The Violence Against Women Act (VAWA), originally passed in 1994, is a collection of funding programs, initiatives, and actions designed to improve criminal justice and community-based responses to violence against women, including sexual violence, in the United States. This page discusses the extent to which VAWA pertains to American Indians, including specifically tribal courts.
VAWA has been reauthorized three times. It was reauthorized for the third time on March 7, 2013. (Violence Against Women Reauthorization Act of 2013, S. 47, 113th Congress, 2013-2015.) VAWA of 2013 included Title IX—Safety for Indian Women.
Like all areas of Indian law, context is crucial to understanding the nature of the tribal provisions in VAWA, and their potential impact in Indian country.
Native Americans are victims of violent crime at rates more than double those of any other demographic group in the United States. In particular, violence against Native women has reached epidemic proportions. Native women are battered, raped, and stalked at far greater rates than any other population of women in the United States: 34% of Native women will be raped in their lifetimes and 39% will be the victim of domestic violence. Amnesty International’s Maze of Injustice Report (2007) similarly noted that American Indian and Alaska Native women continue to experience high levels of sexual violence.
Violence in Indian country is compounded by a systemic failure to prosecute offenders. Criminal jurisdiction in Indian country is divided among federal, tribal, and state governments, depending on the location of the crime, the type of crime, the race of the perpetrator, and the race of the victim. (See our General Guide to Criminal Jurisdiction in Indian Country.) This complexity has resulted in significant impediments to law enforcement in Indian country. One of the more debilitating factors, however, is that tribal courts are without any recourse against non-Indian offenders in Indian country due to a 1978 Supreme Court case. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), held that tribal courts lack criminal jurisdiction over non-Indian defendants.
Therefore, after 35 years, Congress enacted a partial-Oliphant fix in Title IX of the reauthorized VAWA of 2013 to respond to crimes committed by non-Indian offenders in Indian country. Among its other provisions, Congress amended the Indian Civil Rights Act (ICRA) of 1968 to authorize "special domestic violence criminal jurisdiction" to tribal courts over non-Indian offenders who commit (1) domestic violence, (2) dating violence, or (3) violate a protection order. See the text of the amended-ICRA here.
Note that due to jurisdictional frameworks in existence prior to VAWA, either the federal or state government will continue to have concurrent jurisdiction over these same non-Indian offenders, for the same crime prosecuted by the tribal court. Note that because tribes are distinct sovereigns from the states and from the federal government, there are no double jeopardy concerns for dual prosecutions. (See our General Guide to Criminal Jurisdiction in Indian Country.)
What Special Domestic Violence Criminal Jurisdiction Covers and Does Not Cover
A "participating tribe," or a tribe that elects to utilize the special domestic violence criminal jurisdiction, may prosecute a non-Indian defendant for acts of
"Domestic violence," "dating violence," and "protection orders," are defined within the Text of the Law Here.
It is important to note that the “special domestic violence criminal jurisdiction” does NOT include the crime of sexual assault. If a defendant commits sexual assault, and the assault does not occur within the contexts of either domestic violence, dating violence, or a violation of a protection order, then the tribal court remains without recourse. However, if the assault does occur within the context of one of those three offenses, then the defendant may be held accountable in tribal court. This is noteworthy because the definitions of domestic and dating violence require some evidence of a preexisting relationship between the defendant and the victim. They therefore prohibit the prosecution of a defendant for sexual assault that occurred during a “hook up,” or any other instance in which the defendant and the victim do not have a prior romantic relationship.
In addition to sexual assault, the expanded criminal jurisdiction does not include the crimes of child abuse or elder abuse.
Defendants Must Have Connection to Participating Tribe
“Special domestic violence criminal jurisdiction” is reserved only for certain defendants. The expanded jurisdiction does NOT apply when:
Note that while a defendant must have certain connections to the tribe in order to be prosecuted by the tribal court, these restrictions pertain to "Indians," rather than "tribal-members." Therefore, a non-Indian defendant may be prosecuted for domestic violence involving an Indian victim, regardless of whether the victim is a member of the prosecuting tribal court, so long as the crime took place in the Indian country of the prosecuting tribe, and the defendant satisfies at least one of the three factors for sufficient ties.
