The Violence Against Women Act – Title IX: Safety for Indian Women

The Violence Against Women Act (VAWA), originally passed in 1994, is a collection of funding programs, initiatives, and actions designed to improve criminal justice and community-based responses to violence against women, including sexual violence, in the United States. This page discusses the extent to which VAWA pertains to American Indians, including specifically tribal courts.

The Department of Justice has posted its Federal Register Final Notice establishing Procedures for the VAWA 2013 Tribal Pilot Project for tribal governments to implement special domestic violence criminal jurisdiction

NCAI in collaboration with TLPI and NCJFCJ will be hosting a discussion webinar regarding the Final Notice and the Application Questionnaire on Tuesday, December 3^rd at 2:30 p.m. Eastern. Register for the webinar here. Sam Hirsch, Deputy Associate Attorney General, has been invited to join and answer questions.

VAWA has been reauthorized three times. It was reauthorized for the third time on March 7, 2013. (Violence Against Women Reauthorization Act of 2013, S. 47, 113th Congress, 2013-2015.) VAWA of 2013 included Title IX—Safety for Indian Women.

Like all areas of Indian law, context is crucial to understanding the nature of the tribal provisions in VAWA, and their potential impact in Indian country.

Native Americans are victims of violent crime at rates more than double those of any other demographic group in the United States.[1] In particular, violence against Native women has reached epidemic proportions. Native women are battered, raped, and stalked at far greater rates than any other population of women in the United States: 34% of Native women will be raped in their lifetimes and 39% will be the victim of domestic violence.[2] Amnesty International’s Maze of Injustice Report (2007) similarly noted that American Indian and Alaska Native women continue to experience high levels of sexual violence.

Violence in Indian country is compounded by a systemic failure to prosecute offenders. Criminal jurisdiction in Indian country is divided among federal, tribal, and state governments, depending on the location of the crime, the type of crime, the race of the perpetrator, and the race of the victim. (See our General Guide to Criminal Jurisdiction in Indian Country.)  This complexity has resulted in significant impediments to law enforcement in Indian country. One of the more debilitating factors, however, is that tribal courts are without any recourse against non-Indian offenders in Indian country due to a 1978 Supreme Court case. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), held that tribal courts lack criminal jurisdiction over non-Indian defendants.

Special Domestic Violence Criminal Jurisdiction

Therefore, after 35 years, Congress enacted a partial-Oliphant fix in Title IX of the reauthorized VAWA of 2013 to respond to crimes committed by non-Indian offenders in Indian country. Among its other provisions, Congress amended the Indian Civil Rights Act (ICRA) of 1968 to authorize "special domestic violence criminal jurisdiction" to tribal courts over non-Indian offenders who commit (1) domestic violence, (2) dating violence, or (3) violate a protection order. See the text of the amended-ICRA here.

Note that due to jurisdictional frameworks in existence prior to VAWA, either the federal or state government will continue to have concurrent jurisdiction over these same non-Indian offenders, for the same crime prosecuted by the tribal court. Note that because tribes are distinct sovereigns from the states and from the federal government, there are no double jeopardy concerns for dual prosecutions. (See our General Guide to Criminal Jurisdiction in Indian Country.)

What Special Domestic Violence Criminal Jurisdiction Covers and Does Not Cover

A “participating tribe,” or a tribe that elects to utilize the special domestic violence criminal jurisdiction, may prosecute a non-Indian defendant for acts of (1) domestic violence or (2) dating violence that occur in the Indian country of the participating tribe; and (3) violations of Protection Orders that are violated in the Indian country of the participating tribe. “Domestic violence,” “dating violence,” and “protection orders,” are defined within the Text of the Law Here.

