Member Article

On March 15, 2022, President Biden signed an omnibus spending package for the upcoming fiscal year. Included in its nearly 3,000 pages is a reauthorization of the Violence Against Women Act (VAWA). As reauthorized, VAWA includes numerous safeguards to protect women and other victims of gender violence nationwide. Many of these expand the reaffirmance of tribal criminal jurisdiction over certain non-Native domestic violence offenders in the 2013 reauthorization of VAWA, bolstering the capacity of Alaska Native tribes and villages to enforce law and order and keep Alaska Native women safe.

The current Congress included provisions addressing the capacity of Alaska Native communities to respond to domestic violence because it found that Alaska Native women “are overrepresented in the domestic violence victim population by 250 percent.” Accordingly to Congressional findings, Alaska Native women constitute 19% of the Alaska’s population but 47% of reported rape victims. Congress found that many Alaska Native women live in remote Native villages, inaccessible by road and without local law enforcement. The Alaska Department of Public Safety is sworn to police rural Alaska. But Congress explained that it is woefully understaffed, however, with statistically 1 to 1.14 officers covering every one million acres of territory. As a result, Alaska Native women often receive substandard protection from state police, as evidenced recently in a settled lawsuit between the City of Nome and a Native woman who its police failed to protect.

The unique legal history of Alaska’s tribes and Native villages compound these problems. Under the Alaska Native Claims Settlement Act (ANCSA), for-profit Native Corporations were established as the dominant Alaska Native entity, with Native Corporations receiving 44 million acres of land from the federal government in settlement of their aboriginal claims. Native Corporations provide certain benefits and assistance to their communities based on factors other than share ownership and have been recognized to have a government-to-government relationship with the federal government for consultation purposes. But they are not governmental entities, do not have sovereign immunity, and do not have criminal or civil adjudicatory authority over their own shareholders. While ANCSA did not do away with Alaska tribes, as they remain federally recognized sovereign entities, Alaska tribes also did not receive reservations or trust land under ANCSA. 

Tribes with land can increasingly prosecute resident non-Native domestic abusers under 2013’s VAWA, including using civil proceedings to banish non-Native people from trust and tribal fee land. Yet the Native villages and tribes of Alaska cannot because, in most cases, they do not have trust and tribal fee land. 

In light of these facts, Congress determined that “devolving authority to Alaska Native communities is essential for addressing local crime. Their governments are best positioned to effectively arrest, prosecute, and punish, and they should have the authority to do so.” Congress sought to achieve that devolution in several ways.

Affirming Tribal Jurisdiction

As noted, Congress disavowed most Alaska tribes of a land base in passing ANCSA. Accordingly, Alaska tribes generally lack jurisdiction to even hail their own members into tribal court, outside certain narrow areas like family law. In response, the newly reauthorized VAWA “recognizes and affirms the inherent authority of any Native tribe occupying a Village in [Alaska] to exercise criminal and civil jurisdiction over all Natives present in the Village.” Questions will likely remain for some time about how this jurisdiction will be implemented without a traditional land base, but Congress’ recognition reflects a substantive change.

Protection Orders

In 2013, Congress authorized tribes to issue and enforce protection orders against non-native people, providing an important safeguard for tribal members suffering harassment. The newly reauthorized VAWA expands that authority to Alaska tribes, which henceforth “shall have full civil jurisdiction to issue and enforce protection orders involving any person in matters” that arise in their village or are “otherwise within the authority of the Native tribe.” Enforcement can take various forms. Tribal courts can hold those who violate protection orders in contempt, with the presumed power to incarcerate and fine. Importantly, they can enforce these orders through exclusion, also referred to as banishment. Numerous tribes and villages throughout Alaska have used banishment to remove violent offenders and drug dealers from their communities, but the practice has faced challenges in federal courts because these tribes and villages lack a reservation land base. The new VAWA will likely weaken court challenges and bolster tribal authority. The Ninth Circuit Court of Appeals, for its part, has held that persons excluded from tribal land generally cannot petition a federal court for habeas corpus relief. Tavares v. Whitehouse, 851 F.3d 863 (9th Cir. 2017). But given that most Alaska tribes do not have “tribal land,” there remains a question of whether a tribe is entitled to sovereign immunity in the event that it seeks to enforce a banishment order from a tribal village against a non-Native person and that person brings a tort claim for battery, or something similar, against the Alaska tribe or its officials. This issue is currently being considered by the Ninth Circuit Court of Appeals in Ronald Oertwich v. Traditional Village of Togiak.   

Pilot Program for Special Criminal Jurisdiction

As noted above, when it reauthorized VAWA in 2013, Congress reaffirmed the jurisdiction of tribes to prosecute certain non-Native people for domestic and dating violence. VAWA’s new version expands that reaffirmation of inherent tribal jurisdiction to include additional “covered crimes,” including sexual assault, child abuse, stalking, sex trafficking, assault of tribal justice officials, and obstruction of justice. Such jurisdiction remains limited, however, to offenses with an offender or a victim who is a Native person, except for assault of tribal justice officials and obstruction of justice. 

To exercise the jurisdiction afforded by VAWA, Alaska tribes must participate in a pilot program coordinated by the U.S. Department of Justice. VAWA, as reauthorized, tasks the U.S. attorney general with designating five tribes for this program. The five-tribe cap, however, allows for two exceptions. First, multiple tribes can join together and participate as a partnership, which will count as a single designated tribe amongst the five. The attorney general can designate as many as 30 tribes for the program through such partnerships. Second, the attorney general can designate additional tribes by publishing that designation in the federal register and explaining why such action is appropriate.

The attorney general must designate participating tribes by March 15, 2023, and annually thereafter. In designating tribes to participate in the program, the attorney general must give preference to villages with predominately Native populations that lack a permanent state law enforcement presence. The participating tribe must also show that it will adequately protect defendants’ rights under the Native Civil Rights Act, comparable to those guaranteed by the U.S. Constitution.

Should a participating tribe order a defendant to serve more than one year in prison, it may sentence the defendant to serve that term in a tribal correctional center approved by the Bureau of Indian Affairs, or at federal expense in a state (through application for federal reimbursement) or federal facility. VAWA expressly recognizes the power of participating tribes to prescribe sentences other than incarceration in accordance with tribal law, presumably including banishment. Alaskan tribes should note, however, that the Tribal Law and Order Act limits sentences of incarceration to three years for a single offense or nine years total.

Encouraging Cross-Jurisdictional Collaboration

Throughout its Alaska Native provisions, VAWA encourages cross-jurisdictional collaboration. It authorizes the attorney general and secretary of the interior of the United States to enter agreements with participating tribes and the State of Alaska to share equipment, cross-deputize law enforcement officers, and coordinate training, incarceration, investigations, and other affairs. Relatedly, it calls for the attorney general to establish the Alaska Tribal Public Safety Advisory Committee within one year to support such cooperation, with representatives from participating tribes, federal, tribal, state, and local law enforcement, and tribal victim service organizations.

Altogether, this year’s reauthorized VAWA expands the ability of Alaska Native tribes to maintain public safety, despite lacking land bases. They may do so by applying for designation as a participating pilot program tribe, expand established justice system infrastructures where needed, and secure federal funding through self-determination compacts to aid this work.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.