Saturday, December 22, 2012

Proposed VAWA reauthorization bill would allow non-Native American males to be prosecuted for alleged sex crimes against Native American women in tribal courts even when such courts exclude non-Native Americans from the jury pool

The Tribal Provisions

The so-called Tribal provisions of the VAWA reauthorization bill passed by the U.S. Senate (but not yet by the House) would give Native American tribes authority to prosecute non-Native Americans accused of domestic violence, sexual assault, and other crimes against Native American women on Indian reservations.

This would be the first time our government would extend tribal criminal jurisdiction over non-Indians. Sen. Chuck Grassley asks: "Why should domestic violence cases be the first criminal cases to be treated in this way?"

The Tribal provisions raise concerns for the community of the wrongly accused that have been ignored in the public discourse of this issue. Worse, the natural allies of the presumptively innocent have abandoned them on this issue, as has become the norm in recent years when it comes to efforts to chip away at the rights of the presumptively innocent accused of sex offenses. Instead, anyone raising concerns about the Tribal provisions is being branded in some extremist corners as a rape apologist.

A Congressman is Branded the 'Patron Saint of Rapists': A Public Discourse Bordering on Pathology

Rep. Eric Cantor was branded "the patron saint of rapists" by Chloe Angyal, an editor of, because of his opposition to including the "Tribal provisions" in the VAWA reauthorization bill. See here.

Are the Tribal Provisions Needed to Solve the Problem?

There is a widespread belief that the sexual abuse of Native American women on tribal lands is a significant problem, and that when sexual abuse is perpetrated on them by non-Native American males, the crimes are not adequately addressed by federal and state courts. The reasons for this were explained by one commentator:
. . . federal and state law enforcement have limited resources and might be hours away from a reservation. And then there’s this: according to a General Accounting Office report on “Department of Justice Declinations of Indian Country Criminal Matters,” federal prosecutors declined to take action on 52 percent of violent crimes committed on tribal lands. Of those declined cases, 67 percent were sexual abuse and related cases.
The fact that law enforcement might be far away, and the issue regarding limited resources, are not unique to crime on Native American reservations and can, and should, be addressed by affording greater resources to the problem, the same way they are addressed for non-Native American citizens.

The other issue is the appropriateness of federal prosecutors declining to take some sexual abuse cases reported by Native Americans. I am not certain how the GAO report determined that an alleged offense was a "violent crime" when a prosecutor decided not to take it. In any event, to determine whether federal prosecutors are refusing to take such cases for inappropriate reasons, there must be a painstaking examination of a representative sampling of such cases by impartial evaluators. If there are improprieties, they need to be addressed in the same way they are dealt with when the victimization of any disadvantaged group is not being adequately addressed by federal prosecutors.

These matters need to be addressed. The United States cannot allow rapists to act with impunity. This problem is especially distressing given the historical oppression of Native American women. We are not certain that these problems necessarily require giving Native American courts jurisdiction to try cases involving non-Native Americans accused of sex offenses.

What are the Implications for Wrongly Accused Men?

What are the implications for a wrongly accused person being tried of heinous sex crimes by a tribal court? Our nation has no track record to guide it because it hasn't been done. Nor did the Senate hearings on VAWA shed any light on this question: the Tribal provisions were not even the subject of a hearing in the Senate, which passed the bill that included it. Sen. Grassley said: "I do not believe the [Senate Judiciary] Committee has a good understanding of what the consequences would be" of making this change in the law.

Moreover, the public discourse on this issue has been dominated by groups that have focused solely on the victims of sexual abuse. They have not acknowledged even the possibility that sometimes innocent persons are wrongly accused of these offenses. Too often, some, like Ms. Angyal, have resorted to demonizing anyone opposing their efforts in ways that should not be part of the public discourse. Some claim that anyone opposing the provision wants to protect white male rapists.

The Congressional Research Service issued a report earlier this year in which it addressed the legal bases for Indian Tribes to prosecute non-Indians under an "inherent sovereignty theory." It bluntly stated: ". . . it appears that tribes will not be bound by the Constitution but only by protections in the Indian Civil Rights Act, Tribal Law and Order Act, and the individual tribal laws." See here.  A defendant's important civil rights, such as equal protection and due process, will be construed by tribal courts not be bound by the U.S. Constitution.

COTWA's concern is for both the victims of sexual abuse and for the wrongly accused. The public discourse on this issue must include an honest discussion about the implications for the wrongly accused of having their cases adjudicated in tribal courts. To date, that isn't happening.

Non-Native Americans Excluded From Jury Pool

A significant problem that is not being addressed is this: can a tribal court be a fair tribunal for Non-Native American men given that non-Native Americans need not even be part of the jury pool? "Tribal courts are not required to allow nonmember reservation residents to sit on juries."  This rule runs afoul of the Supreme Court's requirement that "jury pools . . . accurately represent the communities from which they are drawn," since many such reservations have significant non-Indian populations. Sam Ennis, Reaffirming Indian Tribal Court Criminal Jurisdiction Over Non-Indians: An Argument for a Statutory Abrogation of Oliphant, 57 U.C.L.A. L. REV. 553, 578-79 (2009) Because of the exclusion of non-Indians from jury pools, "federal courts sometimes refuse to enforce civil judgments rendered by all-Indian tribal court juries against non-Indians." Id.

Juror Resentments Over Historical Oppression

America has a dismal history of allowing black males to be tried for the alleged rape of white women with all white juries. The outcome of such trials was pre-ordained. We frequently point out that it is our impression that black males accused of rape in this country are still treated more harshly than white males (e.g., see the Brian Banks case, where Mr. Banks' own attorney urged him to confess to a crime he didn't commit because a big black male doesn't stand a chance in a rape trial). In tribal courts, white men may be inherently disadvantaged. Native Americans may feel resentment about their historical treatment. What might this mean for white men wrongly accused of heinous sex crimes when white men are not even permitted to be part of the jury pool? 

No Right of Appeal

In addition, a non-Indian convicted of a sex offense in a tribal court would have no right of appeal, only a right to seek a writ of habeas corpus, which is decidedly more limited than appeal rights.


Once again, we are presented with a need to help rape victims, but the effort proposed might unreasonably enhance the risk that innocent men and boys will be punished for offenses they did not commit. 

Too often, powerful forces intent on protecting the victims of sexual abuse sweep like a high-speed rail over the rights of presumptively innocent men, some of whom have been wrongly accused, without bothering to consider the interests of the wrongly accused. Worse, they mock and ridicule anyone who would dare to voice concern for the wrongly accused.

There needs to be a serious, non-politicized, national discussion about the necessity for the Tribal provisions; whether other, less intrusive, measures could solve any legitimate problems affecting Native American women; and whether the rights of presumptively innocent men would be adequately protected by the Tribal provisions.