Biden Administration Strengthens Tribal Sovereignty With 2022 VAWA Reauthorization

By Noah Goldenberg.

Reauthorization of VAWA

On March 15, 2022, President Joe Biden reauthorized the Violence Against Women Act (“VAWA”). VAWA’s reauthorization clarifies the limits of a debilitatingly narrow view of tribal criminal jurisdiction. Passed with bipartisan support in both chambers of Congress, VAWA recognizes Special Tribal Criminal Jurisdiction (“STCJ”) over non-Indians who commit “covered crimes” against Indian women and children within Indian country, including child violence, domestic violence, stalking, dating violence, and violations of protective orders. Like the U.S. and  its states, tribal nations are recognized sovereigns, so it may come as a surprise to many that, until VAWA’s 2013 reauthorization, federal Indian law limited tribal criminal authority over non-Indians. Before 2013, federal courts limited tribal criminal jurisdiction over non-Indians because of a particularly unfortunate Supreme Court holding in Oliphant v. Suquamish Indian Tribe. After Oliphant, tribes looked for a congressional fix that recognized their inherent power to prosecute non-Indians committing domestic violence on tribal lands.

The Rise of Oliphant and Why it Needed Fixing

            Oliphant, decided in 1978, was a Supreme Court decision that considered the same question in two consolidated cases: whether the Suquamish tribe had the authority to prosecute non-Indians for committing crimes within their reservation. Mark Oliphant was a non-Indian resident of the Suquamish Tribe’s reservation in Washington state who was arrested for assaulting a tribal police officer. Daniel Belgrade, also a non-Indian resident of the reservation, was arrested by tribal police after he ended a high-speed chase by crashing his vehicle into a tribal police car. Both defendants petitioned for a writ of habeas corpus, arguing that the tribe had no criminal jurisdiction over them because they were not Native American. Despite both defendants’ violent endangerment of tribal officers, the Supreme Court sided against the tribe, holding that it did not have criminal jurisdiction over non-Indian defendants.

            Justice Rehnquist wrote the majority opinion, holding that Suquamish’s inherent sovereign authority did not extend to criminal jurisdiction over non-Indians. Prior to Oliphant, tribes were considered domestic dependent nations that retained the powers that any sovereign possessed, unless those powers were either (1) expressly limited by congressional act or (2) voluntarily given away by the tribe through a treaty with the U.S. Rehnquist’s Oliphant opinion effectively established a third method in which tribes can implicitly lose inherent sovereign powers: the relevant authority is “inconsistent” with their status as domestic dependent nations. The Court believed that absent some affirmative right clarified by Congress, tribes implicitly lost their criminal authority over non-Indian defendants.

In limiting tribal criminal authority over non-Indians, the practical results of Oliphant on tribal communities were widespread and devastating. Oliphant turned reservations into judicially-created “safe zones” for non-Indian criminals: non-Indian criminals on reservations land existed beyond the jurisdiction of both state and tribal authorities. The jurisdictional no-man’s land created by Oliphant was particularly dangerous for Native American women. Four of five American Indian and Alaska Native women have been victims of violence. Most of that violence was committed by non-Indians: 97% of Native women who experienced domestic violence experienced at least one act of violence from non-Indian perpetrators. Compare that to the 35% of Native women who experienced violence from Native perpetrators. Non-Indian violence is an unfortunate reality in Indian country, and because of Oliphant, tribes were without authority to arrest and prosecute non-Indian perpetrators. That changed in 2013 with the reauthorization of VAWA.

Changes in the 2022 VAWA Reauthorization

            By recognizing tribal jurisdiction over certain crimes committed by non-Indians, 2013’s VAWA reauthorization was a partial fix to the Oliphant problem. The 2022 reauthorization built on its predecessor’s success in various ways. First, the 2022 reauthorization expands the list of covered crimes to include sexual assault, child abuse, stalking, sex trafficking, and assault on an officer. Before the reauthorization, tribes that exercised VAWA jurisdiction could prosecute non-Indian abusive boyfriends for domestic violence, but not for the assault on the tribal police officer making the arrest. The reauthorization also removed the requirement that non-Indian perpetrators of covered crimes have “sufficient ties” with both the tribe and the victim. Under the 2013 reauthorization, tribes could only assert jurisdiction over non-Indians who lived or worked on the reservation or were in an intimate relationship with the victim. By removing this requirement, the 2022 reauthorization ensures that tribes asserting VAWA jurisdiction only must consider the boundaries of their reservation, not the relationships of the perpetrator. The expansion of covered crimes and the elimination of the “sufficient ties” requirement allow tribes to partially patch holes in criminal justice within Indian country.

Exercising VAWA Jurisdiction

            While tribes do not need federal approval to exercise STCJ, not all tribes choose to exercise it. Tribes that do exercise STCJ must adhere to certain federal requirements. Under VAWA, tribes must provide non-Indian defendants with certain rights that tend to track the U.S. Bill of Rights, including habeas corpus and providing counsel. Currently, only two tribes in Arizona exercise STCJ: the Gila River Indian Community and the Pascua Yaqui Tribe. The 2022 reauthorization of VAWA attempts to treat tribes like the sovereign governments that they are. Interestingly, it comes only a year-and-a-half after United States v. Cooley, in which a unanimous Supreme Court held that tribes retain inherent sovereign authority to temporarily search and detain non-Indians traveling through reservations on public rights-of-way for violating federal or state law. Hopefully, this trend continues.

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By Noah Goldenberg

J.D. Candidate 2023

Noah Goldenberg is a 2L Staff Writer raised in Portland, OR. He graduated from the University of British Columbia with a double major in Religious Studies and History. He is a member of the Native American Law Students Association and is Mdewakanton Dakota and a descendant of the Lower Sioux Indian Community. Aside from law school, he spends his time with his dog, Angus.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.