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July 22, 2014

Murkowski Disingenuous Says NARF

landreth

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.

 

 

By Natalie Landreth

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?

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This article cross-posted from The Alaska Dispatch by permission of the author

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14 Responses to “Murkowski Disingenuous Says NARF”
  1. yukonbushgrma says:

    “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?”

    >> This speaks to an incident that happened here. A non-Native brutally beat his Native girlfriend with a rifle butt, throwing her boots in the fire in November so she couldn’t escape. (Yes, they were both drunk.) She crawled to a neighbor and thankfully got help. Later, when the court case came up, she was a no-show. Probably scared to death.

    How would things have been different? She wasn’t from our village, so would our VPSO have had jurisdiction?

    I’m SO glad she got away from the abuse, but seriously …….. the system just lets it go on.

  2. Pinwheel says:

    This is a terrific follow-up to the fascinating outcries inspired by Shannyn Moore’s Sunday article. And more special thanx to AK Pi for the links to extremely useful references. I was unaware of the actions from the 10/23/10 ATC gathering. I totally missed the earmark inclusion of CIRI and ARSC as tribes business. With some recently reported AFN action bringing Tribes into AFN Board I became really curious. I understand somewhat better. My latest questions derived from this last action inspire the cynic in me. Which entity will benefit more, Native Corporation or AK Native tribes. Are the Native Corps running for cover within the Federally recognized tribes or do AK Native tribes hope to gain economic benefits not previously enjoyed?

    I commented Sunday to the thread from Shannyn’s article, citing that the State of AK cannot allow any legislation which would be interpreted increasing tribal sovereignty, which VAWA w/o Sect.910, could do. And to the question to Philip Munger above about which Atty General opposed this is the State of AK’s.

    As a long time advocate for survivors of DV, Sexual Assault and Child Abuse, I believe VAWA w/o Murkowski’s sleight of hand would have been huge empowerment for AK Native women. HUGE!! And an enormous boost for all AK Tribes without a Tribal Court System to seek some guidance from the St. Paul Island model, or some other responsive Tribal example.

    I am skeptical that Sen Begich’s initiative will unring this bell. Funding is a critical, but overlooked, component of this legislation. Resolutions of the problems within AK Native communities are the goal and have been studied by committees long enough. Action, with some teeth, is what is needed. Protection Orders are only as good as the communities’ willingness to enforce them.

    Alaska voters, Alaska Native or not, had a totally viable choice in 2010. We can have the same in 2014, and for goodness sakes let’s be sure we have viable choice in 2016.

    • Alaska Pi says:

      ” Which entity will benefit more, Native Corporation or AK Native tribes. Are the Native Corps running for cover within the Federally recognized tribes or do AK Native tribes hope to gain economic benefits not previously enjoyed?”
      ———————————————-
      I think none-of-the-above, Pinwheel.
      http://www.alaskadispatch.com/article/afn-moves-recognize-tribes-board
      Tribes have always been able to be members of AFN- they have not had a vote on board membership however until (possibly) now.
      As the go-to organization for Native issues for the state, the Congressional delegation, etc, the lack of formal representation of tribal governments has been a real and abiding problem.
      As must be obvious, I am an unabashed tribal sovereignty advocate. For all who bridle at WalMart, the Koch bros, et al who attempt to replace government function with market place equations, please consider there are very similar issues at hand in the Native community post ANCSA. Some specific groups have done a wonderful job gathering together and defining their self government issues and goals as well as economic goals- far too many others are in a constant tense stand off .
      Also- please remember there are many many afterborn who have no stock in the regional for-profits and will not- ever. Their rightful desire to be part of the conversation , with parity at the table, has grown so it cannot be shuffled past…

  3. fishingmamma says:

    Ever since Murkowski’s appointment gift from her daddy, I have viewed her as a wolf in sheep’s clothing. She has managed to lull Alaskans into believing she was a ‘good’ senator, compared to what we had before, and compared to Joe Miller, but she is not a ‘good’ senator. She is a corporate puppet. Remember her stunt during the gulf oil spill? We should be outraged by her newest move, but nobody, especially nobody that claims to have been paying attention to politics in this state, should be the least bit surprised by this latest move.

    Shannyn Moore’s peice on Sunday touched on Murkowski’s motives — she is protecting the interests of the Pebble mine by disallowing any possible furtherance of native sovereignty.

    Murkowski does NOT represent the interests of Alaskans.

  4. Meghan says:

    Things are going from bad to worse with regard to Senator Murkowski’s disregard for Alaska women.

    Her “exclusion” inserted to the VAWA legislation in order to “include” Alaska Native women under the provisions was disingenuous on its face. And then her self-serving response to Shannon Moore’s opinion piece in the ADN just revealed how out of touch Murkowksi really is.

    All of this added to Senator Murkowski’s recently demonstrated disregard for me when I was forced to sleep on the floor at Washington National Airport after hearing from Alaska Airlines employees that the VA-provided letter authorizing my travel with service/emotional support animals was not worth the paper it was written on AND after I contacted her office within minutes of the start of the ordeal, causes me to conclude with certainty that Lisa Murkowski is not the person all Alaskans can rely on as our US Senator.

