[Senate Report 112-265]
[From the U.S. Government Publishing Office]
Calendar No. 579
112th Congress Report
SENATE
2d Session 112-265
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STAND AGAINST VIOLENCE AND EMPOWER NATIVE WOMEN ACT
_______
December 27, 2012.--Ordered to be printed
_______
Mr. Akaka, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 1763]
The Committee on Indian Affairs, to which was referred the
bill (S. 1763) to decrease the incidence of violent crimes
against Indian women, to strengthen the capacity of Indian
tribes to exercise the sovereign authority of Indian tribes to
respond to violent crimes committed against Indian women, and
to ensure that perpetrators of violent crimes committed against
Indian women are held accountable for that criminal behavior,
and for other purposes, having considered the same, reports
favorably with an amendment in the nature of a substitute and
recommends that the bill, as amended, do pass.
PURPOSE
S. 1763 would decrease the incidence of violent crimes
against Indian women, strengthen the capacity of Indian tribes
to exercise the sovereign authority of Indian tribes to respond
to violent crimes committed against Indian women, and ensure
that perpetrators of violent crimes committed against Indian
women are held accountable for that criminal behavior, and for
other purposes. The legislation would recognize inherent tribal
jurisdiction over domestic violence against Indian women to
include acts committed by non-Indian offenders. The legislation
also would seek to improve victim protection and information
gathering on sex trafficking.
BACKGROUND AND HISTORY
The Stand Against Violence and Empower Native Women (SAVE)
Act, S. 1763, attempts to combat domestic violence on
reservations by increasing awareness of domestic violence and
sexual assault against Indian women,\1\ by enhancing the
response to violence against Indian women at the Federal,
State, and Tribal levels, by identifying and providing
technical assistance to coalition membership and Tribal
communities to enhance access to essential services to Indian
women victimized by domestic and sexual violence, including sex
trafficking, and by assisting Indian tribes in developing and
promoting legislation and policies that enhance best practices
for responding to violent crimes against Indian women,
including the crimes of domestic violence, dating violence,
sexual assault, sex trafficking, and stalking.
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\1\Currently, there are 566 federally recognized American Indian
and Alaska Native tribes in the United States. While no single term is
universally accepted by all indigenous peoples in the United States,
the terms American Indian, Alaska Native, Indigenous, and Native or
Native American, are used somewhat interchangeably. The use of one term
over the other in this report is not meant to minimize, exclude,
generalize the individuals involved, or endorse one term over the
other.
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1. Indian women are not adequately protected under current law: a brief
overview of the Violence Against Women Act
In 1994, Congress enacted the Violence Against Women Act
(VAWA).\2\ It was founded on the basic premise that every woman
deserves to be safe from violence. This groundbreaking
legislation was the result of many years of dedication by
women's advocates and the incredible leadership of then-Senator
Joseph Biden. VAWA created the first Federal legislation
acknowledging domestic violence and sexual assault as crimes,
and provided Federal resources to encourage community-
coordinated responses to combating violence.\3\ VAWA was
reauthorized in 2000 and improved the foundation established in
1994 by creating a much-needed legal assistance program for
victims and by expanding the definition of crime to include
dating violence and stalking. Its subsequent reauthorization in
2005 created new programs to meet the emerging needs of
communities working to prevent violence. VAWA's reauthorization
in 2005, for the first time, contained a specific provision
designed to improve safety and justice for American Indian and
Alaska Native women.\4\
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\2\VAWA was first passed in 1994 as Title IV, Sec. Sec. 40001-40703
of the Violent Crime Control and Law Enforcement Act (Pub. L. 103-
322,108 Stat. 1796).
\3\Deidre Bannon, VAWA at the Crossroads, The Crime Report, Jan.
31, 2012 (quoting Statement of Susan Carbon, Director of the Department
of Justice's Office on Violence Against Women) (``When VAWA was
originally passed in 1994, it was seen as a landmark piece of
legislation--people tended to look at these crimes and blame the victim
for causing the violence. We needed to have a comprehensive national
approach to address these crimes--and that's an ongoing need we still
have.'').
\4\Title IX (commonly referred to as the Tribal Title), 18 U.S.C.
Sec. 2265.
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Since the passage of VAWA, annual incidents of domestic
violence have dropped by more than 60 percent.\5\ While
tremendous progress has been made, violence is still a
significant problem facing women, men, families, and
communities. On average, three women die every day as a result
of domestic violence.\6\ One in five women has been sexually
assaulted at some time in their lives.\7\ Stalking affects one
in six women.\8\
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\5\Lynn Rosenthal & Kimberly Teehee, Strengthening the Violence
Against Women Act, The White House (Apr. 25, 2012).
\6\Id.
\7\Id.
\8\Id.
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VAWA creates and supports comprehensive, effective, and
cost saving responses to the crimes of domestic violence,
dating violence, sexual assault, and stalking. The VAWA
programs, administered by the Departments of Justice and Health
and Human Services, have dramatically changed and improved
Federal, Tribal, State, and local responses to these crimes.
More victims are coming forward and receiving lifesaving
services to help them move from crisis to stability, and the
criminal justice system has improved its ability to keep
victims safe and hold perpetrators accountable.
Since VAWA'S passage in 1994, no other law has done
more to stop domestic and sexual violence in our
communities. The resources and training provided by
VAWA have changed attitudes toward these reprehensible
crimes, improved the response of law enforcement and
the justice system, and provided essential services for
victims struggling to rebuild their lives. It is a law
that has saved countless lives, and it is an example of
what we can accomplish when we work together.\9\
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\9\157 Cong. Rec. S8071 (daily ed. Nov. 30, 2011) (statement of
Sen. Patrick Leahy, for himself and Sen. Mike Crapo).
VAWA has also helped improve the response to violence
against Native women by funding critical research and
establishing a Tribal registry to track sex offenders and
orders of protection. While such VAWA programs have encouraged
systemic changes to meet the needs of Native victims and help
save countless lives, VAWA expired in 2011 and more work still
needs to be done.\10\
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\10\In his report, United Nations Special Rapporteur James Anaya
says Congress should make legislation protecting Native women an
``immediate priority'' and he recommends the United States immediately
address violence against women through legislation. His report points
to the fact that Native women suffer at horrendous rates of domestic
and sexual violence compared to the rest of the country. James Anaya,
United Nations, Report of the Special Rapporteur on the Rights of
Indigenous Peoples 10-11, 21-22 (Aug. 30, 2012) (A/HRC/21/47/Add.1).
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2. The need for additional legislation: the Stand Against Violence and
Empower Native Women Act
Across the nation, homicides and other violent crimes have
been on the decline.\11\ States have reformed their laws to
take violence against women more seriously by passing more than
660 laws to combat domestic violence, sexual assault and
stalking. All States have passed laws making stalking a crime
and strengthened laws addressing date rape and spousal
rape.\12\ As a result of efforts such as these, the rate of
intimate partner violence declined 67 percent.\13\ The number
of individuals killed by an intimate partner has decreased by
35 percent for women\14\ and the rate of non-fatal intimate
partner violence against women has decreased 53 percent.\15\
Since VAWA was first enacted in 1994, reporting of domestic
violence has increased by as much as 51 percent.\16\
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\11\See Crime in the United States 2011, Violent Crime, FBI (Nov.
6, 2012) (``When considering 5- and 10-year trends, the 2011 estimated
violent crime total was 15.4 percent below the 2007 level and 15.5
percent below the 2002 level.'').
\12\See also Factsheet: The Violence Against Women Act, The White
House (Nov. 5, 2012, 12:56 PM).
\13\Id. (between 1993 to 2010).
\14\Id. (between 1993 to 2007).
\15\Monica McLaughlin, National Network to End Domestic Violence
(NNEDV), Reauthorization of the Violence Against Women Act 1 (citing
National Crime Victimization Survey (NCVS), U.S. Department of Justice,
Office of Justice Programs, Bureau of Justice Statistics) (noting that
the decrease is based on data collected between 1993 and 2008).
\16\Native women are more unlikely to personally report their
victimization to the police. See Ronet Bachman, et al., Violence
Against American Indian and Alaska Native Women and the Criminal
Justice Response: What Is Known 5 & 39, Table 10 (Aug. 2008) (noting
that while 49 percent of Native women victimization is reported to the
police, only 17 percent is reported directly by the victim, ``[A]t
worst, less than one in four [intimate partner violent crimes] are ever
reported.'') (citations omitted). See also Stewart Wakeling, Miriam
Jorgensen, Susan Michaelson & Manley Begay, Policing on American Indian
Reservations, U.S. Department of Justice, Office of Justice Programs,
National Institute of Justice 13 (July 2001) (noting that the
underreporting, between reservation citizens and their police agencies
and between these tribal police agencies and such Federal agencies as
the FBI and the Bureau of Indian Affairs (BIA), on reservations may
contribute to the poor crime data in Indian country).
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While the national crime rate has been on the decline in
the last decade, Native Americans experience violent crimes at
a rate much higher than the general population.\17\ This trend
carries over to violent crimes against Native American women
and is particularly troubling for Native American women who
live on reservations within the United States. Native American
women experience domestic and dating violence at a rate that is
more than twice the rate of non-Indian women.\18\ This is the
highest rate of victimization from violent crime of any group
in the United States.\19\ Forty-six percent, nearly half of all
Native American women have experienced rape, physical violence,
and/or stalking by an intimate partner in their lifetime.\20\
These statistics are staggering.
