Excerpted From: Dayna Olson, Protecting Native Women from Violence: Fostering State-Tribal Relations and the Shortcomings of the Violence Against Women Act of 2013, 46 Hastings Constitutional Law Quarterly 821 (Summer, 2019) (Student Note) (193 Footnotes) (Full Document)
Thousands of Native American women face this troubling issue, in which domestic violence and rape have become an alarmingly common part of their lives. Native women face violence at astronomically high rates compared to any other ethnic group in the United States. These staggering statistics are the effect of poverty, the reduction of tribal sovereignty, and the quagmire of conflicting criminal jurisdiction between tribal, state, and federal prosecutors. As a result, most of these women are left with little to no recourse.
Federal legislation throughout the nineteenth and twentieth centuries, augmented with Supreme Court jurisprudence, removed nearly all of Native tribes' jurisdiction over criminal and civil matters. Prior to 2013, tribal law enforcement had almost no authority over non-tribal members who commit crimes or other wrongful acts on reservation lands. Lack of federal resources, driven by a undercurrent of historical and political tension, has resulted in very low prosecution rates and a patchwork of overlapping jurisdictions. This lethal combination has succeeded in allowing certain perpetrators to become “above the law” when they commit offenses within tribal territory. In an effort to combat this issue, the 2013 reauthorization of the Violence Against Women Act (VAWA) included a provision, the Special Domestic Violence Criminal Jurisdiction (SDVCJ), which granted tribal courts the authority to prosecute narrow categories of non-tribal members for specific crimes of intimate partner violence. While this enhanced jurisdiction modestly improved the lives of Native American women, this legislation imposes substantial limitations and, in effect, is only one small stepping-stone towards ensuring justice and safety for Native women.
This Note will first describe the pressing issues of violence against women on tribal reservations and the overwhelming need for further law enforcement.
Section II of this Note will go into the historical details of the “Rubik's cube” of tribal jurisdiction and the ever-so-murky waters of federal, state, and tribal authorities.
Third, this Note will discuss the reauthorization of VAWA 2013, which allots Special Criminal Jurisdiction to tribes for crimes of domestic violence and some of the major flaws therein.
Section IV will discuss recent legislative proposition and the current Congressional battles over a 2019 reauthorization.
Lastly, this Note will discuss the current political climate and the potential demise of VAWA by the current administration due to the uncertainty surrounding the constitutionality of the SDVCJ legislation. This Note will then go on to argue that, given the current political circumstances before the country, enhancing state and tribal law enforcement cooperation to combat these crimes within tribal territories would be far more beneficial to Native women, both to skirt some of the constitutional pitfalls of VAWA, and to provide the justice that is so urgently needed.
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The proposed legislation that is advancing in Congress may finally reaffirm tribal criminal sovereignty and expand the rights of tribal prosecutors. However, given the current political climate, the future of a 2019 reauthorization remains uncertain for the 18 tribes that exercise jurisdiction. Though an imperfect framework, solidifying the relationships between state and tribal law enforcement has been shown to have a greater impact on tribal communities and the safety of Indian women. To heal from the disastrous impact of PL 280, many states have been granting the tribal police the same authority to prosecute as state enforcement officers, and tribal law enforcement have been negotiating arrangements that fit their needs in order to protect members on reservations. As demonstrated in Oregon, Arizona, and other states, this increase in authority can extend off the reservation in particular cases, thus preventing the perpetrators from becoming "untouchable" once they cross the reservation lines.
This particular "stop gap" framework is not without complications. The expansion of tribal authority has, in a number of cases, amplified mistrust among state law enforcement, and the allowance of state troopers on tribal lands resonates a similar feeling among tribal authorities. These hurdles can hopefully be overcome in time through cooperation, domestic violence training, and cultural awareness, but nevertheless continues to present a substantial obstacle.
The advent of VAWA's SDVCJ and the TLOA are beacons of hope for a shifting political tide in removing some of the impediments to tribal sovereignty. But, the laws also present "a paradox" in that with "increased authority comes greater federal interference and more oversight into internal tribal institutions and processes." By imposing federally derived legislation upon the tribes, we are inherently drawing tribes further away from any semblance of political and cultural autonomy and imposing "an American model of criminal justice." By doing this, we are sending the tribes into a "double bind," upon which their sovereign rights are only guaranteed if they operate on "the terms of the very government that has, for so long, sought to dismantle tribal justice systems."
Ideally, the federal legislature will expand the reach of VAWA and the TLOA beyond their current parameters in a 2019 reauthorization. However, we are nevertheless forced to reconcile this with the politics of the current federal government and the uncertainty of funding available to assist in any further progressive action. This Note modestly attempts to show that by putting the immediate needs of Native American women and domestic violence victims first, the local-tribal police cooperation model has the potential for substantial benefits to those affected by domestic violence. These state and local agreements and legislative measures can enhance trust and coordination between tribal and local law enforcement and, perhaps, will continue to foster the relationship between them, hopefully resulting in increased tribal sovereignty over criminal affairs.
J. D. Candidate 2019, University of California, Hastings College of the Law.