Restoration Magazine

On the 20th anniversary of the Restoration Magazine and the founding of the NCAI VAWA Task Force, it is incredible to stand back and survey how the Movement has grown and all that the Movement has accomplished. The last two reauthorizations of the Violence Against Women Act (VAWA) alone have brought historic restorations of Tribal sovereignty unmatched by any other movement throughout all of Indian Country. From Tillie Black Bear to Diane Millich and from Tami Jerue to Lisa Brunner, our Native women survivors and advocates have worked tirelessly to restore the inherent right of our Nations to protect our own women and children in our own homes, and those efforts have rendered historic results.

At this time, I’d like to reflect on the important work of the VAWA Sovereignty Initiative (VSI). Conceived by NIWRC in 2013 to protect and preserve the historic victory Indian Country won in the 2013 reauthorization of VAWA, the VSI surveyed cases trickling up through federal courts and monitored developments for any case that might target VAWA or the foundation of a Tribe’s sovereignty to protect women and children from domestic violence and sexual abuse. Over the past 10 years, the VSI has made a tangible and real difference in several cases where nothing less than the right of our Nations to protect our women and children was on the line.

The first case in which the VSI filed a brief was Dollar General v. Mississippi Band of Choctaw Indians in 2015. In this case, the Dollar General corporation argued that the Supreme Court should extend the Court’s decision in Oliphant to Tribal civil jurisdiction and hold that no Tribe could exercise civil jurisdiction over non-Indians on Tribal lands. The case itself involved a situation where a non-Indian store manager repeatedly sexually assaulted a young Choctaw boy interning in the store on the Mississippi Choctaw Reservation. Dollar General argued it could not be held responsible for its negligent supervision of its predatory store manager because the Tribe had no jurisdiction over the non-Indian corporation. NIWRC rallied, filing an amicus brief through the VSI, and organizing hundreds of Native women survivors, advocates, and Tribal leaders to come to the footsteps of the Supreme Court and hold a prayer vigil.

The NIWRC’s hard work paid off. In June of 2016, the Supreme Court issued its decision. In a 4 to 4 tie (Justice Scalia had passed away and did not participate in the final decision), the Court upheld the Fifth Circuit’s decision—which, in turn, had upheld the exercise of Tribal civil jurisdiction over non-Indians who sexually assault Indian children on Tribal lands. Indian Country had successfully stalled Dollar General’s efforts to extend Oliphant to civil jurisdiction, and the VSI had played a major role.

We continued the work of the VSI in 2016 by filing several briefs in support of the Standing Rock Sioux Tribe in its litigation against the Dakota Access Pipeline. The NIWRC understood very well that the pipeline’s proposed increase in oil extraction in the Bakken Region would bring additional violence against Native women and children in a region already facing epidemic levels. Ultimately, the Tribes and national Native non-profits prevailed in the Courts, but not before the pipeline was built and the State of North Dakota waged a war against the Water Protectors who had engaged in a historic peaceful protest.

The VSI also filed an amicus brief in Voisine v. United States. This case was not directly linked to federal Indian law but instead dealt with the federal definition of “domestic violence” for purposes of the federal firearm prohibition and thus had implications for Tribes’ implementation of VAWA 2013’s restored Tribal criminal jurisdiction. NIWRC’s amicus brief played a pivotal role in this case and was actually mentioned during oral argument. The Court ultimately issued a favorable ruling.

In 2017, the NIWRC filed an amicus brief in Bryant v. United States—a case where a defendant was challenging the constitutionality of the habitual offender provision passed in VAWA 2005, whereby the United States Attorney gains jurisdiction to prosecute an Indian offender who repeatedly and habitually commits domestic violence against a Native victim on Tribal lands. Justice Ginsburg wrote the majority opinion, upholding the constitutionality of the law, and she used, cited, and extrapolated extensively from the amicus brief the NIWRC’s VSI filed in the case. Undoubtedly, the NIWRC’s amicus brief played a huge role in this historic victory.

