[Congressional Record Volume 151, Number 60 (Tuesday, May 10, 2005)]
[Senate]
[Pages S4873-S4874]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. McCAIN (for himself and Mr. Dorgan):
  S. 987. A bill to restore safety to Indian women; to the Committee on 
Indian Affairs.
  Mr. McCAIN. Mr. President, today I am introducing ``The Restoring 
Safety to Indian Women Act'' and I look forward to working with the 
Committee on the Judiciary to ensure that the provisions of this bill 
are given consideration, particularly as the reauthorization of the 
Violence Against Women Act moves forward. I also wish to thank Senator 
Byron Dorgan for co-sponsoring this legislation and for his dedication 
to addressing the health and welfare needs of Indian tribes.
  This legislation creates a new Federal criminal offense authorizing 
Federal prosecutors to charge repeat domestic violence offenders before 
they seriously injure or kill someone and to use tribal court 
convictions for domestic violence for that purpose. It authorizes the 
creation of tribal criminal history databases to document these 
convictions and protection orders for use by all law enforcement. The 
bill authorizes BIA and tribal officers to make arrests for domestic 
violence assaults committed outside of their presence and would 
authorizes a comprehensive study of domestic violence in Indian Country 
to determine its impact to Indian tribes.
  The 1994 Violence Against Women Act has had a tremendous impact on 
raising the national awareness of domestic violence and providing 
communities, including Indian tribes, the resources to respond to the 
devastating impact of domestic violence. National studies show that one 
in four women are victims of domestic violence. Since 1999, the 
Department of Justice has issued various studies which report that 
Indian women experience the highest rates of domestic violence compared 
to all other groups in the United States. These reports state that one 
out of every three Indian women are victims of sexual assault; that 
from 1979 to 1992, homicide was the third leading cause of death of 
Indian females between the ages of 15 to 34 and that 75 percent of 
those deaths were committed by a family member or acquaintance. These 
are startling statistics that require our close examination and a 
better understanding of how to prevent and respond to domestic violence 
in Indian Country.
  Domestic violence is a national problem and not one that is unique to 
Indian Country. Yet, due to the unique status of Indian tribes, there 
are obstacles faced by Indian tribal police, Federal investigators, 
tribal and Federal prosecutors and courts that impede their ability to 
respond to domestic violence in Indian Country. This bill is intended 
to remove these obstacles at all levels and to enhance the ability of 
each agency to respond to acts of domestic violence when they occur.
  The division of criminal jurisdiction between Federal and tribal law 
enforcement and prosecutors working in Indian Country present 
challenges. For example, Federal prosecutors prosecute acts of domestic 
violence in Indian Country using the Assault or, unfortunately, the 
Murder statutes in the Major Crimes Act. These statutes require the 
prosecutor to prove beyond a reasonable doubt that the victim was 
disfigured, suffered a serious risk of death or was killed before these 
felony charges can be filed. Meanwhile, the research has shown that 
perpetrators of domestic violence become increasingly more violent over 
time. Under the existing statutory scheme, these perpetrators may 
escape felony charges until they seriously injure or kill someone.
  This bill would create a new Federal offense aimed at the habitual 
domestic violence offender and allow tribal court convictions to count 
for purposes of Federal felony prosecution when the perpetrator has at 
least two separate Federal, State or tribal convictions for crimes 
involving assault, sexual abuse or a violent felony against a spouse or 
intimate partner. This provision is similar to many state laws that 
apply a felony penalty to an individual who commits multiple offenses. 
It will empower Indian tribal prosecutors and courts to document 
domestic violence cases at the local level and give federal prosecutors 
the ability to intervene in the cycle of violence by charging repeat 
offenders before they seriously injure or kill someone.
  The bill would also encourage the use of existing grants authorized 
by the Violence Against Women Act to create tribal criminal history 
databases for use by Indian tribes and tribal, State and Federal law 
enforcement agencies to document final convictions, stay away orders 
and orders of protection issued by tribal courts. As I understand it, 
no such database exists today. This database would be used solely as a 
law enforcement and court tracking tool. It would enable tribal, State 
and Federal law enforcement officers to determine whether an individual 
is a habitual domestic violence offender and therefore subject to the 
felony crime described above. It also would enhance the implementation 
of the criminal provisions that already exist in the Violence Against 
Women Act.
  All manner of law enforcement agencies report that responding to 
domestic violence disturbances are among the most dangerous situations 
that a police officer faces. Therefore, many States have enacted 
immediate arrest or removal policies that enable responding officers to 
diffuse these dangerous situations. Currently, the primary law 
enforcement authority for Indian tribes, the BIA police, are only 
authorized to make an arrest without a warrant for an offense committed 
in Indian Country if the offense is committed in the presence of the 
officer or the offense is a felony. This legislation would expand the 
authority of the BIA police, and tribal police agencies that derive 
their arrest authority by contract with the BIA, to make an arrest 
without a warrant for a domestic violence offense when the officer has 
reasonable grounds to believe the person arrested committed the 
offense. This arrest authority will enable a responding officer to 
diffuse the dangerous situation by arresting the perpetrator. This will 
go a long way toward improving public safety for both the officer and 
the domestic violence victim.
  Finally, while the national data on the rates of violence affecting 
Indian women are astounding, we do not know the full extent to which 
Indian women residing in Indian Country are impacted by domestic 
violence or the impact of domestic violence on Indian tribes. For 
example, we know that nationally, domestic violence costs $4.1 billion 
each year for direct medical and mental health services and in my own 
State of Arizona, last year, police received approximately 100,000 
domestic violence calls, but we do not know the extent to which tribal 
prevention programs, law enforcement, court or medical intervention 
resources are similarly impacted. Therefore, this bill would require 
that a comprehensive study be done on the scope of the domestic 
violence problem in Indian Country.
  I look forward to working with my colleagues on the Indian Affairs 
Committee and the Judiciary Committee to ensure that these statistics 
become a record of the past. I urge my colleagues to support this 
important legislation.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 987

