chevron-down Created with Sketch Beta.
August 12, 2013 Articles

There and Back Again in Indian Country (Almost)

Congress reauthorizes VAWA, granting tribal courts renewed criminal jurisdiction over non-Indians who commit domestic abuse in Indian Country.

By Joseph J. Wiseman – August 12, 2013

The Violence Against Women Reauthorization Act of 2013 (VAWA) became law on March 7, 2013. Title IX of the act, entitled “Safety for Indian Women,” made several changes to the original statute, but none was so controversial as the decision to allow tribal courts to prosecute non-Indians for domestic abuse. The new law significantly modifies the infamous holding of Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), a case that significantly diminished tribal sovereignty. However, as noted below, this reauthorization of criminal jurisdiction by Indian tribes leaves unanswered questions regarding the applicability of federal habeas corpus review of tribal-court prosecutions under the Violence Against Women Act (VAWA).

The Oliphant Decision and VAWA
In Oliphant, the U.S. Supreme Court held that tribal courts have no criminal jurisdiction over non-Indians, even if the crime was committed in Indian Country. Oliphant, 435 U.S. at 208. The Court held that the power to prosecute nonmembers was an aspect of the tribes' tribal sovereignty, but that congressional action and treaties limited such sovereignty when it came to non-Indian perpetrators. Several years later, however, in United States v. Lara, 541 U.S. 193 (2004), the Court held that Congress has the constitutional power to lift the restrictions on the tribes' criminal jurisdiction over nonmember Indians, and that is precisely what Congress did for the first time with the Violence Against Women Reauthorization Act of 2013.

High Rates of Abuse Suffered by Native American Women
VAWA was enacted to address the shameful rate of physical and sexual abuse American Indian women experience in Indian country. They have documented higher incidents of physical abuse than any other racial subset in the United States. For example, the Department of Justice’s 2012 report to Congress on the effectiveness of grant programs authorized under VAWA reported that 65 percent of American Indian women reported experiencing rape or physical violence, a rate 2 times that of African Americans, 2.5 times that of whites, and 4.5 times that of Asian Americans. An earlier survey completed by the Department of Justice in 2000 found that 34 percent of American Indian women reported rape in their lifetime, compared to 18.8 percent reported by African American women, 17.7 percent reported by white women, and 6.8 percent reported by Asian Pacific women. The same survey found that American Indian women were also more likely than any other subset to experience physical assault or stalking.

ViolenceAgainstWomen Reauthorization Act of 2013
In crafting the Violence Against Women Reauthorization Act, which was passed less than two months after its introduction, the “sense of the Senate” was that Congress should build upon the success of VAWA by “transforming the criminal justice and community-based response to abuse by bolstering and streamlining the programs, grants, and coalitions created by VAWA and expanding the reach of VAWA to meet the remaining unmet needs of victims.” Sponsor introductory remarks on measure, Congressional Record (C.R.) of the 113th Congress, C.R. S45 (Jan. 22, 2013). This effort included ensuring that all victims of domestic and sexual violence, specifically including “Native American women,” should receive the support and protections provided by VAWA. Senator Leahy, D-Vermont, and Senator Crapo, R-Idaho, introduced that reauthorization act with more than 60 Senate co-sponsors. (C.R. S480).

The most contentious debate over the bill concerned section 904, which gives American Indian tribes criminal jurisdiction over domestic violence, dating violence, and violations of protective orders that occur on tribal lands. Section 904 amended 25 U.S.C. § 1304, which is part of the Indian Civil Rights Act of 1968 (ICRA). See 25 U.S.C. 1301 et seq.

In the amended section of ICRA, Congress stated that “the powers of self-government of a participating tribe include the inherent power of that tribe, which is hereby recognized and affirmed, to exercise special domestic violence criminal jurisdiction over all persons.” 25 U.S.C. § 1304 (b)(1). This section gives a tribe jurisdiction over criminal prosecution of domestic violence whenever it occurs in Indian Country, regardless of the ethnicity of the perpetrator. The section will not apply, however, where (a) both the victim and the defendant are non-Indians; or (b) the defendant “lacks ties” to the Indian tribe. 25 U.S.C. § 1304 (b)(4)(A)-(B). In other words, the jurisdiction over a non-Indian only applies where the non-Indian

(i) resides in the Indian country of the participating tribe;
(ii) is employed in the Indian country of the participating tribe; or
(iii) is a spouse, intimate partner, or dating partner of
(I) a member of the participating tribe; or
(II) an Indian who resides in the Indian country of the participating tribe.

25 U.S.C. § 1304 (b)(4)(B)(i)-(iii).

In addition, the act only covers criminal conduct falling under “special domestic violence criminal jurisdiction.” This includes domestic violence and dating violence, as well as violations of protective orders. 25 U.S.C. § 1304 (c). Therefore, while tribal criminal jurisdiction is no longer necessarily limited by the ethnicity of the defendant, it is limited by the defendant’s ties to the tribe and by the type of crime perpetrated.

The Rights of the Defendant under VAWA
Lastly, the amended statute addresses the “Rights of Defendants.” 25 U.S.C. § 1304 (d). It specifically incorporates by reference all applicable rights under ICRA. It also specifies the right to a trial by an impartial jury selected through a process “which does not systematically exclude non-Indians.” 25 U.S.C. § 1304 (d)(3).

Finally, the section includes a catch-all, that the defendant must be provided “all other rights whose protection is necessary under the Constitution of the United States in order for Congress to recognize and affirm the inherent power of the participating tribe to exercise special domestic violence criminal jurisdiction over the defendant.” 25 U.S.C. § 1304 (d)(4).