It is important to note that the “special domestic violence criminal jurisdiction” does NOT include the crime of sexual assault. If a defendant commits sexual assault, and the assault does not occur within the contexts of either domestic violence, dating violence, or a violation of a protection order, then the tribal court remains without recourse. However, if the assault does occur within the context of one of those three offenses, then the defendant may be held accountable in tribal court. This is noteworthy because the definitions of domestic and dating violence require some evidence of a preexisting relationship between the defendant and the victim. They therefore prohibit the prosecution of a defendant for sexual assault that occurred during a “hook up,” or any other instance in which the defendant and the victim do not have a prior romantic relationship.

Finally, “special domestic violence criminal jurisdiction” is reserved only for certain defendants. The expanded jurisdiction does NOT apply when:

• Victim and Defendant Are Both Non-Indian – A tribe may not exercise special domestic violence criminal jurisdiction over a non-Indian defendant if the victim is also non-Indian.
• Non-Indian Defendant Lacks Sufficient Ties to the Indian Tribe – A defendant must either
  • Reside in the Indian Country of the participating tribe;
  • Be employed in the Indian Country of the participating tribe; or
  • Be a spouse, intimate partner, or dating partner of a tribal member, or an Indian who resides in the Indian country of the participating tribe.
• The Crime Did Not Take Place In the Indian Country of a Participating Tribe.

Note that while a defendant must have certain connections to the tribe in order to be prosecuted by the tribal court, these restrictions pertain to “Indians,” rather than “tribal-members.”  Therefore, a non-Indian defendant may be prosecuted for domestic violence involving an Indian victim, regardless of whether the victim is a member of the prosecuting tribal court, so long as the crime took place in the Indian country of the prosecuting tribe, and the defendant satisfies at least one of the three factors for sufficient ties.

When Does this New Law Take Effect?

Although tribes can issue and enforce civil protection orders now, tribes cannot begin to criminally prosecute non-Indian offenders for domestic violence, dating violence, or violation of civil protection order until at least March 7, 2015.

Pilot Project

A tribe can start prosecuting non-Indian abusers sooner than March 7, 2015, if—

• The tribe’s criminal justice system fully protects defendants’ rights under Federal law;
• The tribe asks to participate in the new Pilot Project; and
• The Justice Department grants the tribe’s request and sets a starting date.

Prosecuting Violations of Protection Orders

In order to prosecute a non-Indian defendant for violating a protection order in Indian country, the protection order must:

• protect against violent or threatening acts or harassment against, sexual violence against, contact or communication with, or physical proximity to, another person;
• was issued against the defendant;
• is enforceable by the participating tribe; and
• is consistent with 18 U.S.C. § 2265(b), governing Full Faith and Credit given to Civil Protection Orders.

Clarification: Tribes Have Full Civil Jurisdiction to Issue and Enforce Protection Orders Against All Persons

Section 905 of VAWA Title IX, rather than granting new authority, clarifies the intent of VAWA 2005 regarding tribal civil jurisdiction to issue protection orders. VAWA 2005 intended for tribes to have full civil authority to issue and enforce protection orders against Indians and non-Indians alike. Unfortunately, at least one federal court has suggested that tribes lack civil jurisdiction to issue and enforce protection orders against non-Indians who reside on tribal lands. Martinez v. Martinez, No. C08-5503 FDB (D. Wash. 2008). Section 905 of VAWA Title IX clarifies that every tribe has full civil jurisdiction to issue and enforce protection orders against all persons regarding matters arising on tribal lands, and that such orders are entitled to full faith and credit by non-tribal jurisdictions.

Note that the civil authority to issue a protection order is distinct from the criminal authority to prosecute a defendant for violating a protection order.

Due Process Protection Requirements

Unfortunate for tribal sovereignty, Congress did not provide a condition-less Oliphant fix Rather, very similar to the Tribal Law and Order Act, a tribal court must provide certain, enumerated due process protections before prosecuting a non-Indian defendant.