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Restoring Safety to Indian 
     Women Act''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) national studies indicate that Indian women experience 
     domestic and sexual assaults at a far greater rate than other 
     groups of women in the national population;
       (2) there is relatively little data on the rate of domestic 
     violence perpetrated upon Indian women in Indian country or 
     the costs associated with responding to acts of domestic 
     violence in Indian country;
       (3) Indian tribes have criminal jurisdiction to prosecute 
     Indians who commit violations of tribal law;
       (4) the Federal Government has jurisdiction to prosecute 
     specific enumerated crimes that arise in Indian country under 
     section 1153 of title 18, United States Code (commonly known 
     as the Major Crimes Act);
       (5) the Major Crimes Act does not include provisions to 
     provide Federal prosecutors the ability to prosecute domestic 
     violence assaults unless they rise to the level of serious 
     bodily injury or death;
       (6) national studies conducted by law enforcement 
     organizations show that domestic violence disturbance calls 
     are the most dangerous situations and pose the highest risk 
     to responding law enforcement officers;

[[Page S4874]]

       (7) the limited arrest authority of the Bureau of Indian 
     Affairs and Indian tribal law enforcement agencies impacts 
     the ability of law enforcement to properly respond to acts of 
     domestic violence; and
       (8) Federal and tribal prosecutors and law enforcement 
     services are hampered in their efforts to address domestic 
     violence by the lack of available criminal history 
     information for tribal ordinance offenders.

     SEC. 3. PURPOSES.

       The purposes of this Act are as follows:
       (1) To obtain data on the rates of domestic violence 
     perpetrated upon Indian women in Indian country.
       (2) To close existing gaps in Federal criminal laws to 
     enable Federal, State, and tribal law enforcement, 
     prosecution agencies, and courts to address incidents of 
     domestic violence.
       (3) To address the public safety concerns experienced by 
     tribal police officers that arise in responding to incidents 
     of domestic violence.
       (4) To prevent the serious injury or death of Indian women 
     subject to domestic violence.

     SEC. 4. DEFINITIONS.

       In this Act:
       (1) Attorney general.--The term ``Attorney General'' means 
     the Attorney General of the United States.
       (2) Secretary.--The term ``Secretary'' means the Secretary 
     of the Department of the Interior.
       (3) Indian tribe.--The term ``Indian Tribe'' has the same 
     meaning as in section 4 of the Indian Self-determination and 
     Education Assistance Act (25 U.S.C. 450b).

     SEC. 5. DOMESTIC VIOLENCE HABITUAL OFFENDER.

       Chapter 7 of title 18, United States Code, is amended by 
     adding at the end the following:

