The ANA Messenger - Spring Edition
Violence Against Women Act
On March 7th 2013, President Barack Obama marked a historical and victorious moment for Native American women across Indian Country. Witnessed by Tribal leaders during a ceremony at the Department of the Interior, President Obama signed a bipartisan bill to reauthorize the Violence Against Women Act (VAWA), with historic tribal provisions, into law. The reauthorized VAWA recognizes and affirms that tribal courts have jurisdiction over criminal cases brought by tribes against non-members, including non-Indians that arise under VAWA. This is the first time since a 1978 Supreme Court decision that the federal government has recognized tribal courts’ criminal jurisdiction over non-Indians. This is particularly important since, according to the U.S. Department of Justice, 86 percent of rapes and sexual assaults against Native American women are committed by non-Native American men and, according to the Government Accountability Office, between 2005 and 2009, 67 percent of sexual abuse cases sent to the federal government for prosecution were declined.
Native American and Alaska Native women experience sexual violence at a rate two and half times higher than other women in the United States according to U.S. Department of Justice Report authors Patricia Tjaden and Nancy Thoennes. The newly signed law not only provides a legal tool to address violence in Indian Country it affirms tribal courts and tribal sovereignty. In day-to-day terms, the reauthorized VAWA empowers tribes to exercise their sovereign power to investigate, prosecute, convict and sentence both Indian/non-Indians on tribal lands. However, Congress’s recognition of tribal criminal jurisdiction comes with significant limitations and preconditions requiring some tribes wishing to take full advantage of VAWA’s jurisdictional provisions to amend their existing tribal codes, hire new judges, and devote resources to pay for public defenders in order to qualify. In addition, there remain limitations on who can be prosecuted in tribal courts, for what crimes, and involving only certain victims.
Under the reauthorized VAWA, tribes can prosecute any type of violence committed by a person who is or has been in “a dating or domestic relationship” with the victim so tribal codes must be clear that the court’s jurisdiction is based on the presence of a “dating or domestic relationship” and not just the commission of the violent act alone. Tribes also can prosecute violations of protection orders that occur in Indian country as long as those protection orders were issued to prevent violent or threatening acts, or to prevent contact, communication or physical proximity with or to the victim.
Tribes can only prosecute VAWA cases against a non-Indian defendant if he or she resides in Indian country, is employed in Indian country, or is the spouse, intimate partner, or dating partner of an Indian living in Indian country or a tribal member. The last category includes former spouses, individuals who share a child in common, and individuals in social relationships of a romantic or intimate nature. Tribal codes should be clear that prosecutors must prove these facts as part of any VAWA case.
Tribes can only use the jurisdictional provisions of VAWA to prosecute crimes against Indian victims. The reauthorized VAWA does not recognize tribal authority to prosecute non-Indians for violent acts against non-Indian victims.
Although VAWA was first enacted in 1994 with bipartisan support, provisions specific to tribes were only recently included through the reauthorization process. On February 28th 2012, the final hurdle was passed when the Senate passed VAWA reauthorization. In addition to recognizing tribes, VAWA now also includes provisions that recognize the lesbian, gay, bisexual, and transgender community; and immigrant victims of domestic violence. Additionally, VAWA 2013 supports the work of community-based organizations that are engaged in work to end domestic violence, dating violence, stalking, and sexual violence.
Although tribes can issue and enforce civil protection orders now, generally tribes cannot criminally prosecute non-Indian perpetrators until March 7, 2015. However, a tribe may begin prosecuting non-Indians prior to March 7, 2015 if the U.S. Department of Justice determines the tribe’s criminal justice system fully protects defendants’ rights under federal law, the tribe participates in the new pilot project, and the U.S. Department of Justice grants the tribe’s request and sets a starting date. For more information look on the U.S. Department of Justice, Tribal Justice and Safety Homepage.
The outlook for tribal communities and Native American women is encouraging, with the anticipation that tribal communities are to exercise, enforce and determine their own law, while at the same time, offering victims a voice. VAWA 2013 supports self-governance, a stronger sense of community, and will hopefully reduce the number of female victims who encounter violence on the reservation.