Part (d) of Section 204 of Title IX details the due process protections that must be provided to non-Indian defendants. These protections include all of the TLOA due process protections (even if tribes do not impose the enhanced sentencing options). These protections include:

• Defendant has the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution;
• The Tribal Government will provide indigent (poor) defendants assistance of defense attorneys licensed to practice law
  • by any jurisdiction in the United States;
  • that applies appropriate professional licensing standards and effectively ensure the competence and professional responsibility of its licensed attorneys;
    • Note that “any” jurisdiction could include tribal bar associations, so long as “appropriate professional licensing standards” are applied.
    • See “Judicial and Attorney Qualifications, Licensure, and Ethical Standards,” PowerPoint by Christine Folsom-Smith, the National Tribal Judicial Center, presented at the American Indian Justice Conference, May 10, 2013.
• Judge presiding over the criminal proceeding
  • has sufficient legal training to provide over the criminal proceeding; and
  • is licensed to practice law by ANY jurisdiction in the United States;
    • Note that the standard for a Judge is different than the standard for a defense counsel. The licensing standards for the Judge are less strict; a Judge only needs “sufficient legal training” rather than formal law school; and finally, a Judge is not held to a U.S. Constitutional standard, whereas defense counsel is.
• The tribe’s criminal law (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure are made publicly available; and
• The tribal court maintains a record of the criminal proceeding.

In addition to the due process protections required by the TLOA, VAWA of 2013 requires several additional due process protections. These include:

• Defendants have the right to petition a federal court for habeas corpus to challenge any conviction and to stay detention prior to review;
• Any non-Indian defendant has the right to a trial by jury drawn from sources that do not systematically exclude any distinctive group in the community, including non-Indians;
• Any Indian tribe that has ordered the detention of anyone under the special domestic violence criminal jurisdiction provision has a duty to notify that person of all their rights; and
• Defendants must be provided “all other rights whose protection is necessary under the Constitution of the United States in order for Congress to recognize and affirm the inherent power of the participating tribe.

Note that because the TLOA of 2010 and the VAWA of 2013 are fairly recent legislation, these due process protections have not been “tested” or litigated. Therefore, it is still “too early to tell” what is necessarily required to satisfy these due process requirements.

Additionally note that these due process protections must only be provided by a tribal court that is utilizing the “special domestic violence criminal jurisdiction.” Moreover, the due process protections must only be provided for the “criminal proceeding” in which the special criminal jurisdiction is being used. Therefore, a tribal court is only required to provide these due process protections for proceedings in which a non-Indian defendant is being prosecuted, while other proceedings are only bound by the due process protections in Section 1302(a) of the ICRA.

See the text of the amended-ICRA, which includes these due process protections, here.

Special Domestic Violence Criminal Jurisdiction Does NOT Apply to Alaskan Tribes

In the State of Alaska, special domestic violence criminal jurisdiction only applies to the Indian country of the Metlakatla Indian Community, Annette Island Reserve. Therefore, all other tribes located in Alaska are exempted from this expansion of criminal jurisdiction. This exemption includes the provision authorizing tribes to prosecute defendants for violating protection orders. This text of this “special rule” states:

VAWA SEC. 910. SPECIAL RULE FOR THE STATE OF ALASKA.

(a) Expanded Jurisdiction—In the State of Alaska, the amendments made by sections 904 and 905 [i.e. recognition of civil domestic violence jurisdiction over "any person"] shall only apply to the Indian country (as defined in section 1151 of title 18, United States Code) of the Metlakatla Indian Community, Annette Island Reserve.

(b) Retained Jurisdiction—The jurisdiction and authority of each Indian tribe in the State of Alaska under section 2265(e) of title 18, United States Code (as in effect on the day before the date of enactment of this Act)—

(1) shall remain in full force and effect; and

(2) are not limited or diminished by this Act or any amendment made by this Act.

(c) Savings Provision—Nothing in this Act or an amendment made by this Act limits or diminishes the jurisdiction of the State of Alaska, any subdivision of the State of Alaska, or any Indian tribe in the State of Alaska.

