WASHINGTON, D.C. — A long-overdue update to the Violence Against Women Act is being celebrated as an important step in ongoing efforts to protect women, children and elders in tribal communities.

American Indians and Alaska Natives are more likely to be victimized than any other racial or ethnic group, according to numerous studies. And data shows that most of the perpetrators are non-Indians, who have been able to escape accountability for decades, based solely on their status as non-tribal citizens.

But thanks to a $1.5 trillion omnibus appropriations package that cleared Congress last week, non-Indians will no longer be able to ignore tribal sovereignty. The massive bill includes a reauthorization of VAWA that ensures tribes can arrest, prosecute and sentence all offenders for serious crimes that have long gone unpunished due to lapses in jurisdiction and lack of adequate resources in Indian Country.

“The Violence Against Women Act is an important step forward in addressing jurisdictional gaps that leave Native women and children vulnerable,” Lucy R. Simpson, the executive director of the National Indigenous Women’s Resource Center, said in a statement on Friday, following final action on the bill on Capitol Hill.

“By strengthening and restoring tribal jurisdiction and providing necessary resources to tribal governments through VAWA, tribes will be better equipped to keep their communities safe and ensure justice for Native women,” said Simpson, a citizen of the Navajo Nation.

The Muscogee Nation, whose sovereignty was reaffirmed in a landmark U.S. Supreme Court decision from 2020, also welcomed the developments in Washington, D.C. The tribe pointed to the recognition of tribal authority over non-Indians in VAWA, along with monetary commitments from the federal government in the appropriations package.

“Through expanded jurisdictional authority and new funding, the VAWA reauthorization provides important tools to help us and other tribal nations throughout the United States pursue justice for and provide support to Indian women who are victims of violent crimes, including domestic abuse, committed by non-Indians,” Chief David Hill said in a statement on Thursday.

“As well, the act creates new jurisdictional authority for us to prosecute non-Indians who assault Indian law-enforcement officers,” he added.

In 2013, Congress enacted an update to VAWA that recognized the “inherent” sovereignty of tribes for the first time. But the law is limited in scope, restricting the ability to punish non-Indians who lack ties to a tribal community. And it doesn’t cover crimes such as abuse against children, sexual assaults or human trafficking.

The new version of VAWA begins to address the gaps of jurisdiction in Indian Country in a significant way. Once the bill is signed into law, the list of crimes covered by tribal sovereignty expands to the following:

• assault of tribal justice personnel;
• child violence;
• dating violence;
• domestic violence;
• obstruction of justice;
• sexual violence;
• sex trafficking;
• stalking; and
• violation of a protection order

According to legal and policy experts, the recognition of additional tribal authorities will bring more offenders to justice. Elizabeth Reese, a professor of law who helped publish a landmark VAWA report for the National Congress of American Indians, noted in recent testimony that crimes of domestic violence usually don’t happen alone.

“Currently, tribes cannot charge defendants with any of the crimes that happen alongside the domestic violent event that they are actually prosecuting, such as violence against children, drug possession, assault on law enforcement, or just a simple DUI that happens while fleeing the scene,” Reese told the Senate Committee on Indian Affairs in December.

“Expansion to adjacent crimes would create a more equitable system for prosecutors and defense counsel to navigate,” added Reese, a citizen of the Pueblo of Nambe. “And that is because the vast majority of criminal cases in the United States are resolved, not a trial, but by plea bargaining.”

“One of the most common tools that prosecutors and defense counsel have when negotiating is that there are often multiple charges of criminal conduct,” Reese continued at the hearing on December 8, 2021. “Taking a serious or minor offense off the table allows the two sides to arrive at a result that they can both live with.”

“Without the full power to charge an offender with all of the crimes that they are suspected of committing, both sides are stuck with just that one offense : domestic violence, a charge which is notoriously difficult to prosecute in court because it relies on the cooperation of often highly traumatized and reticent witnesses,” Reese said.

The VAWA reauthorization is found in Division W of H.R.2471, the Consolidated Appropriations Act for 2022. The tribal-specific provisions are included in Title VII — Safety for Indian Women.

“The historic tribal provisions in this bill attest to years of powerful, collaborative efforts between survivors, tribal leaders, and allies across Indian Country,” NCAI President Fawn Sharp said in statement on Friday.