Note, the requirements that the victim be Indian and that the non-Indian defendant have sufficient ties to the participating tribe are "jurisdictional" requirements. Thus, the prosecutor will bear the burden of proving these jurisdictional facts.
Prosecuting Violations of Protection Orders
In order to prosecute a non-Indian defendant for violating a protection order in Indian country, the protection order must:
Although tribes can issue and enforce civil protection orders now, tribes cannot begin to criminally prosecute non-Indian offenders for domestic violence, dating violence, or violation of civil protection order until at least March 7, 2015.
Section 908(b)(1) of the Violence Against Women Reauthorization Act (VAWA) of 2013 provides that tribes generally cannot exercise special domestic violence criminal jurisdiction (SDVCJ) until after March 7, 2015. However, section 908(b)(2) establishes a “Pilot Project” that authorizes the Attorney General, in the exercise of his discretion, to grant a tribe’s request to be designated as a “participating tribe” on an accelerated basis and to commence exercising SDVCJ on a date set by the Attorney General (prior to March 7, 2015), after coordinating with the Secretary of the Interior, consulting with affected tribes, and concluding that the tribe’s criminal justice system has adequate safeguards in place to protect defendants’ rights.
The U.S. Department of Justice (DOJ) has published proposed procedures for an Indian tribe to request designation as a participating tribe under the Pilot Project, and also proposes procedures for the Attorney General to act on such a request. This notice also invites public comment on the proposed procedures and solicits preliminary interest to participate in the Pilot Program. DATES: Preliminary Expressions of Interest from tribes are due July 14, 2013 (30 days after publication in the Federal Register, June 14, 2013). Comments on the proposed procedures are due September 12, 2013 (90 days after date of publication in the Federal Register, June 14, 2013).
Purpose of the Pilot Project
The purpose of the Pilot Project is not whether to expand the exercise of SDVCJ, but rather how best to exercise SDVCJ. The Pilot Project will support tribes in their efforts to collaboratively develop “best practices” that other tribes can consider when implementing SDVCJ in 2015 and beyond.
Two Phases of the Pilot Project
The Pilot Project will have two phases. Phase One is a planning and assessment phase, which will take place in the summer and fall of 2013. Phase Two is the implementation phase, when tribes will formally request to begin exercising SDVCJ. Phase Two will start in late 2013 and run through March 7, 2015, with some tribes potentially prosecuting SDVCJ cases by late 2013 or early 2014. Please read the VAWA Tribal Pilot Project FAQ for more information.
During Phase One, DOJ will receive “preliminary expressions of interest” from any tribe whose elected leaders believe the tribe might be a strong candidate for participation in both phases of the Pilot Project. DOJ will engage in ongoing consultation with interested tribes and will also launch an Intertribal Technical-Assistance Working Group n Special Domestic Violence Criminal Jurisdiction (ITWG). Tribes may submit a preliminary express of interest no later than July 15, 2013 by mailing or emailing a short letter to the DOJ’s Office of Tribal Justice. Please note: A tribe may still participate in the Intertribal Working Group and the Pilot Project without having submitted a preliminary expression of interest. This deadline is intended simply to begin the Intertribal Working Group as soon as possible. Also note: A tribe that submits a preliminary expression of interest during Phase One can later decide to wait until at least March 7, 2015, before exercising SDVCJ.The Intertribal Working Group (ITWG) is a voluntary working group of designated tribal representatives who may exchange views, information and advise, peer to peer, about how tribes can best exercise SDVCJ. The ITWG may choose to discuss anything that its members think is relevant to implementing VAWA 2013. The June 14, 2013 Federal Register Notice includes a preliminary list of questions that may provide useful starting point in identifying key issues and developing a checklist of best practices for exercising SDVCJ.
