognizes that tribal governments must be foundational partners
in crafting these solutions. In short, we know that crime is best
addressed by the government closest to the crime, and in an Alaska
Native village that is the tribal government. We look forward to
working with you, Senator Sullivan and Congressman Young to secure
final passage of this important legislation to combat the crisis
plaguing our communities.
Sincerely,
Native Village of Bill Moore's Slough
______
SCIA Testimony of Hon. Victor Joseph, Chief, Tanana Chiefs
Conference
June 19, 2019
The Tanana Chiefs Conference (TCC) is an intertribal consortium of
37 federally-recognized Indian tribes and 4 additional Alaska Native
communities located across the Interior region of Alaska. Our region
stretches from the Brooks Range on the north, to the Alaska Range on
the south, from the Canadian border on the east to almost Norton Sound
on the west. Our area covers some 235,000 square miles--150,400,000
acres--half again as large as California and almost as large as Texas.
With no roads to most of our communities, travel is by boat in the
summer, snow machine in the winter, and otherwise by small plane when
weather permits.
Our villages live a highly successful subsistence way of life, and
our languages, cultures and lifeways are intact. But historical events
outside of our control have made life particularly difficult. First,
the federal government turned over its own law enforcement functions to
the State through Public Law 280, saddling the State with a law
enforcement burden it had insufficient resources to carry out. Then
when Congress settled our land claims in 1971, the Alaska Native Claims
Settlement Act created new corporations to hold and invest most village
lands. As part of ANCSA, the core of our communities were designated
for current or future state-chartered municipal governments--
governments which in many villages were never formed. As a result, most
of the ``Indian country'' of our villages was eliminated (as the
Supreme Court would later hold in the Venetie case), severely
curtailing the ability of the villages to govern their own affairs.
With these changes in legal status and governing authority, along
with other pressures, our village governments have suffered and our
communities entered a period of increasing dysfunction and danger,
especially for women. Today, the statistics in Alaska are stunning:
Alaska domestic violence rates are 10 times the national
average, and sexual assaults against Alaska Native women are 12
times the national average. Many offenders are non-Native.
Alaska Native women are over-represented by 250 percent among
domestic violence victims. Although Alaska Natives comprise
just 19 percent of the state population, Native women
constitute 47 percent of all reported rape victims. Every 18
hours an Alaska Native woman is sexually assaulted.
One out of every 4 Alaska Native youth suffers post-traumatic
stress (PTSD) due to childhood exposure to violence-the same
rate as Afghanistan War veterans.
State-based law enforcement is virtually nonexistent in most
Alaska Native villages. State troopers are only present in hub
cities. VPSOs are only present in 40 out of 229 villages.
The suicide rate in village Alaska is 6 times the national
rate, the alcohol-related mortality rate is 3.5 times the
national rate, and 95 percent of rural crimes in Alaska are
alcohol related.
Although some laws and law reform proposals are tied to
``Indian Country,'' tribal territorial jurisdiction vanished
almost entirely with the enactment of the 1971 Alaska Native
Claims Settlement Act. Most crimes do not occur on the few
remaining lands that constitute ``Indian country'' under
federal law (allotments, townsite lots, trust lands). While
some law reform measures are also keyed to lands owned by
Alaska Native Corporations (ANCs), almost no one lives on ANC
lands.
In short, today there is a law enforcement crisis in our
communities of epic proportions. But under current law, there is no
effective means to combat it and the tribal governments who are closest
to the problem have virtually no tools whatsoever to address the issue
themselves.
It is with these observations that TCC has examined the several
bills now pending before this Committee. While all four bills are very
well-intentioned and all mention Alaska Natives, there is little in
these bills that is actually workable as a means for improving local
tribal law enforcement in our communities, and for protecting our most
vulnerable tribal members.
For instance, S. 227 (Savannah's Act) notes in section 2(a)(7) that
``the complicated jurisdictional scheme that exists in Indian country''
`` has a significant negative impact on the ability to provide public
safety to Indian communities;'' is ``exploited by criminals;'' and
demands ``a high degree of commitment and cooperation among Tribal
Federal, and State law enforcement officials.'' It also recites the
importance of ``empower[ing] tribal governments'' ``to effectively
respond to cases of missing and murdered Indians.''
