After decades of grassroots advocacy and calls to action, the Violence Against Women Act is putting justice back in the hands of tribal authorities in cases of abuse and violence against Native American women.
By Christine Graef, Mint Press News
WASHINGTON — In March 2013, following nearly two decades of grassroots work and advocate work, President Barack Obama signed a reauthorization of the Violence Against Women Act that offers expanded protections for Native American women.
The reauthorized act extends tribal jurisdiction to non-Native Americans who commit acts of violence or sexual assault against their Native American spouse or partner. While such incidents often go unreported, the amount that are reported reflect a disproportionate number of Native American women will be raped, stalked or physically assaulted compared to their non-Native American peers.
“One of the most basic human rights recognized under international law is the right to be free of violence. While many in the United States take this right for granted, Native women do not,” – Jana Walker, senior attorney and director of Indian Law Resource Center’s Safe Women, Strong Nations.
Also known as VAWA, the amendment goes into effect on March 7, 2015, and all 566 federally recognized tribes will be open to apply it. In February, Congress authorized a pilot project that has already started for the Pascua Yaqui Tribe of Arizona, the Tulalip Tribes of Washington and the Umatilla Tribes of Oregon.
Federal authorities currently maintain jurisdiction over offenses committed by non-Native Americans coming onto the territories, but with prosecuting attorneys often located hundreds of miles from these areas, reporting is infrequent. From October 2002 to September 2003, 58.8 percent of cases the Bureau of Indian Affairs referred for federal prosecution were declined, compared to the national average of 26.1 percent.
However, VAWA will now allow territories to impose a penalty on non-Native Americans married to a community member, as well as those living in the community or employed by the community. Many hope this newly granted authority will put an end to the notion of reservations as hunting grounds where offenders have impunity.
The initial Violence Against Women Act resulted from grassroots efforts that started in the late 1980s, with advocates from the battered women’s movement, law enforcement, victims services and prosecutor’s offices. It was signed into law in September 1994 as Title IV sec 4001-4073 of the Violent Crime Control and Law Enforcement Act to fund the investigation and prosecution of acts of violence against women and impose restitution. It also established the Office on Violence Against Women in the Department of Justice.
Throughout its 20 years of reauthorizations, tribal leaders had partnered with the advocacy groups, having to explain to many in Congress the realities of living on a reservation. Tribal jurisdiction continued to be debated last year — largely around questions of whether non-Native American offenders would be treated fairly in tribal judicial systems.
To be eligible, tribes must have a criminal justice system that provides representation for defendants, provide non-Native Americans in a jury, and inform defendants of their right to file federal habeas corpus petitions. The U.S. Attorneys, state and local prosecution offices continue to hold the same authority to prosecute crimes in Indian country if tribes cannot afford prosecution costs or if further charges are pending.
According to the Indian Law Resource Center: “One in three Native women will be raped in their lifetime, and three in five will be physically assaulted. Native women are more than twice as likely to be stalked than other women and, even worse, Native women are being murdered at a rate ten times the national average.”
These statistics only take reported cases into account, and they also fail to include data on violence against Native American girls, which is estimated to also be “disproportionately high.”
“Young women on the reservation live their lives in anticipation of being raped,” said Juana Majel Dixon, 1st vice president of the National Congress of American Indians and co-chair of the NCAI Task Force on Violence Against Women. “They talk about, ‘How will I survive my rape?’ as opposed to not even thinking about it. We shouldn’t have to live our lives that way.”
The Indian Law Resource Center, the NCAI Task Force on Violence Against Women, Clan Star, Inc., National Indigenous Women’s Resource Center, and other Native American women’s organizations have also turned to the international human rights community for help in the past.
In the summer of 2010, nearly 2,000 Indigenous representatives from around the world gathered at the Headquarters of the United Nations in New York for the ninth session of the Permanent Forum on Indigenous Issues.
Discussion turned to the issue of people from outside Indigenous communities entering these communities to commit abuses against Indigenous women, effectively making such behavior part of these women’s homes and communities. Speakers from Mexico, Kenya and New Zealand emphasized the necessity of Indigenous communities establishing programs relevant to them, as well as holistic approaches, environmental health and government policies to eliminate abuses such as genital mutilation.
Women of the Haudenosaunee, the Maori of New Zealand, Wara Wara of Australia, the peoples of the Lakota, Tibetan and Hawai’i nations came out of the shadows and spoke of disruptions to womanhood.
The U.N. and the Organization of American States began examining the situation of American Indian women. In 2011, Rashida Manjoo, U.N. Special Rapporteur on the Rights of Women, presented her report to the U.N. General Assembly in New York, telling the United States to “consider restoring, in consultation with Native-American tribes, tribal authority to enforce tribal law over all perpetrators, both Native and non-Native, who commit acts of sexual and domestic violence within their jurisdiction.”
After touring Native American territories for a month in the U.S., James Anaya, U.N. Special Rapporteur on the Rights of Indigenous Peoples, went before the U.N. Human Rights Council in Geneva in September 2012 and recommended that the U.S. put creating legislation to protect Native American women as an immediate priority.
The reality of the lives of women around the world started being documented in 1946, when the U.N. created a Commission on the Status of Women. At first focusing on the need for education and employment, by the spring of 2013 the theme of the 57th session of the commission was “Elimination and prevention of all forms of violence against women and girls.”
When it became clear that a cooperative environment could promote protections, space was made to include the Indigenous voice to the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child and the U.N.’s Declaration on the Rights of Indigenous People.
