U.S. lawmakers have repealed a portion of the Violence Against Women Act (VAWA) that critics say left Native American women in Alaska without legal recourse in the face of domestic violence.
The reauthorized VAWA of 2013 gave tribal courts the authority, starting in March 2015, to prosecute domestic violence cases when defendants are non-Native. It also strengthened a requirement in the original VAWA, passed in 1994, that civil orders of protection against abusers be recognized in every U.S. state, including on tribal lands.
But Sen. Lisa Murkowski, R-Alaska, added an exception to the 2013 law called the special rule for Alaska, offering the explanation that there was only one federally recognized Indian reservation in the state and the VAWA provisions were intended to fix problems that reservation tribes had with restrictive courts and domestic violence.
Aside from Alaska's Metlakatla reservation, the state's other 228 tribes "have been described by the U.S. Supreme Court as 'tribes without territorial reach,'" she wrote in a 2013 Facebook post. "The expansion of jurisdiction over non-members of a tribe is a controversial issue in our state, and what works in the Lower 48 [states], won’t necessarily work here. Our solution begins in Alaska — with collaboration between the State of Alaska and Tribes."
However, Alaskan tribes loudly protested against Alaska’s exemption (PDF), both when VAWA was reauthorized in March of 2013 and in the months leading to the law's passage (PDF). And the Indian Law and Order Commission, a bipartisan panel of U.S. lawmakers charged with studying tribal criminal justice systems, called the exemption “unconscionable” (PDF) in a state where only one Native village had a domestic-violence shelter. "Given that domestic violence and sexual assault may be a more severe public safety problem in Alaska Native communities than in any other Tribal communities in the United States, this provision adds insult to injury," the commission wrote.
Murkowski wrote on her Facebook page in 2013, “It hurts my heart that some Alaskans may think I do not fully support protecting Native women from violence with every fiber of my being.”
Following the outcry, Murkowski reversed her stance on the Alaska exemption and, with support from Sen. Mark Begich, D-Alaska, co-sponsored a repeal — which passed unanimously in the Senate on Dec. 9 and was approved by the House on Dec. 11. The repeal bill was presented to President Barack Obama on Monday.
Sarah Deer, a professor at the William Mitchell College of Law in St. Paul, Minnesota, whose legal work focuses on violent crime on tribal lands, called the reversal of the Alaska exception “an important step in the right direction,” but pointed out that it only applies to domestic-violence cases.
“They need to restore all criminal jurisdiction to all crimes,” such as homicides and child sexual abuse, she told Al Jazeera. “There’s no legal justification for it, and it’s not working."
Domestic violence and sexual assault of Native American women have reached epidemic proportions, according to a 2007 Amnesty International report, which added that abuse victims were “frequently denied justice.” The U.S. Department of Justice reports that Native American women are more than twice as likely to be sexually assaulted than women of any other race, and one in every three is raped in her lifetime.
Exacerbating the problem, experts say, is the lack of legal recourse over non-Native perpetrators of abuse, a loophole that the VAWA attempts to close.
A 1978 Supreme Court ruling established that tribal courts didn’t have criminal jurisdiction over crimes committed by non-Natives, after a non-Native man was arrested by tribal police on the Port Madison Indian Reservation in Washington state. He allegedly resisted arrest and assaulted a tribal policeman, but the high court ruled that the tribal court didn’t have the authority to punish him.
That case set the precedent for a legal vacuum on tribal territory.
“There is a law and justice black hole on Indian reservations, and this has become attractive to people of violence, people of child abuse, drugs, you name it,” said David Voluck, a tribal court judge for the Central Council of Tlingit and Haida Indian Tribes of Alaska. “Because if you’re not Native, you know you can get on an Indian reservation and no one can touch you.”
He said that the Alaska exception to VAWA introduced a legal vagueness that sometimes made it difficult to know whether tribal or state courts had jurisdiction. That, he said, introduced a dangerous delay in prosecutions.
“It’s life or death,” he said. “Legislators are under a trust obligation to write clear laws, not those that will create confusion and litigation.”