Closing the Gap of Justice: Providing Protection for Native American Women Through the Special Domestic Violence Criminal Jurisdiction Provision of VAWA

Abstract

INTRODUCTION Soon after Native American Diane Millich and her non-Indian husband got married, they moved into her home, located on the Southern Ute Indian reservation where she grew up. Millich s husband began routinely abusing her, and within a year she suffered more than 100 incidents of being slapped, kicked, punched and living in terror[.] (1) Millich made numerous attempts to call her local tribal and county police for help during these episodes of violence. In fact after one instance of beating his wife, Millich s husband himself called the sheriff to report what he had done. Because he knew that there was nothing the sheriff could do. That no help would come. That he would never be prosecuted for what he did. Why? Because Millich was a Native American, Millich s husband was not, and he was abusing her on tribal land. And because of these circumstances, as Millich later observed, law couldn't touch him, (2) Unfortunately Millich s circumstance is not an isolated oversight of the law. Many Indian women have not been able to seek help or justice because they happened to be trapped in this scenario: an Indian victim of a non-Indian abuser on tribal land. A recent amendment to the Violence Against Women Act (VAWA), however, was passed to change all this. A historic piece of legislation has recently been enacted which gives Native American victims of domestic abuse a new hope in being able to bring their abusers to justice. Before the passage of this act, a jurisdictional gap existed which permitted non-Indian perpetrators of domestic and sexual abuse to escape prosecution. The Violence Against Women Reauthorization Act of 2013, however, seeks to close this gap by granting tribes criminal over domestic abuse crimes in Indian country. The legality of the unprecedented will undoubtedly be challenged soon after its implementation, and the Supreme Court may have to determine the constitutionality of the Act. Part I of this Note describes the exigent situation of sexual violence in Indian country against Native Americans (especially by non-Indians) by presenting statistics on the issue. Part II examines how, despite these high rates of domestic violence, the interaction of federal cases, congressional acts, and tribal sovereignty had prevented federal, state, and tribal governments from having the jurisdictional authority and effective means to prosecute non-Indian abusers in Indian country. Part III explores how the latest amendment to the Violence Against Women Act offers a solution to this injustice. Specifically, Title IX of the Act closes the jurisdictional gap by granting tribes special domestic violence criminal jurisdiction over non-Indians in Indian country. (3) Finally, Part IV presents the likely claims that will be raised in federal court against the VAWA Amendment. These include challenging Congress's authority to enact the criminal jurisdiction, and questioning whether fundamental constitutional rights can be upheld in tribal courts under the Act. I. Domestic Violence Issues in Indian Country The need for greater protection of Indian (4) women against crimes of domestic and sexual violence is dire, as evidenced by numerous studies. According to the Department of Justice, from 1992 to 2001 the average violent crime rate among Indians was approximately two and one half times the national rate, and Native Americans were twice as likely to experience rape or sexual assault compared to all other races. (5) Another study found 31.4% of Native American and Alaska Native women (that is, every 1 out of 3) are likely to be raped in their lifetimes. Compare this to the 17.7% of White women and 18.8% of African-American women likely to be raped, and the results are staggering. (6) Unfortunately, Indian women mainly experience sexual and domestic violence at the hands of non-Indians. One compilation of the National Crime Victimization Surveys (NCVS) from 1992 to 2005 shows that American Indian and Alaska Native women are almost three times as likely to experience rape or sexual assault as compared to White, African American, or Asian American women. …