On September 30, the current Violence Against Women Act (VAWA), a law that strengthens protections for victims of domestic and dating violence, is set to expire. Make no mistake, this would immediately be to the detriment of many American citizens, but especially to those in the 573 recognized tribal nations in the United States. Denying VAWA reauthorization not only marks a loss of progress, it also invokes memories — memories held by generations of Native women.

"[R]ape is a fundamental result of colonialism, a history of violence reaching back centuries," notes The Beginning and End of Rape: Sexual Violence in Native America, by University of Kansas professor Sarah Deer. Historical context is key, because the the rates of violence in Indian country are astronomically high in modern day, with more than half of Native women reporting that they’ve experienced sexual violence in their lifetimes. This is a problem that has persisted over centuries, over lifetimes, permeating communities.

To understand how this problem has persisted, and what VAWA reauthorization means for indigenous communities, it is necessary to understand what the last reauthorization of VAWA looked like.

In 2013, when the Violence Against Women Act was reauthorized by Congress, it marked an immense and hard-fought victory for advocates in Indian country. For the first time in nearly 35 years, indigenous communities would again have an inherent right to exercise criminal jurisdiction over certain non-Indians who committed domestic or dating violence against Indian victims on tribal land. While these VAWA provisions did not cover all offenders, they did allow for the prosecution of non-Indians who resided on the tribal land, were employed by a participating tribal nation, or were "a spouse, intimate partner, or dating partner of a tribal member."

For women like Taryn Minthorn, a member of the Confederated Tribes of the Umatilla Indian Reservation (CTUIR), in Oregon, this provision would make all the difference. In September 2016, Minthorn experienced physical abuse at the hands of a former partner who was a non-Indian. While Umatilla police initially arrested her abuser, the federal government declined to prosecute, letting him walk free. Yet because Umatilla had become one of the early adoptees of the Special Domestic Violence Criminal Jurisdiction (SDVCJ) statute under the VAWA of 2013, tribal prosecutors were able to get justice for Minthorn, and in March 2017 her abuser was sentenced to two years in prison and three years of probation.

While Minthorn's story ultimately had a positive resolution, there are countless others for which justice is never served. More than four in five Native women have experienced violence in their lifetimes, over half of that committed by an intimate partner. This is what makes SDVCJ so critically important. We know that Native women experience alarmingly high levels of violence, and yet for the 35 years prior to 2013, indigenous communities in the U.S. had no authority to prosecute non-Indians for any type of crime, as a result of the 1978 U.S. Supreme Court decision in Oliphant v. Suquamish Indian Tribe. This decision would give the basis for opposition in Congress in 2012 and 2013.

Congressional Republican opposition has stemmed primarily from the idea that allowing indigenous communities to protect themselves from interracial domestic or dating violence was an infringement on "fundamental constitutional rights for certain American citizens," as noted by Senator John Cornyn (R-Texas) in 2013.

While Cornyn invoked some arguably hazy violation of the Constitution by VAWA, it seems unclear what actual fundamental constitutional rights were supposedly being infringed upon. The 2013 version of VAWA allowed indigenous communities to enforce criminal jurisdiction — the same as a city, county, or state would do — on their lands against more than just their own tribal citizens. It did not allow for tribes to prosecute crimes off of their tribal lands, otherwise known as reservations or trust land. It did not even allow for tribes to prosecute all the crimes that may be committed by nontribal members on tribal lands, notably crimes related to stalking or sex trafficking. The best estimation as to what fundamental constitutional rights were being infringed on is that tribal courts might violate habeas corpus, essentially the right to not be held in unlawful imprisonment, although it is unclear what would make the imprisonment of suspected abusers unlawful.