Co-written with Joshua Schiefelbein who is a recent graduate of Dartmouth College with a degree in Russian Area Studies.
It's been a little over a year since the signing of VAWA, and there's a little under a year left before the law takes full effect. Three tribes were selected in February to implement a pilot program of the new law, so it's good time to discuss the law's future.
On March 7th of last year, President Obama signed the Violence Against Women Reauthorization Act (VAWA) of 2013 into law, which included increased legal protection for Native American women and other victims who were previously left exposed by gaps in VAWA.
During the ceremony, Obama emphasized the importance of tribal governments protecting their people and women living freely without fear.
VAWA's reauthorization was the culmination of the administration's attempts to improve the safety of Native Americans and enhance the powers of tribal courts. In 2010, the signing of the Tribal Law and Order Act (TLOA) allowed tribal courts to sentence criminals for periods longer than a year. Prior to TLOA, tribal courts could only sentence offenders to a one-year prison sentence.
"A significant reason why the legislation is so momentous is this is the first time that Congress is acknowledging that tribes, in the exercise of their sovereign powers, can prosecute individuals who are not members of the tribe or, in fact, native people," tribal law expert Bruce Duthu said. He also noted that numerous reasons that could prevent a guilty verdict, such as unpreserved crime scenes and victim tampering, cause the U.S. government's high rate of declining to prosecute cases. Despite the law's weaknesses, it's still an important step likely grounded in Congress' realization that the federal government wasn't doing enough to stop the epidemic of violence against tribal women.
Currently, Native American tribes lack criminal jurisdiction over non-Natives because of the 1978 Supreme Court case decision in Oliphant vs. Suquamish Indian Tribe. Only the federal government can prosecute non-Natives for crimes committed. As a consequence, many violators go unpunished because federal law enforcement is too thinly spread. Further, since states have no power in the U.S. Constitution to intervene on behalf of tribes, tribes are left effectively defenseless. However, VAWA includes language that establishes rights for Native American tribes to use in prosecuting crimes committed by non-Natives.
Sheri Freemont, Director of the Family Advocacy Center on the Salt River Pima Maricopa Reservation in Arizona, emphasized the absurdity that tribal nations lack the authority to hold non-Natives accountable to the law. The VAWA legislation passed last year is very limited and has several flaws due to its nature as simply a partial repeal of Oliphant.
For instance, only violators arrested for crimes of domestic violence, stalking or violating no-contact orders can be held accountable for their actions. The current provision does not include victims of sexual violence or anything else, which means many will continue to escape punishment through legal cracks.
Chief prosecutor for the Pascua Yaqui, Fred Urbina believes that it will help victims of domestic violence to know that criminal prosecution will start shortly after the offense.
Nonetheless, tribes will be forced to continue their reliance on the state or Federal government to prosecute crimes involving sexual violence. The majority of crimes that the tribes prosecute will be considered misdemeanors. Almost all felonies will be referred to the Federal government because of the tribes' limited legal authority. Thus, if a tribal court convicts a U.S. citizen of a felony, the case must be moved to the Supreme Court.
The expanded tribal criminal authority will be slowly rolled in the pilot program. The first three tribes that will implement this new justice system are the Pascua Yaqui in Arizona, the Tulalip in Washington and the Umatilla in Oregon. All other tribes will have the opportunity to appeal for the prosecutorial powers in 2015.
Many tribes will be prevented from using the new legal privileges, however, since they do not have the economic ability or ideological incentive to redesign their judicial system. Others believe their systems are sufficient already.
Additionally, 229 tribes in Alaska will not be protected by VAWA. Senator Lisa Murkowski wrote in a special exemption for the state, at the apparent request of the Alaska Attorney General's office.
The three tribes, of the 566 federally-recognized tribes, were specifically chosen for the pilot program because they submitted plans to the Department of Justice showing they had the infrastructure ready to provide comparable or better protections compared to the Constitution. Tribes needed to prove they would have trained judges and lawyers certified by U.S. law schools.
Nonetheless, tribal courts will likely not hold their newfound power for very long. Since the Oliphant ruling, the Supreme Court has long held the notion that tribes do not have the authority to exercise criminal jurisdiction unless the offender is a native.
Representative Don Hastings, R-Wash., believes the provision will be held up in court challenges for years until the Supreme Court rules; at which point, Duthu believes the Supreme Court will likely overturn the provision, reverting to previous rulings on the issue of tribal authority.
Duthu believes the court will likely be split 5-4, with Kennedy, Roberts, Scalia, Alito and Thomas voting in favor of repealing the provision. He said, "There are a number of justices, notably Justice Kennedy, who have for years expressed great reservation about whether or not Congress' admittedly vast powers in Indian affairs go this far."
Kennedy, the court's swing vote, has written opinions challenging the scope of tribal power. In Duro vs. Reina, Kennedy outlined that tribes could only prosecute their own members and no one else. Kennedy rationalized his argument, saying members consented to the governmental authority of the tribe and have the power to change the government. Non-members lack that opportunity.
Unless Justice Roberts surprises the nation again with another unexpected vote, as he did when the Supreme Court ruled on the Affordable Care Act, the provision allowing tribes to prosecute offenders will be overturned; potentially this year if one of the three tribes in the pilot program convict a non-Native person of a felony.
Which raises the question, why does the U.S. government not respect native american tribal sovereignty yet argue the sovereignty of nation-states, such as Ukraine in the current geopolitical situation, must not be violated?