Is the Violence Against Women Act a chance for tribes to reinforce their sovereignty?
Victims' advocates joined legislators at the North Dakota Capitol in Bismarck on March 26, to discuss the recently reauthorized Violence Against Women Act. The meeting began on a celebratory note: The federal law restored to tribal courts the right to prosecute non-Indians for abusing or assaulting Native American women on Indian land -- something the U.S. Supreme Court had previously prohibited. "We were so excited. We'd been waiting so long," says Melissa Merrick, victim assistance director for Spirit Lake Reservation, in the center of the state. Then Rep. Kevin Cramer, R-N.D., who had voted for the bill but objected to the new provision, stood to speak. "How could a non-Native man get a fair trial on a reservation?" he demanded, according to Merrick and other attendees. "He didn't feel secure going onto a reservation anymore," said Merrick. "I asked him, 'Why? Don't beat up our women, and you'll be fine.' "
Cramer's remarks upset Merrick, a survivor of abuse. The congressman was also wrong: Tribes must offer defendants all the protections normally afforded American citizens -- due process, trained judges, free counsel, representative and balanced juries. And the provision applies only to non-Indians who live or work on the reservation and are in intimate relationships with plaintiffs. Nationwide, 77 percent of Indian Country residents are non-Indian, and roughly half of Native American women have non-Indian partners. Merrick sees the Violence Against Women Act as a step toward healing the Spirit Lake community, which has come under scrutiny recently for child abuse and other violence. Both tribal members and non-Indians are to blame -- at least 1,000 non-Indians live on the reservation -- and some perpetrators have so far escaped prosecution.
Law enforcement in Indian Country is a patchwork affair, though recent administration efforts have strengthened it somewhat. Tribal police departments and courts are often understaffed, and federal acts have steadily whittled away tribal authority. The 1885 Major Crimes Act stripped tribes of jurisdiction over all but minor offenses. The 1968 Indian Civil Rights Act imposed sentence limits on tribal courts. And in 1978, in Oliphant v. Suquamish, the Supreme Court decided that tribes could not prosecute non-Indians at all. Federal and state officials are supposed to fill the gap, but between 2005 and 2009, the Justice Department failed to prosecute 52 percent of violent crimes reported in Indian Country. Misdemeanors and protection-order violations are also frequently unpunished. When victims of domestic and sexual abuse see no real recourse, they become reluctant to seek help.
As Cramer's misgivings showed, the attitudes that helped create this predicament are still in play. In 1973, when Mark Oliphant appealed charges the Suquamish Tribe had leveled against him -- assaulting an officer on Washington's Port Madison Indian Reservation -- he argued that being subject to tribal law on American soil violated his constitutional rights. The Supreme Court asserted, instead, that the government had divested tribes of their sovereign right to prosecute non-Indians, but Oliphant's claim stuck. Washington Attorney General Slade Gorton called the ruling "a major decision upholding the liberties of the American people." Thirty-five years later, the same argument turned the tribal provision of VAWA into the bill's most controversial measure. At a Senate hearing in February, John Cornyn, R-Texas, claimed the bill was "being held hostage by a single provision that would take away fundamental constitutional rights for certain American citizens."
Of course, Native Americans are also American citizens, and rape and abuse with immunity from tribal law -- and poor enforcement of state and federal law -- have come at a great cost to them. "When lawmakers say, 'This could be unconstitutional,' I think they misunderstand what tribes are," says Sarah Krakoff, a University of Colorado professor of American Indian law. Some may not understand, for example, that even before VAWA passed, tribal courts had to observe the Bill of Rights. "I think they fear tribes are incapable of being fair." Rep. Tom Cole, R-Okla., who led the bill's negotiations in the House, told The New York Times that some of his colleagues seemed worried that "Indians are going to take out 500 years of mistreatment on us through this."
Many Native leaders see the new provision as a chance for tribes to end such misperceptions by proving their own capability. "If tribes use this authority in a manner that is deemed responsible by the public, I think eventually the sky is the limit for tribal jurisdiction over non-Indians (on reservations)," says Assistant Secretary for Indian Affairs Kevin Washburn. Still, he anticipates tribes will face heavy scrutiny, even though "state and federal courts make mistakes all the time -- that's why we have appellate courts."
The Department of Justice is encouraging tribes that already meet the law's requirements to join a pilot program to help them expand their jurisdiction before 2015, when VAWA takes effect. "This is going to be a permanent feature of the legal landscape," says Deputy Associate Attorney General Sam Hirsch. "The question is, what's the best way to do it?"
Fewer than 20 tribes have the resources and infrastructure to implement the provision immediately; it could be a long time before Spirit Lake becomes one of them. Still, says Merrick, "It sends a message to our women that their safety is important." Perhaps as important is the message that tribes "are not out to hurt non-Natives," says Juana Majel-Dixon, vice president of the National Congress of American Indians. "If we can get people to understand that, then we can heal our nations from this violence."