Empowering Tribal Nations: The Transformative Impact of VAWA 2013 and 2022 on Tribal Jurisdiction

The situation in many Tribal communities is compelling and urgent: American Indians and Alaska Natives (AI/AN) experience the highest rates of domestic and sexual violence in the nation. The vast majority of these victims report being victimized by a non-Indian offender. This interracial violence is particularly troubling because, since the Supreme Court’s decision in Oliphant v. Suquamish Indian Tribe in 1978, the ability of Tribal justice systems to hold non-Indians accountable for crimes committed on their lands has been limited by federal law. This restriction on Tribal criminal jurisdiction over non-Indians has greatly impeded Tribal governments’ ability to address crimes committed by non-Indians against AI/AN in Indian Country and left them reliant on federal or state justice systems that often failed to respond. In 2013 and 2022, crucial amendments were included in the reauthorization of the Violence Against Women Act (VAWA) that significantly restored Tribal jurisdiction and thereby provided better access to justice and protection to countless survivors in Tribal communities.

VAWA has been a pivotal piece of legislation aimed at improving the nation’s response to domestic and sexual violence since its inception in 1994. Each reauthorization of VAWA has included provisions designed to address violence in Tribal communities. The 2013 amendments to VAWA marked a significant turning point in addressing violence against Native women. One of the most crucial changes was the reaffirmation of Tribal courts’ authority to prosecute non-Native perpetrators of domestic violence and dating violence against Native women. This provision, known as the Special Domestic Violence Criminal Jurisdiction (SDVCJ), was groundbreaking in removing restrictions that had prevented Tribal nations from addressing violence on their lands and ending a cycle of impunity for many offenders. 

The positive impacts of VAWA 2013 were documented by the National Congress of American Indians in VAWA 2013’s Special Domestic Violence Criminal Jurisdiction Five-Year Report, (2018) which concluded that “[VAWA 2013] has fundamentally changed the landscape of Tribal criminal jurisdiction . . . [and] many communities have increased justice and safety for victims who had previously seen little of either.” The report also found, however, that Tribal implementation of VAWA 2013 had revealed additional jurisdictional gaps that undermined public safety in Tribal communities. For example, tribes complained that they were encountering offenders who had abused their children along with their adult partners and the crimes committed against the children fell outside the scope of SDVCJ. Similarly, if a domestic violence offender assaulted a responding officer, resisted arrest, or committed witness intimidation, the tribe could only prosecute for the domestic violence offense.

In 2022, Congress responded by enacting amendments to the VAWA 2013 Tribal jurisdiction provisions that include additional categories of criminal conduct that can be prosecuted in Tribal courts against non-Indians. Specifically, VAWA 2022 builds on VAWA 2013 and reaffirms Tribal criminal jurisdiction over non-Indians for domestic violence, dating violence, protection order violations, sexual assault, stalking, sex trafficking, child violence, assault of Tribal justice personnel, and obstruction of justice. This shift represents another historic milestone in further recognizing the inherent rights of Tribal governments to protect their citizens and uphold justice in their communities.

The American Bar Association (ABA) adopted resolutions in support of these VAWA Tribal jurisdiction provisions prior to the enactment of both VAWA 2013 and VAWA 2022. The ABA has also adopted a series of other related resolutions such as resolutions responding to the interrelated crisis of Missing and Murdered Indigenous Women (MMIW) and resolutions supporting the enactment of the Tribal Law and Order Act and in support of the recommendations of the Indian Law and Order Commission and the Attorney General’s Advisory Committee on American Indian and Alaska Native Children Exposed to Violence.