Other Federal Laws Still Apply

The special domestic violence criminal jurisdiction authorized in the VAWA of 2013 is a Congressionally-authorized grant of expanded jurisdictional authority. However, tribes are still bound by all other Federal law, which include both statutes and case law. For example, besides the crimes of domestic violence, dating violence, and violation of protection orders, tribes still lack criminal jurisdiction over non-Indian defendants[3]. If a non-Indian defendant is prosecuted in tribal court for one of those three crimes, that defendant, like all other defendants in tribal court, cannot be sentenced beyond one year or fined beyond $5,000. If the tribe has adopted the enhanced sentencing provisions under TLOA, the tribe can sentence the non-Indian defendant up to 3 years and fine up to $15,000, but only if the tribe satisfies the requirements under the TLOA.

Similarly, there may be existing legal or practical realities that prevent a tribe from utilizing the special domestic violence criminal jurisdiction. These limitations could include Congressional Recognition or Settlement Acts that specifically limit jurisdiction over non-Indians; limitations on criminal jurisdiction within a tribe's constitution; or if a tribe is not currently exercising criminal jurisdiction, such as in a Public Law 280 state.

Constitutionality of Title IX

Some have questioned the ability of Congress to recognize a tribe’s inherent authority to criminally prosecute a non-Indian defendant. However, given past Supreme Court case law, the long legal history of Congressional plenary power over Indian tribes, and the application of the Indian Civil Rights Act, these concerns are likely not valid.

The United States Constitution grants Congress broad legislative power in respect to Indian tribes. This power derives from the Constitution. The text of the Constitution refers to Indians and Indian tribes in the commerce clause and the apportionment clause of Article I and the fourteenth amendment. In addition, the treaty clause, while not explicitly referencing Indian tribes, contributed to the present understanding of a government-to-government relationship between tribes and the United States.[4] The Supreme Court has recognized that these Constitutional provisions empower Congress with the "plenary and exclusive authority" over Indian affairs.[5]

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), held that tribal governments lack criminal jurisdiction over non-Indian defendants. However, as noted in this April 21, 2012 Letter to the Senate and House Judiciary Committees signed by fifty law professors, the reasoning in Oliphant was based in common law, and not in the Constitution. In United States v. Lara, 541 U.S. 193 (2004), the Supreme Court upheld a Congressionally-enacted statute that recognized the inherent power of an Indian tribe to exercise criminal jurisdiction over all Indians. The Court held that "Congress does possess the constitutional power to lift the restrictions on the tribes’ criminal jurisdiction."[6]

Tribes conducting prosecutions, regardless of whether the defendant is Indian or non-Indian, are bound by the Indian Civil Rights Act of 1968 to provide most of the rights required if the Constitution applied to tribes. In addition, tribes utilizing the "special domestic violence criminal jurisdiction," as described above, must provide added due process protections. Thus, any concerns that a defendant in tribal court will not receive a "fair trial" are necessarily assuaged.

To learn more about the constitutionality of the special domestic violence criminal jurisdiction, see the Law Professors Letter to Senate and House Judiciary Committees, April 21, 2012.

Past VAWA Acts

The Violence Against Women Act was first passed by Congress in 1994. The original VAWA of 1994 (Title IV, sec. 40001-40703 of the Violent Crime Control and Law Enforcement Act of 1994, H.R. 3355) provided funding towards the investigation and prosecution of violent crimes against women, imposed automatic and mandatory restitution on those convicted, and allowed civil redress in cases prosecutors chose to leave unprosecuted. The Act also established the Office on Violence Against Women (OVW) within the Department of Justice (DOJ).

VAWA 2000

VAWA includes automatic expiration dates, for which Congress must reauthorize the Act. VAWA was reauthorized in 2000, 2005, and 2013. In 2000, Congress granted tribal courts full civil jurisdiction to enforce all protection orders, regardless of what jurisdiction issued the original order. (Victims of Trafficking and Violence Protection Act of 2000, AWA 2000, H.R. 3244, Division B, 106th Congress, 1999-2000).

VAWA 2005

The expanded and reauthorized 2005 version of the Act (VAWA 2005 Reauthorization Act, H.R. 3171, 109th Congress, 2005-2006) contained, for the first time, a specific Tribal Title (Title IX), which sought to improve the safety and justice for Native American and Alaska Native women.

