Tribal Governments and Violence Against Women Act — Pilot Project

The following is a guest post by Jennifer Davis, a supervisory collection specialist in our Collection Services Division. 

March is the annual occasion to laud women’s landmark milestones and accomplishments for Women’s History Month.  A new pilot project began in March that is a signal triumph for women, particularly native women. It is also a milestone for tribal sovereignty.

When the Violence Against Women Act (VAWA) was reauthorized in 2013, the Department of Justice (DOJ) began a pilot project with three tribal governments to “exercise special domestic violence criminal jurisdiction (SDVCJ) over all persons, regardless of their Indian or non-Indian status” (Tulalip press release). The three nations are: Tulalip Tribes in Washington, the Confederated Tribes of the Umatilla in Oregon, and the Pascua Yaqui Nation in Arizona. The jurisdiction covers crimes of domestic and dating violence, and these tribes were chosen for the pilot by DOJ for their ability to protect defendants’ rights in the tribal criminal justice systems. After the pilot ends, DOJ expects all tribal courts to begin exercising special domestic criminal jurisdiction in March 2015 or later, when each tribal court wishes to begin that responsibility.

VAWA was modified in 2005’s reauthorization to include “a specific provision designed to improve safety and justice for American Indian and Alaska Native women”. The 2005 version of VAWA was the first time American Indian and Alaska Native women had been specifically addressed in the act. It was no small gesture; since Congress initially passed VAWA, annual incidents of domestic violence have decreased by 60%.  According to the Centers for Disease Control and Prevention (CDC), four in ten American Indian and Alaska Native women experience rape, physical violence, and stalking from a domestic partner at some point in their lives, a much higher rate than the national average of one in five for black and white (non-Hispanic) women in the United States. For not only do American Indian and Alaska Native women suffer a far greater rate of domestic violence than the national average, but prior to this new pilot, they were also caught in a strange limbo of court jurisdiction.

With this new provision in VAWA 2013, American Indian and Alaska Native women may feel more protected. A 2010 GAO report found that United States Attorneys declined to prosecute 52% of the cases classified as violent crimes in fiscal years 2005 through 2009. A follow-up study by the GAO demonstrated that coordinating adjudication, and communicating those coordination efforts, is a significant challenge for federal and tribal court authorities. The more direct special jurisdiction authority provided by VAWA 2013 (and the Tribal Law and Order Act of 2010) should give victims, and the tribes, a feeling of justice and security.

In the last thirty years or so, since the Supreme Court published its 1978 opinion in Oliphant v. Suquamish Indian Tribe, tribes have not had this level of jurisdictional authority. Despite having their own constitutions and corporate charters (the Umatilla and Tulalip Constitutions, and the Tulalip Corporate Charter are available to read on the Law Library’s American Indian Constitutions and Legal Materials Web page) and treaties with the United States (the Tulalip treaty is in the Library’s general collection), tribal courts could not do anything to prosecute violent crimes committed by non-Indians in Indian country. As the DOJ wrote, “Even a violent crime committed by a non-Indian husband against his Indian wife, in the presence of her Indian children, in their home on the Indian reservation, could not be prosecuted by the tribe” (DOJ Web site). Thanks to the significant efforts of tribal governments, particularly the efforts of Deborah Parker, vice chairwoman of the Tulalip Tribes who worked with Senator Patty Murray to advocate for the new tribal provisions of VAWA 2013, tribal governments have gained greater jurisdiction and greater sovereignty. Best of all, according to tribal leaders, the tribal governments achieve the satisfying sense of being better able to protect their own people.