Both laws—the Tribal Law and Order Act, signed in 2010, and the Violence Against Women Act, which passed Congress and was signed into law last year—essentially give tribal justice systems more power in prosecuting and sentencing violent offenders on reservations, where gaps in the federal law had made Native American communities safe havens for criminals for decades. The reason: Tribal prosecutors were barred from prosecuting crimes by non-Native American offenders.
Tribal leaders, driven by statistics that show one in three Native American women are assaulted or raped in their lifetimes and three in five are victims of domestic violence, backed the Obama administration’s push for both laws. For many, the fact that most victims reported their attackers were not Native American made the push especially urgent.
“We are human beings who are paying a big price with the (lack of) safety of our Native women and that should not be happening,” said Juana Majel-Dixon, who holds a traditional appointment on the Pauma Band of Luiseno Indians’ legislative council and leads the National Congress of American Indians’ task force on addressing violence against women.
In remarks Friday at an annual powwow in Cannonball, a small community on the reservation that straddles North Dakota and South Dakota, Obama noted work in enhancing tribal courts’ authority, saying his administration had made more progress in closing justice gaps than any other in history—“particularly when it comes to criminal sentencing and prosecuting people who commit violence against women.”
“Let’s put our minds together to advance justice because like every American you deserve to live safely in your communities,” he said.
Even with the laws now passed, legal loopholes remain and the wait for justice for Native women continues, in part because VAWA, the newer of the two laws, won’t take effect until next year on most reservations, including the Standing Rock Sioux Reservation. Even then, tribes must have implemented a series of steps that many might not already have in place and could pose large legal costs.
One of these steps, for example, includes ensuring tribal judges have appropriate credentials they might not already have, said Troy Eid, a former U.S. Attorney for Colorado who this past year chaired the Justice Department’s Tribal Law and Order Commission.
“It’s going to be a while before these changes take place on many reservations,” he said. “And there is going to be a lot of waiting while these issues unfold.”
One of those waiting is Willetta Dolphus, who runs a woman’s shelter, The Pretty Bird Woman House, on the Standing Rock Sioux Reservation. She isn’t sure when the protections provided by VAWA will hold weight for the women she serves. And she notes that as waiting continues, the perceived threat of violence is rising in her area, given the energy boom in the region that has brought an influx of oil workers and man camps to the plains of the Dakotas.
“We’re anxiously waiting and just wish it didn’t take so long,” said Dolphus. “But we’re glad there’s work in place also. We got some hope anyway.”
Beyond the wait for the law’s start date and legal red tape for nearly all 566 federally recognized tribes, there are also limits that remain for Native communities in the justice system.
For one, VAWA can be irrelevant on tribal lands in certain instances of domestic violence and assault in that it only gives tribes authority to prosecute an assailant whom the victim knows, such as a husband, boyfriend or domestic partner—not a total stranger. “What VAWA covers and what tribes can execute in terms of their statutes is really, really narrow,” Eid said.
VAWA requires that a victim and her assailant know each other, beyond a first encounter, and a tribal prosecutor must be able to prove this beyond a reasonable doubt, Eid said.
And there’s more that remains undone: Some 200 Alaska Native tribes and villages were excluded from the law all together due to political opposition within the state and on an apparent technicality—the term “Indian Country” used in the language of VAWA is not a legal term that applies to all Alaska Native lands.
Majel-Dixon said the work to get Alaska included in the law is a priority this year for NCAI, whose membership of tribal leadership and advocates met in Anchorage this week. “It’s a crazy provision in the way that it happened,” she said. “The exclusion of Alaska villages from the definition of Indian Country puts them at a great disadvantage with their public safety, and especially for women and children. [VAWA] has to be amended.”
The findings of the commission chaired by Eid agreed that the state’s Native villages, many of which are only reachable by plane and face some of the most dire law enforcement disparities in the country, should have the expanded legal authority under VAWA to prosecute crimes against women in the communities. Crime rates are 10 times higher than the rest of the country, the commission said in a report released in November.
According to the Tribal Law and Order Commission’s report, at least 75 communities do not have any law enforcement presence, and there is just one woman’s shelter among all of the villages, which lie hundreds of miles apart in some cases. Alaska Native women make up less than 20 percent of the state’s population but nearly half of the reported rape victims.
“NCAI interprets that the laws designates Alaska women equal protection,” Majel-Dixon said. “We’re pushing a national platform that highlights the needs of Alaska Native women … We’re saying it’s on.”
Mary Hudetz, a member of the Crow Tribe, is the editor of Native Peoples Magazine and president of the Native American Journalists Association. She lives in Phoenix.