During Phase Two, which will commence in late 2013 with the publication of a Final Notice in the Federal Register, the Justice Department will accept and consider formal applications from those tribes that wish to begin exercising DVCJ prior to March 7, 2015. A tribe seeking DOJ approval to begin exercising SDVCJ on an accelerated basis must complete and submit an Application Questionnaire, which will include certified answers to a list of detailed questions and relevant excerpts from the tribe’s laws, rules, and policies. While not yet determined, these questions may touch on matters such as the tribe’s criminal justice system, its ongoing efforts to combat domestic violence and provide victim services and support, its history of compliance with the Indian Civil Rights Act, and the various safeguards that the tribe has put in place to protect defendants’ rights. Please note, there will be no “self-certification.” Tribes seeking to participate in the Pilot Project must submit an Application Questionnaire that must then be approved before a tribe may exercise SDVCJ prior to March 7, 2015.Questions about the Pilot Project? Contact the DOJ’s Tribal Justice and Safety at (202) 514-8812 or OTJ@usdoj.gov.
Clarifying that Tribes Have Full Civil Jurisdiction to Issue and Enforce Protection Orders Against All Persons
Section 905 of VAWA Title IX, rather than granting new authority, clarifies the intent of VAWA 2005 regarding tribal civil jurisdiction to issue protection orders. VAWA 2005 intended for tribes to have full civil authority to issue and enforce protection orders against Indians and non-Indians alike. Unfortunately, at least one federal court has suggested that tribes lack civil jurisdiction to issue and enforce protection orders against non-Indians who reside on tribal lands. Martinez v. Martinez, No. C08-5503 FDB (D. Wash. 2008). Section 905 of VAWA Title IX clarifies that every tribe has full civil jurisdiction to issue and enforce protection orders against all persons regarding matters arising on tribal lands, and that such orders are entitled to full faith and credit by non-tribal jurisdictions.
Note that the civil authority to issue a protection order is distinct from the criminal authority to prosecute a defendant for violating a protection order.
Unfortunate for tribal sovereignty, Congress did not provide a condition-less Oliphant fix. Rather, very similar to the Tribal Law and Order Act, a tribal court must provide certain, enumerated due process protections before prosecuting a non-Indian defendant. Please note, however, a tribe must only provide these due process protections if the defendant may be subject to the possibility of imprisonment.
Part (d) of Section 204 of Title IX details the due process protections that must be provided to non-Indian defendants. These protections include all of the TLOA due process protections (even if tribes do not impose the enhanced sentencing options). These protections include:
In addition to the due process protections required by the TLOA, VAWA of 2013 requires several additional due process protections. These include:
Note that because the TLOA of 2010 and the VAWA of 2013 are fairly recent legislation, these due process protections have not been “tested” or litigated. Therefore, it is still “too early to tell” what is necessarily required to satisfy these due process requirements.
Additionally note that these due process protections must only be provided by a tribal court that is utilizing the “special domestic violence criminal jurisdiction.” Moreover, the due process protections must only be provided for the “criminal proceeding” in which the special criminal jurisdiction is being used. Therefore, a tribal court is only required to provide these due process protections for proceedings in which a non-Indian defendant is being prosecuted, while other proceedings are only bound by the due process protections in Section 1302(a) of the ICRA.
In the State of Alaska, special domestic violence criminal jurisdiction only applies to the Indian country of the Metlakatla Indian Community, Annette Island Reserve. Therefore, all other tribes located in Alaska are exempted from this expansion of criminal jurisdiction. This exemption includes the provision authorizing tribes to prosecute defendants for violating protection orders. This text of this “special rule” states:
VAWA SEC. 910. SPECIAL RULE FOR THE STATE OF ALASKA
The special domestic violence criminal jurisdiction authorized in the VAWA of 2013 is a Congressionally-authorized grant of expanded jurisdictional authority. However, tribes are still bound by all other Federal law, which include both statutes and case law. For example, besides the crimes of domestic violence, dating violence, and violation of protection orders, tribes still lack criminal jurisdiction over non-Indian defendants. If a non-Indian defendant is prosecuted in tribal court for one of those three crimes, that defendant, like all other defendants in tribal court, cannot be sentenced beyond one year or fined beyond $5,000. If the tribe has adopted the enhanced sentencing provisions under TLOA, the tribe can sentence the non-Indian defendant up to 3 years and fine up to $15,000, but only if the tribe satisfies the requirements under the TLOA.
