Prior to 1978, tribes had broad authority to prosecute non-Natives for crimes committed on their land. This ability was gutted
by the Supreme Court case Oliphant v. Suquamish Tribe, in which the court sided with a non-Native who argued he could not be held criminally liable by the Suquamish Tribe for assaulting a Native-American policeman.
The court's decision stripped all federally recognized tribes of their criminal jurisdiction over non-Natives, but left the door open for it to be restored through an act of Congress. VAWA is the first legislation in the 36 years since Oliphant v. Suquamish to restore any area of criminal jurisdiction to Native populations.
In the video below, Rep. Gwen Moore (D-Wis.) speaks passionately about extending VAWA protections to Native women during a floor debate on the bill:
The provisions pertaining to tribal lands in VAWA were included in response to what many describe as epidemic levels
of violence against Native-American women. According to the Census Bureau, 39 percent of Native-American women have been victims
of domestic violence at least once. Non-Native men are responsible
for an estimated 80 percent of rapes of Native-American women.
The VAWA pilot program will address some
, but not all, sources of violence against Native-American women perpetrated by non-Natives. The three types of crimes it covers are domestic violence, dating violence and violations of restraining orders. Participating tribes are still unable to prosecute cases where sexual assault occurs between two strangers.
While all 566 federally recognized tribes are eligible to reinstate this criminal jurisdiction after the pilot program, a crucial caveat will prevent many tribes from participating. The VAWA provisions state that participating tribes must have similar defendant protections to the U.S. justice systems. This requirement puts a significant financial burden of providing venues and legal representation that many tribes may be unable to meet.
Federal prosecutors can still bring charges against those who commit crimes in tribal land that aren't covered under the pilot program. U.S. attorneys, however, decline
67 percent of sexual assault cases referred to them by residents of Indian country.