Wyoming’s senators choose politics over protecting womenGuest column by Kerry Drake February 26, 2013
Battered Indian women are being used as pawns in a shameful political game being played by some Republicans in Congress.
Sadly, Wyoming’s U.S. Sens. Mike Enzi and John Barrasso joined 20 of their male GOP colleagues who are apparently more than willing to sacrifice the safety of women everywhere by voting against reauthorizing the Violence Against Women Act (VAWA), which had received strong bipartisan support for nearly two decades.
Like nearly all of the men who voted against the bill, Barrasso claims he really loves the VAWA and would vote for it, if only it didn’t contain a “controversial and unconstitutional provision that allows Indian tribes to arrest, prosecute, and imprison non-Indians.”
It is a controversial bill, but only because Republicans like Barrasso and Enzi have widely distorted the impact of what it actually does.
I suspect the opposition to the VAWA reauthorization is primarily payback for the U.S. Department of Justice’s (DOJ) successful defense of the constitutionality of Obamacare and other alleged administration sins against conservatives. The tribal provision was the creation of the DOJ, which was searching for ways to reduce the shocking amount of domestic violence on reservations throughout the country.
According to the National Congress of American Indians (NCAI), more than one-third of Indian women will be raped in their lifetimes, and more than 40 percent will be victims of domestic violence. On some reservations, Indian women are murdered at a rate more than 10 times the national average.
Here’s a key statistic to remember in any discussion of violence on reservations: The Department of Justice says non-Indians commit more than 85 percent of all violent crimes against Indian women.
Barrasso is well aware that the current system is dispensing precious little justice. As a member of the Senate Indian Affairs Committee, he heard a presentation in July 2008 by then-Chairman Sen. Byron Dorgan, (D-North Dakota) that demonstrated just how wide the cracks in the system are.
From 2004-07, the federal government declined to prosecute an average of 62 percent of reservation crimes. Dorgan said nearly 75 percent of adult and child sex crimes and 50 percent of reservation homicides went unpunished in the federal system. That’s astounding and appalling.
If non-Indians are committing the vast majority of crimes against Indian women, and tribal courts are not allowed to prosecute non-Indians for such crimes, the burden falls to the county, state and federal courts. But it’s clearly a burden many prosecutors go out of their way to avoid.
“The counties don’t want to spend resources where they don’t have taxing authority, and for the U.S. Attorney’s Office domestic violence and even rape is not a priority,” University of Washington Law Professor Robert Anderson told the Seattle Times. “As a result there is a longstanding lack of enforcement in Indian Country. You don’t have law enforcement empowered to deal with these really serious crimes that take place on our local reservations.”
“The fact is non-tribal members repeatedly abuse these women and thumb their noses at them because there is nothing they can do,” Sen. Patty Murray (D-Washington) bluntly told the newspaper. “It has given them a free pass.”
What about the opponents’ claim that the tribal provision of the VAWA is unconstitutional? It’s nothing more than hot air blowing from the far right.
The basis of the argument is the myth that tribal courts are not bound by the U.S. Constitution. In reality, tribal courts must provide defendants with the same constitutional rights that state courts do. Non-Indian defendants would be entitled to the full panoply of constitutional protections, including due-process rights and an indigent’s right to appointed counsel — at the tribe’s expense. That meets federal constitutional standards.
Opponents also claim that non-Indians would be subject to prosecution for all crimes on reservations, but that’s not true. The law would only apply to crimes of domestic violence, date violence or violation of protection orders. A defendant also must have a connection to the tribe, by either living or working on the reservation, or being a spouse or dating partner of a female member of the tribe.
Several senators who voted against the bill maintained Congress cannot expand tribal authority. But Congress’ power to define the contours of tribal jurisdiction is a matter of well-settled U.S. Supreme Court law. The NCAI notes that in 2004, the court in the U.S. vs. Lara held that the Constitution confers on Congress the power to enact legislation to limit restrictions on the scope of inherent tribal sovereign authority.
The Indian Civil Rights Act also requires that tribal courts provide all rights afforded to defendants in state and federal court. It’s time for the 22 male senators who voted against the VAWA to dream up a different excuse for their callous action and indifference to the plight of women.
The new chairwoman of the Senate Committee on Indian Affairs, Sen. Maria Cantwell (D-Washington), took to the Senate floor prior to the passage of the VAWA bill to call for rising above partisan politics.
“This isn’t a debate on what is a good way to win votes somewhere in America,” she said. “This is about the life and death of women who need a better system to help prosecute those who are committing serious crimes against them.”
The bill now goes to the House, where a different version — one without the tribal provision — was approved in 2012. Wyoming Republican Congresswoman Cynthia Lummis voted for the bill then — in fact, she was a co-sponsor — but the GOP majority blocked consideration of the much stronger Senate version, and the measure died.
When Lummis votes this year, I hope she isn’t swayed by Wyoming’s two senators and their phony argument about the Senate bill’s constitutionality. The women on the Wind River Indian Reservation deserve greater protection from violence, and her vote can help make it happen in what is predicted to be a tough fight to get the VAWA reauthorization through the House.
— Kerry Drake of Casper has 37 years of experience as a reporter, columnist and editor at Wyoming’s two largest daily newspapers.
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