The Indian Civil Rights Act
ICRA has extensive provisions providing defendants in tribal court many of the federal constitutional rights given to U.S. citizens in the Fourth, Fifth, and Sixth Amendments. For example, ICRA prohibits unreasonable search and seizure; provides protection against double jeopardy; insures against being called to testify against oneself; guarantees the defendant a speedy and public trial; requires that the defendant be informed of the nature of the accusation, confronted with the witnesses against him or her, have compulsory process for obtaining witnesses in his or her favor, and at his or her own expense to have the assistance of counsel for his or her defense. It also it prohibits excessive bail, ex post facto rules, and a trial of fewer than six jurors. 25 U.S.C. § 1302(a).

Even before passage of VAWA, federal law required tribes to afford a defendant in tribal court facing a term of imprisonment of more than one year with effective assistance of counsel and the services of free counsel if the defendant is indigent. In addition, the tribal court must have a judge licensed to practice law in the United States, established criminal laws; and a means of recording the proceedings. Any sentence would be served in a federal or state facility, or in a tribal correctional facility approved by the Bureau of Indian Affairs. 25 U.S.C. § 1302 (d).

Finally, “any person” has the right to a writ of habeas corpus in a court of the United States “to test the legality of his detention by order of an Indian tribe.” 25 U.S.C. § 1303. In other words, any person convicted in tribal court may ask the federal courts to review the criminal sanction imposed. Historically, however, the full scope of federal constitutional protections has been held inapplicable to Indian tribes, Indian courts, and Indians on reservations. SeeTom v. Sutton, 533 F.2d 1101, 1102–03 (9th Cir. 1976).Consequently, the only claims that could have been raised in a federal habeas proceeding were those granted to the defendant through ICRA. See Means v. Navajo Nation, 420 F.3d 1037, 1044 (9th Cir. 2005).

As noted above, prior to the Violence Against Women Reauthorization Act, Oliphant prohibited tribes from prosecuting non-Indians in tribal court, and, therefore, no non-Indian had to be concerned about the differences between the rights granted by the U.S. Constitution and the rights granted by ICRA. With the passage of the Violence Against Women Reauthorization Act, for the first time since Oliphant,non-Indians may be tried in tribal courts. Yet, there is no specific statutory language in the act that states non-Indians prosecuted in tribal court have the right to vindicate in a habeas review all the rights guaranteed to a criminal defendant by the federal constitution.

The Violence Against Women Reauthorization Act’s “catch-all” provision, incorporated into ICRA, appears to be the antidote to this omission. The “catch-all” provision provides that American citizens who are not tribal members have “all other rights whose protection is necessary under the Constitution of the United States in order for Congress to recognize and affirm the inherent power of the participating tribe to exercise special domestic violence criminal jurisdiction over the defendant.” 25 U.S.C. § 1304 (d)(4). While it is far from clear what those rights are beyond those already granted under the Indian Civil Rights Act, the scope of this provision will likely be developed by the federal courts, and enforced through habeas review.

The Debate over the Extension of Tribal-Court Jurisdiction
Proponents of the reauthorization bill rested their arguments on the staggering numbers of Native American women who are abused, focusing on the shocking numbers of domestic abuse in Indian Country, perpetrated by non-Indians. According to Senator Klobuchar (D-Minnesota),

Four out of five perpetrators of domestic or sexual violence on tribal lands are non-Indian and currently cannot be prosecuted by tribal governments. The only way [to prosecute before the Reauthorization bill was passed] is to have the U.S. Attorney's Office come in. They do a lot of good work. My United States Attorney's office has done great work historically through several administrations with our tribal communities, but these cases should be able to be prosecuted not only by U.S. attorneys but also by tribal governments.

(C.R. S501).

Opponents argued, on the other hand, that U.S. citizens' constitutional rights were endangered if they could be tried criminally in tribal courts. For example, Sen. Cornyn (R-Texas), called the provision “blatantly unconstitutional” as it “would deny U.S. citizens their full constitutional protections under the Bill of Rights in tribal courts.” (C.R. S499). Such constitutional deprivations seem unlikely due to the “catch-all” protections granted by the bill itself.  

Senator Cantwell (D-Washington) directly addressed the sovereignty issue noting that if the professed policy of the United States is that American Indians are sovereign, free of state jurisdiction and control, why should we not give a key tool to American Indians in stemming the growing tide of domestic abuse? (C.R. S506). She also noted that, under the bill, Non-Indian perpetrators would receive their constitutional protections under ICRA and the protections in the section itself. “What we have to do is stand and realize that the relationship between the Federal Government and Indian Country is a very mature relationship with a lot of Federal case law behind it.” The federal government will best solve these crimes withthe help and support of the tribes.

President Obama signed the Violence Against Women Reauthorization Act on March 7, 2013. By the terms of the act itself, the changes will not go into effect until March 2015; in the meantime, however, tribal courts may apply to the attorney general to be pilot programs. VAWA § 908.

By enacting the Violence Against Women Reauthorization Act of 2013, Congress sought to address the abhorrent level of abuse by non-Indians that Native American woman experience in Indian County. In spite of the laudatory goals of the act, legal challenges are sure to come, and the federal appellate courts will be tasked with shaping and interpreting the law. This note addresses only a few of the many issues that are bound to confront appellate practitioners and the federal courts.

Keywords: civil rights litigation, tribal court; Indian Country; tribal criminal jurisdiction; Native American


Joseph J. Wiseman is with Wiseman Law Group, P.C. in Davis, California. The author is grateful for the assistance he received from Jacquelyn E. Larson, an associate at the firm, in researching and drafting this article.

Copyright © 2013, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).