Bill would close domestic abuse loophole on tribal lands
BY MICHAEL OVERALL World Staff Writer
Monday, February 18, 2013
2/18/13 at 7:16 AM
Hypothetically, if U.S. Rep. Tom Cole of Oklahoma committed a crime on tribal land, he could face charges in a tribal court because he's a member of the Chickasaw Nation.
"Even if it's a different tribe," Cole explains, "they could still charge me because we trust one tribe to handle cases against members of another tribe."
But if a non-Indian committed the same crime on the same land, the tribal courts would be powerless.
"And that's just silly," says Cole, who represents the 4th District in south-central Oklahoma.
"We're all Americans. We all have the same constitutional rights."
As an advocate for tribal sovereignty, Cole is trying to persuade his fellow Republicans to support the Violence Against Women Act.
At first glance, the two issues wouldn't seem to have much to do with each other.
But the debate in Congress has focused largely on a 10-page section of the bill that would give tribal courts unprecedented jurisdiction over non-tribal members.
It's supposed to close a loophole that is reportedly letting non-tribal members get away with domestic abuse on tribal land.
In such cases, tribal courts can't put the defendant on trial. But state courts don't have jurisdiction either because the crime happened on Indian land.
So the case has to be sent to federal authorities, who might not have the time or the inclination to pursue it.
Indian women are three times more likely to suffer domestic violence than the general population, Cole said.
"It's a horrific problem," he says. "It's of epidemic proportions."
The bill, known as VAWA, passed the U.S. Senate last week with a bipartisan vote of 78-22.
But both senators from Oklahoma voted against it, and the bill faces a tougher challenge in the House.
Conservatives offer more than one reason to oppose it.
To start with, domestic violence is best handled at the local and state level, without making it a federal issue, they argue.
The bill also authorizes federal grant programs that duplicate other federal spending, with no accountability for how the money is spent, they say.
But tribal jurisdiction has become the biggest obstacle.
Along with U.S. Rep. Darrell Issa of California, Cole has offered a compromise that would give tribal courts original jurisdiction but let non-tribal defendants opt into the federal court system.
If that version of the bill passes the House, the Senate will have to vote on it again.
"Let's face it," Cole says, "the tribes have not been treated well over the span of history, and I think the U.S. government has broken every treaty it has made" with Indian tribes.
"Maybe there's a concern that the tribal courts are going to take the opportunity to settle the score and not give people a fair trial."
But he rejects that notion. And so does Todd Hembree, the attorney general of the Cherokee Nation, Oklahoma's largest tribe.
"With extended jurisdiction comes extended responsibility," Hembree says. "We have to ensure due process, ensure that the accused is represented by competent counsel, ensure a fair trial.
"We look forward to meeting those responsibilities."
Of course, if tribal courts get jurisdiction over cases of domestic violence, why not other crimes?
Some members of Congress are concerned that it will set a precedent for letting tribal courts handle other cases against non-Indians.
But that possibility doesn't faze Cole or Hembree.
"Our courts are up to the challenge," Hembree says. "I don't see that there's a downside to it."
Original Print Headline: Bill would close abuse loophole on tribal lands
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