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\17\Stewart Wakeling, Miriam Jorgensen, Susan Michaelson & Manley
Begay, Policing on American Indian Reservations, U.S. Department of
Justice, Office of Justice Programs, National Institute of Justice 13
(July 2001). Steven W. Perry, American Indians And Crime, A BJS
Statistical Profile, 1992-2002, U.S. Department Of Justice, Bureau Of
Justice Statistics at iv (2004). ``The BJS statistics do have some
limitations. They are based primarily on nationwide victimization
surveys, administered through interviews of individuals at a nationally
representative number of households. These data fail to distinguish
between Indian reservations and other rural and urban settings. The BJS
victimization data encompasses the more than 60 percent of all Indians
who live outside reservations, including large urban Indian populations
in places such as Los Angeles and Minneapolis.'' Carole Goldberg &
Kevin Washburn, Lies, Damn Lies, and Crime Statistics, Turtle Talk
(July 31, 2008). However, because rape is still an underreported crime,
the data collected from crime victims should not be ignored. ``If
Indian women do not believe that their reports will be investigated,
they are much less likely to report.'' Id. (responding to a South
Dakota study questioning BJS statistics regarding the race of the
defendants).
\18\Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on
Indian Affairs, 112th Cong. 24 (Nov. 10, 2011) (statement of Thomas B.
Heffelfinger, Attorney, Best & Flanagan LLP) (citing Amnesty
International, Maze of Injustice: The failure to protect Indigenous
women from sexual violence in the USA 4 (2007)).
\19\Id. (noting that ``[t]he sheer volume of violence inflicted
upon Native American women is largely attributable to violence by non-
Native men'').
\20\Bea Hanson, Protecting Native American and Alaska Native Women
from Violence: November is Native American Heritage Month, OVW Blog,
The United States Department of Justice (Nov. 29, 2012) (citing
statistics from the National Center For Injury Prevention and Control
of the Centers For Disease Control and Prevention, The National
Intimate Partner and Sexual Violence Survey: 2010 Summary Report 3, 39
(Nov. 2011)).
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These epidemic rates\21\ mean that one in three Native
American women will be raped in her lifetime.\22\ Three out of
five Native American women will be physically assaulted.\23\
Native American women are more than twice as likely to be
stalked as other women.\24\ On some Indian reservations, the
murder rate for Native American women is 10 times the national
average and accounts for the third leading cause of death for
Native American women.\25\ Sexual assault remains the most
underreported violent crime in the country with recent
statistics indicating that 70-80 percent of sexual assaults in
Indian country are not reported.\26\
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\21\Native Women: Protecting, Shielding, and Safeguarding Our
Sisters, Mothers, and Daughters, Hearing Before the S. Comm. on Indian
Affairs, 112th Cong. 7 (July 14, 2011) (statement of Thomas J.
Perrelli, Associate Attorney General, U.S. Department of Justice).
Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on Indian
Affairs, 112th Cong. 7 (Nov. 10, 2011) (statement of Sen. Lisa
Murkowski) (``[W]hen we realize these rates of violence and abuse that
we see that are perpetuated against Native women and children, it is
well past time that we make it a national priority.'').
\22\Native Women: Protecting, Shielding, and Safeguarding Our
Sisters, Mothers, and Daughters, Hearing Before the S. Comm. on Indian
Affairs, 112th Cong. 7 (July 14, 2011) (statement of Thomas J.
Perrelli, Associate Attorney General, U.S. Department of Justice).
``Advocates state that these statistics provide a very low estimate and
that rates of sexual assault against American Indian women are actually
much higher.'' Serving Ethnic and Racial Communities: American Indian
Victims, Put the Focus on Victims, SART Toolkit, Office of Justice
Programs (last visited Dec. 10, 2012). These numbers are based on an
old definition of rape and that the number of rapes may actually be
much higher. The Obama administration announced on January 6, 2012 that
the federal government would be changing the definition of rape to
include other forms of bodily intrusion.
\23\Native Women: Protecting, Shielding, and Safeguarding Our
Sisters, Mothers, and Daughters, Hearing Before the S. Comm. on Indian
Affairs, 112th Cong. 7 (July 14, 2011) (statement of Thomas J.
Perrelli, Associate Attorney General, U.S. Department of Justice).
\24\Patricia Tjaden & Nancy Thoennes, U.S. Department of Justice,
Full Report of the Prevalence, Incidence, and Consequences of Violence
Against Women 22 (2000) (noting that seventeen percent of Native women
are stalked each year, twice that of other populations).
\25\Native Women: Protecting, Shielding, and Safeguarding Our
Sisters, Mothers, and Daughters, Hearing Before the S. Comm. on Indian
Affairs, 112th Cong. 7 (July 14, 2011) (statement of Thomas J.
Perrelli, Associate Attorney General, U.S. Department of Justice). See
also Ronet Bachman, et al., Violence Against American Indian and Alaska
Native Women and the Criminal Justice Response: What Is Known 37 (Aug.
2008) (noting that American Indian and Alaska Native women are over 2
times as likely to face an armed offender compared to other women).
\26\Press Release, The United States Department of Justice, Acting
Associate Attorney General Tony West Speaks at the Press Conference
Regarding Sexual Assault Response Team Initiative (June 6, 2012)
(noting that one of the major contributing factors to underreporting is
a lack of faith in criminal justice system).
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Rape and sexual assault in the general population are
usually intra-racial.\27\ Of course, rape and sexual assault
may also be inter-racial. Under Federal law, Tribal authorities
do not have jurisdiction over cases in which the defendant is
non-Indian. In many states, State authorities do not have
jurisdiction on Tribal lands. Therefore, rape and domestic
violence cases are deferred to Federal authorities.
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\27\Ronet Bachman, et al., Violence Against American Indian and
Alaska Native Women and the Criminal Justice Response: What is Known 38
(Aug. 2008).
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The Supreme Court decided Oliphant v. Suquamish in 1978 and
ruled that tribes do not possess the authority to fully
prosecute these kinds of violent crimes that occur within their
territories.\28\ Since Oliphant, and unlike all other local
communities, Indian nations and Alaska Native villages are
legally prohibited from prosecuting non-Indians. The Oliphant
decision created a jurisdictional gap that has had grave
consequences for Indian women. When the perpetrator is non-
Indian, Indian women are frequently left without any criminal
recourse.\29\ According to one Tribal official, ``This leaves
Indian nations, which have sovereignty over their territories
and people, as the only governments in America without
jurisdiction and the local control needed to combat such
violence in their communities.''\30\
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\28\435 U.S. 191, 195 (1978). Hearing on S. 1763, S. 872, & S. 1192
Before the S. Comm. on Indian Affairs, 112th Cong. 22-23 (Nov. 10,
2011) (statement of Thomas B. Heffelfinger, Attorney, Best & Flanagan
LLP) (noting that because the Oliphant decision deprived tribes of the
jurisdiction over non-Indians, this ``has had a dramatic and
detrimental impact upon public safety in Indian country'').
\29\See Hearing on Native Women: Protecting, Shielding, and
Safeguarding Our Sisters, Mothers, and Daughters, Before the S. Comm.
on Indian Affairs, 112th Cong. 98 (July 14, 2011) (Appendix, prepared
statement of the National Congress of American Indians (NCAI) Task
Force on Violence Against Women) (calling on Congress to restore
optional, concurrent tribal criminal jurisdiction over non-Indian
perpetrators of domestic violence, sexual assault, and related crimes
that are committed within the exterior boundaries of the reservation).
\30\Terri Henry, Co-Chair, NCAI Task Force on Violence Against
Women, Councilwoman, Eastern Band of Cherokee Indians, and Board member
for the Indian Law Resource Center, Violence Against Native Women
Gaining Global Attention, Indian Law Resource Center (last visited Nov.
3, 2012).
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Since Oliphant, the United States Attorney's office has
been the principal prosecutor of criminal cases for violation
of Federal laws in Indian country. Domestic violence and sexual
abuse against Native women fall within this realm.
Unfortunately, the need to investigate and prosecute these
crimes, often on many different reservations (or Tribal lands),
creates a burden on Federal authorities who are often located
far from any reservations and stretched too thin to be
effective. Federal law also does not provide the tools and the
types of graduated sanctions that are found in State laws
across the country. This lack of capacity results in many cases
of domestic violence on reservations being delayed or untried.
Already, United States Attorneys decline to prosecute 60-70
percent of all Indian country matters referred to them.\31\
Assault and sexual abuse charges were the leading types of
charges in Indian country, comprising 55 percent of all matters
referred to U.S. attorneys.\32\ Federal prosecutors declined to
prosecute 67 percent of crimes sexual abuse and more than 46
percent of assault matters in Indian country.\33\
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\31\Final Report, National Advisory Committee on Violence Against
Women 22 (June 2012) (``[A]pproximately 60-70 percent of crimes by non-
Indians are not prosecuted because of declination by U.S.
Attorneys.''); see Tribal Law and Order Act One Year Later: Have We
Improved Public Safety and Justice Throughout Indian Country? Hearing
Before the S. Comm. on Indian Affairs, 112th Cong. 2 (Sept. 22, 2011)
(statement of Sen. Tester).
\32\U.S. Government Accountability Office, GAO-11-167R, U.S.
Department of Justice Declinations of Indian Country Criminal Matters 3
(2010).
\33\Id. at 3, 9.
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These declinations leave an entire group of offenders who
are essentially immune from the law because tribes must rely on
Federal prosecutors, people who are outside of the community
and remote from the community, to provide the support they need
to protect their citizens.\34\ The absence of an adequate legal
framework to address this problem has undercut law enforcement
efforts to stop countless acts of violence against Native women
and has left victims unable or unwilling to seek help.\35\
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\34\See Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm.
on Indian Affairs, 112th Cong. 70-71 (Nov. 10, 2011) (statement of
Thomas B. Heffelfinger, Attorney, Best & Flanagan LLP).
\35\See id. at 8 (statement of Thomas J. Perrelli, Associate
Attorney General, U.S. Dep't of Justice).
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Tribal law enforcement is not in a position to fully
address these crimes because tribes do not have jurisdiction
over all offenders in their communities. ``Tribal governments,
police, and prosecutors and courts should be in a central part
of the response to these crimes, but under current law
throughout the Country they lack the authority to be part of
that response.''\36\
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\36\Id. at 8-9.
