By Aara Ramesh
Among the many verdicts handed down by the U.S. Supreme Court last month was the unanimous affirmation of the right of tribal law enforcement officers to detain non-Native people who they reasonably suspect to have been involved in a crime on Native land. This decision has breathed life into a piece of legislation — the Violence Against Women Act — pending in front of Congress that tackles the epidemic of violence committed against Indigenous women and girls.
The data about violence committed against women in general — and Indigenous ones in particular — are staggering. In addition, it is widely acknowledged that the incidence of violence experienced by Native American women is much higher than that of other races.
Tribal authorities, however, find themselves hamstrung when it comes to punishing violence perpetrated against Native women due to the jurisdictional complexities associated with investigating and prosecuting serious violent crimes committed against Native communities on Native lands by people of other races.
In today’s piece we take a look at why it is critical to specifically address violence against Native American women and girls, the remedies for this adopted by the federal government in the past, and what still needs to be done to effectively be able to protect what is considered to be the most vulnerable and underserved demographic in the U.S.
Women And Stalking, Rape, And Murder
The data suggests that women are being victimized by violence at an alarming rate. Rates of crimes that largely affect women, including physical assault, sexual abuse, domestic violence, date-related abuse, and stalking, are still extremely high. Per some estimates, 15% of all violent crime is down to intimate partner violence.
Experts say that violence against women does not always start and end with murder. It often escalates, moving from slightly less threatening crimes like stalking, to physical or sexual assault, only to often culminate in homicide. For instance:
- Of all women who were stalked by an intimate partner, 81% were physically assaulted and 31% were sexually assaulted.
- Over three-fourths of all women who were murdered by an intimate partner were stalked by them first. Over 85% of women survivors of murder attempts were stalked.
- Almost nine in every ten women who were physically assaulted before they were murdered were stalked in the year before their death.
- Over half of the women murdered by their stalkers reported the stalking incidents to the police.
By 1994, this crisis came to a head. That year, the Violence Against Women Act (VAWA) was passed, spearheaded by then-Senator Joe Biden, as a way to systematically and comprehensively address the epidemic on a federal level. It covered all manner of serious crimes perpetrated against women of all races, including domestic violence, sexual assault, and stalking. The Act was further fine-tuned, expanded, and reauthorized in 2000, 2005, and once more eight years later, in 2013.
Assaults Against Native American Women And Girls
Within this broader segment, Native American women (defined as “American Indians and Alaska Natives” by the federal government) suffer more than the average woman and women of other races. Over 4 in 5 Native women report having experienced some form of violence during their lifetime. Compared to other races, they are at least twice as likely to be victims of rape or sexual assault.
According to the Centers for Disease Control and Prevention, for Native women aged 10–24, homicide is the third leading cause of death. For those aged 25–34, it is the fifth leading cause. In some tribal areas, the murder rate of Indigenous women is 10 times higher than the national average. Other estimates say that one in every three Native women is raped during their lifetime.
Key to this discussion, as well, is the fact that an overwhelming 96% of Native women who have been the target of violence say the perpetrator was a non-Native. Native women are also almost 4 times more likely to be stalked by a non-Native.
This is particularly important when it is contextualized against the fact that tribal law enforcement authorities have almost no ability to prosecute non-Native perpetrators of such offenses. They are, instead, reliant on state and federal authorities, who get to decide whether to pursue the cases or not. This includes all types of crimes, ranging from drug abuse to sexual and domestic violence.
According to the DOJ, in 2011, 65% of rape cases reported on tribal lands were not prosecuted. In 2019, federal prosecutors declined to prosecute 35% of violent and non-violent crimes during that period. The Government Accountability Office released a report in 2010 that indicated federal authorities chose not to pursue more than half of violent crimes that take place on tribal lands.
Native Communities And VAWA
While the original 1994 Act did look specifically at violence and sexual assault against “underserved populations and Native American” women, it was the 2013 reauthorization that made the broadest efforts to specifically target the violence enacted against Indigenous women by undoing, in part, the U.S. Supreme Court’s 1978 ruling in Oliphant v. Suquamish Indian Tribe.
In that case, the court ruled that “tribes lost authority to try non-Indians when they became dependents of the United States.” As such, police on reservations were unable to properly detain or prosecute non-tribal citizens.
The 2013 VAWA reauthorization rectified this in some small degree in regards to violence against women, by extending the authority of tribal governments over cases where non-Natives with “significant ties” to the tribe violate certain protective orders and/or commit dating or domestic violence against Native women on tribal lands.
This power is called the “special domestic violence criminal jurisdiction” and allows tribal governments to investigate, prosecute, convict, and sentence spouses or partners who commit violence against Native women on Native lands, irrespective of whether they are members of the tribe or not. However, in addition to limiting this authority to only a very narrow set of cases, VAWA 2013 does not cover a broad range of crimes, including those committed on non-Native lands, between two strangers, by anyone without “sufficient” ties to the tribe, etc.
Further Empowering VAWA
The 2021 reauthorization of VAWA was introduced by Texas Representative Sheila Jackson earlier this year, in March. Among numerous other provisions, in Title IX, the act addresses Native women in a number of ways. It is designed to improve coordination, communication, and resource- and information-sharing among all levels of governments, from tribal to federal. It would also create, for the first time, sex offender and protection order registries for Native communities.
One of the handicaps highlighted by the bill is the lack of resources available to tribal authorities when it comes to enforcing laws on their lands. As such, it allocates $7 million every year between 2022 and 2026 to tribal governments to improve their resources, training, data collection, etc. It also allocates an additional $3 million annually to help them access and use federal criminal information databases.
The 2021 version also reaffirms tribal jurisdiction over the aforementioned protective orders, and dating and domestic violence, as specified in 2013. Importantly, it also goes a step further by extending this authority to other crimes involving Native victims on tribal lands, including incidents of sexual violence, stalking, trafficking, and child abuse.
The 2021 VAWA reauthorization effort was given the go-ahead in the House several months ago, passing in a 244–172 vote in March, but it has stalled in the Senate due mostly to a provision regarding the confiscation of firearms in domestic violence situations — a matter unrelated to Native authority.
In 2013, tribal jurisdiction was one of the major sticking points of the discussions about reauthorizing VAWA. However, the Supreme Court’s June 1 verdict in United States v. Cooley (mentioned at the start of this piece) has reinvigorated hopes of passing VAWA more easily this time around.
Under that ruling, if there is reasonable suspicion that a non-Native person has committed a crime, including rape, tribal police will be able to detain that person until federal or state authorities can arrive, reducing the risk of such perpetrators fleeing. At the time, the ruling was hailed by advocates who saw it as one shuffle towards ensuring that non-Natives cannot violate laws on Native lands with impunity.
Now, advocates are looking to use this as somewhat of a legal precedent to push for the rights of Native communities to have more control over protecting their women. Though neither VAWA nor the Cooley decision would allow tribal authorities to prosecute crimes such as murder autonomously, Indigenous leaders are hopeful of being able to prevent circumstances from becoming so dire in the first place, by stopping stalkers and/or abusers before they can murder their victims.
According to Alfred Urbina, the attorney general of the Pascua Yaqui Tribe in Arizona, with the high rates of violence committed against Native women, it would be more expedient and welcome for local authorities to prosecute local crimes. The way he views it is that anyone would want to be protected by their own community, regardless of where the perpetrator comes from.