Congress originally passed the Violence Against Women Act (VAWA) in 1994, in order to address the epidemic of violence against women on the federal, state, tribal, and local levels. Although the purpose of VAWA has remained the same, to protect women from violence, the protections given to women under the Act have changed significantly. In fact, each time the Act has come up for reauthorization, Congress has expanded the Act’s protection of women. Most importantly, Congress has shown an increased concern about violence against Native women and correspondingly empowering tribes to protect their own members in the most recent versions of the VAWA.
For example, one of the most significant protections in the 2005 version of VAWA was Congress’ establishment of Full Faith and Credit for tribal protection orders. A protection order is a court order that protects a victim from further harassment from a perpetrator. These orders are ordinarily issued to keep a perpetrator of domestic, dating, stalking, or sexual violence away from the victim.
Before VAWA, tribal-court-issued protection orders were not enforceable in states or other tribes. Victims who resided in Indian Country would often have to seek different protection orders in a lot of different courts in order to stay safe. This system put a huge burden on the victim, and it was often times impractical because law enforcement officers had difficulty figuring out which protection order needed to be enforced.
Codified under 18 U.S. C. §2265, any qualifying protection order issued by a tribal court must be afforded full faith and credit by all other jurisdictions, including other tribes and states. Moreover, if a jurisdiction, other than the original tribe, must enforce that protection order, they must enforce it as if it was their own. In other words, protection orders are treated the same and are enforced the same, regardless of which jurisdiction issued the order.
VAWA enables victims to seek safety and to travel to other jurisdictions without the added burden of having to obtain new protection orders for every jurisdiction where they may work, pass through, attend school, or reside. Furthermore, assuming that the tribal court issued a valid protection order, the tribe has the power to enforce its own order, including holding the violator in civil or criminal contempt of domestic violence protection orders, regardless of whether the violator is an Indian.
The most current version of VAWA restores criminal jurisdiction over non-Indian perpetrators of domestic violence, an exercise of jurisdiction that has been out of use since the late 1980’s due to Supreme Court precedent. Since the 1980’s, tribes have only been able to exercise criminal jurisdiction over their own members and other members of federally recognized tribes. Now, tribes retain their jurisdiction over crimes committed by Indians and can also prosecute non-Indian perpetrators of domestic violence or dating violence as well as non-Indian violators of domestic violence protections orders in tribal criminal courts. For the tribe to prosecute dating and domestic violence, the violence being prosecuted must have occurred on that tribe’s territory. Furthermore, in order for the tribe to prosecute the violation of a protection order the following conditions must be met: (1) the violation must have occurred within the territory of the prosecuting tribe; (2) the violation must have involved the portion of the protection order that prohibits the perpetrator from violent or harassing behavior, contact with, or proximity to the victim; (3) the protection order must have been issued against the defendant/perpetrator; (4) the protection order must be enforceable by the prosecuting tribe; and (5) the protection order must meet federal statutory criteria outlined in 18 U.S.C. § 2265. Furthermore, tribes do not have the power to prosecute every single non-Indian for domestic violence, dating violence, or violating a protection order. In order to prosecute a non-Indian offender, the offender must either (1) work in the jurisdiction seeking to prosecute him; (2) reside in the jurisdiction seeking to prosecute him; or (3) is the spouse or intimate partner of an enrolled member or the tribe seeking to prosecute him or an enrolled member of another federally-recognized tribe and lives in the jurisdiction of the tribe seeking to prosecute him. Regardless of whether the offender lives or works within the prosecuting tribe’s jurisdiction, tribes cannot prosecute crimes when both the victim and the perpetrator are non-Indian.
VAWA contains a large number of other provisions that directly affect American Indian/Alaskan Native victims of domestic violence, sexual violence, dating violence, and stalking. For example, VAWA contains a large number of grants available to tribes and tribal victim assistance agencies. These grants are used to increase the law enforcement response and security for victims of domestic and sexual violence. Furthermore, VAWA contains a number of housing protections for victims of domestic violence, sexual violence, dating violence, and stalking which may be especially relevant to Urban Indians or American Indians/Alaskan Natives that are beneficiaries of particular federal housing programs.
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*NICCSA is a project of the Southwest Center for Law and Policy (www.swclap.org) This project is supported by Grant No. 2017-SA-AX-K001, awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.