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A tribe's ability to protect its citizens from violence
should not depend on the race of the assailant. The SAVE Act
would restore jurisdiction to tribes so they can prosecute
crimes of violence against women committed by non-Indians
within their territories.\37\ The restoration of inherent
Tribal authority to investigate, prosecute, convict, and
sentence perpetrators of violence against women would allow
tribes to protect victims of violence and address these
pervasive crimes against Native American women.
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\37\``Even when Indian nations exercise criminal jurisdiction, the
Indian Civil Rights Act (ICRA) generally limits the sentencing
authority of tribal courts to no more than a year of imprisonment, no
matter how heinous the offense. In 2010, the Tribal Law and Order Act
(TLOA) was enacted to improve criminal justice on Indian lands,
including amendments to ICRA that allow tribal courts to extend
sentences, but only if tribes meet certain requirements. Indian nations
now face substantial setbacks in implementing TLOA after some $90
million was cut from FY 2012 funding for tribal justice programs and
crime fighting efforts in Native communities.'' Jana Walker, Senior
Staff Attorney and Director of the Indian Law Resource Center's Safe
Women, Strong Nations Project, Using the Declaration to End Violence
Against Native Women, Indian Law Resource Center (Feb. 1, 2012).
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``Incest, child sexual assault, domestic violence, sexual
abuse, sex trafficking, these are all forms of a systemic
exploitation of those who have the least power, and that needs
to be addressed as a systemic matter.''\38\ Criminals tend to
see Indian reservations and Alaska Native villages as places
they have free reign, where they can hide behind the current
ineffectiveness of the judicial system.\39\ Without the
authority to prosecute crimes of violence against women, a
cycle of violence is perpetuated that allows, and even
encourages, criminals to act with impunity in Tribal
communities and denies Native women equality under the law by
treating them differently than other women in the United
States.\40\ The SAVE Act will help Tribal communities break
this cycle.\41\
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\38\Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on
Indian Affairs, 112th Cong. 20 (Nov. 10, 2011) (statement of Suzanne
Koepplinger, Executive Director, Minnesota Indian Women's Resource
Center).
\39\Statement of Juana Majel-Dixon, Vice President of the National
Congress of American Indians and Co-Chair of the NCAI Task Force on
Violence Against Women. Violence Against Native Women Gaining Global
Attention; Congress Encouraged to Act, Indian Country Today (Oct. 11,
2012) (``Congress can act now and NCAI is calling on members of the
House and Senate to not let this crisis continue for one more day.'').
\40\Jana Walker, Senior Staff Attorney and Director of the Indian
Law Resource Center's Safe Women, Strong Nations Project, Using the
Declaration to End Violence Against Native Women, Indian Law Resource
Center (Feb. 1, 2012).
\41\Letter from Troy A. Eid, Chairman, Indian Law and Order
Commission and Former United States Attorney for the District of
Colorado & Thomas B. Heffelfinger, Former United States Attorney for
the District of Minnesota, to the Senate (Mar. 13, 2012).
The SAVE Native Women Act makes important updates to
the law to ensure that Native American communities have
the tools and resources they need to stop acts of
violence against Native Women. . . . It provides Native
Americans in Indian country the legal authority they
need to prosecute acts of violence committed in their
communities. And it updates the Federal assault statute
applicable in Indian country.\42\
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\42\Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on
Indian Affairs, 112th Cong. 18 (Nov. 10, 2011) (statement of Sen. Al
Franken) (noting that the Act also authorizes services for victimized
youth and for victims of sex trafficking).
The SAVE Act addresses these three key areas where
legislative reform is critical: Tribal criminal jurisdiction,
Tribal civil jurisdiction, and Federal criminal offenses.
The SAVE Act closes the jurisdiction gap by restoring
tribes inherent authority to hold offenders accountable for
their crimes against Native women, regardless of the
perpetrator's race. ``Together, by filling these three holes,
the [SAVE] Act will take many steps forward in our ability to
combat violence in Alaska Native and American Indian
communities.''\43\ The SAVE Act builds on current law to
improve the effectiveness and efficiency of Tribal justice
systems and will provide additional tools to Tribal and Federal
prosecutors to address domestic violence in Indian country.
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\43\Id. at 9 (statement of Thomas J. Perrelli, Associate Attorney
General, U.S. Dep't of Justice).
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3. The SAVE Act closes jurisdictional gaps to better address crimes
against Native women
Although Federal laws such as VAWA, Trafficking Victims
Protection Act (TVPA),\44\ and the Tribal Law and Order Act
(TLOA)\45\ address crime in Indian country, these laws leave
unaddressed the lack of Tribal authority to prosecute non-
Indians committing violent crimes on the reservation. This
jurisdictional void means that some crimes committed by non-
Indians in Indian country can still go unpunished.\46\ ``The
lack of tribal jurisdiction over non-Indian offenders on Indian
lands may be the key reason for the creation and perpetuation
of disproportionate violence against American Indian and Alaska
Native women.''\47\
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\44\Pub. L. 106-386, 114 Stat. 1464 (2000) (codified as 22 U.S.C.
Sec. Sec. 7101-7112). Confronted with the unique nature of human
trafficking in the United States, Congress promulgated the Trafficking
Victims Protection Act (TVPA) of 2000. TVPA criminalizes human
trafficking and is the first comprehensive federal law to address
trafficking in persons. The TVPA does not only provide legal tools for
prosecution of traffickers and those who aid traffickers, it also
provides valuable protection for victims of trafficking. The law
provides a three-pronged approach that includes prevention, protection,
and prosecution. The TVPA was reauthorized through the Trafficking
Victims Protection Reauthorization Act (TVPRA) of 2003, 2005, and 2008.
\45\Pub. L. No. 111-211, 124 Stat. 2258 (2010) (codified as amended
in various sections of 25 U.S.C.). In July 2010, the President signed
the Tribal Law and Order Act, which helps to address crime in tribal
communities and places a strong emphasis on decreasing violence against
American Indian and Alaska Native women.
\46\Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on
Indian Affairs, 112th Cong. 9 (Nov. 10, 2011) (statement of Thomas J.
Perrelli, Associate Attorney General, U.S. Dep't of Justice) (``[T]he
current jurisdictional framework has left many serious acts of domestic
and dating violence unprosecuted and unpunished.'').
\47\Hearing on Tribal Law and Order One Year Later: Have We
Improved Public Safety and Justice Throughout Indian Country, Hearing
Before the Senate Committee on Indian Affairs, 112th Cong. 63 (Sept.
22, 2011) (statement of Jacqueline Johnson-Pata, Executive Director,
National Congress of the American Indian (NCAI)).
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In 1978, the Supreme Court ruled that Indian tribes do not
have criminal jurisdiction over non-Indians who commit crimes
on Indian lands.\48\ As such, Indian women--most of whom
describe the offender as non-Indian\49\--often have no criminal
recourse against non-Indian offenders.\50\ This leaves a sense
of lawlessness on Indian reservations and a perpetuation of
victimization of Native women, a perception which is at odds
with the purposes of VA WA that have guided our nation since
its enactment over fifteen years ago.\51\ The SAVE Act, ``by
providing Tribes with jurisdiction over domestic violence
committed by all offenders, recognizes Tribal sovereignty and
Tribal responsibility.''\52\
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\48\Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195 (1978).
\49\See Steven W. Perry, American Indians and Crime, A BJS
Statistical Profile, 1992-2002, U.S. Department of Justice, Bureau of
Justice Statistics 9 (2004) (noting that nearly 4 in 5 American Indian
victims of rape/sexual assault described the offender as white).
\50\See Hearing on Tribal Law and Order One Year Later: Have We
Improved Public Safety and Justice Throughout Indian Country, Hearing
Before the Senate Committee on Indian Affairs, 112th Cong. 63 (Sept.
22, 2011) (statement of Jacqueline Johnson-Pata, Executive Director,
National Congress of the American Indian (NCAI)).
\51\Hearing on Tribal Law and Order One Year Later: Have We
Improved Public Safety and Justice Throughout Indian Country, Hearing
Before the Senate Committee on Indian Affairs, 112th Cong. (Sept. 22,
2011) (statement of Jacqueline Johnson-Pata, Executive Director,
National Congress of the American Indian (NCAI)) (citations omitted).
\52\Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on
Indian Affairs, 112th Cong. 22 (Nov. 10, 2011) (statement of Thomas B.
Heffelfinger, Attorney, Best & Flanagan LLP).
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a. The SAVE Act recognizes the inherent authority of tribes
to prosecute any person who commits domestic
violence
or dating violence against a Tribal member in
Indian country
The current legal framework for criminal jurisdiction in
Indian country is complicated and often produces an inadequate
and delayed response to Indian women victims, further
undermining their safety.\53\ ``The patchwork of Federal,
State, and Tribal criminal jurisdiction in Indian country has
made it difficult for law enforcement and prosecutors to
adequately address domestic violence--particularly misdemeanor
domestic violence, such as simple assaults and criminal
violations of protection orders.''\54\ In the 112th Congress,
the Committee has received testimony from 17 witnesses during
three hearings on how necessary it is for tribes to exercise
concurrent criminal jurisdiction over domestic-violence cases,
regardless of whether the defendant is Indian or non-
Indian.\55\
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\53\See, e.g., Hearing on S. 1763, S. 872, & S. 1192 Before the S.
Comm. on Indian Affairs, 112th Cong. 9 (Nov. 10, 2011) (statement of
Thomas J. Perrelli, Associate Attorney General, U.S. Dep't of Justice).
See also Ronet Bachman, et al., Violence Against American Indian and
Alaska Native Women and the Criminal Justice Response: What Is Known 8-
9 (Aug. 2008) (noting that cross-deputization agreements with state
police authorities can serve to alleviate the jurisdictional confusion,
but that the complicated jurisdictional issues still produce many
unique barriers for Indian women seeking help from a criminal justice
authority on tribal lands).
