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Will the Violence Against Women Act Close a Tribal Justice “Loophole”?

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Coming April 1 and 2: FRONTLINE and Independent Lens present Kind Hearted Woman, the latest film from acclaimed filmmaker David Sutherland (The Farmer’s Wife, Country Boys). The special two-part series illuminates the issue of child sexual abuse on Native American reservations as seen through the eyes of a young Oglala Sioux woman determined to forge a new and better life for herself and her two children.

A Senate proposal to allow tribal courts to try non-Native abusers on reservations is one of three controversial changes that for more than a year have stalled the reauthorization of the Violence Against Women Act (VAWA), a popular bipartisan bill since its first passage in 1994.

Additional proposals would have ban discrimination against LGBT people by domestic violence programs that receive federal dollars, and issue a backlog of unused visas for undocumented immigrants who are victims of domestic violence.

Last year, House Republicans objected to the additions and killed the Senate bill. Now it’s back on the agenda. Gay rights and immigration have sparked controversy in Congress before. But how did violence against Native American women suddenly become a third rail?

More than one in four Native American women have been raped in their lifetime, a much higher rate than the national average, which is about one in five, according to a 2010 study (pdf) by the Centers for Disease Control.

About 46 percent of Native American women have suffered rape, physical violence and/or stalking by an intimate partner, a much higher percentage than women of other races, according to the study.

The House Republicans’ main objection to that provision wasn’t about the victims, but over a question about how tribal courts might treat the alleged abusers.

“I would say our number one problem is actually ignorance, to be fair,” said Rep. Tom Cole, a Republican from Oklahoma, who supports the additional protections. “I don’t mean that in a pejorative sense. Not that many Americans live around Indian country or have regular contact with tribal government. Most of them are not aware that this kind of situation even exists.”

How Tribal Justice Fails Native Women

Escaping from domestic violence can be difficult for any victim. But for Native women living on reservations, the situation is more even complicated.

Law enforcement officers are few and far between in Indian country. Tribal lands have fewer than half the number of officers than in other American communities, about only 1.3 officers per 1,000 people, according to the National Congress of American Indians.

Scarce access to resources means a woman may not receive medical treatment after a rape or beating, and if she does, staff may not be trained to collect forensic evidence.

If there is enough evidence, and a perpetrator is arrested, prosecution presents another hurdle. Jurisdiction for crimes is shared between tribal, state and federal authorities depending on the race of the perpetrator and the victim, the severity of the crime and whether it happened on the reservation. In the often remote regions where many Native American reservations are located, tribal boundaries are delineated only with a sign, or even a simple wire fence.

Finally, most tribes aren’t permitted to handle felony cases by themselves. And none have jurisdiction over non-Natives.

About half of Native women are married to non-Native men. So in cases of domestic violence, these women have to turn to the federal authorities for assistance.

But the federal government doesn’t often pick up such cases. Over a period of five years, it only prosecuted half of reported crimes in Indian country, according to a 2010 Government Accountability report (pdf). The declination rate was slightly higher for violent crimes, the report said, because there tended to be less evidence in those cases: U.S. attorneys declined 67 percent of sexual abuse and related cases.

Advocates who work with domestic violence victims on reservations say that the jurisdictional maze emboldens perpetrators, who know they won’t be prosecuted if they harm their victims on the reservation.

How VAWA Could Help

The new provision is narrow. It would only apply in crimes of domestic or dating violence in Indian country, where the perpetrator is an “established intimate partner” of a Native American. The offender also must live on the reservation, be employed by that tribe or in a relationship with a member of that tribe.

It’s not a perfect fix. While some tribes have efficient justice systems, others struggle even to staff qualified judges. (On some reservations, judges don’t even need a law degree to sit on the bench.)

But supporters say it’s a good first step in addressing a decades-old problem.

“It will send a very strong message that you can’t just beat up a Native woman and there’s going to be no consequences,” said Rep. Gwen Moore (D-Wisc.) who backs the full bill. She added: “Just to know there’s law enforcement right there on the reservation that has authority and jurisdiction, that a woman does in fact have someone they can call who isn’t 200 miles away to come to her aid.”

What Happens Now

The fate of the bill still isn’t clear. The Senate plans to take up a new version this week without the provision for additional visa for undocumented immigrants. It leaves in place the LGBT discrimination ban and the tribal jurisdiction for non-Natives in abuse cases. The Senate is almost certain to pass it again, but what will happen in the House remains in question.

Rep. Cole said he’s worked hard to educate his colleagues about what he calls a “massive loophole,” for Native American women seeking justice. He said that House Majority Leader Eric Cantor and other Republicans who don’t represent many Native Americans told him that they knew little about tribal justice and needed to learn more, adding that Cantor has worked “very hard to find common ground.”

In meetings, tribal authorities also assured members of Congress that any perpetrator would be given due process in the tribal system.

But Cantor and other Republicans haven’t said yet whether they will support the bill. A spokeswoman for Rep. Cantor didn’t immediately respond to a request for a comment.

[Update Feb. 5, 2013: A spokeswoman for Cantor's office replied in an email: "We continue to work with VAWA advocates on the best path forward to ensure we protect victims, prosecute offenders, and put an end to violence against women."]

A victim of domestic violence, who calls herself "Sierra," at a safe house in Nevada County, Calif. (AP Photo/Rich Pedroncelli)
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