On March 7, President Obama signed legislation that will change the landscape of protecting American Indian victims of domestic violence. The Violence Against Women Act of 2013 (VAWA) contains provisions that recognize the authority of tribal courts to prosecute domestic violence crimes committed against American Indian women.
This is a big leap forward in the crusade to care for Indian domestic violence victims. Indigenous women experience some of the highest rates of sexual assault in the country. According to the U.S. Department of Justice, nearly half of all American Indian women have been raped, beaten or stalked by an intimate partner. On some reservations, women are murdered at a rate 10 times higher than the national average.
Criminal jurisdiction in Indian Country is a complex area of federal law. Piecing together statutory provisions and case holdings results in a maze of jurisdictional rules. Until March 7, this resulted in significant gaps in protections for tribal victims of domestic violence.
Since the 1978 U.S. Supreme Court decision of Oliphant v. Suquamish Indian Tribe, tribal courts have lacked the authority to prosecute perpetrators who are non-Indian, which makes up about one quarter of all cases of family violence. Federal statutes outline that when a crime is committed by a non-Indian perpetrator against an Indian victim, prosecutorial authority is vested solely in the federal government. A majority of those crimes go unprosecuted.
The most recent success to overturning Oliphant was the Tribal Law and Order Act of 2010. While this legislation enhanced federal responses to domestic violence in Indian Country, it stopped short of restoring tribal authority over non-Indian offenders.
With the signing of VAWA, tribes will be allowed to elect to exercise special domestic violence criminal jurisdiction over non-Indians for crimes committed inside of the tribe's territorial boundaries. The special criminal jurisdiction allows tribes to prosecute domestic violence and dating violence, as well as violations of protective orders when the defendant resides or works in tribes' territory, or if the defendant is a spouse, intimate partner or dating partner of a member of the tribe or any Indian who lives within the tribe's territory.
Tribes that elect to exercise special domestic violence criminal jurisdiction over non-Indians under VAWA must afford defendants subjected to any term of imprisonment the protections included under the Tribal Law and Order Act's enhanced sentencing provisions. Tribes must also publish their criminal codes, regulations and interpretive documents, and must maintain a record of the criminal proceedings.
This legislation takes an important step toward strengthening tribal governments' authority to protect their citizens.
Ross-Petherick is an attorney with Hall Estill who specializes in tribal law.