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Restoring local control to tribal governments - tribal police and tribal courts - over all crimes of domestic violence is the only way this will end. The victim, their family, and the community deserve to see justice being done locally on the reservation, as opposed to hearing about it not being done in federal or state courtrooms hundreds of miles away.
After more than a year of consultation with tribal leaders, and after 35 years of suffering under the Supreme Court's misguided Oliphant decision, the House version of VAWA, HR 4970, offers little hope to Native women or tribal communities.
A recent change to the bill would authorize victims to petition a federal court for a protection order, which, if granted and if violated, would constitute a federal crime. Unfortunately, this provision misses the point. The current system of justice ignores local control, and this provision only fosters added federal control. Proof that this system is failing is found in report after report of federal and state officials declining to prosecute reservation crimes. Most recently, in December of 2010, the GAO reported that from 2005-2009, US Attorneys declined to prosecute 52 percent of violent reservation crimes, including 67 percent of reservation-based sexual assaults.
More importantly, while this federal protection order provision does offer a new tool to fight domestic violence, the tool will be out of reach for many Native women, as few have the resources to hire legal expertise or travel hundreds of miles to the federal court to petition for the protection order. The burden lies on the victim, and not the offender.
Finally, this provision has the potential to call into question the existing ability of tribal courts to issue civil orders of protection against all offenders, Indian and non-Indian. VAWA currently acknowledges that all courts must provide full faith and credit to these tribal court orders. Section 905 of the Senate version simply sought to clarify that this authority extends to protect Native women who are not members of the tribe that issues the protection order.
The 2012 VAWA Reauthorization is a historic opportunity to listen to the voices of thousands of Native mothers, daughters, sisters, aunts, and cousins, and to expose their abusers who hide behind a wall of federal laws that only serve as barriers to justice. The federal government created these barriers, and it’s long past the time to break them down.
John Harte is a member of the San Felipe Pueblo and partner at the Mapetsi Policy Group.
posted May 15, 2012 5:30 pm edt