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Tribal rights recognized in domestic violence bill
Tuesday, October 26, 2004

Tribes would gain jurisdiction over non-Indians and have the ability to increase punishments in domestic violence cases under a bill to be introduced in the coming month.

Statistics show that nearly a third of all American Indian and Alaska Native women will be the victim of sexual assault in their lifetime, the highest rate of any racial or ethnic group. According to the Department of Justice, the overwhelming majority of the perpetrators are non-Indians.

In hopes of reversing course, Sen. Joe Biden (D-Delaware), a top Democrat on the Senate Judiciary Committee, is backing a bill that would restore tribal criminal authority over non-Indians in such cases. The measure would also allow tribes to increase jail time and fines for people who commit violent crimes against Native women.

The changes will be part of the reauthorization of the Violence Against Women Act. The new bill includes a title, called the Safety for Native Women Act, that focuses solely on tribal issues.

"The Native title is a historic title for us that reverses federal policy," said Jacqueline Agtuca of Sacred Circle, a domestic violence project of Cangleska Inc. of South Dakota.

Agtuca, a former acting director of the Office of Tribal Justice at DOJ, announced the new legislation at the National Congress of American Indians earlier this month. She said funding levels for tribal governments and Indian organizations would be boosted.

Out of the $900 million authorized, 10 percent will be set aside for tribes, double the current amount. In reality, the funding will amount to about $58 million, said Agtuca.

"The $58 million will not address all of our issues," she told NCAI, "but I think it will help in the long run." Grants for the STOP (Services / Training / Officers / Prosecutors) program will also double to $18.2 million, she said.

The jurisdiction provisions are also important, Agtuca noted, because it would patch up a hole in Indian Country law enforcement. "What we are looking at is introducing this amendment," she said, "that would allow partial restoration of the inherent authority of tribes over non-Indians who come on our lands and rape and batter."

State and federal authorities currently have authority over non-Indians but prosecution and conviction rates in domestic violence cases are low, according to statistics cited by Karen Artichoker, also of Sacred Circle/Cangleska.

For example, there were only 69 convictions for sexual assault in 1993 for all of Indian Country. Yet despite the statistics showing that 70 percent of perpetrators are non-Indians, 60 percent of these convictions were of Native men.

Artichoker also noted that rape investigations conducted by the Bureau of Indian Affairs appear to have dropped in recent years. In 2000, there were 550 investigations, down from 603 the year before.

"And that's only what's reported," she said. "We can triple that in terms of the unreported."

Due to the U.S. Supreme Court decision's in Oliphant v. Suquamish, tribes are precluded from prosecuting non-Indians in criminal cases. The Biden reauthorization amends the Indian Civil Rights Act (ICRA) to provide a restoration of tribal jurisdiction limited to domestic violence cases.

The language states that tribes shall have "criminal jurisdiction over all persons that enter lands within the jurisdiction of an Indian tribe with the intent to injure harass, intimidate or otherwise abuse that person's spouse or intimate partner, and, who in the course of or as the result of such travel intentionally commits a crime of violence," according to the draft.

The bill amends ICRA further to allow tribes to increase jail time and fines in domestic violence cases. ICRA currently limits punishment to one year in jail and $5,000 in fines.

Other provisions of the Native title require DOJ to come up with a consultation policy, allow tribal access to the National Crime Information Center, authorize funding for a tribal database of violent offenders and create a tribal division within DOJ's Office of Violence Against Women.

NCAI, through a series of resolutions, has backed the changes proposed in the reauthorization. One NCAI resolution, to ensure that Indian organizations not run by a tribal government are eligible for domestic violence grants, recently became implemented into law.

Agtuca said she hopes the reauthorization will become law in 2005. It is being introduced in November to build momentum for passage, she said.