What the Violence Against Women Act could do in Indian Country — and one major flaw

The 24-year-old Violence Against Women act, or VAWA — the largest policy measure addressing sexual assault and domestic violence — comes up for reauthorization every five years. On Dec. 3, Congress passed a resolution extending the landmark legislation for two more weeks, and now the current deadline is Dec. 21. Since its 2013 reauthorization, the law has also included important provisions to address the epidemic of violence against Native women.

If VAWA lapses, it will not change any statutes in the existing law or even necessarily cut funding. During the last reauthorization fight, for example, VAWA expired for 500 days, and yet program funding continued. But whether or not the bill is reauthorized, it still must go through the appropriations process, in which Congress allocates the necessary money.

“Rather than allow the fear of unauthorization drive efforts surrounding VAWA, Indian Country should focus its attention on meaningful enhancements,” says Caroline LaPorte, a descendant of the Little River Band of Ottawa Indians and senior Native Affairs policy advisor at the National Indigenous Women’s Resource Center. “Specifically, provisions needed to address the jurisdictional gaps that continue to leave Native women vulnerable to extremely high rates of violence.”

As it stands, almost every Native woman will experience violence: Eight in 10 will be raped, stalked or abused in the course of a lifetime, and a shocking one out of three is raped, stalked or abused every year. Prosecuting these crimes is difficult; 97 percent of crimes against Native victims are committed by non-Natives, and due to a complex web of federal laws and statutes, tribes have long been unable to prosecute non-Native perpetrators who commit their crimes on tribal land.

The Violence Against Women Reauthorized Act of 2013 changed that — to some extent — by restoring tribal jurisdiction over non-Native perpetrators of domestic violence and dating violence. However, the 2013 bill did not include child abuse, sex trafficking, rape or murder, and it excluded most of the tribes in Maine or Alaska. Native advocates have long said that the full restoration of tribal criminal jurisdiction is necessary to end this crisis of violence in Indian Country.

In July, Rep. Sheila Jackson Lee, D-Texas, introduced the Reauthorization of Violence Against Women Act of 2018 (HR 6545), the only comprehensive VAWA reauthorization bill. Under Title IX “Safety for Indian Women,” the bill builds on the progress made in 2013 and closes some of the remaining jurisdictional loopholes that have left Native women exceptionally vulnerable to violence. Here’s what the bill does:

Expands tribal jurisdiction to include sexual assault, stalking and trafficking:

Over half of all Native women have experienced sexual violence in their lifetime, while 48 percent have been stalked. However, tribes lack jurisdiction to prosecute non-Natives who commit rape, sexual assault, stalking or sex trafficking on tribal lands. The proposed 2018 Reauthorization restores tribal jurisdiction over these crimes.

Expands tribal jurisdiction to cover child abuse and other attendant crimes:

Since the last reauthorization of VAWA, tribes have been arresting non-Native perpetrators for domestic violence. The National Congress of American Indians reports that in 60 percent of these arrests, children were witnesses or victims. Nationally, Native youth face rates of abuse higher than any other demographic. While tribes can now arrest abusers for domestic violence, they cannot arrest the exact same perpetrators for abusing children.

Tribes also lack jurisdiction to prosecute non-Native abusers for the crimes that often occur during arrests and prosecution for domestic violence, including assaulting a police officer, resisting arrest or intimidating a witness. HR 6545 includes language from the Native Youth and Tribal Officer Protection Act that restores tribal jurisdiction over those crimes, including child abuse that occurs with domestic violence arrests and involves non-Native offenders.

Improves data collection and response to missing and murdered women:

Native women are murdered at a rate 10 times higher than the national average; in fact, murder is the third leading cause of death among Native women between the ages of 10 and 24. After the brutal murder of Spirit Lake Dakota and Turtle Mountain Chippewa citizen Savanna LaFontaine-Greywind in 2017, Sen. Heidi Heitkamp, D-N.D., introduced Savanna’s Act to address the epidemic of missing and murdered Indigenous women. HR 6545 features the same provisions as the Heitkamp bill, including improved data collection and sharing and response protocol. The bill requires the U.S. Department of Justice to list tribal affiliation in its national databases for murdered Indigenous women and expands data sharing with tribes by expanding the Tribal Access Program. The bill would also require the Justice Department to create, in consultation with tribes, new guidelines for response protocol.

Creates federal punishments for violating tribal exclusion orders:

Since time immemorial, banishment has been a form of punishment for perpetrators of violence against women. Today, many tribal justice systems are returning to banishment or exclusion orders to restore safety to their communities. With limited jurisdiction, however, there is little tribes can do when these orders are violated. The final measure in Title IX “Safety for Indian Women” creates a federal penalty for offenders who violate tribal exclusion orders.

While the proposed updates provide important protections in Indian Country, HR 6545 has one major flaw: It doesn’t include tribes in Alaska or Maine.

Alaska Natives are only 20 percent of the state’s population, but represent 54 percent of the state’s rape victims and, in 2016, two-thirds of the state’s female homicide victims. Due to a 1971 law and a 1998 Supreme Court decision, 228 of the 229 tribes in Alaska do not meet the legal definition of “Indian Country,” and VAWA does not apply. NIWRC reports Advocates have proposed an amendment to the 1971 Alaska Native Claims Settlement Act to restore jurisdiction over Native land to the 228 tribes currently excluded. Due to similar legislation in Maine, four tribes in the Pine Tree State are in the same position. Without a fix, the next reauthorization of VAWA could leave out 40 percent of the tribes in the United States.

What’s next for VAWA:

These loopholes will remain until the Reauthorization of Violence Against Women Act of 2018 passes. The legislation has 180 Democrat co-sponsors but no Republican co-sponsors, and it has failed to move forward in the Republican-majority House since last July, when it was introduced. If the bill is not passed before the end of the year, it will need to be re-introduced next session. The 2019 House of Representatives is not only majority-Democrat; it also boasts the first two Native women ever elected to Congress. Advocates have high hopes for Lee’s bill in the 2019 House, says LaPorte. But before it can become law, it still needs to pass the Senate and be signed by President Donald Trump.

Rebecca Nagle is a writer, advocate and citizen of Cherokee Nation living in Tahlequah, Oklahoma.

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