\54\Native Women: Protecting, Shielding, and Safeguarding Our
Sisters, Mothers, and Daughters, Hearing Before the S. Comm. on Indian
Affairs, 112th Cong. 19 (July 14, 2011) (attachment to prepared
statement of Thomas J. Perrelli, Associate Attorney General, U.S.
Department of Justice, entitled Questions and Answers on Proposed
Federal Legislation to Help Tribal Communities Combat Violence Against
Native Women). See also Hearing on Native Women: Protecting, Shielding,
and Safeguarding Our Sisters, Mothers, and Daughters, Before the S.
Comm. on Indian Affairs, 112th Cong. 82-83 (July 14, 2011) (prepared
statement of the Cherokee Nation) (noting that the ``confusion as to
whether local, state, federal, or tribal law enforcement agencies
possess criminal jurisdiction'' often results in ``acts of violence
against women often fall[ing] through the cracks and are never
prosecuted'').
\55\Native Women: Protecting, Shielding, and Safeguarding Our
Sisters, Mothers, and Daughters, Hearing Before the S. Comm. on Indian
Affairs, 112th Cong. 8 (July 14, 2011) (statement of Thomas J.
Perrelli, Associate Attorney General, U.S. Department of Justice)
(noting that such legislation would build on the intent of the Tribal
Law and Order Act).
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Under current law, Tribal governments--police, prosecutors,
and courts--lack the authority to address many of these
crimes.\56\ The SAVE Act builds on the Tribal Law and Order Act
(TLOA) by recognizing certain tribes' concurrent criminal
jurisdiction to investigate, prosecute, convict, and sentence
both Indians and non-Indians who assault Indian spouses,
intimate partners, or dating partners, or who violate
protection orders in Indian country. TLOA supports the idea of
tribes addressing violence in their own communities and it
offers additional authority to Tribal courts and prosecutors if
certain procedural protections are established.\57\
``[D]omestic violence is among those types of criminal offenses
which are most properly handled as close to the community, as
close to the act level as you possibly can.''\58\ Local Tribal
officers and justice systems are more capable and more
accountable to victims of violence and their communities.
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\56\Native Women: Protecting, Shielding, and Safeguarding Our
Sisters, Mothers, and Daughters, Oversight Hearing Before the S. Comm.
on Indian Affairs, 112th Cong. 11 (July 14, 2011) (letter from Ronald
Welch, Assistant Attorney General, included as an attachment to
prepared statement of Thomas J. Perrelli, Associate Attorney General,
U.S. Department of Justice).
\57\Native Women: Protecting, Shielding, and Safeguarding Our
Sisters, Mothers, and Daughters, Oversight Hearing Before the S. Comm.
on Indian Affairs, 112th Cong. 8 (July 14, 2011) (statement of Thomas
J. Perrelli, Associate Attorney General, U.S. Department of Justice).
\58\Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on
Indian Affairs, 112th Cong. 70-71 (Nov. 10, 2011) (statement of Thomas
B. Heffelfinger, Attorney, Best & Flanagan LLP) (``What is wonderful
about [the SAVE Native Women] Act is that it lets the courts and the
law enforcement and the prosecutor, who are right there in the
community and have the ability to respond immediately and directly to
the violence going on in that community. And that is not simply making
arrests and initiating prosecutions. It is also the ability to give the
courts jurisdiction to fashion a sentence that can not only punish, but
prevent and deter.'').
[T]he current legal structure for prosecuting
domestic violence in Indian country is not well-suited
to combating this pattern of escalating violence.
Federal resources, which are often the only ones that
can investigate and prosecute these crimes, are often
far away and stretched thin. Federal law does not
provide the tools needed to address the types of
domestic or dating violence that elsewhere in the
United States might lead to convictions and sentences
ranging from approximately six months to five
years.\59\
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\59\Native Women: Protecting, Shielding, and Safeguarding Our
Sisters, Mothers, and Daughters, Oversight Hearing Before the S. Comm.
on Indian Affairs, 112th Cong. 7 (July 14, 2011) (statement of Thomas
J. Perrelli, Associate Attorney General, U.S. Department of Justice).
Neither the Federal Government nor any State would lose any
criminal jurisdiction as a result of restoration of criminal
jurisdiction for Tribal lands.\60\ Without impinging on any
other government's jurisdiction, the SAVE Act recognizes that a
tribe has concurrent jurisdiction over a tightly defined set of
crimes committed in Indian country: domestic violence, dating
violence, and violations of enforceable protection orders.\61\
To the extent those crimes can be prosecuted today by Federal
or State prosecutors, that jurisdictional scheme would not be
changed by the SAVE Act. Similar to TLOA, this additional
Tribal authority under the SAVE Act would be available only to
those tribes that guarantee sufficient protections for the
rights of the defendants.
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\60\Sen. Harry Reid, Majority Leader, The Violence Against Women
Reauthorization Act (S. 1925), United States Senator for Nevada Harry
Reid (last visited Dec. 12, 2012) (noting that the expanded
jurisdiction ``was designed with the Department of Justice over several
years of consultation'').
\61\See SAVE Native Women Act, S. 1763, 112th Cong.
Sec. Sec. 201(a)-201(d) (2011). The SAVE Act would allow tribes to
exercise concurrent criminal jurisdiction over all persons committing
acts of domestic violence on Indian reservations because of tribes'
inherent power of self-government. SAVE Native Women Act, S. 1763,
112th Cong. Sec. Sec. 201(b)(1) (2011).
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For example, if a Native woman is a victim of violence
committed on a reservation by a non-Indian with whom she does
not have a relationship, the tribe will not have jurisdiction
to prosecute that crime. Additionally, the SAVE Act allows non-
Indian defendants to have their case dismissed if the defendant
files a pretrial motion to dismiss and the tribe does not prove
that the victim is Indian.\62\ Tribes exercising this
statutorily recognized jurisdiction over crimes of domestic
violence would be required to protect a robust set of rights,
similar to those protected in State court criminal
prosecutions. Tribes that choose not to provide these
protections would not have this additional authority.
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\62\See SAVE Native Women Act, S. 1763, 112th Cong.
Sec. Sec. 201(a)-201(d) (2011).
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Because restoring Tribal criminal jurisdiction over all
perpetrators of domestic violence would tax the already scarce
resources\63\ of most tribes that might wish to exercise this
jurisdiction under the SAVE Act, the Act also authorizes grants
to support participating tribes by strengthening their criminal
justice systems, providing indigent criminal defendants with
licensed defense counsel at no cost to those defendants,
ensuring that jurors are properly summoned, selected, and
instructed, and according crime victims' rights to victims of
domestic violence.
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\63\Tribal Law and Order Act One Year Later: Have We Improved
Public Safety and Justice throughout Indian Country? Oversight Hearing
Before the S. Comm. on Indian Affairs, 112th Cong. 1 (Sept. 22, 2011)
(statement of Sen. Daniel K. Akaka, Chairman, S. Comm. on Indian
Affairs) (``Native justice systems are also extremely underfunded and
lack adequate data, training and coordination with State and Federal
agencies to deal with the problem.'').
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It is important that the United States consider
recommendations from experts with the United Nations and the
Organization of American States as it begins to take action. A
report to the U.N. General Assembly in 2011 concluded that the
United States should ``consider restoring, in consultation with
Native American tribes, Tribal authority to enforce Tribal law
over all perpetrators, both native and non-native, who commit
acts of sexual and domestic violence within their
jurisdiction.''\64\ The global reach and international human
rights law is a strong push on Congress to act and remove the
legal barriers in the United States that affect Native women.
According to one advocate, ``Native women must not continue to
suffer disproportionately higher rates of rape, sexual assault,
and murder, and lower rates of enforcement, prosecution, and
punishment just because they are Indian and live on an Indian
reservation or in an Alaska Native village.''\65\
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\64\Rashida Manjoo, U.N. Special Rapporteur on Violence Against
Women, United Nations Human Rights Council, Report of the Special
Rapporteur on violence against Women, its causes and consequences 30
(June 6, 2011).
\65\Jana Walker, Senior Staff Attorney and Director of the Indian
Law Resource Center's Safe Women, Strong Nations Project, Using the
Declaration to End Violence Against Native Women, Indian Law Resource
Center (Feb. 1, 2012).
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b. The SAVE Act clarifies that Tribal courts have full
civil jurisdiction to issue and enforce protection
orders against Indians and non-Indians alike
The SAVE Act addresses Tribal civil jurisdiction.
Specifically, it confirms the intent of Congress in enacting
the Violence Against Women Act of 2000 by clarifying that every
Tribe has full civil jurisdiction to issue and enforce certain
protection orders against both Indians and non-Indians.\66\
``Without the ability to issue and enforce protection orders
and to get full faith and credit for those protection orders,
there is a real risk to Native women to be threatened
again.''\67\ To help tribes better protect victims, Tribal
courts should have full civil jurisdiction to issue and enforce
certain protection orders involving any persons, Indian or non-
Indian.\68\ Because Native communities are often located in
rural areas, physically distant from State courts and police
stations, Tribal courts are often in the best position to best
meet the needs of the residents of the community. ``Orders of
protection can be a strong tool to prevent future violence, but
they are only as strong as their recognition and
enforcement.''\69\
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\66\This would effectively reverse a 2008 decision from a Federal
district court in Washington, which held that an Indian Tribe lacked
authority to enter a protection order for a nonmember Indian against a
non-Indian residing on non-Indian fee land within the reservation.
Martinez v. Martinez, No. C08-5503 FBD, 2008 WL 5262793 (D. Wash. Dec.
16, 2008).
