When President Obama signed the Violence Against Women Reauthorization Act (VAWA) in 2013, he enacted legislation that allows Native American tribes to use their own courts to prosecute non-Natives accused of committing dating and domestic violence against Natives on tribal land. The jurisdictional changes take effect in March 2015 but a pilot program, coordinated by the Department of Justice (DOJ), has authorized three tribes to exercise the prosecutions starting this week.
Tribal authority over non-Natives is not new but was completely halted in 1978. Five years previously, a non-Native named Mark David Oliphant was arrested for assaulting a Suquamish tribal policeman on the Port Madison Indian Reservation in Washington state. Oliphant argued that the tribe didn’t hold criminal jurisdiction in the matter. The Suquamish tribe held that its inherent tribal sovereignty allowed it to maintain law and order on its land, up to and including arresting and prosecuting non-Native suspects.
The Supreme Court sided with Oliphant, however, gutting tribal jurisdiction over non-Natives for crimes committed on tribal land. It did so not just for the Suquamish, but for all federally recognized tribes. And because local and state agencies don’t hold criminal jurisdiction on tribal lands, all non-Natives suspected of committing crimes on those lands for the last 40 years or so have been held accountable only by federal prosecutors. U.S. Attorneys are few in comparison to the number of cases that pile up so only the most serious of charges are ever investigated and prosecuted.
The Supreme Court’s decision in Oliphant v. Suquamish Tribe, however, did rule that Congress could authorize criminal jurisdiction for Native tribes. It would take Congress 35 years to pass such legislation, through VAWA. By 2015 all 566 federally recognized Native tribes and nations will be eligible to exercise criminal jurisdiction over non-Natives for dating and domestic violence.