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Donald Trump's Justice pick opposed tribal jurisdiction over non-Indians

Tuesday, January 10, 2017

Native women took part in the Quilt Walk for Justice in Washington, D.C., on December 7, 2015, to support tribal jurisdiction over non-Indians. Photo: Indianz.Com / Available for use under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License

Sen. Jeff Sessions (R-Alabama) was forced to admit that he opposed tribal jurisdiction over non-Indians as he went before the Senate for his confirmation hearing as Attorney General for Republican president-elect Donald Trump.

During his opening remarks to the Senate Committee on the Judiciary, Sessions veered from his prepared statement and said a number of his colleagues educated him about Indian Country. Specifically, they told him that the Department of Justice hasn't been doing enough to address violence against Native Americans.

"In our meetings over the past weeks, you have had the opportunity to share with me and your relating to the department from unprosecuted crimes on tribal lands, a matter that is greater than I had understood," Sessions told the committee.

But when pressed by Sen. Patrick Leahy (D-Vermont), a former chairman of the Judiciary panel, Sessions made two embarrassing revelations. First, he admitted that he opposed historic provisions in the Violence Against Women Act that recognize the "inherent" authority of tribes to arrest, prosecute and sentence non-Indians who abuse their partners.

"One of the more concerning provisions was a provision that gave tribal courts jurisdiction to try persons who were not tribal members," Sessions said. "That was a big concern that I raised," he said.

Yet when Leahy pointed out that tribes have been successfully prosecuting non-Indians since 2013 without major problems, Sessions made his second startling admission. Despite objecting to the VAWA provision, and making a point to bring up Indian Country crime in his initial statement, he said he hasn't followed up on the issue.

"I have no understanding of that," Sessions said after Leahy informed him that non-Indians who have punished by tribes have yet to appeal to the federal court system, a right that is ensured to the in VAWA.

Sessions did say he was "interested" in seeing how tribal jurisdiction plays out in the "real world." At the same time, he declined Leahy's invitation to change his mind about the provision he opposed back in 2013, instead offering to "defend the statute if it's reasonably defensible."

"In meeting with Senators prior to this hearing, I've had quite a number -- perhaps more than any other issue -- [say] that non-Indians that have gone on to tribal lands that have committed crimes including rape have not been effectively prosecuted," Sessions told the committee.

President Barack Obama signed S.47, the Violence Against Women Reauthorization Act of 2013, at the Sidney R. Yates Auditorium at the U.S. Department of Interior in Washington, D.C., on March 7, 2013. Photo: Chuck Kennedy / White House

During the exchange, Sessions offered some hints as to how he might approach the issue should he be confirmed as Attorney General. He suggested funneling more resources into the Federal Bureau of Investigation, an agency with a troubled history in Indian Country, in order to solve crimes on reservations.

Along those lines, he also said the Bureau of Indian Affairs investigative team should be "beefed up." The BIA is an agency of Department of the Interior, which would not fall under Sessions's authority if he is confirmed.

Finally, Sessions said U.S. Attorneys around the country "need to do probably a better job of prosecuting cases that need to be prosecuted in federal court."

But even if Sessions is successful in shoring up resources for the FBI -- a tough call given inadequate funding levels for Indian programs -- and pushing federal prosecutors to take on more cases, it still would not address high levels of violence against Native women and Native men. VAWA, for example, doesn't allow tribes to punish non-Indians who abuse children. It doesn't address sexual assaults committed by non-Indian strangers either.

Additionally, federal law limits which Indian Country crimes can be prosecuted in court. That means tribal governments are usually the first and only responders when it comes to violence on their lands.

For that reason, Native women have been pushing for a greater recognition of tribal sovereignty. President Barack Obama and his administration have championed the cause through VAWA, the Tribal Law and Order Act of 2010 and other initiatives.

"Native American women have a one in three chance of being raped in their lifetimes, something the president has described as a shock to the conscience," Cecilia Muñoz, the director of the Domestic Policy Council at the White House, told The Washington Post. "In part, this is because men who are not from a reservation can attack women on reservation land, escaping justice by tribal authorities once they are off the reservation."

The Department of Justice is charged with implementing key provisions of both laws, including a requirement to provide Congress with data about the number of cases that federal prosecutors decline to pursue in Indian Country. The department is also responsible for providing grants and assistance to tribes to help them improve their justice systems.

Sessions, when asked by Sen. Amy Klobuchar (D-Minnesota) about the "life-saving work" of the Office of Violence Against Women at DOJ, vowed to continue supporting those efforts if he is confirmed.

The exchanges about tribal jurisdiction came during the morning session of the Judiciary Committee's confirmation hearing. Sessions returned in the afternoon to face more questions and a second day has been reserved on Wednesday for additional grilling.