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Through a federal suit in 2007, Hobbs Straus attorneys obtained protection of tribal court authority over child custody proceedings.

General Memorandum 11-136

General Memorandum 11-136
SAVE Native Women Act Introduced in the Senate

On October 31, 2011, Senate Committee on Indian Affairs Chairman Akaka (D-HI) introduced S 1763, the Stand Against Violence and Empower Native Women Act (SAVE Native Women Act). The original cosponsors, all Democrats, are Senators: Franken (MN), Udall (NM), Inouye (HI), Begich (AK), Murray (WA), Johnson (SD), Bingaman (NM), Tester (MT), and Baucus (MT). This bill incorporates the significant legislative proposal circulated by the Department of Justice (DOJ) in July of this year. (See our General Memorandum 11-092 dated July 29, 2011, for an analysis of the DOJ proposal.)

As with the DOJ proposal, Title II of the bill would address three major gaps in the existing jurisdictional framework that have hindered the prosecution and punishment of domestic and dating violence crimes in Indian Country. Title I of the bill would amend the tribal grants program under the Omnibus Crime Control and Safe Streets Act and add new emphasis on addressing sex trafficking.

Tribal Jurisdiction and Criminal Offenses

In his introductory remarks, Chairman Akaka cited the disturbing rates of domestic violence and sexual assault against Native women, and noted that most of the perpetrators of these crimes are non-Indian. He explained that tribes currently have no ability to prosecute non-Natives for domestic violence and sexual assault in their own communities, creating a sense of lawlessness. The SAVE Native Women Act is intended to strengthen tribal jurisdiction over such crimes so that all offenders, Native and non-Native, can be brought to justice. Though not discussed in Chairman Akaka's introductory comments, the lack of tribal criminal jurisdiction arises from the Supreme Courts decision in Oliphant v. Suquamish, which held that "Indian tribes do not have inherent jurisdiction to try and to punish non-Indians." By providing Indian tribes a special mechanism to exercise criminal jurisdiction limited to domestic violence and sexual assault crimes, this bill would partially address the general jurisdictional problems created by the Oliphant decision.

To address this important jurisdictional issue, S 1763 would amend the Indian Civil Rights Act (ICRA) to "recognize and affirm" the authority of tribes, who elect to exercise "special domestic violence criminal jurisdiction" ("participating tribes"), to exercise concurrent criminal jurisdiction over domestic violence cases, regardless of whether the defendant is Indian or non-Indian. Second, the bill would amend federal domestic violence laws (18 U.S.C § 2265) to clarify the authority of Indian tribes to exercise civil jurisdiction to issue and enforce protection orders against any person (Indian or non-Indian) in matters arising anywhere within a tribe's Indian Country or otherwise within the authority of the Indian tribe. Third, the bill would amend the federal assault statute (18 U.S.C. § 113) to increase sentences for assaulting a spouse, intimate partner or dating partner, and amend the Indian Major Crimes Act to include this amended statute.

In addition to addressing these jurisdictional issues, the bill would authorize DOJ to award grants to tribal governments (or their designee) to strengthen tribal criminal justice systems to assist tribes in exercising special domestic violence criminal jurisdiction, to provide indigent criminal defendants with effective defense counsel, ensure that criminal proceedings satisfy requirements, and provide crime victim rights to persons who are the victims of domestic violence.

A tribe's special domestic violence criminal jurisdiction would be limited to such crimes that occur within the tribe's Indian Country. It would also only apply to crimes in which the tribe is able to prove (1) that either the defendant or the alleged victim is Indian and (2) that either the defendant or alleged victim resides in the tribe's Indian Country, is employed by the tribe, or is a spouse or intimate partner of a member of the tribe. To exercise special domestic violence criminal jurisdiction, a tribe would be required to ask the Attorney General to designate the tribe as a participating tribe. After concluding that the tribe's criminal justice system has adequate safeguards in place to protect defendants' rights consistent with the Tribal Law and Order Act (TLOA), the Attorney General would be authorized to grant the tribe's request.

Tribal Grant Programs & Indian Law and Order Commission

Title I of the bill would amend the existing tribal grant programs under the Omnibus Crime Control and Safe Streets Act. First, it would amend the grants to Indian tribal governments program to include sex trafficking (as defined in section 1591 of title 18, U.S. Code) as an offense to be addressed through the program. It would also provide that tribal grants could be used for two additional purposes: (1) services for youth who are victims of domestic violence and other violent crimes and the needs of children who witness domestic violence and other violent crimes; and (2) to develop and promote legislation and policies on best practices for responding to violent crimes against Indian women. Title I would also amend the tribal coalition grants program by effectively prohibiting coalitions from carrying over these grant funds from one year to the next, restricting the amount of grants that can be awarded to proposed coalitions that have not yet formed, and amending the definition of tribal coalition and the stated purpose for coalition grants to remove references Alaska Native women (maintaining the term Indian women). The current requirement that the National Institute of Justice conduct a baseline study to examine violence against Indian women in "Indian country" would be amended to require such a study two years after enactment of the SAVE Native Women Act and adds women in "Native villages" (as defined in section 3 of ANCSA, 43 U.S.C. § 1602) to the study.

Title III of the bill would extend the life of the authorization for the Indian Law and Order Commission by one year.

Hearing. On November 10, 2011, the Senate Committee on Indian Affairs held a hearing on S 1763. Thomas Perrelli, the Associate Attorney General, provided testimony in strong support of the bill. Mr. Perrelli noted the enhanced authority that tribes have under the TLOA to sentence Indian violent offenders, but highlighted the fact that tribes still lack the jurisdiction to address domestic violence and sexual assault committed by non-Indians and said that this vacuum emboldens abusers and deters victims from reporting crimes. He stated that DOJ has consulted extensively with Indian tribes about these issues and that there is consensus that tribes need greater jurisdiction over domestic-violence cases and that a tribe's ability to protect a woman from violent crime should not depend upon her whether her husband or boyfriend is Indian.

Joe Masters, Commissioner of the Alaska Department of Public Safety, testified on behalf of the Alaska state government, and noted that a draft version of S 1793 limited tribal court criminal jurisdiction to "Indian country," and thus would not apply to most of Alaska. He said that S 1783 as introduced contains language in section 201 "that may create ambiguity as to its applicability in Alaska." Section 201 refers to "inherent" tribal jurisdiction and Section 202(e) refers to "Indian land." He recommended that those terms be changed to "Indian country."

What's Next. The bill's supporters are working to have S 1763 incorporated into legislation reauthorizing the Violence Against Women Act (VAWA) and indications are this will happen. Senate Judiciary Committee Chairman Leahy (D-VT) is expected to introduce a VAWA reauthorization bill after Thanksgiving, but it is unlikely that there will be time to mark it up until the next session of Congress.

Please let us know if we may provide additional information regarding the SAVE Native Women Act.

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Inquiries may be directed to:
Tim Seward (tseward@hobbsstraus.com)
Karen Funk (kfunk@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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