\67\Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on
Indian Affairs, 112th Cong. 13-14 (Nov. 10, 2011) (statement of Thomas
J. Perrelli, Associate Attorney General, U.S. Dep't of Justice).
\68\Native Women: Protecting, Shielding, and Safeguarding Our
Sisters, Mothers, and Daughters, Oversight Hearing Before the S. Comm.
on Indian Affairs, 112th Cong. 8 (July 14, 2011) (attachment to
prepared statement of Thomas J. Perrelli, Associate Attorney General,
U.S. Department of Justice). Tribal Law and Order Act One Year Later:
Have We Improved Public Safety and Justice Throughout Indian Country?
Oversight Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 47
(Sept. 22, 2011) (statement of Troy A. Eid, Chair, Indian Law and Order
Commission) (noting that the Commission had received testimony
indicating that state court judges do not always enforce a restraining
order issued by a tribal court and the lack of protection that occurs
without full faith and credit). ``Domestic violence perpetrators don't
care where the victim is. They are going to hunt that victim down. So
we have to try to protect that person.'' Id.
\69\Native Women: Protecting, Shielding, and Safeguarding Our
Sisters, Mothers, and Daughters, Oversight Hearing Before the S. Comm.
on Indian Affairs, 112th Cong. 96 (July 14, 2011) (appendix, prepared
statement of Jana L. Walker, Senior Attorney, Indian Law Resource
Center).
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c. The SAVE Act amends Federal law to enable Federal
prosecutors to more effectively combat three types
of assault that are frequently committed against
Native women in Indian country: assault by
strangling or suffocating, assault resulting in
substantial bodily injury; and assault by striking,
beating, or wounding
The SAVE Act involves Federal criminal offenses rather than
Tribal prosecutions. By amending the Federal Criminal Code to
make it more consistent with State laws in this area where the
Federal Government (and not the State) has jurisdiction, the
SAVE Act simply ensures that perpetrators will be subject to
similar potential punishments regardless of where they commit
their crimes. To assist Federal prosecutors in combating
domestic violence in Indian country, the SAVE Act amends the
Federal Criminal Code to provide a ten-year offense for
assaulting a spouse, intimate partner, or dating partner by
strangling or suffocating; a five-year offense for assaulting a
spouse, intimate partner, or dating partner resulting in
substantial bodily injury; and a one-year offense for
assaulting a person by striking, beating, or wounding. All of
these are in line with the types of sentences that would be
available in State courts across the Nation if the crime
occurred outside Indian country.\70\
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\70\Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on
Indian Affairs, 112th Cong. 12-13 (Nov. 10, 2011) (statement of Thomas
J. Perrelli, Associate Attorney General, U.S. Dep't of Justice)
(``Existing Federal law provides a six-month misdemeanor assault or
assault-and-battery offense that can be charged against an Indian or a
non-Indian defendant only if the victim's injuries rise to the level of
`serious bodily injury,' which is significantly more severe than
`substantial bodily injury.' . . . Federal prosecutors today often find
that they cannot seek sentences in excess of six months. And where both
the defendant and the victim are Indian, Federal courts may lack
jurisdiction altogether.'').
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The SAVE Act simplifies the Major Crimes Act\71\ to cover
all felony assaults under section 113 of the Federal Criminal
Code. This includes the two new felony offenses discussed
above--assaults resulting in substantial bodily injury to a
spouse, intimate partner, or dating partner; and assaults upon
a spouse, intimate partner, or dating partner by strangling or
suffocating--as well as assault with intent to commit a felony
other than murder, which is punishable by a maximum ten-year
sentence. Without this amendment to the Major Crimes Act,
Federal prosecutors could not charge any of these three
felonies when the perpetrator is an Indian. Under the SAVE Act,
assault by striking, beating, or wounding remains a misdemeanor
and is not covered by the Major Crimes Act. The SAVE Act would
strengthen Tribal jurisdiction over crimes of domestic
violence, Tribal protection orders, and Federal assault
prosecutions. ``These measures, taken together, have the
potential to significantly improve the safety of women in
Tribal communities and allow Federal and Tribal law enforcement
agencies to hold more perpetrators of domestic violence
accountable for their crimes.''\72\
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\71\18 U.S.C. Sec. 1153. Federal prosecutors use the Major Crimes
Act to prosecute Indians for virtually all violent crimes committed on
tribal lands against Indian and non-Indian victims.
\72\Hearing on S. 1763, S. 872, & S. 1192 before the S. Comm. on
Indian Affairs, 112th Cong. 13-14 (Nov. 10, 2011) (statement of Thomas
J. Perrelli, Associate Attorney General, U.S. Dep't of Justice) (noting
that these amendments to the Federal assault statute will stop domestic
violence at its earlier states and prevent it from reaching its most
severe levels).
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4. The SAVE Act addresses the growing problem of the sex trafficking of
Indian women
``Historical trauma and multi-generational grief and loss,
compounded by high rates of poverty and sexual violence make
American Indians extremely vulnerable to sexual
predators.''\73\ Sex trafficking is defined in the Trafficking
Victims Protection Act as the ``recruitment, harboring,
transportation, provision, or obtaining of a person for the
purpose of a commercial sex act.''\74\
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\73\Native Women: Protecting, Shielding, and Safeguarding Our
Sisters, Mothers, and Daughters, Oversight Hearing Before the S. Comm.
on Indian Affairs, 112th Cong. 123 (July 14, 2011) (appendix, prepared
statement of Suzanne Koepplinger, Executive Director, Minnesota Indian
Women's Resource Center). See also Hearing on S. 1763, S. 872, & S.
1192 Before the S. Comm. on Indian Affairs, 112th Cong. (Nov. 10, 2011)
(statement of Sen. Al Franken, noting that sex traffickers tend to
target homeless Native women and children).
\74\22 U.S.C. Sec. 7102(9). Some States, such as Minnesota, have
trafficking laws that do not require traffickers to use ``force, fraud
or coercion.'' See Minnesota Indian Women's Resource Center, Shattered
Hearts 21 (Aug. 2009) (``Minnesota law recognizes that a person can
never consent to being sexually exploited and considers individuals who
have been prostituted by others as trafficking victims. Federal law
requires an assessment of the level of `consent' of the prostituted
person in determining whether the crime of trafficking has occurred.'')
(citations omitted).
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Trafficking is a growing problem in Indian country, but the
depth of the sexual exploitation of American Indian women is
only now beginning to be uncovered.\75\ ``[T]his is due in
large part because many of the women do not identify as
victims. They do not report these crimes to authorities.''\76\
The SAVE Act would improve data gathering programs to better
understand and respond to the sex trafficking of Native
American women. Trafficking is a crime that is ``very difficult
to investigate and get a handle on''\77\ and ``[t]here are many
challenges to identifying and responding to [the] sex
trafficking'' of Native women.\78\ The scope of the problem
needs to be better understood in order to offer more effective
services.\79\ ``We know . . . very clearly that this issue
[trafficking of Native women] exists and we know it has a
terrible effect on communities where this occurs. . . . [A] big
part of [addressing trafficking] is education. It is training
for both law enforcement, as well as the community.''\80\
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\75\Melissa Farley, et al., Garden of Truth: The Prostitution and
Trafficking of Native Women in Minnesota 56 (Oct. 27, 2011) (noting
that it is important that organizations that provide services to Native
women educate their staff members to recognize, empathize, and support
victims of trafficking). ``In the U.S., very little research has been
published on the sex trafficking or commercial sexual exploitation of
Native women and youth. What exists is specific to two states,
Minnesota and Alaska. A number of publications have addressed
trafficking and prostitution of Native women and youth in Canada, but
in both countries, most of these describe small local studies, are
produced by organizations serving victims, or are press releases and
interviews citing law enforcement personnel. To date, no U.S.-based
research has been published in peer-reviewed journals.'' Alexandra
(Sandi) Pierce & Suzanne Koepplinger, New Language, Old Problem: Sex
Trafficking of American Indian Women and Children, National Online
Resource Center on Violence Against Women 3 (Oct. 2011).
\76\Hearing on S. 1763, S. 872, & S. 1192 Before the S. Comm. on
Indian Affairs, 112th Cong. 20 (Nov. 10, 2011) (statement of Suzanne
Koepplinger, Executive Director, Minnesota Indian Women's Resource
Center) (noting that victims of trafficking are much more likely to
disclose their assault to frontline advocates).
\77\Id. at 15 (statement of Thomas J. Perrelli, Associate Attorney
General, U.S. Dep't of Justice).
\78\Id. at 20 (Nov. 10, 2011) (statement of Suzanne Koepplinger,
Executive Director, Minnesota Indian Women's Resource Center)
(``[C]ollecting data on the scope of sex trafficking is a challenge.
And this is due in large part because many of the women do not identify
as victims. They do not report these crimes to authorities.'').
\79\``[The arrest and prosecution of victims is counter-productive
and exacerbates the problems.'' Melissa Farley, et al., Garden of
Truth: The Prostitution and Trafficking of Native Women in Minnesota 56
(Oct. 27, 2011).
\80\Tribal Law and Order One Year Later: Have We Improved Public
Safety and Justice Throughout Indian Country, Oversight Hearing Before
the Senate Committee on Indian Affairs, 112th Cong. 31-32 (Sept. 22,
2011) (statement of Brendan Johnson, U.S. Attorney, District of South
Dakota, U.S. Department of Justice) (emphasizing the importance of
training Federal law enforcement in Indian country because, what might
look like a prostitution case at first could be a much larger human
trafficking operation).
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Forty states have already passed State laws criminalizing
sex trafficking. However, these State laws vary in criteria for
establishing victimization.\81\ Trafficking cases that arise
from within the United States, as compared to international
trafficking, also tend to be more difficult to prosecute and
provide challenges to helping the victims. There is currently
no dedicated Federal funding for services to aid or protect
domestically-trafficked U.S.-born adults. The SAVE Act includes
research for, as well as grants towards understanding and
addressing sex trafficking. Because domestically-trafficked
U.S.-born adult victims are offered fewer protections than
international victims while the case is being heard, adult
domestic victims often refuse to testify, fearing potentially
lethal retribution by the trafficker.\82\
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\81\Alexandra (Sandi) Pierce & Suzanne Koepplinger, New Language,
Old Problem: Sex Trafficking of American Indian Women and Children,
National Online Resource Center on Violence Against Women 3 (Oct. 2011)
(noting that Arizona ``requires adult victims to prove the trafficker
used force, fraud, or coercion'' while Minnesota ``does not require
victims of any age to prove the means by which they were induced'').