    Can I have my vote back?

  5. Ice Gal says:

    Rural laska overwhelming wrote in murcowski. What did you expect?

  6. DanInAnc says:

    Lisa obviously created an EXCLUSION. I wish that she had the guts to actually discuss the reasons. There are some legitimate concerns with regards to subjecting non-Tribal members to Tribal jurisdiction outside of Indian Country, and I’m more than willing to listen to Murkowski’s reasons for opposing Tribal jurisdiction in those matters.

    But, she doesn’t seem to want to even admit what she did, much less explain herself.

    • yukonbushgrma says:

      For those of us who came from the lower 48, it can be hard to get our heads around a dual law enforcement system. When I came to rural Alaska 15 years ago, I had no idea how things worked. VPSO? – never heard of that. Troopers? – yeah, they maybe show up a couple times a year.

      Now, after living here for a while, I see how things really work, at least where I am. The Village Public Safety Officers and the Troopers are doing their best to do their jobs, given the remarkable constraints on their capabilities and the immense areas they cover. It would seem that THEY are key players in this discussion. Someone needs to bring them into the conversation, if that hasn’t been done. They are the ones with the experience and stories to tell.

      The VPSO here is just great, and he goes above and beyond to help folks. He works closely with the troopers, but when it comes down to it he knows they rarely come in here. When it comes down to it, he knows he’s probably alone – or maybe he has some local volunteer help.

      Not sure I’ve directly addressed the NARF issue, but it seems these concerns are a part of it.

  7. Zyxomma says:

    Thank you, both to Natalie Landreth and Alaska Pi. This is really difficult to understand. Ms. Murkowski sure looked to the native community to get herself re-elected; now she’s abandoning that same community, for reasons beyond my ken. There appears to be something seriously wrong with that woman.

    • Alaska Pi says:

      Zyx- the split here between Native government issues v corporate issues is deep and wide and muddier than the Mississippi, both within and without the Native community.
      AKM’s Voices-from-the-Flats piece by Mr Lauesen is one of the very best articulations of many of the issues that I have seen to date.

      AFN Day 2. Corporations are Not Tribes!

      http://www.themudflats.net/?p=17798

      Viewed from this distance from the Miller scare, it might shed some light . Ms Murkowski probably does care at some level but she is not prepared to take on the real battle, nor are the Regional Corporations (including mine) which dumped so much money into her re-election.

      • yukonbushgrma says:

        Wow, this gets pretty deep. All I know is, when I started reading this thread — knowing very little about what’s been going on — the first thought I had was “follow the money.” Guess that’s my years-ago training from journalism school.

        But then, Pi, I went to your link and Mr. Lauesen’s take on it. Amazing insights.

        Now I’m more convinced than ever than it truly is all about the money. And you know — money can’t buy happiness. Especially when government & politics are involved.

        Reading your link, I also found out that Elstun Lauesen comes from the same Ojibwe folks that my stepkids do, back in Wisconsin. Small world! Native Alaskan links to the Midwest are strong.

  8. Alaska Pi says:

    “Both civil and criminal jurisdiction provisions would have applied up here in Alaska regardless of whether you think we have “Indian Country” or not.”
    This is the most important part of the argument.

    The unsettled state of tribal sovereignty here , post ANCSA, has largely turned on the notion of whether we have Indian Country.
    The State of Alaska HAS fought every instance of exercise of the limited powers of sovereignty by Alaska Natives.
    The ACSPI letter included in the documents linked above addresses something I hadn’t quite been able to think through far enough to articulate, starting with :

    “Of particular concern are the “special” rules in the current proposed changes to VAWA
    that attempt to address Alaska Natives.Alaska Native tribes, with the usual exception
    of Metlakatla, is repeatedly excluded or given disparate treatment in Sections 905 and 910 of
    the proposed bill…”

    http://www.narf.org/cases/vawa/20130212-ACSPI_letter.pdf

    • Alaska Pi says:

      For those Outside and those unfamiliar with the tensions between for-profit Regional Corporations and tribal governments, most of this rings as true today as in 1997 when it was written :

      ” The political chaos and confusion of Alaska Native government systems today are also a direct result of ANCSA. The creation and empowerment of the for-profit corporations have severely limited the ability of authentic tribal governments to maintain the government-to-government relationship with Congress who oversees Indian Trust responsibilities. With the tribes’ ability to govern weakened, the for-profits inappropriately took it upon themselves to act as Alaska Natives governing authority, defining, prioritizing, and advocating Indian public policy.

      They have accomplished this by their controlling the majority of available votes within the Alaska Federation of Natives (AFN) membership. AFN is most often looked to by our congressional delegation and other institutions of the federal and state governments on issues affecting Natives across the state. A corporate controlled entity, such as AFN, should not be acting in any governing capacity any more than the individual village and regional for-profits.”
      http://arcticcircle.uconn.edu/SEEJ/Landclaims/moore.html

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