Sen. Jeff Sessions (R-Alabama) is Republican president-elect Donald Trump's nominee for Attorney General of the United States. Photo: Gage Skidmore

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Donald Trump's Justice choice leaves door open to fight tribal jurisdiction

Wednesday, January 11, 2017

Sen. Jeff Sessions (R-Alabama) is refusing to repudiate his opposition to tribal jurisdiction despite acknowledging that non-Indians contribute to high rates of crime in Indian Country.

During the afternoon of his confirmation hearing to be Attorney General for Republican president-elect Donald Trump, Sessions was given another opportunity to embrace the landmark provisions of the Violence Against Women Act. The 2013 law recognizes the "inherent" authority of tribes to arrest, prosecute and sentence non-Indians who abuse their partners.

But in response to questions from Sen. Mazie Hirono (D-Hawaii), Sessions once again said he opposed those provisions, a position he was force to explain during his morning proceeding. "I was uneasy with it. I did not think it was a good approach," he told lawmakers.

Yet this time he went even further and left open the door for his Department of Justice to fight tribal jurisdiction over non-Indians.

"As Attorney General, you would not do anything to challenge that part of VAWA that allows for tribal courts to proceed?" Hirono asked.

"I would have to make a legal decision on that," Sessions responded. "I'm not able to do so today."

Native women rallied at the U.S. Supreme Court on December 7, 2015, as the justices heard Dollar General Corporation v. Mississippi Band of Choctaw Indians, a tribal jurisdiction case. Photo by Indianz.Com / Available for use under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License

Later in the afternoon, Sessions was forced to confront the issue a third time. Sen. Al Franken (D-Minnesota), who sits on the Senate Committee on Indian Affairs and has pushed to expand tribal authority over crimes not covered by VAWA, disclosed that he was among the lawmakers who brought up Indian Country violence during meetings with Trump's nominee.

"When I provided you with a statistic demonstrating just how prevalent violence against Native women is and at the hands of non-Indians, you expressed shock and said you didn't realize the extent of the problem," Franken said.

"Over 84 percent experienced domestic or sexual violence," Franken continued. "Over 97 percent of them are victimized by non-Indians."

"All you had to do was talk to one tribe and you've learned that women in an Indian Country are regularly abused by non-Indians who go unprosecuted and unpunished," Franken concluded.

Sessions, who had veered from his prepared opening statement to acknowledge the extremely high rates, sat in silence and did not dispute Franken's account of their meeting. He pledged to visit Indian Country if he is confirmed as Attorney General, something both of his predecessors in the Obama administration have done as they placed a priority on combating violence on tribal lands.

The refusal of a Justice nominee to accept that tribes have been successfully prosecuting non-Indians without major problems poses significant ramifications. It could embolden criminal defense attorneys to bring challenges in federal court, something that hasn't happened since 2013, when the first group of tribes began exercising their inherent authority in domestic cases. And it could prompt Congress to re-examine the historic VAWA provisions.

"On the tribal courts, those have now been prosecuted very carefully," Sen. Patrick Leahy (D-Vermont), a former chairman of the Judiciary committee, said during Tuesday's morning session. "Defendants receive due process rights -- they have to."

"None of the non-Indian defendants that have been prosecuted have appealed to federal court," he dded. "Many feel this has made victims in Indian Country feel safer."

The 2013 version of VAWA, which became law after strong lobbying efforts by Native women, requires tribes to strengthen their justice systems if they wish to exercise authority over non-Indians. Defendants are guaranteed access to attorneys and must be tried by a jury that represents "a fair cross-section of the community," according to the Office of Tribal Justice and Safety.

The first group of tribes prosecuted nearly 30 cases involving non-Indians under VAWA between 2013 and 2015, when the pilot project concluded. Not every case resulted in a guilty plea or conviction but none of the defendants went to federal court to dispute tribal authority.

Tribal advocates, however, expect that a habeas corpus petition will be filed eventually. If that happens, the views of the Department of Justice, as well as the Attorney General, could help determine the fate of the special domestic violence criminal jurisdiction provisions of VAWA.

The Judiciary panel is continuing its confirmation hearing of Sessions on Wednesday with testimony from witnesses who support and oppose his nomination.

Senate Committee on the Judiciary Notices:
Attorney General Nomination (January 10, 2017)
Attorney General Nomination (January 11, 2017)