On May 8, 2012, the House Judiciary Committee approved legislation, HR 4970, reauthorizing the Violence Against Women Act (VAWA). HR 4970 was approved on a nearly party line vote, with one Republican joining Democrats in opposing the bill. The bill does not, however, contain key provisions related to tribal jurisdiction and enforcement of protection orders that were included in the Senate-passed bill, S 1925. (See our General Memorandum 12-057 of April 27, 2012.) The Senate bill would acknowledge tribal authority to prosecute misdemeanor domestic and dating violence over non-Indians (although not in Alaska except for Metlakatla) and clarify tribal court authority to issue and enforce protection orders.
The House bill is controversial and a number of national organizations will oppose the House bill unless it is amended on matters related to tribal jurisdiction and protections for immigrants and gay and lesbian persons. In particular, the immigrant issues in HR 4970 are viewed as a retreat from the current law’s protections. While a number of amendments were offered in Committee to address these issues, they were for the most part defeated.
Several Democratic members of the Judiciary Committee spoke of the need for better protection for Native people under VAWA. Representative Issa (R-CA), who has a number of tribes in his district, offered an amendment similar to the Senate language that would expand tribal jurisdiction over misdemeanor domestic violence crimes. He withdrew the amendment, however, because it was clear that Committee Chairman Smith (R-TX) would rule it out of order on the grounds that it was not germane to the Committee’s jurisdiction and was properly under the jurisdiction of the Natural Resources Committee. The Chairman said that the issue of tribal jurisdiction raised by Representative Issa should be considered at an “appropriate time.” Ranking Member Conyers (D-MI) attempted to offer a substitute bill which contained the tribal jurisdiction provisions, but it was ruled non-germane.
While the tribal jurisdiction provisions were not accepted by the Committee, it did approve by voice vote two amendments with different tribal provisions offered by Representative Scott (D-VA). One of these amendments would simply encourage the Attorney General to instruct Assistant U.S. Attorney tribal liaison officials to undertake a number of activities related to addressing domestic violence in Indian Country. We point out that the Tribal Law and Order Act, PL 111-211, already provides that tribal liaison officials shall work with tribes in the area of domestic and sexual violence. That Act also already gives the United States Attorneys wide authority “to determine the duties of a tribal liaison officer to meet the needs of the Indian tribes located within the relevant Federal district.” This amendment adopted by the Committee would therefore add little to current law. The second of Representative Scott’s amendments removed a provision from the House bill that would have specifically included tribal court convictions as prior offenses under a federal law that increases the maximum sentence for repeat domestic violence or stalking offenders. Scott explained that he thought the provision would be “easily ruled as unconstitutional” because tribal courts need not provide all U.S. Constitutional protections to criminal defendants.
HR 4970 is expected to be considered on the House floor early next week. The National Congress of American Indians and others are working for a House floor amendment that would include the key tribal provisions missing from the House Committee-approved bill. Tribes and their allies are being asked to encourage the House Rules Committee to hold in order any amendments restoring the jurisdictional provisions. When reaching out to the Rules Committee and other members of Congress, tribes and their allies can make the points that:
• The tribal jurisdiction provisions are not unconstitutional;
• That tribal domestic violence jurisdiction over non-Indians would be concurrent and would not infringe on state or federal jurisdiction; and
• That the provisions allow for local control and local solutions to domestic violence in Indian Country.
Please let us know if we may provide additional information regarding the legislation to reauthorize the Violence Against Women Act and/or assist in making Congressional contacts.