15.4 Violence Against Women Act and Tribal Jurisdiction

Violence Against Women Act (VAWA) is a crucial federal law addressing violence against Native women. It's a game-changer for tribal sovereignty, allowing tribes to prosecute non-Indian offenders for certain crimes on tribal lands.

Before VAWA, tribes couldn't prosecute non-Indians, creating a dangerous loophole. Now, tribes can tackle domestic violence, sexual assault, and other crimes against Native victims, marking a significant step in protecting Native women and restoring tribal authority.

Tribal Jurisdiction and VAWA

Violence Against Women Act (VAWA) and Tribal Sovereignty

• VAWA is a federal law first passed in 1994 that provides funding and resources to combat violence against women
• Tribal sovereignty refers to the inherent authority of Native American tribes to govern themselves and exercise jurisdiction over their territories
• VAWA 2013 reauthorization included a provision recognizing tribes' special domestic violence criminal jurisdiction over non-Indians who commit certain crimes on tribal lands
• This provision was a significant step in restoring tribal sovereignty and addressing the high rates of violence against Native women
• VAWA 2022 reauthorization further expanded tribal jurisdiction to cover non-Indian perpetrators of sexual assault, child abuse, stalking, sex trafficking, and assaults on tribal law enforcement officers on tribal lands

Limitations on Tribal Jurisdiction Prior to VAWA

• Oliphant v. Suquamish Indian Tribe (1978) was a Supreme Court decision that held tribes do not have inherent criminal jurisdiction over non-Indians
• This decision created a jurisdictional gap that allowed non-Indian offenders to commit crimes on reservations with impunity
• Prior to VAWA 2013, tribes could not prosecute non-Indians for domestic violence and other crimes committed against Native women on tribal lands
• This lack of jurisdiction contributed to the disproportionately high rates of violence against Native women (more than 1 in 3 will be raped in their lifetimes and 3 in 5 will experience domestic violence)

Special Domestic Violence Criminal Jurisdiction Under VAWA

• VAWA 2013 recognized tribes' special domestic violence criminal jurisdiction over certain non-Indian offenders
• This jurisdiction allows tribes to prosecute non-Indians for domestic violence, dating violence, and violation of protection orders when the victim is Native and the crime occurs on tribal land
• Tribes must provide certain due process protections to defendants in these cases (right to counsel, jury trials, etc.)
• Over 25 tribes have implemented special domestic violence criminal jurisdiction since 2013 and have successfully prosecuted numerous non-Indian offenders

Crimes Covered Under VAWA

Domestic Violence and Dating Violence

• Domestic violence involves violent or abusive acts committed by a current or former spouse, intimate partner, or family member
• Dating violence refers to violence committed by a person who is or has been in a romantic or intimate relationship with the victim
• VAWA 2013 allowed tribes to prosecute non-Indians for domestic violence and dating violence against Native victims on tribal lands
• Examples of domestic violence include physical assault, sexual abuse, stalking, and psychological abuse
• Dating violence can involve similar acts of abuse committed in the context of a dating relationship

Sexual Assault and Other Crimes Added in VAWA 2022

• Sexual assault involves non-consensual sexual contact or behavior, often involving force, coercion, or incapacitation of the victim
• VAWA 2022 reauthorization expanded tribal jurisdiction to cover non-Indian perpetrators of sexual assault, child abuse, stalking, sex trafficking, and assaults on tribal law enforcement officers
• This expansion was in response to the high rates of these crimes committed against Native victims by non-Indian offenders on tribal lands
• For example, 96% of Native women who experience sexual violence are assaulted by non-Native perpetrators
• Child abuse covered under VAWA can include physical, sexual, or emotional abuse of Native children by non-Indian offenders on tribal lands

Tribal Courts and Due Process

Tribal Court Systems and Due Process Requirements

• Tribal courts are the judicial systems of Native American tribes, exercising jurisdiction over civil and criminal matters arising on tribal lands
• Under VAWA 2013 and 2022, tribes exercising special domestic violence criminal jurisdiction must provide certain due process protections to non-Indian defendants
• These protections include the right to counsel, right to a jury trial, right to a speedy and public trial, and other rights afforded under the U.S. Constitution
• Tribes must also ensure their laws and procedures protect the rights of defendants and are consistent with the Indian Civil Rights Act
• Many tribes have well-established court systems that meet or exceed these due process requirements

Cooperation Between Tribal and State/Federal Authorities

• Cross-deputization agreements allow tribal and state/local law enforcement officers to enforce each other's laws and make arrests in each other's jurisdictions
• These agreements can facilitate cooperation and coordination in investigating and prosecuting crimes on tribal lands, including those covered under VAWA
• Federal authorities, such as the FBI and U.S. Attorneys' offices, also have jurisdiction over certain crimes committed on tribal lands (under the Major Crimes Act and General Crimes Act)
• Cooperation between tribal, state, and federal authorities is crucial for ensuring public safety and holding offenders accountable on tribal lands

Habeas Corpus Review of Tribal Court Decisions

• Under VAWA 2013 and 2022, non-Indian defendants convicted in tribal courts can petition for habeas corpus review in federal court
• Habeas corpus is a legal principle that allows individuals to challenge the legality of their detention or imprisonment
• This provision allows federal courts to review tribal court decisions to ensure that defendants' rights were protected and due process was followed
• Habeas corpus review serves as an additional safeguard to ensure the fairness and integrity of tribal court proceedings under VAWA