This week, Congress is poised to reauthorize the landmark Violence Against Women Act, a bill that aims to protect women in cases of domestic violence, rape, and other forms of abuse. However, despite broad support from both political parties, the bill faces a challenge in the House of Representatives, where a new addition to the bill would allow Native American police and courts to arrest and prosecute non-American Indian defendants who are charged with committing crimes against women. It’s not a straightforward issue: conflicts between tribal and federal laws and jurisdiction have left many Native American women in a legal bind.

When it comes to statistics regarding native women in the United States and violence, the numbers are staggering: according to Senator Tom Udall, Democrat of New Mexico, one out of three American Indian women are assaulted, and three out of five experience domestic violence. If those statements seem shocking, they should be; for years, tribal rights activists have argued that there is a lack of oversight when it comes to violence against Native American women.

On principle, it would seem as though all violence against women should be treated the same way under the law, regardless of the plaintiff and defendants’ races and ethnicities; however, legal issues involving Native Americans contain unique challenges due to split jurisdiction. An agreement between First Nation peoples and the federal government stipulates that tribal courts have jurisdiction over disputes involving tribe members. However, because of the Supreme Court ruling in Oliphant v. Suquamish Indian Tribe, tribal courts do not have jurisdiction over non-Indians, and there has been no successive ruling as to whether tribal courts can even subpoena non-members or hold them in contempt.

With the exception of states specified in Public Law 280, state governments lack jurisdiction over crimes involving Native Americans on tribal soil. Federal officials have jurisdiction in cases involving both Native Americans and non-Native Americans, but they often refuse to intervene when they are petitioned. Granting tribal courts the power to prosecute cases that fall into this category would give the women caught in this legal bind a chance to seek justice; however, several Republican Congress members have expressed concerns that this will deprive American-citizen defendants of rights guaranteed under the U.S. Constitution, which may not be protected in tribal courts. On this basis, the bill faces opposition.

There are several responses to this objection, but the most important one involves our duty to the women involved. Victims of crimes often experience difficulties under our adversarial system; the legal process can be notoriously harsh toward victims of sexual and domestic violence, who are forced to relive their trauma and to prove that they were actually victimized. The psychological toll is well-documented, and many organizations that provide resources to victims of violence have sought to work with courts to improve the court process. Those efforts involving reforming the system, not dismantling it; even if it gives victims and perpetrators an equal say, we agree that the principle that one is innocent until proven guilty provides a fairer assessment of the facts of a case. However, specifically depriving a woman of any access to justice in favor of an alleged perpetrator who is immune to prosecution by virtue of his citizenship seems to take that principle a bit too far. I would call it un-American.

People of all genders and backgrounds deserve to have relationships that are healthy and safe and deserve to live free of violence. We cannot completely eliminate crime or eradicate behaviors that lead to violence, but we can at least agree that our government must fight back against violence in any way it can. Depriving Native American women of a critical right to justice is equivalent to perpetuating the culture that allows men to commit violence against women; it sends the message than non-Native American men can hurt Native American women with impunity. The House of Representatives should accept the addition of this provision and reauthorize the Violence Against Women Act. It’s the least Congress can do to counter violence against women.

  • Joseph Cribb

    I really really enjoyed reading this article and am so glad that someone thought this extremely important issue was worth writing about. This is a really frustrating issue for many reasons. For one, the issue rests on the imposition of federal plenary power, largely in this case because of the ruling in Ex Parte Crow Dog, in which the Supreme Court ruled that any and all major crimes committed on native soil (murder, manslaughter, rape, assault w/intent to kill, burglary, arson, larceny) MUST be tried and ejudicated in federal (not tribal) courts (resulting in the Major Crimes Act of 1885). Secondly, in the Supreme Court case of Oliphant v. Suquamish Indian Tribe (1978), the court ruled that tribal nations held no jurisdiction over non-citizens of the tribe in question–resulting in the current inability of tribes to hear cases of violence against Native women perpetrated by settlers. I think the reason that some people in Indian Country oppose this measure is because it in no way would renew or repair the sovereignty lost by these colonial impositions, and also because it may very well do more to further limit their control of peace and justice on tribal lands by bringing in more federal laws and law enforcement. Many citizens of Indian Country simply do not trust the federal government to protect them when it is their fault for causing this issue, at the root of it all.

    Just my thoughts. Also, a little confused by the reference to Canadian terminology (First Nations) in third paragraph.