For almost two years, Congress has been mired in a debate over whether and how to reauthorize the Violence Against Women Act (VAWA).  VAWA has been widely credited with helping law enforcement and prosecutors crack down on domestic violence nationwide. The VAWA reauthorization recently passed the Senate with resounding bipartisan support—78 votes in favor. But notably, the 22 Senators who voted against VAWA were all Republican men.

The GOP’s constitutional objections to these tribal provisions are legally suspect and morally dubious. 

Meanwhile, even though the bill has widespread support in the Senate, the GOP-controlled House deadlocked last year on reauthorizing VAWA—the first time the bill has not been reauthorized since then-Senator Joe Biden introduced it in 1994. At or near the top of their list of complaints are certain provisions that would protect women who are assaulted on tribal lands.

Right now women who live on tribal lands are acutely vulnerable to violence on tribal lands because of the legal maze that authorities have to go through just to figure out who has jurisdiction to prosecute the case.  For instance, if neither the victim nor the perpetrator is Native American, then only State authorities can make the arrest and try the case.  If the victim is Native American, but the perpetrator is not, then only federal agents can make the arrest.  And if the victim is not Native American, but the perpetrator is?  Then tribal authorities can make the arrest, but only federal courts would have jurisdiction to try the case.

Making matters worse, State and federal authorities have not devoted enough resources to crack down on these crimes, even when it’s clear they have jurisdiction. As a result, crimes perpetrated against Native Americans women have reached an epidemic level: Native American women are sexually assaulted at 2.5 times the rate of the general population, and 85 percent of the time the perpetrator isn’t Native American—meaning State and federal authorities have jurisdiction.  But over 65 percent of the reported cases are never prosecuted. 

Put differently, the biggest problem Native American women face isn’t related to crimes committed by Native Americans—it’s crimes committed by non-Indians on tribal land. But those who commit violence against women on tribal lands are roaming this legal maze with absolute impunity. 

That’s where the reauthorization of VAWA comes in.

The proposed new provisions in VAWA seek to address this gaping loophole by allowing tribes to prosecute, in tribal court, non-Native Americans who are accused of abusing Native American women on tribal land.  Sounds reasonable enough, given the scope of the problem, and how many cases are left by the wayside—right? 

Wrong.  Those in the GOP who oppose this provision claim that it’s unconstitutional. The arguments are a bit mixed, but Senator Grassley (R-IA), who voted against VAWA, explained that a non-Indian could not get a fair trial with a jury “made up of Indians.” Others, including Senators Ted Cruz (R-TX), Mike Lee (R-UT), and Marco Rubio (R-FL), who are all lawyers themselves, agree that tribes cannot constitutionally prosecute non-Indians in tribal court.

First, let’s be clear: Senator Grassley’s bold assertion that Native Americans cannot serve as impartial jurors is simply racist.

But they are wrong, legally and factually.

First, let’s be clear: Senator Grassley’s bold assertion that Native Americans cannot serve as impartial jurors is simply racist. The Sixth Amendment’s right to jury grants you the right to have a jury selected from the community in which the crime took place.  If a Native American committed an act of violence in Senator Grassley’s own Butler County, Iowa, chances are he’d face an all-White jury. That’s because Butler County is 98.95 percent White, and only 0.05 percent Native American. But I doubt Senator Grassley thinks that a Native American defendant couldn’t get a fair shake from his hometown Hawkeyes.  And there’s no reason to think that Native American jurors would act differently.

The other purportedly constitutional objection to the tribal protection provision stems from a 1978 Supreme Court case that originated right here in Washington state: Oliphant v. Suquamish Indian Tribe.  Suquamish tribal authorities arrested two men, Mark Oliphant and Daniel Belgarde, for crimes committed on Suquamish tribal lands. The defendants argued that the tribe could not charge them with any crime, no matter where it was committed, because they weren’t Indians. The Supreme Court agreed, but its reasoning is what’s most important: the Court never held that it was unconstitutional for tribal authorities to charge and try non-Indians, but rather that Congress’s “various actions and inactions in regulating criminal jurisdiction on Indian reservations demonstrated an intent to reserve jurisdiction over non-Indians for the federal courts.” Put differently, Congress just had to change its mind.

In a similar case about ten years later, Duro v. Reina, the Supreme Court determined that under existing federal law one tribe could not exercise criminal jurisdiction over an enrolled member of another tribe. So what happened? Congress simply changed its mind—and the law—to allow tribes to prosecute members of other tribes, explicitly overruling the Duro decision. Most recently, in 2004, the Supreme Court echoed this point by concluding, in United States v. Lara, that Congress has the power to “lift or relax” restrictions on tribal jurisdiction over criminal matters.

That’s what Congress is trying to do with these new VAWA provisions.  It’s not a constitutional hurdle—it’s a legislative one.  And the Senate just voted to remove that hurdle.

Unfortunately, the GOP’s esoteric (and misleading) constitutional debate has obscured the real problem here: our justice system has failed Native American women. Sexual assault cases are extremely difficult to win, even under ideal conditions. The evidence needed to prosecute a sexual assault case deteriorates in just a few hours. That’s why it’s so crucial that investigators be allowed to start working a case as soon as possible. But the existing jurisdictional hurdle makes it almost impossible because those first hours or days are spent figuring out who has jurisdiction in the first place.

The GOP’s constitutional objections to these tribal provisions are legally suspect and morally dubious.  The Senate’s version of VAWA addresses a real world problem that exists today. It is good law, and it should be approved.

PubliCola LawNerd David A. Perez is an attorney in Seattle.  He received his B.A. from Gonzaga and his J.D. from Yale Law School.  Follow him on Twitter: @davidaperez1.