Yet the bill's operative provisions are then tied to the very
jurisdictional hooks regarding ``Indian lands'' that have proven to be
so problematic for Alaska Tribes. For instance, Section 3(4) defines
Indian lands to include ``Indian country'' under 18 U.S.C. 1151, even
though for most practical purposes there isn't any Indian country in
Alaska outside of a few isolated tracts of trust and restricted fee
lands, and hardly any people actually live on those lands. Section
3(4)(B) also mentions Alaska Native corporation (ANC) lands, but again
virtually no people live on ANCSA lands. This makes the bill's
limitations to ``Indian land'' extremely problematic in Alaska. Alaska
Native villages are left out.
Later, section 5 of S. 227 builds on the federal government's
existing jurisdiction over ``Indian country'' crimes, but that
jurisdiction is again of little help in village Alaska, both because of
the small amount of Indian country in Alaska villages and because
Public Law 280 transferred the federal government's jurisdiction over
those areas to the State. Here, too, Alaska villages are left out.
S. 288 is similarly problematic for Tribes in Alaska because
sections 2(2) and 2(4)(C) focus on enhancing tribal criminal
jurisdiction in ``Indian country,'' thereby excluding Alaska Native
villages.
S. 290 in section 3(2)(G) seeks to expand tribal jurisdiction but
defines the term ``covered conduct'' to mean certain conduct that
``violates the criminal law of the Indian tribe that has jurisdiction
over the Indian country where the conduct occurs,'' again making these
measures largely ineffective in Alaska. Ultimately, with these
limitations it is difficult to see how the Report addressed in Section
5(b)(1) will help Alaska tribes, despite the critically important need
to focus on the ``effectiveness'' of ``Federal programs . . . intended
to build the capacity of criminal justice systems of Indian tribes to
investigate and prosecute offenses relating to dating violence,
domestic violence, child violence, and related conduct.''
S. 982 carries some of the same problems as the other bills,
including S. 227, such as by limiting ``Indian lands'' to Indian
country (including reservation and trust) lands or ANC-owned lands
(sec. 3(4)). The bill softens this limitation by frequently focusing
its provisions to speak of crimes ``within Indian lands and of
Indians,'' but this hardly overcomes the core problem that just as with
the other bills, S. 982 bill fails to focus on the extreme law
enforcement problems confronting Alaska Native villages.
As Congressman Young correctly noted earlier this year, the current
situation confronting Alaska Native villages, combined with the unique
history of congressional treatment of these areas, demands an Alaska
solution to a unique Alaska problem. Either the term ``Indian country''
needs to be redefined to include all lands within each Alaska Native
village, or Congress needs to simply declare that tribes shall have
criminal and civil jurisdiction in and around their villages without
regard to the term ``Indian country.'' Alaska Tribes cannot enforce the
rule of law in their communities and provide for civil society
according to tribal customs, traditions and laws without a fresh
declaration from Congress clearly declaring their authority to do so.
Alaska tribal authority should be declared to be broad and plenary
with respect to tribal members. In the case of non-Natives present in
the villages, it should at a minimum cover sexual violence, child
violence, alcohol, and related crimes, including the crimes identified
in S. 288. This should be done, not on a limited or pilot basis, but on
a broad basis to protect all women and children in all Alaska Native
villages. The time to wait while more women are raped or murdered is
over. While greater federal assistance is also critically needed, first
and foremost our tribes must be empowered to protect their own. They
are the front line, the first responders, and as a matter of basic
self-governance they must be returned the tools they need to protect
their communities.
Thank you.
______
Native Village of Kasigluk
November 13, 2019
Dear Senator Murkowski:
I write on behalf of the [Native Village of Kasigluk] to express
our deep appreciation and gratitude for your introduction of the Alaska
Tribal Public Safety and Empowerment Act, S. 2616. We also want to
express our appreciation for the hard work your staff put into helping
craft this important legislation.
S. 2616 legislation recognizes the heartbreaking tragedy that
Alaska Native people face every day because of the violent crimes that
occur in our villages that are left unpunished and the perpetrators are
left to run free. We do not want to talk about this problem any longer.
We do not want to cry about this problem any longer. We do not want to
mourn any more victims. We want the tools to combat this problem.
S. 2616 recognizes the foundational role tribal governments must
play in finding solutions to this public safety crisis. S. 2616 gives
Alaska tribes a critical tool by acknowledging the inherent authority
and sacred duty our tribal governments possess to keep our communities
safe. The solutions to the current public safety crisis is to be found
in partnerships with state and federal law enforcement agencies, and S.