``In. . . federal law, sexually trafficked minors are automatically
considered to be victims, but trafficked adults are required to prove
that the trafficker used force, fraud, or coercion to become eligible
for victim services.'' Id. at 5.
\82\Id. at 6 (noting that although ``a handful of programs, such as
Breaking Free and PRIDE in Minneapolis, offer shelter, transitional
housing, and support services to domestically trafficked adults, none
receive federal trafficking dollars for these services.'') (citations
omitted).
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Ending human trafficking should not be a political issue,
but a human responsibility.\83\
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\83\United States Department of State, Trafficking in Persons
Report 3 (June 2011) (quoting Ambassador Richard Holbrooke).
Investing in the safety of women and children is an
investment in the wellbeing of our families and
communities. It is not only the right thing to do, it
is fiscally prudent thing to provide preventive and
healing services to those in need. The trauma of
unreported or untreated sexual violence leads to higher
end-use of social services, multi-generational abuse,
increased rates of homelessness, and other costs.\84\
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\84\Hearing on S. 1763, S. 872 & S. 1192 Before the S. Comm. on
Indian Affairs, 112th Cong. 20 (Nov. 10, 2011) (statement of Suzanne
Koepplinger, Executive Director, Minnesota Indian Women's Resource
Center).
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NEED FOR LEGISLATION
Some question the ability of Congress to restore the
inherent criminal authority of Indian tribes over all
individuals who commit crimes of domestic and dating violence,
regardless of their status as Indian or non-Indian. Congress
has exercised, and the United States Supreme Court has
affirmed, broad plenary authority over Indian affairs for more
than two centuries. In the recent past, Congress restored the
inherent criminal jurisdiction of Indian tribes over non-member
Indians. The Supreme Court upheld the law. Provisions to
restore Tribal government authority over on-reservation acts of
domestic and dating violence by non-Natives with ties to the
reservation are well within Congress' constitutional authority
over Indian affairs.
Prior to contact with European nations, Indian tribes were
separate sovereigns possessing full authority to investigate
and prosecute crimes committed by all who entered their lands.
These nations and the United States, upon its formation,
acknowledged the full realm of Tribal government criminal
jurisdiction in Indian treaties. The United States added
acknowledgement of Tribal self-governing authority through
several references to Indian tribes in the Constitution.
Through these acknowledgements, Congress has exercised, and the
Supreme Court has affirmed as constitutional, broad plenary
authority over Indian affairs.
Specifically regarding criminal justice on Indian lands,
the Court in U.S. v. Kagama found that Congress had the
constitutional authority to enact the Major Crimes Act of 1885,
which restricted Tribal authority over crimes committed by
Indians on the reservation.\85\ The Court found that due to
Congress' ``course of dealing with [Indian tribes], and the
treaties in which it has been promised, there arises the duty
of protection, and with it the power.''\86\ For nearly 130
years since Kagama, based on this authority, Congress has
enacted hundreds of laws impacting Indian affairs, including
laws taking Tribal homelands, authorizing the boarding of
Indian children against parental consent, suppressing of the
practice of Native religions and prohibition on speaking Tribal
language, and much more. No Federal court has questioned or
struck down these laws.
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\85\118 U.S. 375 (1886).
\86\Id at 384.
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In the 1978 Oliphant v. Suquamish Indian Tribe case, the
Court held that Congress ``implicitly divested'' Tribal
authority over non-Indians.\87\ The Court reasoned that various
Federal laws enacted over the past 150 years ``demonstrated an
intent to reserve jurisdiction over non-Indians to the Federal
courts.''\88\ An additional part of the rationale was that non-
Indians could not participate in jury pools or Tribal politics.
The Oliphant Court acknowledged that the ``prevalence'' of non-
Indian crime on Indian reservations, but noted that ``these are
considerations for Congress to weigh. . . .''\89\
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\87\435 U.S. 191 (1978).
\88\Id. at 204.
\89\Id. at 212.
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In 1990, the Court in Duro v. Reina, similarly held that
Congress implicitly restricted Tribal criminal authority over
non-member Indians.\90\ Non-members Indians also cannot vote in
Tribal elections or otherwise participate in Tribal politics.
Congress legislatively reversed Duro, relaxing the restriction
by amending the Indian Civil Rights Act (ICRA) to ``recognize
and affirm'' the inherent Tribal government criminal authority
over ``all Indians.''\91\
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\90\495 U.S. 676 (1990).
\91\25 U.S.C. Sec. 1301(2).
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In 2004, the Supreme Court in United States v. Lara, upheld
the ICRA amendment acknowledging Tribal inherent criminal
authority over all Indians.\92\ The central question raised in
Lara was whether Congress has the constitutional power to
recognize Indian tribes' ``inherent'' under the Constitution
rested on six considerations, all of which apply to the
proposed VAWA Tribal jurisdiction provision: (1) ``the
Constitution grants Congress broad general powers to legislate
in respect to Indian tribes''; (2) ``Congress, with this
Court's approval, has interpreted the Constitution's `plenary'
grants of power as authorizing it to enact legislation that
both restricts and, in turn, relaxes those restrictions on
tribal sovereign authority''; (3) ``Congress' statutory goal--
to modify the degree of autonomy enjoyed by a dependent
sovereign that is not a State--is not an unusual legislative
objective''; (4) there is ``no explicit language in the
Constitution suggesting a limitation on Congress' institutional
authority to relax restrictions on tribal sovereignty
previously imposed by the political branches''; (5) ``the
change at issue here is a limited one, . . . [largely
concerning] a tribe's authority to control events that occur
upon the tribe's own land''; and (6) the Court's ``conclusion
that Congress has the power to relax the restrictions imposed
by the political branches on the tribes' inherent prosecutorial
authority is consistent with [the Supreme Court's] earlier
cases.''
---------------------------------------------------------------------------
\92\541 U.S. 193 (2004).
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While the ICRA provision at issue in Lara was broad
criminal authority over all types of crimes committed by any
non-member Indian who acts on Indian lands, the proposed VAWA
Tribal provision is limited to misdemeanor crimes of domestic
and dating violence committed on a reservation by a non-Indian
who either lives or works on the reservation and who has a pre-
existing relationship with the victim. In addition, the
proposal requires that Tribal courts provide the suspect of
abuse with a full list of protections that mirror protections
offered defendants before State courts. These protections were
not required in the ICRA amendment at issue in Duro.
Opponents of restoring inherent Tribal authority have
proposed a delegation of Federal criminal authority to Indian
tribes over non-Native crimes of domestic and dating violence.
Delegating Federal criminal authority to Tribal governments
will raise more constitutional questions that it could possibly
answer. Indian tribes and Tribal officials are neither
appointed by the President nor subject to his removal
authority. Tribal prosecutors (unlike United States Attorneys)
are not controlled (hired and fired) by the President. Such a
system, at minimum, would be required in order for a delegation
to be found constitutional.
Justice Thomas, in his concurrence in response to Justice
Souter's dissent, laid out the argument against Federal
delegations of criminal authority to Indian tribes.
The power to bring federal prosecutions, which is
part of the putative delegated power, is manifestly and
quintessentially executive power. Congress cannot
transfer federal executive power to individuals who are
beyond ``meaningful Presidential control.'' And this
means that, at a minimum, the President must have some
measure of ``the power to appoint and remove'' those
exercising that power.\93\
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\93\Id. at 216-17 (Thomas, J., concurring in the judgment) (citing
Morrison v. Olson, 487 U.S. 654, 691 (1988)).
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It does not appear that the President has any control
over tribal officials, let alone a substantial measure
of the appointment and removal power. Thus, at least
until we are prepared to recognize absolutely
independent agencies entirely outside of the Executive
Branch with the power to bind the Executive Branch (for
a tribal prosecution would then bar a subsequent
federal prosecution), the tribes cannot be analogized
to administrative agencies, as the dissent suggests.
That is, reading the ``Duro fix'' as a delegation of
federal power (without also divining some adequate
method of Presidential control) would create grave
constitutional difficulties. Accordingly, the Court has
only two options: Either the ``Duro fix'' changed the
result in Duro or it did nothing at all.\94\
---------------------------------------------------------------------------
\94\Id at 216 (Thomas, J., concurring in the judgment).
``[Justice Thomas] cogently explained that any delegation
of that sort would be constitutionally suspect in any event,
for it would transfer a core executive function--the
prosecution of crime--to an entity not simply beyond the
President's appointment and removal authority, but entirely
outside the executive branch.''\95\
---------------------------------------------------------------------------
\95\Philip P. Frickey, (Native) American Exceptionalism in Federal
Public Law, 119 Harvard L. Rev. 431, 471 n. 223 (2005).
---------------------------------------------------------------------------
Just as important, a Federal delegation would prove
unworkable on-the-ground and would do little to address the
epidemic of violence faced by many Tribal communities. It would
place significant additional burdens on Tribal governments,
courts, and police--as opposed to exercising the restored
authority listed in the Issa bill\96\ even with the added
requirements and protections that they must provide to suspects
of abuse. In addition, a delegation of Federal authority--if it
can ever be found constitutional--must come with an entirely
new Federal bureaucracy and regulatory regime to oversee local
Tribal law enforcement, prosecutors, public defenders, judges,
and other justice officials, all of which must be funded by
Congress.
---------------------------------------------------------------------------
\96\H.R. 6625.
