By: Callie Keen

On March 16, 2022, President Biden signed the Violence Against Women Act Reauthorization of 2022 into law.[1] The reauthorization of this Act extends protections and resources to victims of domestic violence across the nation.[2] In particular, the Act seeks to address an issue wherein the United States justice system has consistently failed victims of domestic violence: legal recourse for American Indian and Alaska Native women who are victims of domestic violence perpetrated by non-Native offenders on tribal land.[3] Since the founding of the United States, issues have arisen regarding jurisdiction of the tribal courts, federal government, and state governments.[4] Due to the complicated intersection of these separate entities, a critical jurisdictional gap exists for American Indian and Alaska Native victims of domestic violence in many cases.[5] Despite the efforts of lawmakers in this Act and across the past few decades, the jurisdictional gap remains a practical problem detrimentally impacting the lives of many American Indian and Alaska Native women today.

 

American Indian and Alaska Native (AI/AN) women experience intimate partner violence at a drastically heightened rate compared to other communities, and the vast majority of perpetrators are non-native individuals who escape legal recourse.[6] 84.3% of AI/AN women have experienced violence in their lifetime, and 55.5% have experienced physical violence by intimate partners.[7] AI/AN woman are 1.7 times more likely than white women to have experienced intimate partner violence in the past year, and AI/AN women are almost 2 times more likely to have experienced rape as white women over the course of a lifetime (34.1% compared to 17.9 percent).[8] This devastating trend has remained consistent over the past 30 years; according to a 2002 study, Native American women were twice as likely to experience rape or sexual assault compared to women of all other races and ethnicities.[9] In addition, the vast majority of perpetrators of domestic violence against AI/AN women are non-Native individuals.[10] 96% of AI/AN victims of sexual violence experience violence from non-Native perpetrators, and AI/AN women were 5 times more likely to have experienced physical violence by an interracial intimate partner as white women (90% compared to 18%).[11]

 

Further, though non-Native perpetrators constitute the majority of perpetrators of intimate partner violence against AI/AN women, they often successfully circumvent justice due to the presence of the jurisdictional gap. Historically, tribal courts have lacked jurisdiction over non-Indian perpetrators, even when the crime is committed on tribal land.[12] Under the General Crimes Act, the federal government has criminal jurisdiction by default when a non-Indian commits a crime against a Native American on tribal land, but due to limited resources and prioritization of other issues, the federal government has rarely exercised this jurisdiction.[13]

 

The Violence Against Women Act, including its reauthorizations, have made positive progress to close the jurisdiction gap and increase access to justice for American Indian and Alaska Native women; however, significant limitations of the legislation, that remain present in the 2022 reauthorization of VAWA, prevent the closing of the jurisdictional gap. In the Violence Against Women Reauthorization Act of 2013, tribal courts could opt-in for “special domestic violence criminal jurisdiction” (SDVCJ) over non-Native offenders for committing crimes of domestic violence on tribal land.[14] These offenses included domestic violence, dating violence, and criminal violations of protective orders by non-Indian offenders on tribal land.[15] As of 2018, the 18 tribes that opted-in to SDVCJ made a total of 143 arrests, with 74 convictions and 24 cases pending.[16] Leaders in various tribes have noted the positive impact of SDVCJ, not only for victims but also for the autonomy of the tribes themselves.[17]

 

The newly passed Violence Against Women Reauthorization Act of 2022 takes further steps to bridge the jurisdictional gap. It extends SDVCJ to Alaska Native villages through a pilot program.[18] The Act also expands tribal jurisdiction over child, dating, domestic, and sexual violence; sex trafficking; coercion; stalking; violations of protective orders; obstruction of justice; and assault of tribal justice personnel.[19]

 

However, despite these advancements, critical limitations persist in the implementation of SDVCJ that prevent the jurisdictional gap from being narrowed further. First, in order for tribes to implement SDVCJ, their justice systems must comply with VAWA statutory requirements.[20] Some tribes only have to alter small sections of code and can implement fairly easily while others must rewrite large sections of code or amend their constitutions to comply with the statute.[21] Second, to implement SDVCJ, several tribes have to build or contract for additional services, such as indigent defense counsel, that did not exist or could not easily expand to non-Indian defendants; some had to renegotiate detention contracts with neighboring jurisdictions of the Bureau of Indian Affairs to allow them to house non-Indian offenders.[22] All of these processes take significant time and resources that ultimately bar access to implementation of SDVCJ for many tribes.[23] Thus, while the Violence Against Women Reauthorization Act of 2022 expands access to justice for AI/AN women in critical ways, the barriers to implementation still prevent many AI/AN women from access to legal recourse for crimes perpetrated by non-Indian offenders. In order to further narrow the jurisdictional gap and increase access to justice for American Indian and Alaska Native women, we should seek policy solutions that address barriers to implementation of SDVCJ.

 

[1] Alex Gangitano, Biden Signs the Reauthorization of the Violence Against Women Act, The Hill (Mar. 16, 2022), https://thehill.com/homenews/administration/598472-biden-signed-reauthorization-of-the-violence-against-women-act?rl=1.

[2] Id.

[3] Id.

[4] Shefali Singh, Closing the Gap of Justice: Providing Protection for Native American Women Through the Special Domestic Violence Criminal Jurisdiction Provision of VAWA, 28 Colum. J. Gender & Law 197 (2014).

[5] Id.

[6] National Congress of American Indians Policy Research Center, Research Policy Update: Violence Against American Indian and Alaska Native Women (2018).

[7] Id.

[8] Id.

[9] Shefali Singh, Closing the Gap of Justice: Providing Protection for Native American Women Through the Special Domestic Violence Criminal Jurisdiction Provision of VAWA, 28 Colum. J. Gender & Law 197 (2014).

[10] National Congress of American Indians Policy Research Center, Research Policy Update: Violence Against American Indian and Alaska Native Women (2018).

[11] Id.

[12] See generally Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978); Duro v. Reina, 495 U.S. 676 (1990); United States v. Lara, 541 U.S. 193 (2004).

[13] 18 U.S.C. § 1152 (2021); Jennifer L. Hartman, Seeking Justice: How VAWA Reduced the Stronghold Over American Indian and Alaska Native Women, Sage Journals (2020).

[14] Violence Against Women Reauthorization Act of 2013, PUB. L. NO. 113-4 (2013).

[15] Id.

[16] National Congress of American Indians, VAWA 2013’s Special Domestic Violence Criminal Jurisdiction Five-Year Report (2018).

[17] Id.

[18] Friends Committee on National Legislation, Introduction of VAWA Reauthorization Bill is a Major Step Forward for Tribal Communities (Feb. 11, 2022).

[19] Id.

[20] National Congress of American Indians, VAWA 2013’s Special Domestic Violence Criminal Jurisdiction Five-Year Report (2018).

[21] Id.

[22] Id.

[23] Id.