Last Thursday, March 7, President Obama signed into law the reauthorization of the Violence Against Women Act (VAWA). Nationwide, many celebrated the new provisions allowing tribal governments to prosecute non-Indian perpetrators of domestic violence and sexual assault. It was a long overdue fix for a jurisdictional loophole. Absent from the press coverage however, was the fact that Alaska was left out.
Yes, it's true. Alaska tribes, and therefore Alaska Native women who are battered or sexually assaulted by non-Natives, were excluded from protection under the Violence Against Women Act (VAWA). Senator Murkowski inserted an Alaska exclusion euphemistically called "the Special Rule for Alaska." Only there's nothing special about it. The exclusion is part of a larger strategy to prevent Alaska's tribes from being treated like all other tribes in the United States. There are Alaska exclusions in numerous bills, most inserted by a previous senator, and this is yet another. This one, however, cuts the deepest.
This past weekend, Senator Murkowski posted on her Facebook page that she had created an "inclusion," suggesting that all she did was to make sure that Metlakatla (which is the only tribe in the state with a reservation) "would receive the same rights and jurisdiction granted to Lower 48 reservations." It's not my usual practice to write a direct response, but the Alaska exclusion was being reported as an inclusion, so I decided to set the record straight based upon the information that I have been privy to throughout this debate.
As most of you know, law enforcement works differently in rural Alaska. Because of the vast distances, weather conditions, and lack of state trooper posts in the vast majority of villages, response times can be very slow -- sometimes too late to help. The only place many women can go for help is their Tribe. Because they have retained aspects of their inherent sovereignty pre-dating the United States, tribes have jurisdiction to handle certain problems that impact the health and safety of their tribal members. Domestic violence is one of those problems. The most common exercise of this power is to issue a protective order directing the perpetrator to stay away from his victim, refrain from contacting her, you get the idea. Tribes in Alaska have been doing this for many years in an effort to protect their more vulnerable tribal members. This power was restated and expanded to include the words "any person" in Section 905 of the VAWA. Those two simple words clarified that tribes could issue protective orders against non-Native perpetrators. But for the Alaska exclusion, this clarified authority would have applied here.
The other section from which Alaska was excluded is Section 904. It is a partial fix for a long despised case called Oliphant, which held that tribes have no criminal jurisdiction over crimes committed by non-Indians. Section 904 "recognizes and affirms" domestic violence jurisdiction over non-Indians who (1) reside in the Indian Country of the tribe; (2) are employed in the Indian Country of the tribe; OR (and note this says "or" not "and") (3) are the "spouse, intimate partner, or dating partner" of a tribal member. See what Congress did there? The third option removed the "Indian Country" trigger. Come to think of it, Section 905 (the civil jurisdiction described above) doesn't require Indian Country either. This is important because detractors and deniers claim that this bill was only intended to apply in "Indian Country" and that it wouldn't matter up here. Not true. Both civil and criminal jurisdiction provisions would have applied up here in Alaska regardless of whether you think we have "Indian Country" or not.
But for the Alaska exclusion, Alaska Tribes would have had the ability to issue civil protective orders against "any person" and also would have had the ability to arrest or detain any perpetrator, Native or not. Given the extraordinarily high rate of domestic violence and sexual assault in rural Alaska, how could anyone object to that?
Senator Murkowski did. I can't explain why. I can only guess that this is yet another Alaska exclusion for which the Alaska Attorney General's office lobbied heavily. It has done so in the past, particularly when issues of tribal jurisdiction arise. In any event, there can now be no doubt that Section 910, the Alaska exclusion, originated in Senator Murkowski's office, and that she was repeatedly asked to remove it both during the 2012 session and again this year. In case you do not believe me, the Native American Rights Fund has posted letters from AVCP, AFN and numerous tribes that sent pleading letters this year and last. We are also going to post the whole text of the VAWA there so you can read sections 904, 905 and 910. Then decide for yourself: how does an exclusion become an inclusion?
Natalie Landreth is a senior staff attorney at the Native American Rights Fund (NARF) in Anchorage, Alaska. Founded in 1970, NARF is the oldest and largest nonprofit law firm dedicated to asserting and defending the rights of Indian tribes, organizations and individuals nationwide.
The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch, which welcomes a broad range of viewpoints. To submit a piece for consideration, e-mail commentary(at)alaskadispatch.com.