By The Stream Team 

 

 

For the first time since 1978, three Native-American tribes are able to prosecute non-Natives for domestic violence committed on tribal land. 

 

The Pascua Yaqui in Arizona, the Tulalip in Washington, and the Umatilla in Oregon were selected earlier this month to participate in a pilot program authorized by the Violence Against Women Reauthorization Act of 2013 that went into effect Thursday.

 

The criminal jurisdiction granted to these three tribes will eventually be extended to other federally recognized tribes at the end of the pilot project in March 2015.

 

When it was first announced, the Justice Department heralded the program as a step forward for safety on tribal land: “The old jurisdictional scheme failed to adequately protect the public – particularly native women – with too many crimes going unprosecuted and unpunished amidst escalating violence in Indian Country,” said Associate Attorney General Tony West.

 

The sentiment was echoed by lawmakers who pushed for the provision to be included in VAWA:

 

@SenatorLeahy

Pleased to see #VAWA tribal pilot project launch, marking historic step in addressing violence against Indian women http://www.justice.gov/opa/pr/2014/February/14-ag-126.html …

 

@SenatorHeitkamp

#VAWA's pilot program to address domestic violence in Indian Country is an necessary & important step forward. http://www.justice.gov/opa/pr/2014/February/14-ag-126.html …

 

The tribes said they plan to use their new power to aggressively pursue perpetrators of domestic violence. “We no longer have to simply stand by and watch our Native women be victimized with no recourse," said Raymond Buelna, chairman of the Pascua Yaqui Tribe’s Public Safety Committee. 

 

Prior to 1978, tribes had broad authority to prosecute non-Natives for crimes committed on their land. This ability was gutted by the Supreme Court case Oliphant v. Suquamish Tribe, in which the court sided with a non-Native who argued he could not be held criminally liable by the Suquamish Tribe for assaulting a Native American policeman. 

 

The court's decision stripped all federally recognized tribes of their criminal jurisdiction over non-Natives, but left the door open for it to be restored through an act of Congress. VAWA is the first legislation in the 36 years since Oliphant v. Suquamish to restore any area of criminal jurisdiction to Native populations. 

 

In the video below, Rep. Gwen Moore (D-Wis.) speaks passionately about extending VAWA protections to Native women during a floor debate on the bill:

 

 

 

The provisions pertaining to tribal lands in VAWA were included in response to what many describe as epidemic levels of violence against Native American women. According to the Census Bureau, 39 percent of Native American women have been victims of domestic violence at least once. Non-Native men are responsible for an estimated 80 percent of rapes of Native American women.

 

The VAWA pilot program will address some, but not all, sources of violence against Native American women perpetrated by non-Natives. The three types of crimes it covers are domestic violence, dating violence and violations of restraining orders. Participating tribes are still unable to prosecute cases where sexual assault occurs between two strangers. 

 

Some advocates for Native rights voiced concerns about this distinction: 

 

@ChiefElk

Although, the tribal provisions are pretty micro & if someone reported something like sexual assault, it's still a federal matter.

 

@chris__kaiser

@ChiefElk Thoughts on why it's limited to "domestic or dating violence"? Really doesn't make sense to me.

 

While all 566 federally recognized tribes are eligible to reinstate this criminal jurisdiction after the pilot program, a crucial caveat will prevent many tribes from participating. The VAWA provisions state that participating tribes must have similar defendant protections to the U.S. justice systems. This requirement puts a significant financial burden of providing venues and legal representation that many tribes may be unable to meet. 

 

Federal prosecutors can still bring charges against those who commit crimes in tribal land that aren't covered under the pilot program. U.S. attorneys, however, decline 67 percent of sexual assault cases referred to them by residents of Indian country.

 

 

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