Keel Op-Ed: VAWA tribal provisions are constitutionally sound

Published on May 10, 2012

By Jefferson Keel, NCAI President
as published on

There is a group of criminals, on Native American lands, who assault, rape, and abuse Native women and they can’t be arrested. These criminals are non-Native men. They don’t have to face a judge, spend any time behind bars, or be hounded by a criminal record. Instead they remain free to go after the next victim or the same one, time after time. Congress, the one legal body able to fix this problem, could let these injustices continue if they don’t act.

The epidemic of violence against women on tribal lands is staggering; 34% of American Indian and Alaska Native women will be raped in their lifetimes, 39% will experience domestic violence, and as a Department of Justice study found, non-Indians commit 88% of these heinous crimes. Tribal justice systems are the most appropriate entities to root out these criminals, yet they are the ones with tied hands—restricted by antiquated jurisdictional laws established the U.S. government limiting tribes from prosecuting non-Native criminals.

Over the last few weeks, we have seen members of Congress from both sides of the aisle work to pass a law that would give tribes the authority over these criminals; the Violence Against Women Act (VAWA). The proposed tribal provisions of the law, passed with bipartisan support in the Senate, are now being left out of the main House of Representatives version of VAWA. Some members of the House fear they don’t have the power to fix the problem or are afraid non-Natives will be subject to tribal law and not guaranteed their constitutional rights.

The reality is the tribal provisions of VAWA are fully constitutional and offer every safeguard provided by U.S. courts – more importantly they are vital to curtailing a very real problem.
In a recent letter to Congress, fifty leading U.S. law professors outlined their confidence in the constitutionality of the legislation. At the core of the letter, the lawyers highlighted the Supreme Court case law supporting Congressional authority and the requisite safe guards of the provisions offered to every defendant.

The Supreme Court in U.S. v. Lara, 541 U.S. 193 (2004), held that “Congress does possess the constitutional power to lift the restrictions on the tribes’ criminal jurisdiction.” Moreover, the VAWA provisions at issue are designed to catch a very narrow set of criminals, not just anyone. They are limited to only crimes of domestic violence or dating violence committed in Indian country, where the defendant is a spouse or established intimate partner of a tribal member.

Defendants prosecuted under these provisions would be entitled to the full array of constitutional protections; due-process rights, an indigent defendant’s right to appointed counsel (at the expense of the tribe) that meets federal constitutional standards, and as the proposed law states, “all other rights whose protection is necessary under the Constitution of the United States.” This includes the right to petition a federal court for habeas corpus to challenge any conviction and to stay detention prior to review, a right of which the prosecuting tribe must timely notify the defendant.

Finally, any non-Indian defendant prosecuted under these new provisions has the right to a trial by jury drawn from sources that do not systematically exclude any distinctive group in the community, including non-Indians.

These provisions offer tribal governments and the United States an opportunity to advance our cause together and root out this epidemic of violence. If Congress removes the restrictions placed on tribal governments, tribal law enforcement, and tribal courts, Native and non-Native communities alike will have the means to protect our women and remove criminals from our lands.

Tribal governments are members of the American family of governments, rooted in the constitution itself – we are America’s first nations. We are ready to work together to end this violence. Yet, it is Congress that must take the first step to remove the restrictions placed on tribal governments.

When Congress does act, it is my hope that it will be to allow our governments and justice systems to stand together to keep every American, and Native American, safe, and demonstrate our commitment to our greatest shared value: justice for all.

Keel is the president of the National Congress of American Indians, the nation’s largest and oldest American Indian and Alaska Native advocacy organization and is the Lt. Governor of the Chickasaw Nation, located in Oklahoma.

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