Tribal authority over non-Indians recognized in landmark lawReauthorization of VAWA on the table again in 2018
By Kevin Abourezk
@Kevin_Abourezk The 2014 attack began in a car, when a non-Indian man struck and bit his Indian wife in the parking lot of a gas station on the Lake Traverse Reservation in northeast South Dakota. The woman escaped the car and ran into a women’s bathroom, but the man followed her and continued beating her. Tribal and state police arrived but because the attack took place on a reservation and the perpetrator was non-Indian – and not subject to the jurisdiction of either tribal or state authorities – the police could only briefly keep the man in custody in order to give the woman a "head start." The story is one of many shared in a report published Tuesday by the National Congress of American Indians, the largest inter-tribal advocacy organization in the country. The report examined the five-year impact of a federal law designed to give tribes the ability to prosecute non-Indian perpetrators of domestic or dating violence against non-Indian victims on tribal lands. The 2013 reauthorization of the Violence Against Women Act (VAWA 2013) expanded the criminal jurisdiction of tribes over non-Indians. NCAI released the report in conjunction with a Monday hearing by the Senate Committee on the Judiciary, which is currently considering reauthorizing VAWA. “The success of VAWA 2013 demonstrates that tribes can and will provide effective justice to their communities, and fair process to all those who appear in tribal courts,” said NCAI President Jefferson Keel in a news release.
Prior to enactment of the law, tribes lacked recognition of their authority to prosecute non-Indians for nearly 35 years, since the U.S. Supreme Court’s decision in Oliphant v. Suquamish Tribe rescinded what authority tribes had over such crimes. According to the NCAI report, 18 tribes have arrested non-Indians using the expanded authority provided by VAWA 2013. Those tribes arrested 128 different non-Indian perpetrators 143 times. Those arrests led to 74 convictions and 5 acquittals, with some cases still pending. “VAWA 2013 has allowed tribes to finally prosecute these long-time abusers who previously had evaded justice, and provide increased safety and justice for victims who previously had little recourse against their abusers,” NCAI said in a news release. The federal law only allows tribal courts to prosecute non-Indians for a narrow set of crimes. The report identifies several legal gaps that NCAI believes need to be addressed by Congress, including the lack of tribal court jurisdiction over crimes against children, law enforcement personnel and sexual assault crimes committed by strangers. The report found that 51 percent of defendants were sentenced by tribal courts to batterer intervention or other rehabilitation programs. The federal law requires participating tribes to ensure due process protections to non-Indian defendants. Many tribes have reported lacking the necessary funding to implement the federal law.
Other tribes have had to develop or contract for additional services such as indigent defense counsel that either didn’t exist or weren’t adequate to serve non-Indian defendants. Some tribes had to renegotiate detention contracts with neighboring jurisdictions or the Bureau of Indian Affairs to allow them to house non-Indian offenders. “NCAI and its member tribal nations stand ready to advocate for further expansions of this law to ensure public safety and justice in Indian Country,” said Juana Majel-Dixon, who serves as secretary of NCAI and co-chair of the the organization's Task Force on Violence Against Women. The report offered several interesting statistics, including:
· Arrests involving non-Indian defendants led to 73 guilty pleas, 21 dismissals, 19 declinations, 5 jury trials and just 1 jury trial conviction.VAWA 2013 also led to eventual conviction of the non-Indian man who attacked his Indian wife at the Lake Traverse Reservation gas station in 2014. After the federal law’s passage, the man beat his wife again and was arrested. He eventually pled guilty in tribal court. You can view the report here, as well as find additional resources on NCAI’s Tribal VAWA website.
· The gender makeup of defendants and victims was: 115 male defendants and 13 female defendants, and 115 female victims and 13 male victims.
· 51 percent of incidents involved drugs or alcohol, and 58 percent of incidents involved children.
· At least 73 defendants had criminal records.
· 125 were domestic or dating violence cases and 34 involved protection order violations.
· 33 defendants were sentenced to jail, with 3 years being longest sentenced administered.
· 85 defendants had had a combined 378 prior contacts with tribal police before implementation of SDVCJ