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Hobbs Straus attorneys obtained the first Oklahoma federal charter under Section 17 of the Indian Reorganization Act in 2006.

General Memorandum 12-020

General Memorandum 12-020
Violence Against Women Act Reauthorization Approved by Judiciary Committee; Tribal Jurisdiction Expansion Remains in Bill

On February 2, 2012, the Senate Judiciary Committee approved, on a party line vote, legislation (S 1925) to reauthorize and amend the Violence Against Women Act (VAWA). This bill includes a provision that would (i) recognize the authority of participating tribes to exercise concurrent criminal jurisdiction over domestic violence cases, whether the defendant is Indian or non-Indian, and (ii) clarify the authority of Indian tribes to exercise civil jurisdiction over, and to issue and enforce protection orders against, any person (Indian or non-Indian) in matters arising in a tribe's Indian Country or otherwise within the authority of the Indian tribe. On a nearly party line vote the Committee defeated an amendment by Ranking Member Grassley (R-IA) that would have eliminated both of these tribal provisions from the bill.

Senator Grassley objected to the bill's use of the term "inherent power" to describe a participating tribe's exercise of special domestic violence criminal jurisdiction over all persons, stating that tribes do not have such inherent power. He expressed concern over the precedent that the provision could set, saying the Violence Against Women Act should not be used as a vehicle to alter the jurisdictional powers of Indian tribes. The Grassley amendment – which would have made changes regarding discrimination, immigration and authorization provisions as well – was defeated by a vote of 7-11, with only one Republican (Coburn-OK) voting against the amendment. Voting in favor of the Grassley amendment were Republican Senators: Cornyn (TX), Hatch (UT), Sessions (AL), Graham (SC), Kyl (AZ), Lee (UT) and Grassley ( IA). Voting against the amendment were Democratic Senators: Blumenthal (CT), Feinstein (CA), Kohl (WI), Whitehouse (RI), Coons (DE), Franken (MN), Durbin (IL), Klobuchar (MN), Schumer (NY) and Leahy (VT) and Republican Senator Coburn (OK).

Many of the tribal-specific provisions in S 1925 are similar to those in the SAVE Native Women Act, S 1763, introduced by Senate Committee on Indian Affairs (SCIA) Chairman Akaka (D-HI). That bill, which includes some provisions not incorporated into S 1925, was approved by the SCIA on December 8, 2011. The plan has been to incorporate as much as possible of the SCIA bill into the Judiciary Committee's VAWA reauthorization bill. (See our General Memoranda 11-136 of November 18, 2011, regarding S 1763 as introduced and 11-092 of July 29, 2011, concerning the Department of Justice legislative recommendations regarding prosecution of domestic violence in Indian Country). The language relating to tribal criminal jurisdiction over domestic violence offenders in the two bills is nearly identical. In addition to the jurisdictional provisions, both bills include provisions regarding grant programs available to tribes and tribal coalitions, and both expressly include Native Hawaiian organizations in the definition of "tribal coalition".

However, there are some differences between the bill reported by the SCIA and the tribal provisions in the bill reported by Judiciary. During the SCIA markup, Senator Murkowski (R-AK) introduced an amendment, which was accepted, to add language similar to that in the Indian Law and Order Act relating to the application of the jurisdiction and protective order provisions in Alaska. That language provides: "Nothing in this section limits, alters, expands, or diminishes the civil or criminal jurisdiction of the State of Alaska, any subdivision of the State of Alaska, or any Indian tribe in the State of Alaska." The Senate Judiciary Committee's version contains similar language, but also includes additional language stating that the provisions shall not "apply to an Indian tribe in the State of Alaska, except with respect to the Metlakatla Indian Community, Annette Islands reserve." Additionally, the Judiciary Committee bill does not include two significant provisions that were in S 1763: first, a provision that would make it a federal crime to violate a civil protection order issued by a tribal court, as long as the tribal protection order meets certain standards; and second, an amendment to Title II of the Indian Civil Rights Act to create a new safety enhancement study and demonstration project. This project would allow tribes (up to five per year during fiscal years 2012 through 2018) to work with the Secretary of the Interior to promulgate federal regulations relating to public safety in Indian country and to designate tribal officers as federal law enforcement with the power to enforce those regulations.

Judiciary Committee Chairman Leahy (D-VT), along with Senator Crapo (R-ID), introduced S 1925 in November 2011. This would be the third reauthorization of the VAWA, legislation that has a history of bipartisan support. Tribes and Indian organizations have benefitted from the resources made available through VAWA programs. There is not yet a companion House bill, and the expectation is that VAWA reauthorization will be discussed during a mid-February House Judiciary Committee hearing on the Department of Justice's Office on Violence Against Women.

Based on Senator Grassley's objections, it appears that some groups are opposing the tribal jurisdictional provision, and without strong tribal support the tribal provisions may face a challenge when the bill comes to the Senate floor. Please let us know if we may provide additional information or assistance regarding this legislation.

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Inquires may be directed to:
Tim Seward (tseward@hobbsstraus.com)
Caroline Mayhew (cmayhew@hobbsstraus.com)
Karen Funk (kfunk@hobbsstraus.com)

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