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Commentary Criminal Law

The Violence Against Women Act and The Necessity to Protect Indigenous Women

By: Bree Barnett

Introduction

            The Violence Against Women Act (VAWA) is once again up for reauthorization in 2021. VAWA has been reauthorized only three times since its enactment in 1994, in hopes of combatting the pervasive crimes that were being committed against women. Since its original passage in the mid-nineties, the act has been somewhat successful, with the overall rate of domestic violence declining tremendously.[1] However, the problem is nowhere close to being eliminated, as one in three women will still experience domestic violence in their lifetime. The statistics for Indigenous women are even bleaker, with 4 in 5 experiencing domestic violence and more than 1 in 2 having experienced sexual violence.[2] Native American women continue to suffer the highest rates of forcible sexual assault and experience almost 10 times the rate of domestic violence compared to the rest of the United States.[3] This gap can be partially attributed to the historic failures of VAWA’s protections for Indigenous women. This paper will discuss these failures, the newest iteration of the bill, and how federal protections like VAWA could be strengthened to provide adequate protections for Indigenous women.

The History of VAWA and its Failure to Protect Indigenous Women

            The original version of VAWA was one of the first federal packages that was designed to end violent crimes that are often perpetuated against women like domestic violence and sexual assault. The bill was created to provide funding for victim services, strengthen criminal protections for these crimes, and also attempted to make the process of receiving a restraining order easier. While this bill felt like a victory to the many women’s rights activists who had lobbied tirelessly to implement this legislation, in many ways it fell short, especially for Indigenous women across America. Indigenous women were not even a group that was specifically named and targeted for help in the bill until its 2005 authorization, despite many statistical showings that they are one of the most vulnerable populations for these kinds of crimes.[4] It took a great deal of pushback for the 2005 reauthorization of the bill to implement provisions that would combat gender-based violence on tribal land.

            However, VAWA has continuously fallen short due to the complications and conflicts presented by criminal jurisdiction on tribal lands. Criminal jurisdiction in Indian country has long been divided amongst federal, tribal, and state governments; a determination that is largely dependent upon the facts of the case. The race of the perpetrator, the seriousness or the type of crime, and the race of the victim all influence which governmental body will have jurisdiction to try the case.[5] These issues are further compounded by a Supreme Court case which severely limited the ability of tribal governments to prosecute non-native offenders for crimes committed in Indian country. In the 1978 case, Oliphant v. Suquamish Indian Tribe, the Supreme Court held that tribal courts could not exercise criminal jurisdiction over non-native defendants.[6] This case has created distinct issues for victims of sexual assault and domestic violence, as a majority of the crimes against Native American women are perpetuated by non-native men.[7] Oliphant disempowered tribal governments and revoked their ability to pursue justice for the women in their communities who are suffering domestic violence and sexual assault at the hands of non-native men. Congress’s failure to include the necessary provisions to further expand the jurisdiction of tribes and provide a safe harbor for Native American women meant that VAWA was largely useless to tribes and the women in their communities.

            It has taken Congress many years and several reauthorizations to create even a partial fix to the limitations created by Oliphant. In 2013, Congress amended VAWA and the Indian Civil Rights Act [8] to authorize “special domestic violence criminal jurisdiction,” which granted tribal courts oversight of criminal cases against non-native offenders who commit domestic violence related offenses under some very limited circumstances.[9] Importantly, the “special domestic violence criminal jurisdiction” did not grant jurisdiction over many of the crimes that VAWA intended to protect women from. Tribal courts still lack the authority to hear cases involving sexual assault, sex trafficking, and stalking. Additionally, while this provision did grant tribes the authority to oversee domestic violence cases occurring within the context of a romantic relationship between the victim and the perpetrator, tribal authority does not apply if the non-native defendant lacks sufficient ties to the tribe.[10] For tribes to benefit from this jurisdictional expansion, the defendant must reside on tribal lands, be employed on tribal lands, or be the spouse of a tribal member who resides on tribal land. Therefore, if the crime did not take place on tribal land, or the defendant lacked sufficient ties to the tribe, the tribal court still did not have jurisdiction to oversee the case. Additionally, for Tribes to even be eligible to utilize the jurisdictional expansion granted in this amendment, Tribal nations have to agree to uphold many of the enumerated rights of the non-native defendants and ensure that they are afforded the due process rights that exist under the United States Constitution..[11] Therefore, Indigenous women who are assaulted outside of their tribe’s territory, belong to a tribe who did not implement VAWA’s special jurisdiction, or have been assaulted by a defendant with insufficient ties to the tribe cannot turn to their own tribal government to pursue justice.

            The 2013 version of the bill stands as the most current rendition, due to the inability of Congress to reauthorize an updated version in 2018, after numerous disputes around what protections should be amended. Although VAWA has technically expired, funding for the programs remains in effect and continues to provide support for women across the United States. Ultimately, no new provisions or expansions in funding can take place unless Congress can successfully agree on the amendments this year.

