By Caroline Stroh and Maddy LaCure
Maryland has three state recognized tribes, the Piscataway Indian Nation, Piscataway Conoy Tribe and the Accohannock Indian Tribe, and the Maryland Commission on Indian Affairs also serves five additional tribes (MCOIA). We recognize and acknowledge the historic land of these tribes that now make up Maryland and honor the lives lost on these grounds. We look to support the descendants and members of these tribes in the work to end sexual violence.
Indigenous communities face the highest rates of sexual violence of any racial or ethnic group in the United States (Tjaden & Thoennes, 2000, p.vi & p.23). A 2016 National Institute of Justice study found that ‘more than four in five American Indian and Alaska Native women have experienced violence in their lifetime. This includes 56.1% who have experienced sexual violence, 55.5% who have experienced physical violence by an intimate partner, 48.8% who have experienced stalking, and 66.4% who have experienced psychological aggression by an intimate partner. Many indicated experiencing more than one form of violence. Overall, more than 1.5 million American Indian and Alaska Native women have experienced violence in their lifetime’ (Rosay, A. 2016).
Additionally, more than four in five American Indian and Alaska Native men have also experienced violence in their lifetime, including 27.5% who have experienced sexual violence (Rosay, A. 2016). The data also shows that sexual violence in indigenous communities is committed by majority non-native perpetrators (Rosay, A. 2016). Current legal jurisdiction creates a challenge for victims and survivors to report against non-native perpetrators on native land or with their tribes, leading to a lack of prosecution and justice for survivors.
Currently, American Indian tribes do not have complete criminal jurisdiction over non-Indians when crimes are committed on their lands. Indian Country is the official term used by the Federal Government since 1948 to define ‘all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same’ (18 U.S.C. § 1151). In a 1978 Supreme Court Case Oliphant v. Suquamish Indian Tribe the Court ruled that Indian Tribal Courts did not have criminal jurisdiction over non-Indian perpetrators. Therefore, federally recognized tribes did not have authority to criminally prosecute non-Indian offenders, even for crimes committed in Indian Country (Rosay, A. 2016). One of the exceptions to this rule, which originated in the 2013 reauthorization of the Violence Against Women Act (VAWA), gives Tribes criminal jurisdiction over dating and domestic violence crimes committed by non-Indians in Indian country if ties between the non-Indian and the tribe are proven (U.S. Department of Justice Office of Tribal Justice, 2013). Because Congress passed this Act, it overruled the previous SCOTUS rule.
The National Congress of American Indians 5 Year Report on the VAWA provision, known as the Special Domestic Violence Criminal Jurisdiction (SDVCJ), found that the provision was successful in many ways. It increased accountability for perpetrators to face justice for their crimes. Eighteen participating tribes reported 143 arrests of 128 non-Indian abusers, which led to 74 convictions, 5 acquittals, and 24 cases pending at the time of the report (NCAI, 2018). Not only did the provision provide a path for legal action, but it also brought a sense of safety and justice to communities that had been silenced and renewed hope in the possibility to restore their communities (NCAI, p.1, 2018).
Additionally, it initiated open conversation about the prevalence of sexual violence in the community, encouraged collaboration between tribes and all levels of government and law enforcement, and identified which parts of the program implementation needed improvement (NCAI, 2018). Today there are 27 tribes implementing SDVCJ nationwide and working to hold perpetrators accountable.
However, Alaskan native tribes are not included in the 2013 VAWA provision because a majority of their native lands do not fall under the scope of the definition of Indian country (Koski, 2021). With such high rates of sexual violence in the Alaskan native community as ‘Alaska Native Women are over-represented in the domestic violence victim population by 250 percent and, among Native American Tribes, suffer the highest rates of domestic and sexual violence in the country’, victims in Alaska deserve more protection, support, and access to justice (Koski, p. 2, 2021).
To address this gap, H.R. 1585 was proposed as a new section to the 2019 VAWA reauthorization bill, that would start a pilot program of 5 tribes in Alaska to expand the definition of Indian Country to include Alaskan native villages and Alaskan native owned lands (Koski, 2021). Additionally, the proposal would expand the number of crimes applicable in the entire VAWA SDVCJ program to include sexual violence, sex trafficking, and stalking. Although the pilot program would be a helpful step to pave the way for all Alaskan native tribes to gain this legal power, HR. 1585 did not pass and was not added to the 2019 reauthorization. The Alaska Tribal Public Safety Empowerment Act, S.2616, was proposed in 2019 following the reauthorization to expand jurisdiction to Alaska tribes and remains up for discussion.
Expanding the scope of criminal jurisdiction to include certain acts of violence that take place on tribal lands is one of the ways to support indigenous survivors and work to hold perpetrators accountable. It is important to explore relationships between tribal communities, law enforcement, and non-native communities to work to support survivors and break down the root causes of sexual violence against indigenous people. To learn more about tribal criminal jurisdiction visit the National Congress of American Indians. For more information on gender based violence in native communities, check out the VAWnet's Gender Based Violence and Intersecting Challenges Impacting Native American & Alaskan Village Communities and the National Indigenous Women's Resource Center. For indigenous survivors of sexual violence seeking support, visit the Strong Hearts Native Helpline, Native American LifeLines (Baltimore) at 410-837-2258, and the Tribal Resource Tool connects Native survivors with local services.
References
18 U.S. Code § 1151 - Indian country defined. (1948, June 25). Retrieved from: https://www.law.cornell.edu/uscode/text/18/1151
Koski, C. (2021). VAWA Reauthorization Brings Renewed Focus on Jurisdiction, Particularly for Alaska Native Tribes. Native Affairs Quarterly. Retrieved from: https://www.vnf.com/webfiles/Native%20Affairs%20Quarterly%20-%20Spring%202021.pdf
Maryland Commission on Indian Affairs (MCOIA). The Governor’s Office of Community Initiatives. Retrieved from: https://goci.maryland.gov/maryland-commission-on-indian-affairs/
Rosay, B. Andre. (2016, June 1). Violence Against American Indian and Alaska Native Women and Men. National Institute of Justice. Retrieved from: https://nij.ojp.gov/topics/articles/violence-against-american-indian-and-alaska-native-women-and-men
Tjaden, P. & Thoennes, N. (2000). Full Report of the Prevalence, Incidence, and Consequences of Violence Against Women. National Institute of Justice. Retrieved from: https://www.ojp.gov/pdffiles1/nij/183781.pdf
VAWA 2013 and Tribal Jurisdiction Over Crimes of Domestic Violence (2013). U.S. Department of Justice Office of Tribal Justice. Retrieved from: https://www.justice.gov/sites/default/files/tribal/legacy/2014/02/06/vawa-2013-tribal-jurisdiction-overnon-indian-perpetrators-domesticviolence.pdf
VAWA 2013’s Special Domestic Violence Criminal Jurisdiction Five-Year Report (2018). National Congress of American Indians. Retrieved from: https://www.ncai.org/resources/ncai-publications/SDVCJ_5_Year_Report.pdf
