The Violence Against Women Act: A Double-Edged Sword for Native Americans, Their Rights, and Their Hopes of Regaining Cultural Independence
Mary K. Mullen*
The full text of this comment can be found in PDF form here.
Diane Millich could not escape. Millich, a Native American and member of the Southern Ute tribe of Colorado, had found herself married to a physically and emotionally abusive husband. One day, her husband even appeared at her work carrying a gun, promising to kill her. Living on the Southern Ute reservation, Millich reached out to tribal law enforcement officers, hoping they could detain her husband and end the hitting, beating, and life-threatening statements. However, because her husband was a non-native, the tribal law enforcement officers could not detain him. Additionally, because the abuse occurred on tribal land, the local Colorado sheriff’s department did not have jurisdiction over the land, so, like the tribal officers, the sheriff’s department left Millich without any solutions. Millich was trapped.
For victims like Millich, residing on a reservation and having a non-native partner often made it nearly impossible to escape a domestic violence situation. However, in 2013, the United States Congress changed the lives of victims like Millich. In passing the reauthorization of the Violence Against Women Act (“VAWA”), Native Americans were granted jurisdiction over non-natives in domestic violence situations. These new VAWA provisions came into full effect on March 7, 2015.
This Comment discusses the implications of VAWA for the Native American community and for non-native defendants. Unlike scholars before me, I discuss VAWA’s success since it became law in March 2015. I argue that, while VAWA grants Native Americans more power over non-native perpetrators, it does so with the expectation that tribal courts will conform to Anglo-American criminal procedure, creating further assimilation of tribal courts and robbing Native Americans of their cultural uniqueness. Part I discusses the social and legal history of Native Americans’ interactions with the United States government. Through this background information, it becomes evident that VAWA re-grants Native Americans jurisdictional power that had been slowly taken from Native Americans for hundreds of years. Part I also addresses how federal and state government officials often refuse to prosecute crimes in Indian Country.
Next, Part II explains the provisions within VAWA that grant Native Americans jurisdiction over non-natives in tribal court. Part II also presents a hypothetical that compares the federal and state court systems to the tribal court system. Additionally, Part II addresses the critiques that VAWA has received and questions whether VAWA Title IX is constitutional.
Finally, Part II briefly discusses the implications of a new United States Supreme Court case that challenged tribal courts’ civil jurisdiction over non-native respondents. Part III offers that VAWA is an imperfect solution for Native Americans and compares tribal courts’ implementation of VAWA to the experiences of Palestinians in the West Bank and Gaza Strip.
A. Domestic Violence in Indian Country
Contrary to much of the Western world, not all Native American tribes are predominately patriarchal societies. Several Native American tribes hold women to high esteem and reserve special roles for women within their communities. For example, Cherokee women were traditionally homeowners, and a Cherokee Women’s Council decides which men can hold positions of authority within Cherokee tribes. The Iroquois, like the Cherokee, also have a historically matriarchal society. Traditionally, Iroquois women were “keepers of the faith” and aided in the selection of spiritual leaders. Today, many Iroquois tribes ceremoniously honor women for providing food and children. Iroquois mothers, not fathers, arrange marriages for their children. Additionally, many Iroquois tribes recognize “matrons” who control the food supply, manage the wealth, and nominate chiefs. Thus, historically, Native American tribes have valued women within their societies, and the victimization of women through domestic abuse is often contrary to tribal cultures and traditions.
Despite the history of respecting women within Native American culture, today many Native American women face the harsh reality of domestic violence and abuse. Native American elders claim that this domestic violence, or “wife-beating,” was only brought into Indian Country through Native Americans’ interactions with non-natives. Elders allege that once Native Americans were introduced to Anglo-American culture, domestic violence between Native Americans themselves and between Native Americans and non-natives escalated. Although this escalation of domestic violence is difficult to measure due to its sensitivity that prevents it from being reported, statistics demonstrate that Native American women are among the most targeted group of individuals for domestic abuse. According to the Indian Law & Order Commission, Native American women have a ten times higher risk of being murdered than other women within the United States.
Additionally, Native American women are 2.5 times more likely to be raped or sexually assaulted than other United States women. Indeed, over one third of Native American women will be a victim of rape in her lifetime, and thirty-nine percent of Native American women will experience some form of domestic violence. Even more astounding, eighty-eight percent of the perpetrators who rape and abuse these women are non-natives. Thus, the pattern of violence is not simply contained within Native American communities. While Native Americans living on reservations are primarily the victims, non-natives who live or work on reservations are often responsible for the victimization of Native American women. Traditionally, these non-natives could not be prosecuted in Indian Country, but, with the new provisions in VAWA, Native American communities finally have jurisdiction over these non-native perpetrators.
*Mary K. Mullen is a J.D. candidate, 2017, Saint Louis University School of Law. Thank you to Professor Monica Eppinger for her guidance and encouragement throughout the production of this Comment. Thank you also to my unwavering support system—Mom, Dad, Mark, Jimmy, Phil, and Jeremy.