---------------------------------------------------------------------------
Congress has much broader plenary authority to legislate
over Indian affairs than it does delegating criminal
enforcement powers that are reserved for the Federal
Government. Recognizing and affirming a tribe's inherent power
to exercise criminal jurisdiction over certain nonmembers is
exactly what Congress did in the ``Duro fix,'' which the
Supreme Court upheld in United States v. Lara.
LEGISLATIVE HISTORY
In developing S. 1763, the Committee worked to continue the
tradition of strong bipartisan support for the Violence Against
Women Act (VAWA). S. 1763 includes a Department of Justice
proposal submitted to Congress on July 21, 2011 in anticipation
of the reauthorization of the VAWA. That proposal was the
product of extensive of previous work developing the Tribal Law
and Order Act, which became law in 2010.
The Committee held a hearing on the proposal on July 14,
2011. Three critical priorities emerged from the July hearing:
(1) To reauthorize and improve the Native programs under VAWA;
(2) To strengthen Tribal governments so that they have the
authority to address these crimes; and (3) To examine the
increasing problem of sex trafficking of Native women. These
priorities were then incorporated into draft legislation which
was widely circulated in August, 2011, and posted on the
Committee's website.
In response to the feedback the Committee received, Senator
Akaka modified the draft bill and introduced the Stand Against
Violence and Empower Native Women (SAVE Native Women) Act on
October 31, 2011, along with Senators Baucus, Begich, Bingaman,
Franken, Inouye, Johnson, Murray, Tester, and Udall. Senators
Conrad, Crapo, Murkowski, Reid, and Sanders were later added as
co-sponsors. The Committee held a hearing on November 10, 2011
to further review and evaluate the legislation. The Committee
reported S. 1763 on December 8, 2011 by voice vote with
bipartisan support. The Committee ordered the bill be reported
with an amendment in the nature of a substitute favorably.
The Committee on Indian Affairs worked closely with the
Committee on the Judiciary. The Committee on the Judiciary
accepted the provisions in S. 1763 and the bill was
incorporated into S. 1925, the Violence Against Women
Reauthorization Act of 2012. S. 1925, also known as the
``Leahy-Crapo bill,'' was introduced on November 30, 2011 by
Senator Leahy and has 60 cosponsors. Judiciary reported S. 1925
with an amendment in the nature of a substitute on February 7,
2012. Judiciary filed a written report with minority views,
Report No. 112-153, on March 12, 2012. On April 26, 2012, S.
1925 passed the Senate with an amendment by Yea-Nay recorded
vote of 68-31.
A companion bill, H.R. 4154, was introduced by Congressman
Boren on March 7, 2012 in the House of Representatives. The
bill was referred to the House Subcommittee on Indian and
Alaska Native Affairs and the Subcommittee on Crime, Terrorism,
and Homeland Security.
SUMMARY OF THE AMENDMENT IN THE NATURE OF A SUBSTITUTE
Senator Akaka offered a substitute amendment and the
amendment was accepted by the Committee on December 8, 2011.
This amendment:
Amends the Omnibus Crime Control and Safe Streets Act of
1968 to include sex trafficking as a target of the grants to
Indian Tribal governments to combat violent crime against
Indian women. Allows those grants to be used to: (1) address
the needs of youth who are victims of, or exposed to, domestic
violence, dating violence, sexual assault, sex trafficking, or
stalking; and (2) develop and promote best practices for
responding to domestic violence, dating violence, sexual
assault, sex trafficking, and stalking.
Allows Tribal coalition grants to be used to develop and
promote legislation and policies that enhance best practices
for responding to violent crimes against Indian women. Requires
the Attorney General to award such grants annually to: (1) each
Tribal coalition that meets certain criteria under the Violence
Against Women Act of 1994 (VAWA), is recognized by the Office
on Violence Against Women, and serves Indian tribes; and (2)
organizations that propose to incorporate and operate a Tribal
coalition in areas where Indian tribes are located but no
Tribal coalition exists.
Amends the Violence Against Women and Department of Justice
Reauthorization Act of 2005 to: (1) include the Secretary of
the Interior, in addition to the Secretary of Health and Human
Services (HHS) and the Attorney General, as a participant in
consultations with Indian tribes regarding the administration
of Tribal funds and programs, enhancement of Indian women's
safety, and Federal response to violent crimes against Indian
women; and (2) require the National Institute of Justice to
include women in Alaska Native Villages and sex trafficking in
its study of violence against Indian women. Reauthorizes
appropriations for the study for FY2012-FY2013.
Amends VAWA to define or revise definitions of ``native
village,'' ``sex trafficking,'' and ``tribal coalition.''
Restores Indian tribes criminal jurisdiction over domestic
violence, dating violence, and violations of protective orders
that occur on their lands. Provides that a participating tribe
shall exercise special domestic violence criminal jurisdiction
concurrently, not exclusively. Authorizes the Attorney General
to award grants to assist Indian tribes in exercising such
jurisdiction, providing indigent defendants with free legal
counsel, and securing the rights of victims of such crimes.
Authorizes appropriations for such grant program and to provide
participating Indian tribes with training, technical
assistance, data collection, and an evaluation of their
criminal justice systems.
Gives Indian courts civil jurisdiction to issue and enforce
protection orders.
Amends the Federal criminal code to increase the maximum
Federal penalties for assault convictions. Subjects individuals
who: (1) commit an assault resulting in substantial bodily
injury to a spouse, intimate partner, or a dating partner to a
fine or imprisonment for up to five years, or both; and (2)
assault a spouse, intimate partner, or dating partner by
strangling, suffocating, or attempting to strangle or
suffocate, by a fine or imprisonment up to 10 years, or both.
Makes Federal felony assault penalties applicable to Indians.
Makes Indian tribes' criminal jurisdiction over domestic
violence, dating violence, and violations of protection orders
that occur on their lands effective two years after this Act's
enactment. Gives Indian tribes the opportunity to participate
in a pilot project that allows them to exercise that
jurisdiction sooner.
Amends the Federal criminal code to subject individuals
convicted under Tribal law of repeat domestic violence or
stalking offenses to maximum Federal penalty provisions for
repeat offenders.
Makes violations of civil protection orders issued by a
Tribal court or other judicial tribunal of an Indian tribe a
federal crime.
Amends the Indian Law Enforcement Reform Act to require a
report to Congress within 90 days of enactment, and each fiscal
year thereafter, to provide details on implementation of the
high priority performance goal pilot program carried out by the
Secretary of the Interior to reduce violent crime in Indian
communities.
Amends the Indian Law Enforcement Reform Act to extend the
Indian Law and Order Commission's reporting deadline by one
year.
Amends the Indian Civil Rights Act of 1968 to (1) authorize
a discretionary four-year pilot project whereby the Secretary
of the Interior shall promulgate regulations for misdemeanor
crimes with penalties (of no more than a $1000 fine, one year
imprisonment, or both) that apply to Indian country, and select
up to five tribes for each of fiscal years 2012 to 2018 for
participation; (2) require publication of requirements and
selection criteria for the project within 180 days of enactment
for the Secretary, after consulting with tribes; (3) cross-
deputize Tribal officers to issue citations into the applicable
Federal district court--the Central Violations Bureau.
Enforcement of the regulations would be concurrent with any
State or local law enforcement efforts; and (4) require a
report to Congress within five years, assessing and evaluating
the effectiveness of the project.
Senator Murkowski also offered an amendment. The amendment
clarifies that nothing in section 202 (Tribal Protection
Orders) would limit, alter, expand, or diminish the civil or
criminal jurisdiction of the State of Alaska, any subdivision
of the State of Alaska, or any Indian tribe in the State of
Alaska. This amendment was also accepted by the Committee on
December 8, 2011.
SECTION-BY-SECTION ANALYSIS OF THE BILL, AS AMENDED
Title I--Grants
Sec. 101. Grants to Indian Tribal governments
This section amends the Violence Against Women Act to add
the following as authorized grant activities: (1) services to
sex trafficking victims; (2) services to address the needs of
victimized youth and support services for nonabusing parents or
the child's caretaker; and (3) drafting and conducting outreach
on Tribal codes and best practices for responding to violent
crimes and other crimes (including stalking and dating
violence) against Indian women.
Sec. 102. Tribal Coalition Grants
For grants to Tribal coalitions, this section: (1) adds
drafting and conducting outreach on Tribal codes and best
practices for responding to violent crimes and other crimes
(including stalking and dating violence) against Indian women
as authorized grant activities; (2) limits grants to
coalitions, not individuals, as eligible grantees; and (3)
authorizes grants, cooperative agreements, and contracts for
technical assistance and training to Tribal coalitions and
Tribal organizations whose primary purpose is serving Tribal
coalitions.
Sec. 103. Consultation
This section amends VAWA to: (1) require the participation
of the Secretary of the Interior in consultations. (Previously
only the Secretary of HHS and Attorney General were required);
(2) require notice of consultation at least 120 days prior; and
(3) include preventing the sex trafficking of Native American
women as a consultation topic for the Attorney General.
Sec. 104. Analysis and research on violence against women
This section amends VAWA to: (1) add women in Alaska Native
Villages and Native Hawaiian women to the required scope of the
national baseline study of violence against Indian women; (2)
add ``sex trafficking'' to the scope of the national baseline
study; and (3) reauthorize appropriations of $1 million for the
study for fiscal years 2012 and 2013.
Sec. 105. Definitions
This section amends VAWA to: (1) add an area or community
associated with a ``federally recognized Indian tribe'' to the
definition of a ``rural area'' and ``rural community'' so that
tribes may be eligible for the DOJ Office of Violence Against
Women's Rural Grant Program; (2) include a definition of ``sex
trafficking'' to the VAWA consistent with the definition under
Federal criminal statutes; (3) clarify and streamline the
definition of ``Tribal coalition'' for purposes of DOJ grants;
and (4) add nonprofit, nongovernmental ``Native Hawaiian
organizations'' to the definition of ``Tribal coalition.''