Title IX of 2005 included provisions for:

• authorization for Indian law enforcement agencies to access national criminal information databases;
• expansion of the Firearms Possession Prohibition to include tribal law convictions;
• increased punishment through federal prosecutions for repeat domestic violence offenders who have at least two tribal convictions.
• the creation of a national tribal sex offender registry and a national registry containing protection orders issued by Indian tribes;
• authorization for Bureau of Indian Affairs (BIA) officers to arrest, without a warrant, persons reasonably believed to have committed certain domestic violence offenses;
• annual consultation sessions between the U.S. Department of Justice (DOJ) and tribal governments regarding distribution of tribal funds;
• national studies to examine violence against Native American and Alaska Native women, evaluate the effectiveness of tribal, federal, state and local responses, and  examine the cost of providing related health services; and
• a mandate that 10 % of funds allocated by the STOP (Services, Training, Officers and Prosecutors) grant program be set aside for tribal programs. An additional 10% of funding for direct services for victims of sexual violence was set aside for state, territorial and tribal coalitions.

Resources

The Acts

• Violence Against Women Reauthorization Act of 2013, S. 47, 113^th Congress, 2013-2015

  • Title IX: Safety for Indian Women, of VAWA 2013

• VAWA 2005 Reauthorization Act, H.R. 3171, 109^th Congress, 2005-2006

• Victims of Trafficking and Violence Protection Act of 2000, AWA 2000, H.R. 3244, Division B, 106th Congress, 1999-2000

• Title IV, sec. 40001-40703 of the Violent Crime Control and Law Enforcement Act of 1994, H.R. 3355

Other Resources

• TLPI PowerPoint presentation regarding the background and provisions of the special domestic violence criminal jurisdiction in the VAWA of 2013.
• DOJ’s Factsheet: VAWA 2013 and Tribal Jurisdiction over Non-Indian Perpetrators of Domestic Violence

