Commit an act of domestic violence in a neighboring county or state, and you can be arrested by local authorities and prosecuted in that jurisdiction's court. Commit an act of domestic violence in another country, you can be arrested by local authorities and prosecuted in a court in that country.
But commit an act of domestic violence on a Native American reservation, and Tribal police can’t arrest you. Not if you’re not Native American. And whether you go to court is up to the county prosecutor, not the court that has jurisdiction over the reservation.
A provision in the Violence Against Women Act would correct this gap in justice.
For 16 years, the federal Violence Against Women Act provided additional funding for investigation and prosecution of violent crimes against women, imposed automatic and mandatory restitution on those convicted, and allowed civil redress in cases prosecutors didn’t prosecute. The law expired in January when members of the US House of Representatives couldn’t agree on extending criminal jurisdiction to Native American courts, and on extending the Act to include same-gender couples and undocumented immigrants.
Two reauthorization bills, H.R. 11, and S 47, have been introduced. H.R. 11 was introduced by Rep. Gwen Moore, D-Wis., and has 181 co-sponsors, including Rep. Derek Kilmer, D-Bremerton. S 47 was introduced by Sen. Patrick Leahy, D-Vt., and has 61 co-sponsors, including Maria Cantwell and Patty Murray of Washington.
We urge Congress to reauthorize the Violence Against Women Act, with provisions for Tribal jurisdiction.
The reauthorization provides protections for all women. Among other things, it would provide protections for female victims who are evicted from their homes because of events related to domestic violence or stalking. It would provide funding for rape crisis centers and hotlines, programs to meet the needs of immigrant women and women of different races or ethnicities, programs and services for female victims with disabilities, and legal aid for female survivors of violence. It would also extend assistance to undocumented immigrants and same-gender couples.
It also empowers Tribal governments to assume domestic violence criminal jurisdiction if they choose to do so. That means, no matter who you are or what jurisdiction you’re in — city, county, state, or reservation — if you commit an act of domestic violence, you can be arrested and prosecuted by local authorities. That is equality. That is justice.
Remove the Tribal domestic violence criminal jurisdiction provision from the bill, and the law, in Sen. Maria Cantwell’s words, “basically strips the rights of Native American women and treats them like second-class citizens.”
The U.S. Supreme Court ruled in 1978 in Oliphant vs. Suquamish Tribe that Tribal courts may not assume jurisdiction over non-Indians unless specifically authorized to do so by Congress. This provision does this, in regards to domestic violence.
The reauthorization protects the rights of defendants. According to the House version, a Tribe may exercise domestic violence criminal jurisdiction over a defendant “if (i) the defendant resides in the Indian country of the participating tribe; (ii) is employed in the Indian country of the participating tribe; or (iii) is a spouse, intimate partner, or dating partner of a member of the participating tribe; or an Indian who resides in the Indian country of the participating tribe.”
The reauthorization provides for the defendant the right to a trial “by an impartial jury that is drawn from sources that (a) reflect a fair cross section of the community; and (b) do not systematically exclude any distinctive group in the community, including non-Indians; and all other rights whose protection is necessary under the Constitution of the United States.”
Tribal governments are sovereign, or self-governing, entities, with a government-to-government relationship with the United States of America. Tribal governments have every right and responsibility to protect their constituents within their jurisdiction as neighboring jurisdictions do.
Reauthorization of the Violence Against Women Act, with Tribal provisions, is the only right thing to do.