“We commend Congress’ momentous action to reauthorize the Violence Against Women Act and now, by exercising our inherent sovereignty and jurisdiction, tribal nations will continue to increase safety and justice for victims who had previously seen little of either,” said Sharp, who also serves as vice president of the Quinault Nation.

In addition to expanding the recognition of tribal sovereignty to more crimes, the omnibus appropriations extends VAWA to Alaska for the first time. The bill includes the text of Alaska Tribal Public Safety Empowerment Act, which authorizes a pilot program — much like the one that applied to the lower 48 states in the 2013 law — that will help close jurisdictional gaps in the 49th state.

“This reauthorization of VAWA specifically recognizes the challenges and disproportionate rate of sexual assault and domestic violence against Alaska Natives by providing funding and resources in the form of grants and the ability for tribal governments to better participate actively in investigation and prosecutions,” the Alaska Native Women’s Resource Center said in a statement on Friday.

“The new special criminal jurisdiction pilot project provides support and funding for up to 5 Alaska tribes per year, who meet the requirements, which includes providing protections equivalent to the federal Bill of Rights for prosecution of all perpetrators of domestic violence,” the statement continued. “Most tribes already provide many of these basic constitutional rights.”

As for funding commitments, the omnibus includes more than $86 million for public safety, according to the Senate Committee on Indian Affairs. This figure includes the following amounts:

• $50 million for the Office of Justice Programs at the Department of Justice (DOJ) to provide assistance to tribes
• $25 million for an initiative to address missing and murdered cases at the Department of the Interior
• $5.5 million for DOJ’s Office of Violence Against Women (OVW) Tribal VAWA implementation grant program
• $3 million for a DOJ initiative to support cross-designation of Tribal prosecutors as Tribal Special Assistant United States Attorneys
• $1 million for the OVW at DOJ to conduct analysis and research on violence against Indian women
• $1 million to support establishment of a Native Hawaiian Resource Center on Domestic Violence
• $500,000 for a national training and technical assistance clearinghouse on issues relating to sexual assault of American Indian and Alaska Native women
• Five percent set-aside for tribes to receive direct funding from the Crime Victims Fund

“Today’s bipartisan deal authorizes critical Indian Affairs priorities and delivers billions in federal dollars that will directly support Native health, education, housing, and more,” Sen. Brian Schatz (D-Hawaii), the chairman of the committee, said on Thursday, when the final vote on the appropriations package took place in the U.S. Senate.

“With these new resources and strong funding, we continue our work toward fulfilling the federal government’s trust responsibility to Native communities,” said Schatz.

President Joe Biden supported the VAWA reauthorization after a bipartisan group of lawmakers reached a deal on the update in February. When he served in the Senate, he introduced the original version of the law in 1994.

Congress easily reauthorized VAWA in 2000 and 2005 with strong support from Democrats and Republicans alike. But Republicans held up the 2013 version, partly in objection to the tribal jurisdiction provisions that eventually became law. The latest version was also held up due to repeated objections from Republicans and outright resistance from Republican former president Donald Trump.

But during the White House Tribal Nations Summit last November, Biden committed to getting VAWA renewed. His administration further called for “swift passage” of H.R.2471 after the 2,700-page bill was made public last week.

“We’re going to reauthorize that again,” Biden told tribal leaders at the summit, which was revived after a four-year absence during the Trump era. “We’re going to expand the jurisdiction to include other offenses like sex trafficking, sexual assault, and child abuse.”

Though H.R.2471 has been finalized in Congress, it is still being sent to the White House for Biden’s signature. To avert a shutdown of the federal government while the legislative process continues, lawmakers passed H.J.Res.75 to extend federal funding until March 15. Biden signed the bill into law on Friday.

“One of the biggest victories for Indian Country included in the appropriations omnibus package is the reauthorization of the Violence Against Women Act with specific provisions to strengthen tribal governments,” said President Jonathan Nez of the Navajo Nation.

“The reauthorization combats crimes by assisting domestic violence prevention, protecting survivors, and promoting safer tribal communities for women, children, and families,” said Nez, whose tribe resides on the largest reservation in the United States in Arizona, New Mexico and Utah. “The reauthorization ensures that survivors in the Navajo Nation receive the resources they deserve.” .

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Draft version of ‘Safety for Indian Women’ released by Senate committee leaders (December 8, 2021)
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