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Violence Against Women Reauthorization Act of 2011 -- Motion to Proceed

Floor Speech

Location: Washington, DC


Mr. UDALL of New Mexico. Mr. President, I rise today to express my support for the Violence Against Women Reauthorization Act. Specifically, I want to talk about how crucial the tribal provisions in this bill are for Native American women. For the past 18 years, this historic legislation has helped protect women from domestic violence, from sexual assault, from stalking. It has strengthened the prosecution of these crimes and has provided critical support to the victims of these crimes.

It has been a bipartisan effort. Democrats, Republicans, and law enforcement officers, prosecutors, judges, health professionals--all have supported this Federal effort to protect women. Why? Because it has worked.

Since its passage in 1994, domestic violence has decreased by over 50 percent. The victims of these crimes have been more willing to come forward knowing that they are not alone, knowing that they will get the support they need, knowing that crimes against women will not be tolerated.

Unfortunately, not all women have seen the benefits of the Violence Against Women Act. That is why the tribal provisions in the reauthorization are so important. Native women are 2 1/2 times more likely than other U.S. women to be raped.

One in three will be sexually assaulted in their lifetimes. It is estimated three out of five Native women will experience domestic violence in their lifetimes. Those numbers are tragic. Those numbers tell a story of great human suffering, of women in desperate situations, desperate for support, and too often we have failed to provide that support.

But the frequency of violence against Native women is only part of the tragedy. To make matters worse, many of these crimes go unprosecuted and unpunished. Here is the problem: The tribes have no authority to prosecute non-Indians for domestic violence crimes against their Native American spouses or partners within the boundaries of their own tribal lands. And yet over 50 percent of Native women are married to non-Indians; 76 percent of the overall population living on tribal lands is non-Indian. Instead, under existing law, these crimes fall exclusively under Federal jurisdiction. But Federal prosecutors have limited resources. They may be located hours away from tribal communities. As a result, non-Indian perpetrators often go unpunished. The cycle of violence continues and often escalates at the expense of Native American victims.

On some tribal lands the homicide rate for Native women is up to 10 times the national average. But this starts with small crimes, small acts of violence that may not rise to the attention of the Federal prosecutor. In 2006 and 2007, U.S. attorneys prosecuted only 45 misdemeanor crimes on tribal lands.

For perspective, the Salt River Reservation in Arizona--which is a relatively small reservation--reported more than 450 domestic violence cases in 2006 alone. Those numbers are appalling. Native women should not be abandoned to a jurisdictional loophole. In effect, we have a prosecution-free zone.

The tribal provisions in the Violence Against Women Reauthorization Act provide a remedy. The bill allows tribal courts to prosecute non-Indians in a narrow set of cases that meet the following specific conditions: The crime must have occurred in Indian Country; it must be a domestic violence or dating violence offense or a violation of a protection order; and the non-Indian defendant must reside in Indian Country, be employed in Indian Country, or be the spouse or intimate partner of a member of the prosecuting tribe.

This bill does not--and I emphasize does not--extend tribal jurisdiction to include general crimes of violence by non-Indians or crimes between two non-Indians or crimes between persons with no ties to the tribe. Nothing in this provision diminishes or alters the jurisdiction of any Federal or State court.

I know some of my colleagues question if a tribal court can provide the same protections to defendants that are guaranteed in a Federal or State court. The bill addresses this concern. It provides comprehensive protections to all criminal defendants who are prosecuted in tribal courts whether or not the defendant is a Native American. Defendants would essentially have the same rights in tribal court as in State court. These include, among many others, right to counsel, to a speedy trial, to due process, the right against unreasonable search and seizure, double jeopardy, and self-incrimination. In fact, a tribe that does not provide these protections cannot prosecute non-Indians under this provision.

Some have also questioned whether Congress has the authority to expand tribal criminal jurisdiction to cover non-Indians. This issue was carefully considered in drafting the tribal jurisdiction provision. The Indian Affairs and Judiciary Committees worked closely with the Department of Justice to ensure that the legislation is constitutional.

In fact, last week 50 prominent law professors sent a letter to the Senate and House Judiciary Committees expressing their ``full confidence in the constitutionality of the legislation, and its necessity to protect the safety of Native women.''

Their letter provides a detailed analysis of the jurisdictional provision. It concludes that ``the expansion of tribal jurisdiction by Congress, as proposed in Section 904 of S. 1925, is constitutional.''

