By: Molly McDonough
Blog Category: Domestic Violence Issues and the Law, Economics, & Race
Domestic violence is a growing concern in Native American culture. Forty percent of Native American women will experience domestic violence in their lifetime. In response, Congress passed the Violence Against Women Reauthorization Act of 2013 (VAWA). Section 904 of the VAWA allows tribal court to prosecute non-Native Americans accused of domestic and dating violence crimes. Prior, some acts of domestic violence would not be prosecuted because of a jurisdiction “loophole” with tribal courts having jurisdiction over only American Indians criminal defendants. As a result, non-Native American perpetrators had absolute immunity from criminal prosecution in tribal courts.
Section 904 “recognizes and affirms tribal courts inherent power to exercise special domestic violence criminal jurisdiction.” Now, tribal courts have jurisdiction over non-Native American defendants for acts of domestic violence, dating violence, and violation of protective orders that occur on Native American land. However, this jurisdictional power is limited. Tribal courts will not have jurisdiction if neither the defendant nor the victim is Native American. Also, non-Native American defendants must have significant connections to the tribe. Section 904 is constructed to apply only to non-Indian defendants who have voluntarily and knowingly established significant connection to the tribe.
Tribal courts that choose to exercise jurisdiction under Section 904, must provide the defendant with “ all applicable rights under this Act, an impartial jury reflecting a fair cross section of the community that does not systematically exclude non-Native Americans, all other rights whose protection is necessary under the Constitution of the United States, and for offenses punishable by imprisonment, all rights under existing 25 U.S.C. § 1302(c).” Section 908 of the VAWA delays section 904 effectiveness until March 7, 2015. For the time being, Tribal courts that are interested in exercising this jurisdictional power and have safeguards for non-Indian defendants rights may be admitted to a pilot program.
The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race.
Indian Law – Tribal Courts – Congress Recognizes and Affirms Tribal Courts’ Special Domestic Violence Jurisdiction over Non-Indian Defendants. – the Violence Against Women Reauthorization Act of 2013,127 Harv. L. Rev. 1509 (2014).