Title II--Tribal Jurisdiction and Criminal Offenses
Sec. 201. Tribal jurisdiction over crimes of domestic violence
This section amends the Indian Civil Rights Act of 1968 to:
(1) recognize any participating tribes' concurrent criminal
jurisdiction to investigate, prosecute, convict, and sentence
persons (including non-Indians) who assault Indian spouses,
intimate, partners, or dating partners, or who violate
protection orders, in Indian Country; (2) require a
participating tribe exercising ``special domestic violence
criminal jurisdiction,'' to provide certain additional
constitutional rights to any defendant prosecuted under this
section; and (3) authorize grants to Indian tribes to assist in
exercising special domestic violence jurisdiction, including,
among other purposes, providing indigent defense counsel, and
authorize such sums as are necessary to carry out this section.
Sec. 202. Tribal protection orders
This section amends 18 U.S.C. Sec. 2265 to: (1) clarify
provisions in prior amendments to the VAWA, enacted in 2000,
that Indian tribes have full civil jurisdiction to issue and
enforce certain protection orders involving any persons, Indian
or non-Indian, in matters arising in the Indian country of the
tribe ``or otherwise in the authority of the tribe.'' (At least
one Federal district court has interpreted the language in
current law to be ambiguous regarding jurisdiction of an Indian
tribe to enter a protection order for a nonmember Indian
against a non-Indian residing on non-Indian fee land within the
reservation. This amendment would clarify that tribes have full
civil jurisdiction over these matters.); and (2) clarify that
nothing in this section limits, alters, expands, or diminishes
the civil or criminal jurisdiction of the State of Alaska or
any subdivision of the State of Alaska, or any Indian tribe in
the State of Alaska.
Sec. 203. Amendments to the Federal assault statute
Amends the Federal assault statute (18 U.S.C. Sec. 113) to:
(1) establish a new crime with a penalty of imprisonment up to
10-years for assaulting a spouse, intimate partner, or dating
partner by strangling or suffocating, or attempting to strangle
or suffocate; (2) provide a 5-year offense for assaulting a
spouse, intimate partner, or dating partner resulting in
substantial bodily injury, adding the type of victim; (3)
provide a 1-year offense for assaulting a person by striking,
beating, or wounding, increased from six months.
This section also amends the Indian Major Crimes Act (18
U.S.C. Sec. 1153(a)) to: (1) include any felony assault under
18 U.S.C. Sec. 113, as amended by Section 203 and 205 of this
proposed legislation, to the list of major crimes over which
the Federal Government has exclusive jurisdiction, if committed
by an Indian in Indian country.
These changes will enable Federal prosecutors to more
effectively combat three types of assault frequently committed
against women in Indian country and to appropriately address
the gradual escalation of seriousness often associated with
domestic violence offenses.
Sec. 204. Effective dates; pilot project
This section provides that the concurrent Tribal
jurisdiction over crimes of domestic violence shall take effect
two years after the enactment of this proposed legislation.
This section establishes a new pilot project for tribes wishing
to exercise concurrent jurisdiction over crimes of domestic
violence on an accelerated basis. Tribes wishing to participate
would apply to the Attorney General, who would coordinate with
Department of Interior, and consult with affected Indian
tribes.
Sec. 205. Assaults; repeat offenders
This section amends the Federal assault statute (18 U.S.C.
Sec. 113(a)) to provide a term of imprisonment of up to 20
years, a fine, or both, for assault with intent to commit a
felony of aggravated sexual abuse; and it removes the self-
defense of ``just cause or excuse'' from the crime of assault
with a deadly weapon with intent to commit bodily harm.
This section also amends 18 U.S.C. Sec. 2265A(b)(1)(B) to
recognize within the Federal system, Tribal convictions for
domestic violence or stalking offenses for purposes of repeat
offender sentencing.
Sec. 206. Violations of Tribal civil protection orders
This section amends the Indian Major Crimes Act (18 U.S.C.
Sec. 1153) to: (1) provide a punishable Federal offense for a
violation of a Tribal civil protection order, if the order
meets the procedural due process requirements contained in
Section 2265 of Title 18 in order to be afforded full faith and
credit under that section; (2) provide a maximum 1-year
sentence, a fine of up to $1,000, or both, for first
violations; (3) provide a maximum 3-year sentence, a fine of up
to $5,000, or both, for subsequent violations; and (4) require
that the Tribal order include a statement that violation of the
order may result in criminal prosecution and penalty under
Federal law.
Sec. 207. High priority performance goal pilot program reporting
This section amends the Indian Law Enforcement Reform Act
(25 U.S.C. Sec. 2802(c)) to require a report to Congress within
90 days of enactment, and each fiscal year thereafter,
providing details on implementation of the high priority
performance goal pilot program carried out by the Secretary of
the Interior to reduce violent crime in Indian communities.
Title III--Indian Law and Order Commission
Sec. 301. Indian Law and Order Commission
This section extends the Indian Law and Order Commission
reporting deadline from two years to three years.
Title IV--Safety Enhancement Study and Demonstration Projects
Sec. 401. Safety enhancement study and demonstration projects
This section amends the Indian Civil Rights Act of 1968 to
(1) authorize a discretionary four-year pilot project whereby
the Secretary of the Interior shall promulgate regulations for
misdemeanor crimes with penalties (of no more than a $1000
fine, one year imprisonment, or both) that apply to Indian
country, and select up to five tribes for each of fiscal years
2012 to 2018 for participation; (2) require publication of
requirements and selection criteria for the project within 180
days of enactment for the Secretary, after consulting with
tribes; (3) cross-deputize Tribal officers to issue citations
into the applicable Federal district court--the Central
Violations Bureau. Enforcement of the regulations would be
concurrent with any State or local law enforcement efforts; and
(4) require a report to Congress within five years, assessing
and evaluating the effectiveness of the Project.
COMMITTEE RECOMMENDATION AND TABULATION OF VOTE
In an open business meeting on December 8, 2011, the
Committee on Indian Affairs, by voice vote, adopted S. 1763
with an amendment in the nature of a substitute and ordered the
bill reported to the Senate, with the recommendation that the
Senate do pass S. 1763 as reported.
COST AND BUDGETARY CONSIDERATIONS
The following cost estimate, as provided by the
Congressional Budget Office, dated May 10, 2012, was prepared
for S. 1763:
May 10, 2012.
Hon. Daniel K. Akaka,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1763, the Stand
Against Violence and Empower Native Women Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Martin von
Gnechten.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 1763--Stand Against Violence and Empower Native Women Act
Summary: S. 1763 would amend various laws and programs
related to violence against Native American women. The
legislation would expand grants to tribal governments and
tribal coalitions for programs to strengthen criminal justice
and law enforcement capabilities related to violence against
women. Additionally, S. 1763 would expand penalties for certain
violent crimes.
Based on information from the Department of Justice and the
Department of the Interior, CBO estimates that implementing S.
1763 would cost $192 million over the 2012-2017 period, subject
to appropriation of the necessary funds.
Enacting S. 1763 also would affect direct spending and
revenues because those prosecuted and convicted under the bill
could be subject to criminal fines; therefore, pay-as-you-go
procedures apply. Criminal fines are recorded as revenues,
deposited in the Crime Victims Fund, and later spent. CBO
expects that any additional revenues and direct spending would
not be significant because of the small number of cases likely
affected.
S. 1763 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 1763 is shown in the following table.
The costs of this legislation fall within budget function 450
(community and regional development).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
----------------------------------------------------------------
2012 2013 2014 2015 2016 2017 2012-2017
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level.................. 39 40 39 40 40 41 239
Estimated Outlays.............................. 6 28 39 39 40 40 192
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that S.
1763 will be enacted in 2012, that the necessary funds will be
provided for each year, and that spending will follow
historical patterns for similar programs.
Spending subject to appropriation
S. 1763 would authorize $1 million for each of fiscal years
2012 and 2013 for a baseline study of violence against Native
American women to be completed within three years of enactment.
The legislation also would authorize whatever sums are
necessary for grants to tribal governments or their designees
to improve law enforcement, the court system, and detention
facilities. In 2012, about $38 million was appropriated for
similar grants to tribal governments.
Assuming that spending for grants under S. 1763 would be in
line with existing grant programs, that they would supplement
rather than supplant those grants, and that appropriations
would be provided as necessary each year, CBO estimates that
implementing the bill would cost $192 million over the 2012-
2017 period.
Direct spending and revenues
S. 1763 would establish new federal crimes, broaden the
coverage of existing crimes related to violence against women
in tribal areas, and expand existing penalties. Enacting the
bill could increase collections of criminal fines (which are
recorded in the budget as revenues) for violations of the
bill's provisions. CBO estimates that any additional
collections would not be significant because of the relatively
small number of additional cases likely to be affected.
Criminal fines are recorded as revenues, deposited in the Crime
Victims Fund, and subsequently spent without further
appropriation.
Intergovernmental and private-sector impact: S. 1763
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Previous CBO estimate: On March 29, 2012, CBO transmitted a
cost estimate for S. 1925, the Violence Against Women
Reauthorization Act of 2011, as ordered reported by the Senate
Committee on the Judiciary on February 7, 2012. Title IX of S.
1925 contains provisions very similar to those in S. 1763, and
the cost estimates reflect the difference in the authorized
levels of funding.
Estimate prepared by: Federal Costs: Martin von Gnechten;
Impact on State, Local, and Tribal Governments: Melissa
Merrell; Impact on the Private Sector: Marin Randall.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
REGULATORY AND PAPERWORK IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 1763 will
have a minimal impact on regulatory or paperwork requirements.
EXECUTIVE COMMUNICATIONS
The Committee received the following letters from the
Department of Justice in support of S. 1763:
CHANGES IN EXISTING LAW
In the opinion of the committee, it is necessary to
dispense with the requirements of paragraph 12 of rule XXVI of
the Standing Rules of the Senate to expedite the business of
the Senate.