"Amid the current election excitement and heightened national focus on the politics of women’s issues, Congressional efforts to reauthorize the Violence Against Women Act (VAWA) have garnered considerable attention. Among the new VAWA provisions which passed through the Senate and are the subject of some controversy is one that would acknowledge the inherent authority of Indian tribes to exercise “special domestic violence criminal jurisdiction” over all persons (including non-Indians) with certain ties to the tribe. Tribal criminal jurisdiction over non-Indians, even those who enter onto tribal lands, has not been recognized by the United States since the Supreme Court case of Oliphant v. Suquamish Indian Tribe in 1978. The Senate provision is widely viewed by Indian tribal advocates and others not only as just, but also as necessary in order to combat the appalling rates of domestic violence attacks against Indian women—attacks that the federal government and states, where applicable, often fail to prosecute.

Interestingly, the prospect of enhanced tribal jurisdiction over non-members has raised the issue of racial discrimination in varied and even competing ways. Two recent statements by members of Congress, both of whom have been important allies in tribal law enforcement efforts including the enactment of the Tribal Law and Order Act, illustrate this point. Following passage of the Senate bill, Senator Jon Kyl of Arizona released a statement claiming that “by subjecting individuals to the criminal jurisdiction of a government from which they are excluded on account of race,” the tribal jurisdiction provision “would quite plainly violate the Constitution’s guarantees of Equal Protection and Due Process.” Then, during the House Judiciary Committee’s markup of a bill that did not contain the tribal jurisdiction provisions, Representative Darrell Issa of California stated that the lack of such a provision raised questions of race discrimination, since whether an individual will be brought to tribal, state, or federal court for a domestic violence offense under current law depends on whether the defendant is Indian or non-Indian."

Get the Story:
Caroline Mayhew: VAWA Tribal Provisions and Race Discrimination Arguments (Indian Country Today 5/29)

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