This post was originally published on Turtle Talk on Nov. 22. 

On Wednesday, Senator Joni Ernst (R-Iowa) introduced a version of the Violence against Women Act bill that she sponsored. The new VAWA bill attempts to significantly erode tribal sovereignty in the name of “defending civil rights” by eliminating the exhaustion of tribal remedies, forcing an over-broad application of the U.S. Constitution in tribal courts, and providing a cause of action for defendants to sue tribes for civil rights violations.

This excerpt from the recent FMC Corp. v.  Shoshone-Bannock Tribes, — F.3d —-, 2019 WL 6042469 *22 (9th Cir. 2019), encompasses exactly why this bill is misguided in its attempts to abrogate tribal sovereignty:

“Making good on these due process guarantees, nearly five decades of tribal cases applying ICRA show that tribal courts protect the rights of both member and nonmember litigants in much the same way as do federal and state courts.” Norton, 862 F.3d at 1250. “[T]ribal courts often provide litigants with due process that ‘exceed[s] the protections offered by state and federal courts.’” Id. (second alteration in original) (citing Matthew L.M. Fletcher, American Indian Tribal Law 325 (2011))…[o]ur own experience in reviewing tribal court decisions is consistent with the findings of these studies. Tribal courts, like all courts (including our own), make mistakes. But, contrary to the contention of FMC, tribal courts do not treat nonmembers unfairly.

A copy of the bill is here.

The HuffPost ran an article on how this proposed VAWA legislation harms tribes on Thursday, November 21, 2019. That article is here.

Neoshia R. Roemer

University of Idaho College of Law

Neoshia R. Roemer is an Assistant Professor at the University of Idaho College of Law where she teaches courses in family law and Native American law.


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