Publications, Reports, and Articles

• American Bar Association (ABA) Resolution Supporting the Reauthorization of VAWA that includes the Tribal Criminal Jurisdiction Provisions – August 6-7, 2012
  This report, co-authored by TLPI Executive Director Jerry Gardner and TLPI Tribal Law Specialist Lauren Frinkman, details the justification for why the ABA supports the tribal provisions of VAWA. This resolution was passed August 6-7, 2012, four months after S.1925 was passed by the Senate on April 26, 2012. Ultimately, the Title IX passed in VAWA 2013 was reintroduced in 2013 in S. 47, passed by the Senate on February 12, 2013, passed by the House on February 28, 2013, and signed into law by President Obama on March 7, 2013.
• Amnesty International, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA, Amnesty International USA (2007)
  This groundbreaking report detailed for the first time the devastating degree of sexual violence faced by Native women in the United States. In addition, the report details the complex, and subsequently inadequate nature of criminal jurisdiction in Indian country and how that failing system compounds the danger. Statistics from this report were cited in the Congressional Findings of the Tribal Law and Order Act of 2010, and used to support the VAWA 2013 legislation.
• DOJ Statement on Section 904’s Constitutionality, 159 Cong. Rec. H705, 737-39 (daily ed. Feb. 28, 2013)
  Thomas J. Perrelli, Associate Attorney General testified before the Senate Committee on Indian Affairs concerning the constitutionality of Sec. 904 under the U.S. Supreme Court precedent, United States v. Lara.  The statement was later inserted into the Congressional Record prior to the House floor vote on VAWA 2013, on February 28, 2013.
• M. Brent Leonhard, Closing a Gap in Indian Country Justice: Oliphant, Lara, and DOJ’s Proposed Fix, 28 Harvard Jrnl. On Racial & Ethnic Justice 117 (2012)
  This law review article analyzes whether DOJ’s proposed legislative fix to allow tribes to prosecute limited non-Indian domestic violence crimes is legally permissible by closely analyzing the decisions in Oliphant and Lara. Given the closely circumscribed requirements for the exercise of such power, and past decisions of various justices, this article concludes that it is within Congress’ power to recognize the inherent power of tribes to prosecute non-Indians for domestic violence crimes against Indians.
• National Indigenous Women’s Resource Center, Restoration of Native Sovereignty and Safety for Native Women, Volume XX, June 2012
  The Restoration of Sovereignty & Safety magazine is a publication dedicated to informing tribal leadership and communities of emerging issues impacting the safety of American Indian and Alaska Native women.  The June 2012 issue includes extensive legislative history of VAWA 2013, profiles of key advocates, as well as powerful stories regarding the survival of violence against Indigenous women and the impetus for VAWA 2013.
• Zachary S. Price, Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction, 113 Colum. L. Rev., 657 (2013)
  This law review article proposes a framework for resolving constitutional questions raised by the Court’s recent cases in the areas federal Indian law concerning unregulated local governmental authority. Focusing on the criminal context, this Article considers three issues: (1) whether and under what circumstances Congress may confer criminal jurisdiction on tribal and territorial governments without requiring that those decisions be subject to federal executive supervision; (2) whether double jeopardy should bar successive prosecution by both the federal government and a tribal or territorial government; and (3) what, if any, constitutional procedural protections apply when a tribal or territorial government exercises criminal jurisdiction pursuant to such federal authorization.
• VAWA Letter from Law Professors – Tribal Provisions, April 12, 2012
  Then Dean of New Mexico Law School Kevin Washburn (now Assistance Secretary of Indian Affairs), along with Professors Stacy Leeds, Erwin Chemerinksy, Carole E. Goldberg, Robert N. Clinton, Gloria Valencia-Weber, Matthew L.M. Fletcher, along with forty-three other distinguished law professors, signed onto this letter addressed to Senators Patrick Leahy and Charles Grassley and Representatives Lamar Smith and John Conyers, Jr. The letter writes in support of the tribal provisions, as well as details the constitutionality of the those provisions.
• Written Comments regarding Government-to-Government Consultation with the Department of Justice on Implementation of the Violence Against Women Reauthorization Act of 2013
  On August 16, 2013, the U.S. Department of Justice (DOJ) invited tribal leaders to participate in a government-to-government consultation regarding how best to structure and implement the voluntary Pilot Project established under Sections 904 and 908 of VAWA 2013. DOJ hosted conference calls with tribal court judges on May 8, 2013, and with tribal leaders generally on May 14 and May 17, 2013.  DOJ also accepted written comments.  Below are written comments from the National Congress of American Indians, the National American Indian Court Judges Association, and the Tribal Law and Policy Institute.
  • National Congress of American Indians’ Comments – May 20, 2013
  • National American Indian Court Judges Association’s Comments – May 23, 2013
  • Tribal Law and Policy Institute’s Comments – May 20, 2013

Links

• ABA VAWA webpage
• Department of Justice’s (DOJ) Office of Violence Against Women  (OVW) – Tribal Communities
• National Congress of American Indian’s (NCAI) Violence Against Women Act webpage

Upcoming Events

• June 10-12, 2013 - Women Are Sacred 2013 Conference: Native Women Reclaiming Our Space, Vision & Voices to Strengthen the Grassroots Advocacy Movement to End Violence Against Native Women – Albuquerque, NM
• June 24, 2013 – National Congress of American Indian (NCAI) Inter-Tribal Working Group Meeting for the VAWA 2013 Implementation Pilot Project [link to attachment] at the NCAI 2013 Mid-Year Conference, Reno, NV

Past Events

• May 17, 2013 - Government-to-Government Consultation with the U.S. DOJ on implementation of the VAWA 2013
• May 14, 2013 – Government-to-Government Consultation with the U.S. DOJ on implementation of the VAWA 2013
• May 8, 2013 – DOJ Consultation with Tribal Court Judges on implementation of the VAWA 2013