Similarly, there may be existing legal or practical realities that prevent a tribe from utilizing the special domestic violence criminal jurisdiction. These limitations could include Congressional Recognition or Settlement Acts that specifically limit jurisdiction over non-Indians; limitations on criminal jurisdiction within a tribe's constitution; or if a tribe is not currently exercising criminal jurisdiction, such as in a Public Law 280 state.
Some have questioned the ability of Congress to recognize a tribe’s inherent authority to criminally prosecute a non-Indian defendant. However, given past Supreme Court case law, the long legal history of Congressional plenary power over Indian tribes, and the application of the Indian Civil Rights Act, these concerns are likely not valid.
The United States Constitution grants Congress broad legislative power in respect to Indian tribes. This power derives from the Constitution. The text of the Constitution refers to Indians and Indian tribes in the commerce clause and the apportionment clause of Article I and the fourteenth amendment. In addition, the treaty clause, while not explicitly referencing Indian tribes, contributed to the present understanding of a government-to-government relationship between tribes and the United States. The Supreme Court has recognized that these Constitutional provisions empower Congress with the “plenary and exclusive authority” over Indian affairs.
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), held that tribal governments lack criminal jurisdiction over non-Indian defendants. However, as noted in this April 21, 2012 Letter to the Senate and House Judiciary Committees signed by fifty law professors, the reasoning in Oliphant was based in common law, and not in the Constitution. In United States v. Lara, 541 U.S. 193 (2004), the Supreme Court upheld a Congressionally-enacted statute that recognized the inherent power of an Indian tribe to exercise criminal jurisdiction over all Indians. The Court held that “Congress does possess the constitutional power to lift the restrictions on the tribes’ criminal jurisdiction.”
Tribes conducting prosecutions, regardless of whether the defendant is Indian or non-Indian, are bound by the Indian Civil Rights Act of 1968 to provide most of the rights required if the Constitution applied to tribes. In addition, tribes utilizing the “special domestic violence criminal jurisdiction,” as described above, must provide added due process protections. Thus, any concerns that defendant in tribal court will not receive a “fair trial” are necessarily assuaged.
To learn more about the constitutionality of the special domestic violence criminal jurisdiction, see the Law Professors Letter to Senate and House Judiciary Committees, April 21, 2012.
The Violence Against Women Act was first passed by Congress in 1994. The original VAWA of 1994 (Title IV, sec. 40001-40703 of the Violent Crime Control and Law Enforcement Act of 1994, H.R. 3355) provided funding towards the investigation and prosecution of violent crimes against women, imposed automatic and mandatory restitution on those convicted, and allowed civil redress in cases prosecutors chose to leave unprosecuted. The Act also established the Office on Violence Against Women (OVW) within the Department of Justice (DOJ).
VAWA includes automatic expiration dates, for which Congress must reauthorize the Act. VAWA was reauthorized in 2000, 2005, and 2013. In 2000, Congress granted tribal courts full civil jurisdiction to enforce all protection orders, regardless of what jurisdiction issued the original order. (Victims of Trafficking and Violence Protection Act of 2000, AWA 2000, H.R. 3244, Division B, 106th Congress, 1999-2000).
The expanded and reauthorized 2005 version of the Act (VAWA 2005 Reauthorization Act, H.R. 3171, 109th Congress, 2005-2006) contained, for the first time, a specific Tribal Title (Title IX), which sought to improve the safety and justice for Native American and Alaska Native women.
Title IX of 2005 included provisions for:
 Steven W. Perry, American Indians and Crime, A BJS Statistical
Profile, 1992-2002, U.S. Department of Justice, Bureau of Justice Statistics
(2004), available here.