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Tribes reach key milestone with jurisdiction provisions of VAWA

Monday, March 9, 2015

Terri Henry, a council member for the Eastern Band of Cherokee Indians, discusses the tribal provisions of the Violence Against Women Act at the National Congress of American Indians winter session in Washington, D.C. Seated is NCAI President Brian Cladoosby. February 25, 2015. Photo by Indianz.Com

The tribal jurisdiction provisions of the the Violence Against Women Act became effective nationwide on Saturday, clearing the path for non-Indians to be held accountable for abusing their Indian partners.

Congress enacted S.47 to recognize tribal authority to arrest, prosecute and punish non-Indians for certain domestic violence offenses. The landmark law notes that tribes retain the "inherent power" to exercise those duties.

“That is a tremendous victory -- the inherent right," Terri Henry, a council member of the Eastern Band of Cherokee Indians, said at the winter session of the National Congress of American Indians late last month.

“It had to be inherent right," Henry added, drawing a distinction with a "delegated" power. "We went to the mat for that."

President Barack Obama signed S.47, the Violence Against Women Reauthorization Act of 2013, at the Sidney R. Yates Auditorium at the U.S. Department of Interior in Washington, D.C., on March 7, 2013. Photo by Chuck Kennedy / White House

When he signed the bill into law in March 2013, President Barack Obama also recognize the important distinction. "Tribal governments have an inherent right to protect their people, and all women deserve the right to live free from fear," he said at the time.

In the two years since the bill became law, tribes across the nation have been looking at their justice systems to ensure they comply with the law. That means providing an attorney to non-Indian defendants who can't afford one and convening juries that represent everyone -- Indian and non-Indian -- in their communities.

“Many tribal courts are already providing these protections to defendants, and it isn’t a big step to provide indigent counsel to all," NCAI President Brian Cladoosby noted in a press release. "Just like county courts, tribal courts can contract for public defenders on a case-by-case basis."

Tribes can also look to three of their counterparts for advice and experience. The Pascua Yaqui Tribe of Arizona, the Tulalip Tribes of Washington, and the Umatilla Tribes of Oregon participated in a pilot project at the Department of Justice and have been prosecuting non-Indians for a little over a year.

Deborah Parker of Tulalip Tribes of Washington at the NCAI winter session in Washington, D.C. Seated is NCAI President Brian Cladoosby. Photo by Indianz.Com

Deborah Parker, a council member for the Tulalip Tribes, told NCAI that five non-Indians have been successfully prosecuted since 2013. But she pointed out a potential obstacle for tribes that want to do the same -- inadequate funding.

“We have not received one dollar for our pilot program from the federal government or the Department of Justice," Parker said. “We keep asking when are going to receive our dollars. We keep getting referred back and forth."

It will be up to each individual tribe to determine whether they want to exercise their inherent rights to prosecute non-Indians under VAWA. Experts have noted that each reservation will carry its own challenges -- the Pascua Yaqui Tribe, for example, has had to hire Spanish language interpreters for some defendants.

The law also does not cover child abuse or other crimes against children. Those must continue to be handled by the federal government.

Additionally, a tribe can exercise jurisdiction over a non-Indian offender only under certain conditions. For example, the person might live on the reservation, might be employed by the tribe or might be considered the "spouse, intimate partner, or dating partner" of the Indian victim.

That means sexual assaults or domestic violence crimes committed by "strangers" or outsiders will not be covered.

“If the non-Indian does not have sufficient ties to the tribe, you don't have jurisdiction," one expert said during a discussion of the law at NCAI's annual convention last October.

Beyond implementation challenges, the law faces a legal test. At some point, a non-Indian defendant will challenge his or her prosecution in federal court -- Republican lawmakers who voted against the bill claim the tribal provisions do not comply with the U.S. Constitution.

"We've been fighting against Congress members who said, 'You will never prosecute a non-Indian on a reservation,'" Parker recalled. "One person even said 'over my dead body.'"

"Well, guess what, we've prosecuted, and we've prosecuted many," Parker said to applause at NCAI.