The Proposed 2021 Legislation

            The 2021 amendments seek to maintain and expand many of the existing protections that were later included for Indigenous women. For example, new provisions of this bill seek to restore tribal jurisdiction over non-native perpetrators for crimes of sexual assault, stalking, child abuse, elder abuse, assault against law enforcement officers, and trafficking if they are committed on tribal lands, eliminating the earlier mentioned caveats.[12] The proposed amendments also aim to create a pilot project for up to five tribes in Alaska to implement special criminal jurisdiction. This is important because Alaska Native lands were not included as part of Indian country within any prior enactments of this bill and were therefore afforded no protections under VAWA.[13]

Additional portions of this bill also seek to support tribes in combating the human rights crisis of missing and murdered Indigenous women. As it stands, Indigenous women and girls are disproportionately impacted by homicide and sexual assault. As of 2016, the National Crime Information Center reported almost 6,000 cases of missing Indigenous women, and by comparison the U.S. Department of Justice only showed 116 missing Indigenous women.[14] The jurisdictional issues between state, local, federal and tribal law enforcement, combined with a lack of communication between the authorities responsible for tracking missing persons, make it nearly impossible to investigate cases of missing Indigenous women, thereby creating a legal vulnerability. [15] Section 901 of the 2021 bill clarifies the responsibilities of federal, state, tribal and local governments when responding to cases of missing and murdered Indigenous women, in the hopes that Congress can facilitate a path forward in facing the epidemic of these crimes.[16]

Continued Obstacles to Justice

            Despite the fact that each reiteration of VAWA has sought to improve upon the legislation and expand the availability of justice to Indigenous victims, the 2021 version of the bill falls short in its protections. An overarching theme present in federal legislation is that many politicians lack respect for and trust in the tribal court system, which is apparent in VAWA’s issues surrounding special criminal jurisdiction. One of the reasons many limitations exist to prevent tribes from holding jurisdiction over non-native defendants is because many elected officials and United States’ courts are concerned that tribal courts would not provide sufficient constitutional protections to non-native offenders accused of crimes and are simply not trusted enough to oversee the prosecution of these defendants.[17] These concerns infringe on tribal sovereignty and prevent tribal nations from being able to protect their members from serious violent crime. Congress must recognize the legitimacy of tribal courts and implement legislation that overturns the limited tribal jurisdiction established in Oliphant. If an individual commits a crime on tribal lands and victimizes a member of that tribal nation, the individual should be held liable to the justice system and codes of that tribe.

However, due to the historical limitations on tribal court systems, tribal nations would likely need a great deal of support to create and accommodate to taking on the prosecution of crimes that target Indigenous women. As it currently stands, many tribal codes do not contain laws against severe and violent offenses because these kinds of crimes have always fallen underneath the purview of the federal codes. Other obstacles may depend on the specific tribe, as some nations may have small-scale or limited funding for police forces, which pose issues in terms of the time and manpower available to take over the prosecution of offenses against women. Therefore, the road to tribal empowerment will not be accomplished overnight and is not a simple fix. The government must authorize tribal nations to protect their people and provide adequate funding so that they are actually equipped to develop strong codes, appropriate police forces, and effective judicial systems. Otherwise, simple reauthorizations of federal policies like VAWA will only be small steps in the right direction. To truly protect Indigenous women, Congress must uphold and support tribal sovereignty. Until then, the impact of VAWA will be severely limited and its true purpose will continue to be undermined.


[1] See generally Jennifer L. Truman and Rachael E. Morgan, Nonfatal Domestic Violence, 2003-2012, Bureau of Justice Statistics (2014), https://bjs.ojp.gov/content/pub/pdf/ndv0312.pdf.

[2] Ending Violence Against Native Women, Indian Law Resource Center, https://indianlaw.org/issue/ending-violence-against-native-women (last visited Nov. 4, 2021).

[3] Id.

[4] Sheena L. Gilbert, Emily Wright, and Tara Richards, Federal Policy has Failed to Protect Indigenous Women, The Conversation (June 18, 2021, 8:32 AM), https://theconversation.com/federal-policy-has-failed-to-protect-indigenous-women-159679.

[5] Introduction to the Violence Against Women Act, Tribal Court Clearinghouse, https://www.tribal-institute.org/lists/title_ix.htm (last visited Oct. 23, 2021).

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

[7] Lyndsey Gilpin, Native American Women Still Have the Highest Rates of Rape and Assault, High Country News (June 7, 2016), https://www.hcn.org/articles/tribal-affairs-why-native-american-women-still-have-the-highest-rates-of-rape-and-assault.

[8] The Indian Civil Rights Act of 1968, 25 U.S.C. §§1301-1304 (2013).

[9] Tribal Court Clearinghouse, supra note 5.

[10] Id.

[11] Special Domestic Violence Criminal Jurisdiction, The National Congress of American Indians, https://www.ncai.org/tribal-vawa/sdvcj-overview/due-process-requirements (last visited Nov. 1, 2021).

[12] Violence Against Women Act of 2021, H.R. 1620, 117th Cong. § 903 (2021). Available at https://www.congress.gov/bill/117th-congress/house-bill/1620/text.

[13] Charlene Koski, Reauthorization Efforts Continue, Including Focus on Expanding Jurisdiction for Alaska Native and Other Tribes, The National Law Review (Aug. 6, 2021), https://www.natlawreview.com/article/vawa-reauthorization-efforts-continue-including-focus-expanding-jurisdiction-alaska.

[14] Murdered Missing and Indigenous Women, Native Women’s Wilderness, https://www.nativewomenswilderness.org/mmiw (last visited November 1, 2021).

[15] Id.

[16] Violence Against Women Act of 2021, H.R. 1620, 117th Cong. § 901 (2021). Available at https://www.congress.gov/bill/117th-congress/house-bill/1620/text.

[17] Maura Douglas, Sufficiently Criminal Ties: Expanding VAWA Criminal Jurisdiction for Indian Tribes, 166 U. Pa. L. Rev. 745, at 774-775 (2018).

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Commentary

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.