When President Barack Obama signed a bill two years ago to reauthorize the Violence Against Women Act, he opened the door for tribes to expand criminal jurisdiction and crack down on issues of domestic violence and sexual assault.
VAWA, signed into law March 7, 2013, included provisions that give tribes unprecedented authority to hold non-Natives accountable for certain crimes against women. In March 2015, all tribes that meet training and resource standards gained the authority to arrest, charge, prosecute, convict and sentence non-Natives accused of sexual assault or domestic violence against Native women.
“Indian country has some of the highest rates of domestic abuse in America,” Obama said as he signed the law. “And one of the reasons is that when Native American women are abused on tribal lands by an attacker who is not Native American, the attacker is immune from prosecution by tribal courts.”
When the President signed the bill, that loophole closed.
“Tribal governments have an inherent right to protect their people, and all women deserve the right to live free from fear,” he said.
The bill resonated across Indian country, bolstering communities burdened by violence and judicial systems weary of jurisdictional limitations. Three tribes immediately jumped on board, participating in a pilot program ahead of the law’s official implementation.
Now, all tribes are free to exercise their sovereign authority and implement special criminal jurisdiction in domestic violence cases – as long as they first meet statutory requirements designed to protect the rights of non-Native defendants, said Patrick Schneider, assistant U.S. Attorney for the District of Arizona.
Under the act, tribes can only prosecute non-Natives accused of domestic or sexual violence committed against Natives with whom they have intimate relationships or other close ties. Tribes must protect defendants’ rights to due process and fair, diverse juries. They must also make tribal criminal laws available to the public, ensure that criminal proceedings are recorded and provide law-trained and licensed judges and attorneys.
“Tribes have to decide for themselves if they want to do this,” Schneider said. “Taking on added jurisdiction brings on other burdens, financial and otherwise, and tribes really need to decide if they want the expanded jurisdiction. Do they have the manpower to take on the caseload? Can they take federal offenses and make them tribal offenses?”
On the Navajo Nation, the country’s largest American Indian reservation, lawmakers are carefully weighing the added responsibilities. There’s no question that violence is rampant on the 27,000-square-mile reservation, or that VAWA could help curb rising rates of domestic violence and ensure police officers a safer place to work. But the Nation may not be prepared to take on expanded jurisdiction – and all that comes with it.
“We’re busting at the seams already,” Chief Prosecutor Bernadine Martin said. “In my opinion, the courts are not ready for more.”
Martin, who has spent five years with the Navajo Department of Justice, said each of the nine prosecutors carries a load of more than 1,000 criminal cases per year. She estimates implementation of VAWA would cost the Nation an additional $10 million per year – dollars that would go to hire personnel, train existing employees and upgrade facilities and technology.
Beyond the price tag of implementation, the Nation also faces additional deficiencies that must be addressed before it’s prepared to prosecute non-Natives. When measured against the basic requirements of the law, the Justice Department is found lacking.
None of the 10 district judges are state-barred, Martin said. Two have law degrees, but are not licensed to practice law. Because district judges are appointed and requirements are lenient, several lack even a basic college degree.
All practicing attorneys are members of the Navajo Nation Bar Association, but only two of the nine prosecutors and three of the six public defenders are state-licensed. Further, most of the Nation’s courts have outdated or incompatible recording equipment, Martin said. And criminal laws, while available on the Internet, can be hard to find.
With added funding, the Nation could hire more attorneys and entice law-trained judges to practice on the reservation, Martin said. Though requirements may be difficult to meet, it can be done.
“It’s doable,” she said. “It really is, but only if we’re willing to build a foundation that fits our needs.”
Proponents of VAWA see the law as a shift toward greater judicial control of Indian lands. Although it doesn’t alter existing laws that limit the severity of crimes prosecuted by tribes, it is a step in the right direction, said Dan Moquin, a staff attorney at the Justice Department.
Regardless of when, or if, the Navajo Nation Council decides to implement VAWA, the law sends an important message across Indian country: that tribes are serious about protecting their most vulnerable citizens from outsiders, Moquin said.
“There’s a need to assert criminal jurisdiction over non-Natives,” he said. “Whether this is the correct mechanism, that’s something to be decided by lawmakers, but I see enough cases that I can say we need jurisdiction.”
According to court records, domestic violence incidents made up 12 percent of the entire caseload last year, or a 4-percent increase since 2010. In numbers, between 4,800 and 5,400 cases were prosecuted each year for the last four years.
Because the Navajo Nation has not yet prosecuted a non-Native for a domestic crime, all of those cases involved Native perpetrators, said Karen Francis, government relations officer for the Navajo Office of the Chief Justice. Should the Nation implement VAWA, Francis predicts a “large increase” in the overall caseload.
Opponents of VAWA point to concerns about traditional law and tribal sovereignty. For example, the Navajo Peacemaker Court, established in 1982 as an alternative to Western courts, could be in danger should the Justice Department open itself to federal scrutiny – a genuine concern because, under VAWA, non-Natives tried in tribal courts retain the right to file federal habeas corpus petitions.
Those serious about ending domestic violence on the Navajo Nation – regardless of the perpetrators’ ethnicity – criticize Peacemaking as an ineffective tool.
“When you have broken bones, a rape, Peacemaking is not an option,” Martin said. “The fundamental law is rehabilitation for offenders with no benefit to the victim. If we want felony jurisdiction, then we need to be willing to hand out the punishments.”
For the Navajo Nation, which stretches into 17 counties and three states, issues of police and court jurisdiction weigh heavily on lawmakers, prosecutors and elected officials. Few places in the country can match the dangers on the Navajo reservation, which has become a haven for criminals, a land notorious for its underfunded police force and overburdened courts.
Yet of all the challenges faced by the Nation’s judicial branch, criminal jurisdiction can be one of the most frustrating. Although it leaves much undone, VAWA offers a hint at a broader solution, said Jonathan Hale, chairman of the Navajo Nation Council’s Health, Education and Human Services Committee.
It’s the beginning, he said, of greater sovereignty and self-determination when it comes to tribes policing their own lands.
“The need for stronger laws is there,” Hale said. “If VAWA means beefing up our technology, our 911 services, effecting policy changes and vision changes, it’s time to do it. We need it and the time has come.”
This is part three of a three part series ICTMN published this week.