Excerpted From: Jessica Allison, Beyond VAWA: Protecting Native Women from Sexual Violence Within Existing Tribal Jurisdictional Structures, 90 University of Colorado Law Review 225 (Winter, 2019) (Comment) (270 Footnotes) (Full Document)
Diane Millich, a member of the Southern Ute Tribe, was 26 when her new husband, a white man, moved in with her on her tribe's reservation in southwestern Colorado. He began to abuse her, and law enforcement could do nothing about it. Because her husband was non-Indian, the tribal police had no jurisdiction; and because she was an Indian woman on tribal lands, local law enforcement had no jurisdiction either. In fact, on one occasion her husband called the tribal police and the local sheriff's department on himself to show her that no one could stop him. After Millich filed for divorce, he came to her workplace and opened fire; her coworker was injured when he took a bullet for her. It took hours for investigators to measure where the gun was when Millich's husband fired it and where her coworker was standing to determine that local law enforcement had jurisdiction. Even then, Millich's husband wasn't arrested for several weeks because he fled to New Mexico--he ultimately took a deal and pled guilty to only aggravated driving under revocation.
This is the reality for many American Indian women. Thirty-nine percent of American Indian women experience domestic violence in their lifetime, and more than one-third are raped. Yet sexual violence was virtually nonexistent prior to colonization. Traditionally, women in many Indian societies were respected and influential members of the community. Tribes did not tolerate rape, and it was punished harshly in the rare instances it occurred. In the Iroquois Nation, for example, a man could not hold a leadership position if he had ever sexually assaulted a woman. And the Muscogee (Creek) Nation traditionally allowed the victim to determine the punishment for sexual violence as she saw fit, through either restitution or whipping.
By contrast, European society widely used rape to threaten or punish women. This dynamic played out during the colonization of North America, as rape is an exercise of hostile, aggressive power--instead of an act of sexuality. As Indian women were assaulted by European men, the underlying social and legal sanction of rape as a means of control infiltrated tribal belief systems through the process of assimilation. However, Europeans' use of sexual violence as a means of control is not the only reason why rape against Indian women perpetrated by non-Indian men persists at such startling rates today. Another reason is the fact that the United States has systematically stripped tribes of the ability to effectively punish sexual offenders. Of particular importance, in 1978, the Supreme Court held in Oliphant v. Suquamish Indian Tribe that tribes lack the ability to prosecute non-Indians for any crimes arising within their jurisdiction. This severely restricted the tribes' ability to keep their members safe from crimes committed by non-Indians in Indian Country.
For the first time since Oliphant, the Violence Against Women Reauthorization Act of 2013 (VAWA 2013) recognizes tribes' inherent sovereignty to prosecute non-Indians for certain domestic and sexual violence crimes. VAWA 2013 acknowledges--both symbolically and practically--a vital power that should not be downplayed. A fundamental aspect of sovereignty is the ability to protect citizens from crime, and VAWA 2013 provided a broader interpretation of tribes' sovereignty than previously recognized. Yet the statistical prevalence of sexual assault in Indian Country today indicates VAWA 2013 does not go far enough on its own to protect the people of Indian Country from sexual violence.
This Comment will highlight alternative mechanisms various tribes have employed--and others can employ--to better protect tribal communities. These mechanisms are not dependent on VAWA 2013, though they can be used in conjunction with the prosecutorial abilities VAWA 2013 confers. Part I will discuss the road leading to the passage of VAWA 2013, including a summary of the relevant congressional acts and Supreme Court opinions that have systematically stripped away tribes' inherent rights to prosecute non-Indian offenders.
Part II will discuss how VAWA 2013 came to be passed and explain its text, including the steps tribes must take in order to exercise its provisions. Part II will also examine the successes experienced by tribes that have implemented jurisdiction granted by VAWA 2013.
Part III will then discuss practical strategies tribes have used--either in tandem with VAWA 2013 jurisdiction or alone--to further address the extreme rates of sexual violence in Indian Country.
Part IV highlights the commendable steps tribes have already taken to protect their communities, which serve as a roadmap for tribes that might want to implement similar mechanisms.
[. . .]
The Violence Against Women Reauthorization Act of 2013 was an important milestone in that it not only affirmed inherent tribal sovereignty but also served as a recognition by the federal government that tribal courts can be fair forums for non-Indians. However, many roadblocks remain to eradicating the extremely high rates of sexual violence against Indian women. Not only does implementing VAWA 2013 require extensive code revision for some tribes, but it also requires that tribes have the facilities and resources to grant non-Indian defendants the required safeguards. Further, VAWA 2013 is not entirely compatible with tribal sovereignty since it requires tribes to adopt Anglo-American court processes and procedures.
Exercising civil jurisdiction and entering into cross-deputization agreements allows tribes to protect survivors, promote traditions and culture, and cooperate with the federal government without giving up sovereignty. Peacemaking, diversion courts, and inter-tribal entities can do the same in limited circumstances. These mechanisms also have the added benefit of compensating for VAWA 2013's shortcomings. The proposals made in this Comment are just a handful of options tribes have at their disposal to make their communities safer. Different mechanisms can be used alone or in combination, tailored to the specific cultural values of the implementing tribe. I recognize that no single solution or set of solutions will be appropriate for all of the 573 federally recognized tribes within the United States; I also do not purport to know what is best for any one tribe, including my own. But the programs and processes highlighted above acknowledge the mechanisms in which tribes have been protecting and will continue to protect their communities in ways that respect the best interests of victims and strengthen tribes' inherent sovereignty.
Citizen, Cherokee Nation; J.D. Candidate, 2019, University of Colorado Law School; Casenote & Comment Editor, University of Colorado Law Review.