The 2013 report by the U.N.’s Permanent Forum on Indigenous Issues and the International Indigenous Women’s Forum was called “Breaking the Silence on Violence against Indigenous Girls, Adolescents and Young Women,” based on analysis of data from Africa, the Asia-Pacific region and Latin America. The Indigenous Women’s Rights, Violence and Reproductive Health forum, meanwhile, underlined the need for grassroots programs that reach community members and can set precedents.
In February 2013, Manjoo and Anaya urged the U.S. House of Representatives to approve a revised version of VAWA that would extend protections to not only Native American women, but also to immigrant and gay victims of violence and sexual abuse.
“Congress should act promptly to pass key reforms to the Violence Against Women Act that bolster indigenous tribes’ ability to prosecute cases involving violence against indigenous women,” Anaya said, urging the House to approve the version of the act already approved by the Senate that month.
The OAS’ 2011 Inter-American Human Rights Commission also produced a report, “Violence Against Native Women in the United States,” expressing concern about violence against women in Honduras, Nicaragua, Colombia and the U.S., urging laws, policies and programs in collaboration with the women.
Confederated Tribes of the Umatilla Indian Reservation in Oregon
Given the porous borders of reservations, there’s usually frequent interaction between Native Americans and non-Native Americans and a limited scope for ensuring public safety in Indian country.
“VAWA was really needed in Indian Country,” said M. Brent Leonhard, an attorney for the Confederated Tribes of the Umatilla who was instrumental in crafting the language of VAWA applied in the tribe. “Historically, the federal government didn’t prosecute and it didn’t get reported to them.”
He detailed the historic evolution of VAWA in a 2012 paper titled “Returning Washington P.L. 280 Jurisdiction to Its Original Consent-Based Grounds.”
According to statistics cited by the Indian Law Research Center, more than 88 percent of violent crimes committed against Native American women are committed by non-Native Americans over which tribal governments lack any criminal jurisdiction under U.S. law. In 66 percent of the crimes in which the race of the perpetrator was reported, Native Americans victims indicated that the offender was not Native American.
Leonhard told MintPress that the latest changes to VAWA will give communities more confidence in their tribe’s ability to deal with an assault and be more comfortable in reporting it.
“We’re seeing at least 80 percent of those who come to our family violence program have not reported incidents to the police,” he said. “They seek help here but they won’t go to outside systems.”
The Umatilla are located near the city of Pendleton, where the FBI is stationed and can respond quickly to crimes. But for other reserves, federal law enforcement bodies may be as many as four hours away. For example, in Alaska, Leonhard said, “the problem is horrendous.”
In his analysis, “Closing a Gap In Indian Country Justice: Oliphant, Lara, and DOJ’S Proposed Fix,” Leonhard addresses the complexity of arguments and court rulings that had to be overcome against VAWA.
The act legislatively reversed the U.S. Supreme Court decision in Oliphant v.Suquamish Indian Tribe, 435 U.S. 191 (1978), which held that inherent tribal sovereignty did not exist and “Indian tribes do not have inherent jurisdiction to try and to punish non-Indians.”
Leonhard said the Obama administration has been supportive of issues in American Indian territory. On July 21, 2011, Ronald Weich, assistant attorney general for the Office of Legislative Affairs, wroteto Vice President Joseph Biden and proposed the amendment to VAWA thatwould create the pilot project.
Pascua Yaqui Tribe of Arizona
Since the pilot program began in March, the Pascua Yaqui Tribe has tried more than a dozen cases involving non-Indians abusing Native American women.
VAWA does not cover crimes committed against Native American women by strangers or those who may live or work on a reservation but are not considered to be dating or in relationship with a Native American woman.
There’s a lot being defined as the process moves forward. “Dating,” for instance, is being questioned: Can it apply to a chance meeting at a restaurant between two people who have just met?
“We’ve found most of our defendants have been in relationships,” Alfred Urbina, the tribe’s attorney general, told MintPress. “Most have been contacted by tribal police six to 10 times, already have felonies on their record or are unemployed.”
To exercise the authority, a tribe must guarantee that a defendant’s rights are similar to those guaranteed by the U.S. Constitution, such as the right to a public defender and effective assistance of counsel. Tribes must also include non-American Indians in jury pools. For tribes with many enterprises that employ non-Native Americans, this is not an issue, but for those without such enterprises, this presents a problem.
Meanwhile, tribes must provide a public defender only if the offender is indigent,which also raises questions regarding who pays the costs associated with probation or treatment, or if an offender is homeless or if an offender needs to be monitored in another town.
“These are all questions we’re running into,” Urbina said. “We’re near Tucson and able to draw on defense attorneys and other resources. But for others who are remote from metropolitan areas, for instance the Diné, this will be difficult.”
Under the Indian Civil Rights Act, nations are limited to the amount of time they can sentence an offender to prison. The Yaqui constitution currently limits sentences to one year, while other tribes can sentence offenders to up to three years. For a case involving strangulation or another form of attempted murder, these sentencing limitations often mean that the cases are sent to U.S. Attorneys for further prosecution.
Meanwhile, some opt to leave criminal matters to the Bureau of Indian Affairs or FBI. The federal government deals with regional problems, so one reservation may be just a small part of an agent’s 100-mile radius. “It could be days before a person gets out to investigate a crime,” said Urbina.
While it’s brought benefits to those under the three pilot projects, Urbina said most reserves won’t have resources to put the program in place. (He estimated that about 30 would have adequate resources for implementing the program.)
The number of Native American women reporting abuse represents just small percentage of the reality, he added.
“If you don’t have jurisdiction over these crimes, you’re not going to collect data,” he said. “It can be decades a community puts up with rape and violent cases. You’re not going to find trust.”
Most tribes have victims services and access to federal grants to fund help for victims, and VAWA strengthens the trust Urbina mentioned by putting the response back into the hands of the nation’s people.