The big U.S. political news this week was the defeat of Eric Cantor in Tuesday’s Republican primary in his U.S. House district in Virginia. Pundits and politicians say it means increased power for Tea Party/Republicans. The Republican Party will become more conservative and even less willing to negotiate with President Obama and congressional Democrats. Etc. Etc.
I have not read all of the newspaper articles about this election and have no desire to do so. But I was surprised by a column by New York Times’ columnist Charles Blow that emphasized the very small size of the vote in this election. Here are the key facts:
District population
760,000
Total votes in District: 2012 general election
381,000
Total votes in District: 2012 GOP primary
47,719
Total votes in District: 2014 GOP primary
65,008
Total votes in District: 2014 GOP primary– David Brat
36,110
Total votes in District: 2014 GOP primary– Eric Cantor
28,898
Ezra Klein of the Vox Conversations website believes that Cantor lost because of the low turnout in this week’s primary; Cantor failed to get his supporters to the polls. Philip Bump in the Washington Post disagrees; he asserts that the GOP primary turnout in 2014 was larger than in 2012 and that the increased turnout was to vote against Cantor.
I am sure there are other interpretations of the result of this primary election, and I certainly am not able to wade in with my own opinion on the subject. Nor do I want to.
I merely point out that only 7,212 (36,110-28,898) more people voted for Brat than for Cantor. Are the many grandiose interpretations of this election merely over-reactions?
On February 28th the U.S. House of Representatives passed the Senate version of the reauthorization of the Violence Against Women Act. The vote was 286 to 138. The majority was comprised of 199 Democrats and 87 Republicans. All of the 138 negative votes were Republicans while 7 other Republicans, including Speaker John Boehner, did not vote.
This House action came immediately after the House had rejected a weaker version offered by Minority Leader Eric Cantor, 166-257. The prevailing negative votes came from 197 Democrats and 60 Republicans.
This action is significant in several respects.
First, the Act includes for the first time protection of gay, bisexual or transgender female victims of domestic abuse and of Native American women who are victims of certain kinds of violence by non-Indian men.
As discussed in a prior post, I have been most concerned about the jurisdictional “black hole” that has prevented investigation and prosecution of abuse of Native women by non-Indian men, and the bill now passed by Congress remedies that defect.
Louise Erdrich
Novelist and Native-American Louise Erdrich highlighted this jurisdictional problem in her novel The Round House, and she recently penned an op-ed article in the New York Times that countered criticisms of the tribal courts jurisdictional provision in this bill.
Erdrich said the “Justice Department reports that one in three Native women is raped over her lifetime, while other sources report that many Native women are too demoralized to report rape. Perhaps this is because federal prosecutors decline to prosecute 67 percent of sexual abuse cases, according to the Government Accountability Office. [In addition’] . . . a Native woman battered by her non-Native husband has no recourse for justice in tribal courts, even if both live on reservation ground. More than 80 percent of sex crimes on reservations are committed by non-Indian men, who are immune from prosecution by tribal courts.”
Moreover, according to Erdrich, the “Minnesota Indian Women’s Resource Center says this gap in the law has attracted non-Indian habitual sexual predators to tribal areas . . . [and another source] has found that rapes on upstate reservations increase during hunting season.”
Erdrich also defends the abilities and fairness of tribal courts against the charge that they would be unfair to non-Indian defendants. She says,“Most reservations have substantial non-Indian populations, and Native families are often mixed. The Senate version guarantees non-Indians the right to effective counsel and trial by an impartial jury.” In addition, “[t]ribal judges know they must make impeccable decisions . . . that they are being watched closely and must defend their hard-won jurisdiction. Our courts and lawyers cherish every tool given by Congress. Nobody wants to blow it by convicting a non-Indian without overwhelming, unshakable evidence.”
Erdrich’s comments are echoed in a New York Timeseditorial that stated, “Violence and crime rage unchecked in Indian country, yet the federal government, the primary law enforcer on reservations, is investigating and prosecuting fewer violent felonies, and reducing financing for tribal courts and public-safety programs. That is a scandal . . . . [and] a moral atrocity.”
Second, the House Republican leadership permitted the Senate version to come to the floor even though it did not have the support of a majority of the Republican members. This was a “violation” of the so-called unofficial Hastert Rule established by a previous Republican Speaker of the House, Dennis Hastert, whereby the Republican majority would only bring to the floor for a vote measures that were supported by a “majority of the majority.” Moreover, this was the third time this year that the Hastert Rule has not been followed. The other occasions were a bill to avert automatic tax increases and a bill providing relief for states hit by Hurricane Sandy.
John Boehner
Although this three-time refusal to follow the Hastert Rule upsets at least some of the more conservative Republican Representatives, I applaud Speaker Boehner’s acting as a Speaker of the entire House of Representatives, not just the Republican caucus. I hope that he continues to do so or that a truly bipartisan Speaker replaces him.
It must also be noted that allowing the VAWA bill to come to the floor for a vote and to be passed is a reversal of longstanding House Republican opposition to the bill. This change is seen as a recognition by at least some of the House GOP leadership that the party needed to try to repair its standing among women, who gave the Democrats a substantial margin of victory in the 2012 election. Apparently 13 Republican Representatives who are announced or likely candidates for the Senate in 2014 disagree with this political judgment as they voted against VAWA on Thursday.
