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Our firm defended a tribal absentee ballot law (denying absentee ballots to non-resident members) against constitutional attack in Jacobson v. Eastern Band of Cherokee Indians, No. CV-05-101 (Supreme Court of the Eastern Band of Cherokee Indians, Nov. 29, 2006).

General Memorandum 12-067

General Memorandum 12-067
House Narrowly Approves VAWA Legislation without Tribal Jurisdiction Provisions; Adds Federal Court Authority to Issue Protection Orders

On May 16, 2012, the House of Representatives approved by a vote of 222–205, HR 4970, legislation to reauthorize the Violence Against Women Act (VAWA). The House-passed bill does not include the expansion of tribal jurisdiction over misdemeanor domestic violence crimes on tribal lands by non-Indians that is included in the Senate-approved VAWA bill (S 1925), nor does it include other provisions some consider controversial from the Senate bill related to immigrant and gay, lesbian, and transgender individuals. (See our General Memorandum 12-057 of April 27, 2012.) However, the bill does contain a new provision granting federal court authority to issue protection orders against perpetrators of domestic violence in Indian Country. The House vote was largely along party lines with 23 Republicans voting for the bill and six Democrats voting against it.

Substitute amendments to HR 4970 that would have mirrored the Senate bill, including the tribal jurisdiction provisions, were offered but rejected by both the House Judiciary Committee and the Rules Committee. (See our General Memorandum 12-062 of March 10, 2012, covering the House Judiciary Committee's markup of HR 4970). The White House supports the Senate bill and has indicated that the President would likely veto the final VAWA bill if it is like the House version.

The bill was considered on the House floor under a closed rule (meaning no further amendments could be offered). On May 15 the House Rules Committee, which sets the rules for floor debate and amendments, added as part of the manager's package of amendments a provision relating to federal protection orders involving Indians in Indian Country. The provision would authorize domestic violence victims, or an Indian tribe on behalf of a victim, to seek protection orders from United States district courts against Indian or non-Indian abusers if the victim is an Indian who lives or works in Indian Country and the person against whom the order is sought is alleged to have committed an act of domestic violence in Indian Country. As part of the protection order, the federal court would be authorized to bar the alleged offender from the Indian Country of the tribe involved. Violation of those orders would be a federal crime. We attach a copy of the protection order amendment.

During the one hour of floor debate that was permitted on HR 4970, Democrats argued that the bill would be a retreat from the protections against domestic violence offered by current law, in particular for immigrant victims, and from protections offered in the Senate-approved VAWA bill. They repeatedly cited a list of 325 national organizations that support the Senate's bill, but oppose the House bill. Republicans countered that the provisions in the Senate bill relating to particular categories of victims (such as gay or lesbian or Native American victims) were not necessary because, in their view, the bill's protections already apply to all persons who are victims of domestic violence. Several Republicans also questioned the constitutionality of the Senate bill's tribal jurisdiction provisions, while a number of Democrats spoke in favor of the tribal jurisdiction provisions.

The National Congress of American Indians (NCAI) expressed great concern about the House-passed VAWA bill, both because it does not contain expansion of tribal jurisdiction and because it would bring federal courts into what is now the tribal arena with regard to protection orders. In an action alert transmitted on May 15, NCAI said that Indian victims can already seek civil protection orders in tribal courts regardless of whether the perpetrator is Indian or non-Indian, and that the federal protection order provision could cause federal courts to question tribal courts' power to issue such orders. NCAI also stated that the provision strays from VAWA's traditional victim-centered approach and that federal courts are often too far away to provide effective protection to domestic violence victims on Indian reservations.

The House and Senate will have to resolve the differences between their two bills in a conference committee. House Rules Committee Chairman Dreier (R-CA), in ordering a closed rule on the House bill, said that outstanding VAWA issues could be addressed in conference and suggested that the final bill could move closer to the Senate-passed version. However, conferees have not yet been named for the VAWA conference, and House Speaker Boehner notified the Senate yesterday that its VAWA bill is in violation of the rules. The Senate bill contains a revenue provision (a fee on immigrant visas), and under the Constitution revenue measures are to originate in the House. This procedural issue could delay the conference and/or tilt the conference toward the House measure.

Please let us know if we may provide additional information or assistance regarding the reauthorization of the Violence Against Women Act.

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Inquiries may be directed to:
Caroline Mayhew (cmayhew@hobbsstraus.com)
Karen Funk (kfunk@hobbsstraus.com)

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