     ``Sec. 117. Domestic assault by a habitual offender

       ``(a) Any person who commits a domestic assault within the 
     special maritime and territorial jurisdiction of the United 
     States or Indian country and who has a final conviction on at 
     least two separate prior occasions in Federal, State, or 
     Indian tribal court proceedings for offenses that would be, 
     if subject to Federal jurisdiction--
       ``(1) any assault, sexual abuse, or serious violent felony 
     against a spouse or intimate partner; or
       ``(2) an offense under chapter 110A,

     shall be fined under this title, imprisoned for a term of not 
     more than 5 years, or both, except that if substantial bodily 
     injury results from a violation under this section, the 
     offender shall be imprisoned for a term of not more than 10 
     years.
       ``(b) For purposes of this section--
       ``(1) the term `domestic assault' means an assault 
     committed by a current or former spouse, parent, child, or 
     guardian of the victim, by a person with whom the victim 
     shares a child in common, by a person who is cohabitating 
     with or has cohabitated with the victim as a spouse, parent, 
     child, or guardian, or by a person similarly situated to a 
     spouse, parent, child, or guardian of the victim;
       ``(2) the term `final conviction' means the final judgment 
     on a verdict of finding of guilty, a plea of guilty, or a 
     plea of nolo contendere, but does not include a final 
     judgment which has been expunged by pardon, reversed, set 
     aside, or otherwise rendered void;
       ``(3) the term `order of protection' has the meaning given 
     to such term by section 2265(b);
       ``(4) the term `serious violent felony' has the meaning 
     given to such term by section 3559(c)(2)(F);
       ``(5) the term `State' has the meaning given to such term 
     by section 3559(c)(2)G);
       ``(6) the term `substantial bodily injury' has the meaning 
     given to such term by section 113(b)(1); and
       ``(7) the term `sexual abuse' has the meaning given to such 
     term by section 2242.''.

     SEC. 6. ENHANCED ARREST AUTHORITY.

       Section 4 of the Indian Law Enforcement Reform Act (25 
     U.S.C. 2803) is amended--
       (1) in paragraph (2)(A), by striking ``, or'' and inserting 
     ``; or''; and
       (2) in paragraph (3)--
       (A) in subparagraph (A), by striking ``, or'' and inserting 
     a semi-colon;
       (B) in subparagraph (B), by adding ``or'' at the end; and
       (C) by adding at the end the following:
       ``(C)(i) the offense is a misdemeanor offense of domestic 
     violence (as defined in section 117 of title 18, United 
     States Code); and
       ``(ii) the employee has reasonable grounds to believe that 
     the person to be arrested has committed, or is committing, 
     the offense;''.

     SEC. 7. CRIMINAL RECORDS DATABASE PILOT PROJECT.

       (a) In General.--The Attorney General shall make grants 
     available pursuant to section 2001(b) of the Omnibus Crime 
     Control and Safe Streets Act of 1968 (42 U.S.C. 3796gg(b)) to 
     Indian tribes for the development of tribal criminal history 
     databases to document final convictions of tribal domestic 
     violence court adjudications, orders of protection, stay away 
     orders, and such other domestic violence criminal history.
       (b) Requirements.--A database developed under subsection 
     (a) shall include--
       (1) final convictions by a tribal court order;
       (2) orders of protection that are currently in effect and 
     meet the requirements of section 2265(b) of title 18, United 
     States Code;
       (3) a means to provide tribal, Federal, and State law 
     enforcement agencies with access to the information in the 
     database; and
       (4) safeguards to prevent the dissemination of the 
     information contained therein for other than a criminal 
     justice or law enforcement purpose.

     SEC. 8. STUDY OF DOMESTIC VIOLENCE IN INDIAN COUNTRY.

       (a) In General.--The Attorney General, in consultation with 
     the Secretary, the Director of the Indian Health Service, and 
     Indian tribes, shall conduct a study on the incidents of 
     domestic violence in Indian country.
       (b) Contents.--The study conducted under subsection (a) 
     shall--
       (1) determine the extent of domestic violence in Indian 
     country and its causes; and
       (2) identify obstacles to--
       (A) the prevention of incidents of domestic violence;
       (B) the appropriate response to incidents of domestic 
     violence;
       (C) adequate treatment for victims of domestic violence; 
     and
       (D) criminal prosecution of domestic violence offenders.
       (c) Report .--Not later than 1 year after the date of 
     enactment of this Act, the Attorney General shall transmit to 
     Congress a report regarding the study conducted under this 
     section. This report shall include recommendations, including 
     legislative recommendations, to address domestic violence in 
     Indian country.
       (d) Authorization of Appropriations.--There are authorized 
     to be appropriated such sums as are necessary to carry out 
     this section.

     SEC. 9. CONFORMING AMENDMENTS.

       Section 2001(b) of the Omnibus Crime Control and Safe 
     Streets Act of 1968 (42 U.S.C. 3796gg(b)) is amended--
       (1) in paragraph (10), by striking ``and'' after the 
     semicolon;
       (2) in paragraph (11), by striking the period and inserting 
     ``; and''; and
       (3) by adding at the end the following:
       ``(12) to develop tribal domestic violence criminal history 
     databases for use by Indian tribal courts and tribal, State, 
     and Federal law enforcement officers engaged in a law 
     enforcement function''.
                                 ______