2616 recognizes that tribal governments must be foundational partners
in crafting these solutions.
In short, we know that crime is best addressed by the government
closest to the crime, and in an Alaska Native village that is the
tribal government. We look forward to working with you, Senator
Sullivan and Congressman Young to secure final passage of this
important legislation to combat the crisis plaguing our communities.
Sincerely,
Natalia Brink, President
______
June 5, 2020
Dear Senator Murkowski,
Last November our organizations and dozens of the Tribes we
represent wrote to you to convey their strong support for swift
enactment of S. 2616, the Alaska Tribal Public Safety and Empowerment
Act, which you introduced in October. That bill followed our meeting in
July where you committed to give this matter your very highest
priority.
While much has happened since S. 2616 was introduced, those
developments--most importantly the new coronavirus--have only made
public safety issues in village Alaska more urgent. Today, the burden
to protect our communities from the virus falls squarely on the
shoulders of our elected tribal leaders. But so long as clarifying
legislation remains stalled, their actual authority to take protective
action is uncertain. To be clear, the coronavirus is an existential
threat to our villages. It is therefore imperative that our Tribes have
the necessary tools to adequately protect every resident from getting
infected, Native and non-Native alike. This is not hyperbole: the
consequence of inadequate protection is already decimating the Navajo
Nation.
We respectfully but urgently request your support for prompt
enactment of S. 2616 as part of the Senate's next coronavirus
legislation, with appropriate language added to clarify tribal
authority to protect all village residents from infectious diseases
like the coronavirus.
Respectfully,
Vivian Korthius, President, ASSOCIATION OF VILLAGE COUNCIL
PRESIDENTS
Victor Joseph, Chief, TANANA CHIEFS CONFERENCE
Ralph Anderson, President, BRISTOL BAY NATIVE ASSOCIATION
Richard Peterson, President, CENTRAL COUNCIL TLINGIT AND HAIDA
Melanie Bahnke, President, KAWERAK, INC
______
April 8, 2021
Dear Senator Murkowski, Senator Sullivan & Congressman Young,
Last June we wrote to draw attention to the critical importance of
securing enactment of the Alaska Tribal Public Safety and Empowerment
Act that Senator Murkowski introduced in October 2019. We now write
with renewed urgency to request that the Alaska Delegation reintroduce
this proposed Act as soon as possible so that it can move through the
legislative process in this session of Congress.
The Alaska Tribal Public Safety and Empowerment Act is the product
of a decade of work by Senator Murkowski, key congressional staff
working in consultation with Alaska tribal representatives and
advocates, key individuals like Walt Monegan (former Alaska State
Public Safety Commissioner), and key experts brought together in 2019
by the National Congress of American Indians. As a result, the Alaska
Tribal Public Safety and Empowerment Act has been widely vetted and it
is widely supported. It also enjoyed support from the Justice
Department under former Attorney General Barr, and there is every
reason to expect it will be supported by Attorney General Garland. But
most importantly, it has received a veritable flood of support from
local Alaska tribal leadership.
The grave conditions which compelled introduction of the bill
haven't gotten any better--as a result of the COVID-19 pandemic they
have gotten worse. Domestic violence, rape, child abuse, and alcohol
and drug abuse continue unabated in our villages. At the same time, the
COVID epidemic has heightened the need for enhanced tribal authority to
take aggressive action, including local quarantine measures, when
public emergencies arise.
Congressman Young put it well last year. When he championed his
amendments to the Violence Against Women Act, Congressman Young urged
Congress to embrace an Alaska solution to an Alaska problem resulting
from Alaska's unique history. And that is what the Alaska Tribal Public
Safety and Empowerment Act would do.
We respectfully but urgently renew our call for prompt introduction
of the Alaska Tribal Public Safety and Empowerment Act in the House and
Senate so that this Act can finally become law in 2021.
With respect and gratitude for your service,
Vivian Korthius, President, ASSOCIATION OF VILLAGE COUNCIL
PRESIDENTS
PJ Simon, Chief, TANANA CHIEFS CONFERENCE
Ralph Anderson, President, BRISTOL BAY NATIVE ASSOCIATION
Richard Peterson, President, CENTRAL COUNCIL TLINGIT AND HAIDA
Melanie Bahnke, President, KAWERAK, INC
Julie Kitka, President, ALASKA FEDERATION OF NATIVES
Gloria O'Neill, President, ALASKA NATIVE JUSTICE CENTER
[all]