By Carolyn Appel
The current jurisdictional framework which prohibits tribes from prosecuting non-Indian members for violent sexual crimes is unable to respond to patterns of escalating violence, leaving many serious acts of domestic and dating violence unprosecuted and unpunished. Sexual assault rates among Native American women are nearly twice the national average: one in three Native women have been raped or experienced an attempted rape. Moreover, federal law enforcement resources are often far away and stretched too thin to investigate and prosecute domestic violence crimes committed by non-Indians against Native women. Congress should act by passing the proposed Violence Against Women Reauthorization Act (VAWA), which includes Section 904, specifically addresses this important issue.
For more than a decade, VAWA has provided funding to states in order to increase the availability of services, prosecutors, and law enforcement personnel to victims of domestic violence. Originally enacted in 1994, VAWA was reauthorized twice, with unanimous Senate approval, in 2000 and 2005.
Included in this most recent reauthorization is Section 904, which enhances protections for women on tribal lands by allowing tribes to prosecute non-Native Americans for domestic and dating violence. This section is narrowly tailored to protect Native women from intimate partner and domestic violence: it only applies when the victim is an Indian and the crime occurs in Indian country. The prosecuting tribe also can only exercise special domestic violence criminal jurisdiction over a defendant who has ties to the tribal community; defendants with no ties to the tribal community would not be subject to the tribes’ jurisdiction.
Congress has the power to grant tribal governments criminal jurisdiction over non-Indians charged with crimes committed on reservations. In Oliphant v. Suquamish Indian Tribe, where a non-Indian man was charged with assaulting a tribal officer and resisting arrest during the Suquamish’s annual Chief Seattle Days celebration, the court expressly held that Indian reservations are part of the territory of the United States. As such, a tribes’ claim to criminal jurisdiction over non-Indians is constrained so as not to conflict with the interests of this overriding sovereignty. However, the Oliphant court held that tribes could prosecute non-Indian citizens of the United States “in a manner acceptable to Congress.” Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 210 (1978).
Twelve years after the Oliphant decision, in Duro v. Reina where a member of another tribe shot and killed and Indian youth within the reservation’s boundaries, the Court held that Indian tribes have jurisdiction only over members of their own tribes. In response, Congress enacted legislation specifically authorizing a tribe to prosecute Indian members of a different tribe. Thus, the proposed VAWA reauthorization is not the first time that Congress has taken action to expand tribal jurisdictional authority for criminal prosecution.
The “Duro fix” was upheld in U.S. v. Lara where an Indian man who was not a member of the Spirit Lake Tribe ignored the Tribe’s order excluding him from its reservation and struck a federal officer attempting to arrest him. The man pled guilty in Tribal Court for committing violence against a policeman and was then charged by the federal government for assaulting a federal officer. The man claimed that he could not be prosecuted because key elements of the federal crime mirrored elements of the tribal crime; thus he was protected by the 5th Amendment’s Double Jeopardy Clause. The Court in Lara held that the Constitution grants Congress broad powers to legislate with respect to Indian tribes, and that Congress can enact legislation that constrains or relaxes restrictions on tribal sovereign authority. Therefore, should Congress include Section 904 of the proposed reauthorization of VAWA, Congress would be explicitly expanding tribal jurisdictional power to prosecute non-Indians accused of committing domestic violence – an act which is constitutional.
Some have expressed concern that Section 904 does not provide adequate protection for non-Indians who would be subject to the special domestic violence criminal jurisdiction in tribal courts. The Indian Civil Rights Act of 1968 extends core protections, such as the Fourth Amendment right to be secure from unreasonable search and seizures and the Fifth Amendment privilege against self-incrimination, to any defendant – Indian or non-Indian. Section 904 reinforces these protections, requiring tribal courts to provide “all other rights…under the Constitution of the United States” which Congress finds necessary. S. 47, 113th Cong. § 904(d)(4).
On March 7, 2013, President Obama made the right move in signing into law VAWA reauthorization which included Section 904. This bill signifies a huge step forward in protecting Native women and ensuring that no person who commits an act of violence against an intimate partner is above the law.
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, (1978).
Duro v. Reina, 495 U.S. 676 (1990).
U.S. v. Lara, 541 U.S. 193 (2004).
Violence Against Women Reauthorization Act of 2013, S. 47, 113th Cong. § 904 (2013).