No one is in favor of violence being perpetrated against women. That’s why, in 1990, Sen. Joe Biden titled the bill he introduced that year, which Congress passed in 1994, the Violence Against Women Act.
Initially, the VAWA had nothing to do with the 200-plus “tribes” in Alaska that in 1993 Assistant Secretary of the Interior for Indian Affairs Ada Deer had purported to create by simply publishing a list of them in the Federal Register.
But in 2005, one of the staff members who wrote it decided, apparently on his or her own, to include in the bill to reauthorize the VAWA that Congress would enact that year the “Indian tribe” definition from the 1975 Indian Self-Determination Act, which included not only “Alaska Native villages” but, inexplicably, also Alaska Native Claims Settlement Act village and regional corporations in the definition.
That eventually enabled “courts” that the Tanana Chiefs Conference, the Association of Village Council Presidents, and other Native organizations encouraged VAWA “Indian tribes” in Alaska to create to issue protective orders that Alaska State Troopers would enforce to prohibit an individual, usually male, who is the subject of an order from perpetrating violence against the individual, usually female, who sought the order.
Since everyone wants to stop violence from being perpetrated against women, what is wrong with that?
Actually, two things.
First, unlike state and federal courts, tribal courts do not have to comply with the provisions in the Bill of Rights in the U.S. Constitution. In 1968, Congress passed the Indian Civil Rights Act, which requires tribal courts to comply with some but not all of those provisions. But there is no right to an attorney, and if a tribal court ignores the ICRA provisions, there is nothing an individual who is the subject of a protective order can do about it unless and until he finds himself in jail, at which time and if he has the money to hire an attorney he can file a lawsuit in federal court that may take months to litigate.
Second, a tribal court has authority only over an individual who is a member of the tribe that created the court. And the VAWA requires the court to provide an individual who is a subject of a protective order notice and an opportunity to be heard before the order is issued. But in Alaska, when a tribal court gives a protective order to the Department of Public Safety and the order then is listed on Department’s registry of protective orders, there is no way for an Alaska State Trooper who is asked to enforce the order to know that a tribal court issued the order or whether the subject of the order is a member of the VAWA “Indian tribe” that created the court or whether that individual was provided notice and an opportunity to be heard.
In 2016, when she was asked about them, then-Attorney General Jahna Lindemuth dismissed those concerns by announcing that “the Department of Public Safety, in consultation with the Department of Law, instructs state law enforcement officers to put the safety of citizens first and enforce any tribal court protective order that appears valid on its face. Any challenge to the tribal protective order can be addressed later in a court proceeding.”
In 2011, when the VAWA again needed to be reauthorized, tribes whose members reside on reservations in the Lower 48 states began demanding that Congress grant them authority to prosecute and, if they deemed doing so appropriate, to jail non-Indians accused of committing domestic violence on the reservations.
While the action was controversial, in 2013 when it reauthorized the VAWA, Congress granted some tribes in the Lower 48 that authority.
In 2019, when the VAWA again needed to be reauthorized, the Alaska Federation of Natives and other Native organizations demanded that Congress give VAWA “Indian tribes” in Alaska the same authority to prosecute and jail non-Natives, even though there are no reservations in Alaska and most domestic violence in Native villages is perpetrated by Native men — rather than by the relatively few non-Native men who reside in those communities. When the bills to reauthorize the VAWA that Democratic and Republican senators introduced did not do that, Alaska’s U.S. Sen. Lisa Murkowski introduced a stand-alone bill whose enactment would have authorized the U.S. Attorney General to have given 30 VAWA “Indian tribes” in Alaska authority to prosecute and jail non-Natives.
In the Senate, which Republicans controlled, Sen. Murkowski’s bill was referred to the Committee on Indian Affairs on which she served. But Sen. Murkowski made no effort to have the committee hold a hearing on the bill. However, two weeks ago when a bipartisan group of senators introduced a new bill to reauthorize the VAWA, S. 3623, Sen. Murkowski arranged for the bill to include a revised version of the text of the stand-alone bill she had introduced in 2019.
When S. 3623 was introduced, Michelle Demmert, the law and policy director at the Alaska Native Women’s Resource Center, told Alaska public radio that the new authority the bill would give to VAWA “Indian tribes” in Alaska was needed because non-Native male “perpetrators are really smart. They know where they can get away with abuse. And they’ve taken advantage of villages forever. This is an issue from first contact, where they’ve known that they can do things with impunity.”
For more than 260 years, non-Native men who enjoy physically abusing women have moved into Native villages because they know that at those locations they can abuse Native women with impunity? Really? That is the policy rationale for why Congress needs to give VAWA “Indian tribes” in Alaska authority to prosecute and jail non-Natives?
When he was asked whether he supported Congress granting VAWA “Indian tribes” in Alaska authority to prosecute and jail non-Natives, Alaska Gov. Mike Dunleavy, as he usually does when he is asked what he thinks about tribal sovereignty-related matters, said he had no position because his staff still was studying the matter. But he vouched that “we’re going to make sure that everybody’s constitutional rights are protected.” So his staff apparently had not yet explained to the governor that in tribal courts, no one — Native and non-Native alike — has any constitutional rights.
Because it has strong bipartisan support, rather than being referred to one or more committees, S. 3623 has been placed directly on the Senate calendar. So Senate Majority Leader Chuck Schumer can bring the bill to the floor at any time.
Before Sen. Schumer does that, Sen. Murkowski, who now is the senior Republican member of the Committee on Indian Affairs, needs to arrange for the Committee to hold a hearing on S. 3623 in Alaska to enable Gov. Dunleavy to tell the Committee what his position regarding tribal court jurisdiction is and to allow witnesses such as Michelle Demmert to present evidence — rather than ideologically motivated conjecture — that demonstrates why Congress should grant VAWA “Indian tribes” in Alaska authority to prosecute and jail non-Natives.
I am not the only Alaskan who will be interested in what they and other witnesses who testify at that hearing will have to say about a subject that to date has not received the public attention its importance merits.
Donald Craig Mitchell is an Anchorage attorney and the author of a two-volume history of the Alaska Native lands claims movement and, most recently, of “Tribal Sovereignty in Alaska: How It Happened, What It Means.” He also is a former vice president and general counsel for the Alaska Federation of Natives.
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