Congress passed the Violence Against Women Reauthorization Act of 2013, which has been languishing in the House of Representatives since early last year. Although the House passed the Reauthorization last April, its version did not include additional provisions written to protect domestic violence victims who are gay, Indians residing on reservations, and illegal aliens. Today, thanks largely to a bipartisan effort by Senator Dorgan, the complete version was passed, guaranteeing rights to these historically marginalized and under-represented groups. I find it unfortunate at best, and despicable at worst, when politics gets in the way of humanity. Regardless of one’s views on same-sex marriage, homosexuality in general, ethnicity, or immigration policy, I would hope that we can all agree that everyone deserves civility and safety.
I’ve been on my soapbox about VAWA for ages, and if you’re my Facebook friend, you already know that. Stop reading now if you aren’t interested in the details of tribal vs. federal jurisdiction because I’m about to delve pretty heavily into it in order to explain why I care so much.
When you’re talking about Indian Country, determining where to prosecute is not as easy as pinpointing the location of a crime. Even if all relevant parties were clearly within the reservation’s perimeter boundaries, there are three possible answers to the jurisdiction question, and after determining where the crime occurred, you must also know the race of both the suspect and the victim, and the nature of the crime. Crimes committed by Indians fall under the jurisdiction of the tribe, first and foremost, but also the concurrent jurisdiction of the federal government. Non-victim crimes committed by non-Indians fall under the exclusive jurisdiction of the state.
Now for the exciting part: Until today, crimes committed by non-Indians against Indians fell within the exclusive jurisdiction of the federal government. Such offenders could be punished neither by the state (via the local district attorney or city attorney), nor by the tribe. The functional result of this was that most low-level offenders went unpunished. Like prosecutor’s offices everywhere, the U.S. Attorney’s Office is overworked and understaffed, and though they tend to do well in charging the most serious domestic violence offenses, the less serious, misdemeanor incidents fall by the wayside. This is, of course, because they typically rely on tribal prosecutors (like me) to handle misdemeanors committed by Indians, and there simply doesn’t exist a mechanism by which to ensure prosecution of those same crimes by non-Indians in federal court. VAWA corrects this problem by specifically providing for the prosecution in tribal courts of domestic violence crimes committed by non-Indians against Indian victims.
The Internet is ablaze with heated discussion, most of which is waged by people who have no idea what tribal jurisdiction means, how tribal courts operate, or even what an Indian is according to federal statutory and case law. For reasons that should be apparent, the arguments I find most offensive are those that claim that tribal courts (and by extension, tribal prosecutors) are inept, and in the pursuit of some misplaced sense of vigilante justice, will inevitably trample the rights of the accused. Most of this comes under the guise of “equal protection” banter, but in reality, it’s thinly veiled racism, considerable arrogance, and mammoth condescension.
Who is it, exactly, that our Republican Representatives are fighting so hard to protect from prosecution? Yes, let’s talk about that. They are people who marry Indian women and father Indian children. Men who live on reservations and take advantage of all the benefits inherent therein. Men who abuse their wives and girlfriends – hit them, suffocate them, sexually assault them – and who live in relative assurance that they will never face justice because their victims feel scared, hopeless, and alone. Men who rely on the insulation of the reservation, and their victims’ hesitance to leave it, to get away with horrific crimes.
Did you know that Indian women face domestic violence and sexual assault at a rate 2.5 times higher than any other race or nationality? One out of three Indian women will be sexually assaulted in her lifetime. Historical cultural trauma systematically perpetrated by the government throughout the 19th and 20th centuries bred distrust of those outside their inner circles. Hardly any reservations have self-sustained shelters, so deciding to leave an abusive relationship implies far more than it might for a non-Indian. Indian victims must leave behind a culture, traditions, their entire families, their tribes’ sacred places, and flee to a generic shelter that is not only unfamiliar, but also intrinsically foreign, while their non-Indian spouses / boyfriends / significant others remain behind on their reservations.
I am thrilled with today’s Congressional vote – thrilled that these women will have a voice, thrilled that their abusers will be held responsible, and thrilled that I get to be part of this exciting time in Indian Law.
