Ryan Dreveskracht's "Revictimizing Native Women for Political Purposes" Goes Viral

Ryan Dreveskracht's commentary, "Revictimizing Native Women for Political Purposes," regarding the increasingly partisan and misogynist VAWA reauthorization debate, was originally published on Crosscut. His op-ed has since been reposted by Turtle Talk, Indian Country Today Media Network, and pechanga.net, and has in turn gone viral via tribal social media.

As originally passed by the U.S. Senate, the Violence Against Women Act reauthorization legislation would allow tribes to exercise limited criminal jurisdiction over certain non-Indians who violate Native American women on Indian reservations. Tribes would be required to provide all rights accorded to defendants in state and federal court, and federal courts would have authority to review tribal court decisions that result in incarceration. The legislation would not raise the one-year maximum sentence that tribal courts can impose. The GOP-controlled House, however, omitted the protections for Indian women in its version of the bill.

Among those voting to omit the tribal protections were vice presidential candidate Paul Ryan, U.S. Senate candidate Akin, and House Republican King. In an interview originally broadcast on Sunday, Akin suggested that an abortion would be unnecessary in the instance of a “legitimate rape” because apparently only non-legitimate rape leads to pregnancy — whatever that means. Chiming in agreement, fellow House Rep. King said that he’s never heard of a girl getting pregnant from statutory rape or incest. While Akin and King quickly recanted, they cannot as simply withdraw their votes against the Senate’s proposed protections for abused Native women.

Also Monday, the News Tribune (editorial, “Protect Indian women without diluting Bill of Rights”) accused tribal governments of having “an agenda of their own: They see the domestic violence issue as a way to assert and reclaim broader sovereign powers.” The editorial is wrong. Indian country sees the the Violence Against Women Act (VAWA) reauthorization as a way to protect Indian women from being violently assaulted.

Ryan Dreveskracht is an Associate at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and general economic development. He can be reached at 206.909.3842 or ryan@galandabroadman.com.

Tribal Regulation Immunizes Certain Tobacco Sales from Federal-State Interference

Cigarettes sold by a tribally licensed retailer and pursuant to a state-tribe cigarette agreement are not contraband for purposes of the federal Contraband Cigarette Trafficking Act (CCTA) – even if they are contraband under state law. United States v. Wilbur, 10-30185, 2012 WL 1139078 (9th Cir. Apr. 6, 2012). The Ninth Circuit ruled last week in Wilbur that even if cigarettes are transported in violation of state law, the CCTA only makes cigarettes “contraband” in this context if they “bear no evidence of the payment of applicable State or local cigarette taxes in the State or locality where such cigarettes are found.” 18 U.S.C. § 2341(2). The cigarettes at issue during one period of the Wilbur case were unstamped. But the defendants qualified as an Indian retailer under Washington state law, came partially within the constraints of a tribal tobacco tax compact, and therefore were not subject to state taxes – even though they were allegedly illegal under state cigarette transportation laws and were out of compliance with some tribal regulations.

At its core, for the period in which convictions were overturned, the decision implicitly recognized the legitimacy of tribal tobacco regulation. This could, by analogy or otherwise, undercut the interpretation of the PACT Act by federal agencies that suggests tribal tobacco entities must be licensed by the state to be considered “lawfully operating” under that federal law.

The Wilbur defendants’ convictions were upheld for other periods of the alleged conspiracy. And of more concern is the appearance of state officers acting in federal clothing. As the opinion observed, “a Lieutenant with the Washington State Liquor Control Board who was deputized as a Special Deputy U.S. Marshall, led the search” of the defendants’ retail facility. Although tribal law enforcement also participated in the raids, it is nonetheless noteworthy that reliance by federal statute on state law predicates is problematic in the face of “the right of reservation Indians to make their own laws and be ruled by them.” Williams v. Lee, 358 U.S. 217, 220 (1959).

The apparent ability for state officers to don federal clothing and enforce the state-federal hybrid criminal frameworks on reservations is an even more profound threat to that right. As explicitly contemplated by the Tribal Law and Order Act, if federally deputized non-federal officers are enforcing laws on the Reservation, it should be federally deputized tribal officers doing so. This concern is of course nothing new, as Indian Country braces for and resists the STOP Act, which would essentially import state and big-tobacco interests into Reservation economies under color of federal law. Wolves in sheep’s clothing; Trojan horse; pick your cliché.

Besides the clarity provided by Wilbur, and its limitation on the reach of the CCTA, in the end, a state was still able to enforce its laws on the Reservation, against Reservation Indians.

Anthony Broadman is a partner at Galanda Broadman PLLC. He can be reached at 206.321.2672, anthony@galandabroadman.com, or via www.galandabroadman.com.

Ryan Dreveskracht Opines on Congress' Failure to Fund the TLOA

Ryan Dreveskracht is quoted at length today in Rob Capriccioso's article in Indian Country Today, Do Congress and Obama Really Support the Tribal Law and Order Act?. Ryan Dreveskracht is an Associate at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and general economic development. He can be reached at 206.909.3842 or ryan@galandabroadman.com.

Congress Strikes a Blow to Tribal Law and Order Act

According to the 2008 National Crime Victimization Survey, American Indians experience almost twice as much violence as other Americans. Among tribal members age 23 to 34, the rate of violent crime victimization is over 2.5 times the rate for all persons the same age. This is particularly true for Native American women, one-third of whom will be raped in her lifetime, most likely by a non-Indian. The Tribal Law and Order Act of 2010 ("TLOA") was Congress' official recognition that the federal government's approach to law and order in Indian country had absolutely failed. Indeed, it is federal law and policy alone that is primarily to blame for these statistics.

One way the TLOA sought to remedy the epidemic was to mandate that federal law enforcement cooperate and coordinate with tribal law enforcement. The TLOA sought to immediately increase tribal law enforcement funding levels. Because Indian country crime is local, these consultation and tribal funding mandates were deemed crucial to the effectiveness of the TLOA.

Most recently, on November 14, 2011, Congress released the fiscal year 2012 Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Programs Report, striking a major blow to the TLOA. The report indicates funding cuts for tribal justice programs across the board, and did not include a tribal set-aside for discretionary Office of Justice Programs needed to implement the TLOA. The Report also proposes $15 million cuts to both the COPS Tribal Resources Grant Program and the Tribal Youth Program. Funding for tribal assistance within Office of Justice programs was also cut, receiving only $28 million – $62 million short of the approximate $100 million initially proposed in President Obama's FY 2012 budget request.

In order for the TLOA to have any effect, federal agencies must comply with the law and Congress must provide adequate funding. Unfortunately – and in violation of the federal government's trust and treaty obligations – it appears that neither of these obligations are being fulfilled.

Ryan Dreveskracht is an Associate at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and general economic development. He can be reached at 206.909.3842 or ryan@galandabroadman.com.