The rate of domestic violence and sexual assault for Native American women has reached epidemic proportions due in large part to a stunning legal loophole that severely limits tribal ability to prosecute these crimes. Until recently, non-Indians accused of misdemeanor domestic violence crimes against tribal members could only be prosecuted by the federal government and some states – not by the local tribal courts.
Given that 75 percent of reported instances of abuse of Native women are committed by non-Indians, this archaic law left tribal law enforcement essentially powerless to prosecute the vast majority of these crimes committed in their own backyard. Absent the legal authority for tribal authorities to prosecute non-Indian offenders on reservation land, the cases passed to U.S. Attorneys and District Attorneys who are often miles away from the scene of the crime and have limited time and resources to manage extensive caseloads. Not surprisingly, abuse cases involving Native women have fallen through the cracks, contributing to domestic violence rates of 39 percent among American Indian and Alaska Native women.
Fortunately, the unacceptable system will change now that both the House and Senate have reauthorized the Violence Against Women Act. While previous versions of the legislation failed to adequately address tribal issues, the final bill passed by the House on February 28 recognizes the jurisdiction of tribal courts over non-Indian offenders arrested for committing domestic violence or assault against women.
Contrary to some concerns, the change does not jeopardize any constitutional protections. Current law guarantees that all constitutional rights apply equally in both tribal and non-tribal courts. Provisions in the bill further allow a defendant to opt for trial in federal court and call for jury selection from the surrounding community, including non-tribal members. The more members of Congress learned about the bill, the more they came to understand that action was necessary to correct an outrageous system under which tribal communities did not have the ability to police their land and protect their citizens from predators.