Mr. President, I ask unanimous consent to have printed in the Record the letter to which I have referred.

There being no objection, the material was ordered to be printed in the RECORD,


Mr. UDALL of New Mexico. Mr. President, I respect my colleagues' concerns about the tribal provisions of this bill, and I am willing to work with any Senator who may have concerns about these provisions. Native American law can be daunting, but I want to stress how much effort, research, and consultation went into drafting the tribal provisions in the Violence Against Women Act. Title 9 is taken almost entirely from S. 1763, the Stand Against Violence and Empower Native Women Act, the SAVE Native Women Act. This bill was passed on a Department of Justice proposal submitted to Congress last July. That proposal was the product of extensive multiyear consultations with tribal leaders about public safety generally and violence against women specifically. It builds on the foundation laid by the Tribal Law and Order Act of 2010.

The SAVE Native Women Act was cleared by the Indian Affairs Committee in a unanimous voice vote. The Presiding Officer serves on that committee and knows that this is a committee--the Senate Indian Affairs Committee--that works in a bipartisan way. This passed by a unanimous voice vote through the Senate Indian Affairs Committee.

Shortly thereafter, its core provisions were again vetted and incorporated in the Judiciary Committee's Violence Against Women Act Reauthorization as title 9. In short, the Safety for Indian Women title has been vetted extensively and enjoys wide and bipartisan support. The tribal provisions in this bill are fundamentally about fairness and clarity and affording Native women the protections they deserve.

As a former Federal prosecutor and attorney general of a State with a large Native American population, I know firsthand how difficult the jurisdictional maze can be for tribal communities. One result of this maze is unchecked crime. Personnel and funding run thin, distance is a major prohibitive factor, and the violence goes unpunished. Title 9 will create a local solution for a local problem by allowing tribes to prosecute the crime occurring in their own communities. They will be equipped to stop the escalation of domestic violence. Tribes have already proven to be effective in combating crimes of domestic violence committed by Native Americans.

Let me reiterate this very important point: Without an act of Congress, tribes cannot prosecute a non-Indian even if he lives on the reservation, even if he is married to a tribal member. Without this act of Congress, tribes will continue to lack authority to protect the women who are members of their own tribes. With this bill, we can close a dark and desperate loophole in criminal jurisdiction.

Beyond extending the jurisdiction of tribes within specific constraints, the bill will also promote other efforts to protect Native women from an epidemic of domestic violence by increasing grants for tribal programs to address violence and for research on violence against Native women and also by allowing Federal prosecutors to seek tougher sentences for perpetrators who strangle or suffocate their spouses or partners.

All of these provisions are about justice. Right now Native women don't get the justice they deserve, but these are strong women. They rightly demand to be heard. They have identified a desperate need and support logical and effective solutions. That is why Native women and tribal leaders across the Nation support the Violence Against Women Reauthorization Act and the proposed tribal provisions. Let us work with these women to create as many tools as possible for confronting domestic violence.

There are far too many stories of desperation that illustrate why the provisions protecting Native women are in this bill, and I want to share one story now. This is the story of a young Native American woman married to a non-Indian. He began abusing her 2 days after their wedding. They lived on her reservation. In great danger, she filed for an order of protection as well as a divorce within the first year of marriage. The brutality only increased. It ended with the woman's abuser going to her place of work--which was located on the reservation--and attempting to kill her with a gun. A coworker, trying to protect her, took the bullet. Before that awful day, this young woman had nowhere to turn for help. She said:

After a year of abuse and more than 100 incidents of being slapped, kicked, punched and living in horrific terror, I left for good. During the year of marriage I lived in constant fear of attack. I called many times for help, but no one could help me.

The tribal police did not have jurisdiction over the daily abuse because the abuser was a non-Indian. The Federal Government had jurisdiction but chose not to exercise it because the abuse was only misdemeanor level prior to the attempted murder. The State did not have jurisdiction because the abuse was on tribal land and the victim was Native American.

Her abuser, at one point after an incident of abuse, actually called the county sheriff himself to prove that he was untouchable. The deputy sheriff came to the home on tribal land but left saying he did not have jurisdiction. This is just one of the daily, even hourly, stories of abuse, stories that should outrage us all. These stories could end through local intervention and local authority that will only be made possible through an act of Congress. We have the opportunity to support such an act in the tribal provisions of VAWA.

I encourage my colleagues to fully support the tribal provisions in this very important bill.

I note the absence of a quorum.


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