Violence Against Women Act (VAWA) and Wind River

The Wind River film touched on many issues that Native people face. A wildlife officer, the protagonist, found the body of an 18-year-old Native woman; an autopsy later revealed that she was raped.  The film highlighted violence that Native women face and the challenges in bringing justice for Native women who experience violence. A study under the Department of Justice’s National Institute of Justice found that more than 4 out of 5 American Indian women have experienced violence (84.3%).[1]  About 56.1% have experienced sexual violence. According to the same study, 97% of American Indian women have experienced violence by at least one interracial perpetrator in their lifetime. In the Wind River film, a non-Native man, the antagonist, raped a Native woman. The film also alluded to other possible Native victims.

It has been a challenge to prosecute non-Native persons who commit crimes against Native women because of jurisdictional issues. In a 1978 case, Oliphant v. Squamish Indian Tribe, the United States Supreme Court ruled that tribes lack criminal jurisdiction over non-Indian offenders.[2] In 2013, Congress reauthorized Violence Against Women Act (VAWA). Through the VAWA act, Congress amended the Indian Civil Rights Act of 1968 to include tribal jurisdiction over crimes of domestic violence.[3] Since the passing of VAWA in 2013, only eight tribes have enforced its special jurisdiction over non-Indian defendants.[4]  Unfortunately, the tribe on the Wind River Reservation is not one of the VAWA tribes. Even if the tribe was exercising jurisdiction under VAWA, its authority is dependent on whether the crime occurred on the reservation and whether the defendant had “sufficient ties, such as living, working or having an intimate relationship on the reservation.” It is most likely the antagonist in the film would have not been prosecuted under tribal courts since his crime does not meet the necessary requirements under VAWA; the Native woman and offender have no relationship and it is unclear if the crime occurred on tribal lands. The jurisdiction of VAWA is limited but a necessary step towards justice for Native women who experience violence

By Ernestine Chaco, Staff

Ernestine is Diné (Navajo) from Tsé’íí’ahi (Standing Rock), N.M. She attended University of California-Davis School of Medicine and plans to be an emergency medicine physician. During her 4th year of medical school, she took a leave of absence to pursue her passion of understanding the intersection between Federal Indian Law and health issues at UNM School of Law. She is currently a second-year law student.  Ernestine holds a Bachelor’s Degree in Chemistry from Swarthmore College and a Master’s Degree in Medical Sciences from Indiana University-Purdue University Indianapolis.


[1] See, Andre B. Rosay, Violence Against American Indian and Alaska Native Women and Men, 277 National Institute of Justice Journal 38 (last modified October 19, 2016), https://nij.gov/journals/277/Pages/violence-against-american-indians-alaska-natives.aspx.

[2] Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).

[3] See Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, §§ 904, 908, 127 Stat. 54, 120-23, 125-26 (Mar. 7, 2013) (authorizing “tribal jurisdiction over crimes of domestic violence”).

[4] The tribes exercising jurisdiction under VAWA are: Pascua Yaqui Tribe(AZ), Tulalip Tribes of Washington, Confederated Tribes of Umatilla Reservation (OR), Sisseton Wahpeton Oyate (SD/ND), Assiniboine & Sioux Tribes of the Ft. Peck Reservation (MT), Little Traverse Bay Band of Odawa Indians (MI), Seminole Tribe of Oklahoma, Eastern Band of Cherokee Indians (NC). Tribal Implementation of VAWA: Resource Center for Implementing Tribal Provisions of the Violence Against Women Act (VAWA), National Congress of American Indians, http://www.ncai.org/tribal-vawa/getting-started#underthelaw.

 

 

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