VAWA: The Success of VAWA 2013, Tribal Criminal Jurisdiction Over Non-Indians
Highlights of the NCAI Report on The First Years
When VAWA 2013 was pending before Congress, some policymakers and commentators questioned the need for the tribal jurisdiction provision. Despite numerous Native women stepping forward to share their stories, they questioned whether restoring tribal jurisdiction over non-Indians was needed. The NCAI Five-Year Report on VAWA 20131 summarizes the implementation of Special Domestic Violence Criminal Jurisdiction (SDVCJ) by the 18 tribes implementing jurisdiction over non-Indians. The number of prosecutions and cases leaves no doubt that restoring jurisdiction was absolutely necessary and must be expanded in 2020.
In the first five years, the 18 implementing tribes made a total of 143 SDVCJ arrests, resulting in 74 convictions. The tribe with the highest number of SDVCJ arrests, Pascua Yaqui, reports that SDVCJ cases account for 15-25 percent of the tribe’s overall domestic violence caseload.
143 arrests | 74 convictions | 24 cases pending
The vast majority of SDVCJ cases are domestic or dating violence cases. Among the implementing tribes, 125 of the cases are domestic or dating violence cases, while 34 involved criminal violations of a protection order. Protection order violations make up a comparatively small proportion of the prosecutions thus far. Protection order violations are arguably the broadest recognition of tribal authority under VAWA 2013.
125 domestic violence or dating violence cases
34 protection order violations
Protection order violations make up a comparatively small proportion of the prosecutions thus far. Protection order violations are arguably the broadest recognition of tribal authority under VAWA 2013. The federal framework recognizes the inherent power of tribal courts to prosecute offenders for violating a protection order that protects anyone, not just an intimate partner, so long as the other jurisdictional requirements are met.
Many Defendants have Numerous Prior Contacts with Tribal Police
Prior to implementing SDVCJ, tribal justice systems could not hold criminally abusive non-Indians who were continuing to harm their Indian partners accountable. Many of the offenders had a significant number of tribal police contacts prior to implementation and had been menacing their victims and straining the tribes’ law enforcement resources. During the first five years, the Tulalip Tribes, for example, reported that their 17 SDVCJ defendants had a total of 171 contacts with tribal police in the years prior to SDVCJ implementation and their ultimate arrests. SDVCJ was enacted to end the era of little to no prosecution of non-Indian domestic abusers. Today, in the 18 implementing tribes, many victims have finally seen their long-time abusers prosecuted—and by their own community law enforcement.
85 defendants account for 378 prior contacts with tribal police
“In reservation attorneys’ offices and tribal court houses throughout the United States when VAWA was passed, there was celebration like you wouldn’t believe...what we didn’t realize then...was how it’s really just a little tiny down payment on a much bigger issue that needs to be addressed.”
—Sharon Jones Hayden, Tulalip Prosecutor & Special Assistant U.S. Attorney
Many Defendants Have Criminal Records with Outstanding Warrants Many of the defendants who have been arrested and convicted under SDVCJ have prior convictions or outstanding warrants. Because of SDVCJ, tribes can arrest, prosecute, and convict non-Indians with a documented history of violent behavior. Additionally, tribal convictions can now lay the groundwork for future federal habitual offender charges. State, federal, and tribal law enforcement are now able, through cooperation and information sharing across jurisdictions, to ensure that defendants with a pattern of dangerous behavior are identified and receive appropriate sentences.
At least 75 defendants had criminal records
Implementation Revealed Serious Limitations In The Law
The narrowness of SDVCJ is a continual source of frustration. SDVCJ was intended to apply only in cases of protection order violations, domestic violence, and dating violence. Other crimes of violence against women, including stalking, sexual assault by a stranger or acquaintance, and sex trafficking, for example, are not included. The implementing tribes are unable to prosecute non-Indians for many of the crimes that co-occur with domestic violence or that they committed while being arrested or in custody for an SDVCJ crime. These crimes remain outside tribal jurisdiction. The full report is available at https://bit.ly/30UH1fz
CRIMES IN SPECIAL DOMESTIC VIOLENCE CRIMINAL JURISDICTION CASES THAT TRIBES CANNOT CHARGE
- Violence against children
- Violence against victim’s family
- Endangering the welfare of a minor
- Assault on law enforcement
- Assault on a jailer
- Sexual contact
- Damage to government property
- Driving under the influence
- Drug possession
- Malicious mischief
- Criminal mischief
- Criminal contempt
- False imprisonment
- Unlawful use of a weapon
- Obstruction of justice