Op-Ed: Let’s Apply the Violence Against Women Act to Native American Women

A law exists to protect Native women from violence on Indian reservations. If only Congress would reauthorize it.

Native American Women are among the world’s least protected against rape, domestic abuse and other violence. Shoudn’t Congress do something about that? (Photo: Chip Somodevilla/Getty Images)

Dec 7, 2012

“If he had only beaten me 50 yards away, maybe he could have been arrested.”

That’s what my Indian friend—let’s call her Annie—said after her non-Indian husband beat her on this one of many beatings shortly after she married him. A short distance way was the border of the Indian reservation Annie calls home.   

Violence against women has been called one of the most pervasive human rights crises plaguing the United States. Since 1994, the Violence Against Women Act (VAWA) has provided critical support to protect American women from domestic violence, sexual assault and stalking. Unfortunately, not all women in this country are protected equally under VAWA. The fact of the matter is that, because of systemic barriers in current federal law that affect jurisdiction in Indian country, many Native American women are simply not being protected from violence at all.

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While VAWA has helped decrease overall rates of domestic violence by 50 percent over the past 18 years, Native women in the United States are still being subjected to domestic violence and assault at staggering rates, rates 2.5 times higher than any other group of women in the United States.

One in three Native women will be raped; and three out of five will be physically assaulted. Even worse, on some Indian reservations, Native women are being murdered at a rate 10 times the national average.  

The root cause of the epidemic rates of violence against Native women is the lack of tribal government authority to prosecute non-Indians for domestic violence. Non-Indians commit some 88 percent of these offenses. And this violence is occurring at a time when 76 percent or more of the residents on Indian reservations are now non-Indian, and more than 50 percent of Native women are married to non-Indians.

The situation in Alaska is especially grim, as many Alaska Native communities lack any law enforcement whatsoever.

Tribal efforts to ensure the safety of Native women are systemically thwarted by federal laws such as the Major Crimes Act, under which the federal government assumed exclusive jurisdiction over certain felony crimes committed within Indian country, and Public Law 280, which transferred criminal jurisdiction over crimes occurring in Indian country from the United States to certain states. 

For more than a century, the United States has summarily limited tribes’ ability to protect Native women from violence and to provide them with meaningful remedies. It has done so by creating a discriminatory system for administering justice in Native communities—a system highlighting this country’s failure under its federal trust responsibility to tribes and its defaulting on obligations under international human rights instruments such as the U.N. Declaration on the Rights of Indigenous Peoples. 

Within Indian country, we deal with a jurisdictional maze that requires law enforcement officials and prosecutors to do a case-by-case analysis of the status of the land where each crime occurred, the type of crime and the race of both the perpetrator and victim. This race-based scheme threatens the safety of Native women every minute of every day, violates their human rights by treating them differently from all other women, and creates confusion about which government—federal, tribal or state—has legal authority to respond to, investigate and prosecute crimes. 

Most of these Indian country crimes fall under federal jurisdiction; yet—by its own accounting—U.S. attorneys decline to prosecute 67 percent of the Indian country matters referred to them that involve sexual abuse and related crimes. PL 280 impacts the criminal justice systems for 51 percent of tribes in the lower-48 and potentially all Alaska Natives and their villages. Indian leaders and advocates have raised urgent concerns about the failure of states to respond to and prosecute crimes on tribal lands subject to a PL 280 regime. The situation in Alaska is especially grim, as many Alaska Native communities lack any law enforcement whatsoever.

The erosion of tribal government authority to address crimes committed by all persons within their jurisdictions, coupled with a shameful record of investigation, prosecution and punishment of these crimes by federal and state governments that do have jurisdiction, allows criminals to act with impunity in Indian country. This perpetuates an escalating cycle of domestic violence in Native communities that threatens and often takes the lives of Native women. Native women who are subjected to violence should not be treated differently and discriminated against just because they are Indian and were assaulted on an Indian reservation. 

The Violence Against Women Act of 2005 expressly recognized that “the unique legal relationship of the United States to Indian tribes creates a Federal trust responsibility to assist tribal governments in safeguarding the lives of Indian women.” Congressional support for tribal jurisdiction provisions, such as those in S. 1925, the Violence Against Women Reauthorization Act approved by the Senate with bipartisan support, would be an incremental step forward in fulfilling that responsibility, filling the jurisdictional gap in Indian country and restoring safety to Native women. 

The tribal provisions proposed in Section 904 of S. 1925 and H.R. 6625 would restore concurrent tribal criminal jurisdiction over non-Indians who commit a limited set of misdemeanor crimes involving domestic violence, dating violence and violations of protection orders and who have significant ties to the prosecuting tribe. Tribal courts exercising such specific domestic violence jurisdiction must provide all defendants, whether Indian or non-Indian, with the same protections they would get in a federal or state court. Nothing in the bill would alter or diminish existing federal or state jurisdiction. Its aim is simply to help tribes end the epidemic levels of violence against Native women—something to provide long overdue justice to Native women.

Only Congress can restore safety and justice to Native women, and we urge Congress not to remain complicit. Do something. Please fully support the inclusion of tribal provisions in VAWA to help tribes end the epidemic levels of violence against Native women.

If you are outraged that Native American women are among the world’s most unprotected against rape, domestic abuse and other violence, sound off in COMMENTS.

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