Congress Passes Violence Against Women Act of 2013

U.S. House of Representatives
U.S. House of Representatives

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
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 Times editorial 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
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
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
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.

Jurisdictional Black Hole for Certain Violent Crimes by Non-Indian Men Against Indian Women on Indian Reservations

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
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
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.

Personal Reflections on the U.S.-Dakota War of 1862

When I moved to Minnesota at age 30 in 1970, I had no knowledge of the U.S.-Dakota War of 1862 or the execution by hanging of some of the Indian leaders of that war. I had not grown up in the State and had not been exposed to its history, and although I had majored in history in college and had studied U.S. history, the War was not covered.

BannerUS-Dakotawar

By the time I went to church on October 7, 2012, I was aware that during the U.S. Civil War there had been a short war with the Indians in Minnesota and that subsequently some of the Indian leaders were hanged in Mankato, Minnesota. That was the sum total of my knowledge of these events.

Westminster Presbyterian Church
Westminster Presbyterian Church

The moving worship service that day at Minneapolis’ Westminster Presbyterian Church was devoted to remembering that War and its aftermath, especially its impact on the Dakota people. The beautiful Indian music and the sermons by Westminster’s Senior Minister, Rev. Dr. Timothy Hart-Andersen, and by Jim Bear Jacobs made me realize that the War and the executions of the Indian leaders were important events that had lasting effects to this day at least upon the Dakota people and Native Americans more generally.

I immediately wanted to share this moving and beautiful worship service with others by writing a blog post about it. I soon realized that there was so much to say about the service itself that I would have to break it up into three posts. I also realized that I needed to know more about the War and about the commemoration this year of the 150th anniversary of the War. This lead to my researching and writing separate posts on these subjects and another about the contemporaneous reaction to the War by my second great-grandfather, Rev. Charles E. Brown.

Minnesota Governor Alexander Ramsey
Minnesota Governor Alexander Ramsey
General John Pope
General John Pope

The additional research turned up the September 1862 exhortation by Minnesota Governor Alexander Ramsey for “extermination” of the Dakota Indians. The same disgusting clamor also was made that year by U.S. General John Pope, who was in charge of ending the uprising. Pope said his purpose was “to utterly exterminate the Sioux [Dakota]. They are to be treated as maniacs and wild beasts.” The next year the federal government offered a bounty of $25 per scalp for every Dakota Indian found in Minnesota.

The evident anger and fear of the white settlers perhaps are akin to that experienced by the American people after the attacks of September 11, 2001. Nevertheless, as noted in a prior post, these public incitements, if made today, would constitute one form of the crime of genocide under international law.

The impact of the War on Native Americans is only one of the many ways in which what has become the dominant culture of the U.S. has denigrated Native Americans. The result is high incidences of public school drop-outs, alcoholism and suicide among Native Americans. All of this reminded me of the testimony in the Minneapolis school desegregation case by a Native American educator who said he was a “well-balanced schizophrenic,” i.e., he had one foot in Native culture and the other in the dominant culture.

Louise Erdrich
Louise Erdrich

RoundHouseAnother insight into Native culture was provided by my recent reading of Louise Erdrich’s The Round House, which was awarded the 2012 National Book Prize for fiction. One of the central events in the novel is 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.

In an Afterword, Erdrich, who lives in Minneapolis not far from my home, cites a 2009 Amnesty International report that points out that 1 in 3 Native women will be raped in her lifetime, that 86% of such rapes and sexual assaults are by non-Native men and that few are ever prosecuted.

The novel also discusses something I never learned in law school or in 35 years of practicing law. In Johnson v. McIntosh, 21 U.S. 543 (1823), the U.S. Supreme Court, in an opinion by Chief Justice John Marshall, stated that radical title to U.S. land was obtained by European powers upon their “discovery” of the land and that the U.S. government inherited such title upon the adoption of the Declaration of Independence in 1776. In this context, “tribes of Indians inhabiting this country were fierce savages.”

Two other U.S. Supreme Court cases were also mentioned in the novel as bearing on the jurisdictional issue presented by the fictional rape. In Worcester v. Georgia, 31 U.S. 515 (1832), Chief Justice John Marshall for the Court decided that the federal government had the sole right of dealing with the Indian nations in North America. Nearly 1.5 centuries later the Supreme Court in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), determined that Indian tribal courts did not have inherent criminal jurisdiction to try and to punish non-Indians and hence may not assume such jurisdiction unless specifically authorized to do so by Congress.

This research, thinking and writing prompted further reflection on the subject of memory and the October 7th Scripture—Numbers 15: 37-41:

  • “The Lord said to Moses: Speak to the Israelites, and tell them to make fringes on the corners of their garments throughout their generations and to put a blue cord on the fringe at each corner. You have the fringe so that, when you see it, you will remember all the commandments of the Lord and do them, and not follow the lust of your own heart and your own eyes. So you shall remember and do all my commandments, and you shall be holy to your God. I am the Lord your God, who brought you out of the land of Egypt, to be your God: I am the Lord your God.”

God understands that we humans are forgetful and that individuals and especially groups of people need reminders of important things. Indeed, constant, physical reminders like fringes on the corners of your garments are useful because of our forgetfulness and our sinfulness. Similarly many Christians wear necklaces and pins with crosses for the same reason and to proclaim that they are Christians.

Such practices and the re-telling of important stories also help educate the omnipresent newcomers to the faith or the history. They help to keep the faith or history alive. That certainly happened at the October 7th worship service and at the Minnesota History Center’s exhibit about the War and the other events to commemorate the 150th anniversary of the War.

For the same reasons the various ways in which Salvadoran Archbishop Oscar Romero is remembered are important. So too the Holocaust museums in Washington, D.C. and around the world help us remember the horrors of the Nazi persecution of the Jews.

At the same time, my reaction to the October 7th Westminster worship service suggests another phenomenon. Memory can be asymmetrical. Most white Anglo-Saxons like myself have or had no memory or understanding of the U.S.-Dakota War. For the Dakota people and Native Americans generally, on the other hand, the War and the executions of the Dakota 38 is an ever-present, painful memory. Thus, this worship service and the events commemorating the War are especially important ways of trying to break through the ignorance of the dominant culture.[1]

My reactions to this worship service also help me understand that the third-part of the Westminster worship service—Responding to the Word—does not end when you leave the sanctuary after the service. It should continue in how you live your life and how you continue to think about and probe the meaning of the Word that day. My contemplation of this worship service and the Word will continue beyond this posting.


[1] A recent article discussed this asymmetrical phenomenon in the context of an individual’s new love for another person. It said that human beings are prone to “hedonic adaptation, a measurable and innate capacity to become habituated or inured to most life changes” and that “[h]edonic adaptation is most likely when positive experiences  are  involved . . . . We’re inclined–psychologically and physiologically–to take positive experiences for granted.”