ul Echo Hawk and April Day: Implementing changes for VAWA

In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), the Supreme Court held that tribes do not have inherent authority to prosecute crimes committed by non-Indians in Indian Country. Oliphant is a judge-made, non-constitutional law and generally remains the current law.

The Violence Against Women Act (VAWA) partially reverses the Oliphant rule by recognizing the inherent authority of federally recognized tribes to prosecute non-Indians in tribal court for domestic violence crimes against tribal members or Indians residing in Indian Country.

In VAWA’s tribal provisions, Congress requires tribes to have certain processes and protection to qualify for the recognition of jurisdiction. VAWA also provides procedural safeguards to domestic violence criminal defendants that must be observed by implementing tribes.

VAWA allows tribes to elect whether to take advantage of these tribal provisions permitting the assertion of tribal jurisdiction over domestic violence crimes committed by non-Indians. Tribes who do not wish to take advantage of VAWA’s tribal provisions do not have to implement any changes. Also, regardless of whether a tribe decides to take advantage of VAWA, federal and state authorities, where applicable, can still prosecute the same non-Indian defendant for the same crime.