lame duck

Lame Duck Update: VAWA Does Violence to the U.S. Constitution

While House Republicans and President Obama continue their behind the scenes negotiations to avert the “fiscal cliff,” backroom negotiations continue on other year-end legislative “priorities.” One of these is the reauthorization of the so-called Violence Against Women Act (VAWA).

The Senate version of VAWA (S. 1925) greatly expands the scope and focus of a 1994 law. As Heritage’s David Muhlhausen and Independent Women’s Forum’s Christina Villegas pointed out in their report last summer:

The bill engages in mission creep by expanding VAWA to men and prisoners, despite the lack of scientifically rigorous evaluations to determine the effectiveness of existing VAWA programs; the bill expands upon the already duplicative grant programs authorized by VAWA; and without precedent , the bill surrenders the rights of Americans who are not American Indians to racially exclusive tribal courts.

It is the last provision that has stirred the most controversy. The House passed its reauthorization of VAWA (HR 4970) back in May without extending the criminal jurisdiction of tribal courts. Congressman Jim Sensenbrenner summarized the concerns of many conservatives when he stated, “Making an issue of whether a non-Indian can be prosecuted in a tribal court…brings huge constitutional issues because the Bill of Rights does not apply in tribal courts.”

Proponents of the Senate bill, such as Laurel Bellows of the American Bar Association, argue that Native American women are not adequately protected. He says, “non-Native Americans cannot be arrested for raping, beating or stalking Native Americans on their own land.”  The imagery is powerful, but it’s an emotion-driven picture that distorts the already dubious constitutional value of his stance.

Muhlhausen and Villegas explain:

American Indian tribes operate racially exclusive governments on their territories and lands. They have their own sovereign powers and operate separately from federal, state, and local governments under which all other Americans live. Additionally, American Indians operate and run their own tribal courts, which to date have limited jurisdiction. That jurisdiction is limited to members of Indian tribes.

By law, tribal courts cannot prosecute major crimes committed by non-Native Americans on reservations.  Instead, an individual would be charged by the federal government and prosecuted by the local U.S. Attorney’s Office in federal magistrate court.

As such, proponents of the law must argue that the federal government, which it seeks to perpetually empower, will not prosecute crimes committed by non-Native Americans on tribal lands.  If that is truly a problem, they should address that breakdown, not seek to empower tribal courts to apply their own laws and customs (outside the purview and protections of the Constitution) to American citizens.

To be clear, this pretzel logic is dangerous.

The fact remains that tribal courts lack experience in providing the statutory rights guaranteed to criminal defendants and that American citizens are born with certain inalienable rights that are protected in the U.S. Constitution. The Senate version of VAWA threatens to undermine those rights and sets a very dangerous precedent. Under no circumstance should conservatives, constitutionalists, or any American relinquish their objections to this bill.

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3 thoughts on “Lame Duck Update: VAWA Does Violence to the U.S. Constitution

  1. There are numerous provisions in VAWA that violate Constitutional and Basic Human Rights. For example Section 804, HR 4970 and Section 808, S- 1925 require that foreign citizens living in their own countries must forward a copy of their birth certificate before they can communicate through certain selected dating sites (fictitiously referred to as “Marriage Brokers”). The stated purpose to prevent underage children from being marketed by marriage brokers is absurd, since you cannot immigrate on a fiance visa as an underage child and there’s no such thing as a marriage broker- they’re dating sites that provide a communication venue so two people can meet. Simply put the US has no right to place such severe restrictions on Internet communication occurring across International boundaries.

  2. Moderately well written article, I must say. Yet its obvious that it is little more than armchair thinking, lacking any real leg work whatsoever. The best writing comes from quoting fellow armchair thinkers. To say that Native courts are exclusive and racist is like saying all men are bachelors. It is an inherent truth that native courts are exclusive giving that they cannot bring to trial non-natives. Hence the issue of new VAWA. A more poignant racist and exclusive law precedent might be what all this “natives cannot prosecute non-natives” talk stems from–the Discovery Doctrine. This papal doctrine states that inferior cultures have no right to the lands that they originally inhabited before Columbus. This doctrine was referenced in many cases including Oliphant v Suquamish (1978) which legislated that natives cannot prosecute non-natives. The result today is a free and clear “wild rez” in which non-natives can saxually assault and abuse native women without repercussion. These women have the highest risk and result of being sexually and/or physically abused.

    This is not to say that Natives are immune to these acts, but to they hold themselves to consequences. Non-natives who do these acts with impunity take the cake.

    Again, it is a fallacy that native councils and administrations operate seperately from the US government and its laws. Tribes are considered “dependants” of the Federal Government, and as such are at the mercy of federal recognition and grants. No small interaction to anyone who does their thinking and working beyond an arm chair. They must collaborate in order to regulate land, fishing, wildlife, casinos, legal matters, police jurisdiction, etc. Not anyone of these is a small matter.

    Again, moderately well written article, but I’ve read better fiction in my lifetime.

  3. If a native person commits a crime against a non-native person, they are charged in a racially exclusive court separate from their own culture. Believe me, being from Oklahoma, a jury of your peers means a jury of white people. Why shouldn’t tribal courts be able to prosecute non-native people who rape, beat and murder our women? If you truly fear that basic (colonial) constitutional rights will be violated in tribal courts, then you clearly do not have an understanding of the relationship between tribes and the U.S. government.

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