The Violence Against Women Act died in the House last session. The law stiffens penalties for domestic violence, stalking and rape. It's the first time the law hasn’t been reauthorized in 18 years. The dispute was over a new provision that would have allowed Native American tribes the authority to prosecute non natives in their own courts.
A middle-aged woman is making breakfast for herself, her daughter and her grandkids at a women’s shelter in Flagstaff. She didn’t want me to use her name. She and her daughter, who are both in abusive relationships, fled to the shelter after separate incidents of abuse. She says the cycle of violence started with her parents on the Navajo Nation.
"And when they would get drunk they would fight you know and my dad would hit my mom, and throw her down or push her," she said. "I just remember being around that ever since I was little. As I grew up I met men that were violent."
Native American women are 2.5 times more likely to be assaulted in their lifetime than other women in the U.S/, according to the Department of Justice. Many are abused by non-native men who live on the reservation.
Tribal law professor Sarah Deer said currently there’s not much tribal police and courts can do about it.
"We have been working in Indian Country for decades now to try to stem the tide of violence in our communities on our own terms using our own court systems and our own police departments," Deer said. "And there’s this one piece that prevents us from doing a comprehensive job. And that is that when a non-Indian commits an act of violence we don’t have any control over what happens to him."
Former Arizona Senator John Kyl was among the Republicans who argued against the controversial tribal jurisdiction provision last year, saying it was unconstitutional.
“Subjecting individuals to the criminal jurisdiction of a government from which they are excluded on account of race would quite plainly violate the Constitution's guarantees of Equal Protection and Due Process,” Kyl said.
But Deer, who teaches constitutional law, disagreed.
"If I go to Mexico and I commit a crime on Mexican land the Mexican government will have jurisdiction over me," Deer said. "It doesn’t matter that I don’t vote there. I came to that country and I committed a crime and those laws are going to apply to me regardless of my citizenship."
Oklahoma Republican Rep. Tom Cole says non-native offenders are a huge problem on native reservations in his state.
"We need to give tribal courts the authority and the resources that they need to police their territory and protect their citizens," Cole said.
But he says solving this dilemma is not a simple fix.
"There are legitimate concerns about the sophistication of tribal courts and tribal law enforcement mechanisms, which vary widely," Cole said.
Some tribal courts have the training and staff to fully implement the VAWA provision, but others don’t have qualified attorneys or judges. A juris doctor, or J.D. degree, is required to practice law in the U.S. -- but not on the reservation.
Bernadine Martin is the Navajo Nation’s Chief Prosecutor. If the new VAWA provision is passed she says it would take time to meet federal standards.
"There would have to be enhancements made within the criminal justice system," Martin said. "We have mostly lay judges. We have many lay tribal court advocates. They’re not law trained, they don’t have J.D.s, but they’ve passed the Navajo bar exam and they can practice law on the Navajo Nation. So the implications are great."
But the consequences if VAWA isn’t reauthorized are great as well, says Cole.
"At the end of the day if Indian tribes don’t have the authority over non-natives on their territory to actually hold them accountable then you’re going to find, as you do today, a higher incidence of crime there," Cole said.
Cole and other proponents of VAWA plan to reintroduce the bill as early as this month.
