Reauthorizing the Violence Against Women Act is unfinished business from the last Congress. First adopted in 1994, the Violence Against Women Act expired at the end of September 2011. Since then, Congress has funded VAWA programs through continuing spending resolutions.

Iowa’s Congressional delegation split on party lines when the House and the Senate passed their own versions of the VAWA reauthorization last year.  

As the Senate took up the act again this week, Senator Chuck Grassley offered an amendment to address what he views as problems with the Democratic bill. Senators rejected Grassley’s substitute yesterday by 65 votes to 34 (roll call). Ten Republicans joined the entire Democratic caucus to oppose the amendment. The Senate is likely to approve the Democratic version of the VAWA reauthorization early next week. That bill “would authorize $659 million over five years for the programs, down 17 percent from the last reauthorization in 2005.” That funding drop is remarkable when you consider that in 2005, Republicans controlled both houses of Congress and the presidency.

After the jump I’ve enclosed more details about Grassley’s amendment.

When the Senate last considered the VAWA in April 2012, Grassley and Senator Kay Bailey Hutichison of Texas offered a substitute amendment making a few key changes to the Democratic version.  In a speech to the Senate at that time, Grassley said the GOP amendment would correct alleged “fiscal irregularities” in VAWA programs funded by the federal government. He argued against a Democratic provision to increase visas for undocumented immigrants who are victims of domestic violence. He also objected to a provision that “would give Indian tribal courts the ability to issue protection orders and full civil jurisdiction over non-Indians based on actions allegedly taken in Indian Country.” Grassley did not mention provisions to improve services for LGBT victims of domestic violence, but those were also a big problem for Congressional Republicans. Grassley argued (correctly, it turned out) that the Senate majority’s version of the VAWA reauthorization had no chance of passing the U.S. House.

The latest Democratic bill to reauthorize the VAWA does not contain the provision on undocumented immigrants who are victims of violence. Speaking to Iowa journalists this week, Grassley said,

“We raised a lot of concerns about how that [immigration provision] was kind of a subterfuge, but I think the chair took our considerations into the bill this year,” Grassley said.

On the same conference call with reporters, Grassley said the tribal courts issue was “the only sticking point” left in the Senate.

Grassley wants to remove the provision that would allow Native American women raped on reservation land by a non-Indian to have the case heard in a tribal court. Tribal courts currently have no jurisdiction over non-Native American defendants.

Allowing that jurisdiction would raise constitutional questions, Grassley said. The focus should instead be on providing needed services to Native American women, he said.

In a speech to the Senate last April, Grassley fleshed out the constitutional questions:

For instance, the majority insisted on giving Indian tribal courts criminal jurisdiction over non-Indian Americans for the first time in our country’s history.  The committee held one hearing on reauthorizing this bill and it devoted no attention to exploring how this provision would operate.  As a result, the committee described this provision in only four sentences in its report on the legislation.  We all recognize that domestic violence rates in Indian country are too high.  Both the Committee reported bill and the Hutchison-Grassley substitute contain provisions to address the problem.  

But the majority cannot explain why expanding the power of tribal courts would be effective or how this would work.  Do the tribes have the resources and expertise and resources to comply with the Constitution?   How would the federal courts’ caseload be affected by all the new habeas petitions that would necessarily be filed if this became law?  What changes would occur in the existing relationships between federal, state, and tribal law enforcement?  

The majority has no idea whether this provision would help matters or not because it simply did not give this issue any careful attention.  Moreover, the Congressional Research Service has raised several constitutional issues that would be posed by this provision as it was reported from the Committee.  These include due process, equal protection, Fifth Amendment grand jury and double jeopardy issues, as well as Sixth Amendment rights to counsel and a jury trial by one’s peers.  

At the eleventh hour before floor consideration, the majority has recognized the serious constitutional issues that were raised by the Committee language.  It has changed the language in an effort to respond to the constitutional questions it had denied existed.  

If we had had a hearing on these questions, matters could have proceeded differently.

These changes do not address the constitutional questions CRS posed about Congressional power to recognize the inherent power of tribes to prosecute non-Indians.    Nor do they affect the inability of a defendant to appeal his conviction.  And, of course, they do not address the practical concerns that I have raised all along.

CRS also raises constitutional due process concerns regarding another section in the bill that would give tribal courts the authority to enforce protective orders.  That section remains unchanged.

Ironically, the constitutional concerns about the criminal provisions are made more severe because the majority refused to eliminate language we asked them to omit.  Constitutional problems are made worse because the bill tribes criminal jurisdiction as part of their claimed inherent sovereignty.  Our substitute strikes the provisions.  

Mr. President, I ask to include the relevant portions of the CRS analysis in the record.  

But to address the real problems of domestic violence among Native Americans, our substitute would permit tribes to petition for protective orders against non-Indians in federal court.

 

Jim Abrams explained the other side of that argument in a story for the Associated Press:

How to deal with the alarming level of violence against women on tribal lands, often perpetrated by non-Indian partners, was also a major sticking point last year when the Senate and House passed different bills.

The Senate bill would recognize tribal authority to prosecute non-Indians who commit domestic violence against their Indian spouses or partners.

Indian women often live hours and hours away from the nearest federal prosecutor, said Sen. Patty Murray, D-Wash., a key supporter, and for those abusing women in these isolated places that “equates to nothing short of a safe haven for them.”

The National Congress of American Indians says that 39 percent of Indian and Alaska Native women will be subject to violence by an intimate partner in their lifetimes, well above rates for other races. It says U.S. attorneys declined to prosecute half of violent crimes in Indian country, and two-thirds of those cases involved sexual abuse.

“Let’s not undercut the provisions to help protect Indian woman,” said Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. “The best legal views of which I am aware believe these provisions are both constructive and constitutional.”