President Obama
Immediately after the House action President Obama expressed his approval of the House action:“Today’s vote will go even further by continuing to reduce domestic violence, improving how we treat victims of rape, and extending protections to Native American women and members of the LGBT community. I want to thank leaders from both parties . . . for everything they’ve done to make this happen. Renewing this bill is an important step towards making sure no one in America is forced to live in fear, and I look forward to signing it into law as soon as it hits my desk.”
Joseph Biden
Vice President Biden also applauded the House and thanked “the leaders from both parties . . . and the bipartisan majorities in both the House and the Senate” for passage of the bill.
Louis Erdrich in her prize-winning novel, The Round House, tells the story of the violent rape of a Native woman by a white man on an Indian reservation in North Dakota in 1988, and the resulting legal problem as to whether the federal or Native American courts had jurisdiction to investigate and prosecute the crime. This was discussed in a prior post.
This jurisdictional conundrum is not just a subject for fiction. It is a real problem in the U.S. today that would be addressed by a law now being debated in the U.S. Congress.
Introduction
In recent years a Southern Ute Indian woman married a white man, and they lived on the tribe’s reservation in southern Colorado. There she was subjected to frequent beatings and threats. Because her husband was white, the Southern Ute Tribal Police could not investigate and prosecute him. Because she was a Native American on tribal land, state authorities were powerless as well. Federal law enforcement did have jurisdiction, but they declined to do anything.
Later the husband came with a gun to the Southern Ute woman’s office at the federal Bureau of Land Management and opened fire and wounded a co-worker. The state officials arrested him, but only after a tape measure was used to determine the distance between the barrel of the gun and the point of the bullet’s impact in order to establish state jurisdiction.
This jurisdictional problem is addressed in a Senate bill (S.47), the Violence Against Women Reauthorization Act 2013 (VAWA 2013). This legislation would, for the first time, allow Native American police and courts to investigate and prosecute non-Indians who commit certain violent crimes against Native women on tribal land. The details are in section 904 [204(b)] of the bill.
The bill, in section 904 [204 (d)], also provides protections for the rights of those non-Indians who are accused of such crimes.
U.S. Senate Proceedings Regarding S.47
Last Thursday, February 7th, the Senate defeated, 65 to 34, an amendment to this bill offered by Senator Charles Grassley of Iowa. It would have placed more federal prosecutors and magistrates in Indian country for domestic violence and sexual assault cases and would have allowed tribes to petition a federal court for protective orders to exclude an abuser from Indian land. This was S.Amendt.14 to the bill.
On February 11th, the Senate rejected, 59-31, an amendment to the bill offered by Senator Tom Coburn of Oklahoma to delete the bill’s provisions granting additional powers to Indian courts. This was S.Amendt.13 to the bill.
Finally yesterday (February 12th) the Senate passed, 78-22, the bill with the support of 23 Republicans. Now it will be sent it to the House of Representatives.
President Obama
Immediately afterwards, President Obama released a statement saying, “This important step shows what we can do when we come together across party lines to take up a just cause.” He added, “The bill passed by the Senate will help reduce homicides that occur from domestic violence, improve the criminal justice response to rape and sexual assault, address the high rates of dating violence experienced by young women, and provide justice to the most vulnerable among us.”
Senator Leahy
I want to thank Senator Leahy and his colleagues from both sides of the aisle for the leadership they have shown on behalf of victims of abuse. It’s now time for the House to follow suit and send this bill to my desk so that I can sign it into law.”
Proceedings in the House of Representatives Regarding S.47
Many of the House Republicans are believed to be opponents of the bill’s provisions on Indian courts.
However, 17 House Republicans on February 11th sent a joint letter to Speaker John Boehner and Majority Leader Eric Cantor urging the House to “immediately” reauthorize the Violence Against Women Act. The letter also said, “Now is the time to seek bipartisan compromise on the reauthorization of these programs” and such a bill “must reach all victims and perpetrators of domestic violence, dating violence, sexual assault and stalking in every community in the country,”
In addition Republican Representatives Tom Cole of Oklahoma and Darrell Issa of California have proposed an amendment to the bill that would offer non-Indian defendants a right to remove their case to a federal court in certain circumstances.
We now await House action on the bill. Its supporters should urge their Representatives to support the bill.
Conclusion
In my opinion, the current jurisdictional “black hole” is outrageous and needs to be eliminated as soon as possible. I have not seen any indication that anyone believes otherwise.
Instead, the opposition to this proposed legislation regarding violent crimes against Indian women purportedly is based on concern for the due process rights for any non-Indian man who is accused of such crimes in a tribal court.
I share those due process concerns as I would for any defendants under any new criminal statute. However, I do not know enough about the procedures and practices of tribal courts and of the quality of their judges to come to a reasoned conclusion on whether and how the bill might be amended to address any legitimate concerns on this issue. For an outsider, this should be something that Congressmen and women of all persuasions should be able to agree upon.