In 2018, the VSI filed an amicus brief in United States v. Gamble. In this case, a non-Indian defendant challenged the constitutionality of the dual sovereigns doctrine that allows more than one sovereign to prosecute an individual for the same crime without running afoul of the U.S. Constitution’s Dual Jeopardy Clause. The case had potential implications for the application of the Dual Jeopardy Clause to prevent Tribal prosecutions filed subsequent to state or federal prosecutions (since Tribes always have criminal jurisdiction that is concurrent to another sovereign), and the result was ultimately positive and upheld the dual sovereigns doctrine. The NIWRC’s amicus brief was mentioned during oral argument.

The NIWRC’s VSI filed amicus briefs in both Murphy v. Oklahoma and McGirt v. Oklahoma. On July 9, 2020, the Supreme Court issued a decision rejecting Oklahoma’s efforts to convince the Court to disestablish the existence of the Muscogee (Creek) Nation’s Reservation. Both VSI amicus briefs highlighted the challenges Tribal Nations would face in implementing VAWA’s restored Tribal criminal jurisdiction if and when courts begin disestablishing reservations that Congress itself has never eliminated. McGirt is one of the most significant victories Tribal Nations have ever achieved in the Supreme Court.

Following Indian Country’s monumental victory in McGirt, Oklahoma immediately began to pour millions of dollars into a campaign to convince the Court to reverse itself. Notably, Oklahoma filed more than 30 cert petitions asking the Court to reverse McGirt. In Castro-Huerta, the Court granted cert on one of those petitions, denying Oklahoma’s request to reconsider McGirt—but agreeing to consider whether States should be judicially granted criminal jurisdiction over crimes committed against Indian victims on reservations lands—a category of jurisdiction Congress had never granted to States. The NIWRC filed a critical amicus brief, explaining that the only way to secure true safety for Native victims would be for the Court to overturn its decision in Oliphant and fully restore Tribal criminal jurisdiction. In a very upsetting decision issued in June of 2023, the Court granted States criminal jurisdiction over crimes committed against Indian victims on Tribal lands. This decision has created significant confusion and obstacles for Tribal Nations attempting to protect their own citizens on Tribal lands, and the NIWRC has joined forces with the National Congress of American Indians, the Native American Rights Fund, other Native non-profits and scores of Tribal Nations to advocate that Congress legislatively fix Castro-Huerta by fully restoring Tribal criminal jurisdiction, eliminating the Indian Civil Rights Act’s limitation on the inherent sentencing authority of Tribes, and adopting the ”Gorsuch Fix” outlined in Justice Gorsuch’s dissent in Castro-Huerta. A resolution was passed at NCAI in November 2022 supporting this legislative proposal (SAC-22-043), and the proposal is currently being written into a draft bill.

More recently, the NIWRC filed an amicus brief in Brackeen v. Haaland, informing the Court of the consequences Native women and children would face if the Indian Child Welfare Act (ICWA) were to be declared unconstitutional. Thankfully, in June of 2023, the Court upheld the constitutionality of ICWA in another historic win for Indian Country.

The latest case in the Supreme Court that the VSI has participated in is Rahimi v. United States. This case again constitutes a constitutional challenge to the federal firearm prohibition, this one couched in a Second Amendment Argument that the federal government’s prohibition precluding individuals with a DV conviction from possession or accessing firearms violates the Second Amendment. The VSI filed an amicus brief this past summer, and the case was argued in November. We are still awaiting a decision.

Finally, the VSI has filed two amicus briefs in L.B. v. United States—a case where a Northern Cheyenne victim of a rape committed by a BIA officer is suing the United States under the Federal Tort Claims Act, asking for damages to pay for her pain and suffering caused by the rape. The case is currently before the Ninth Circuit Court of Appeals. The United States, and specifically the Department of the Interior and the BIA, is arguing it can’t be held liable for its law officers actions (he was responding to a Native woman’s call for help and was on duty when he committed the rape) because he committed the rape for “his own enjoyment,” and not to “further the interests of his employer.” It is a despicable, deplorable argument that contributes directly to the large rates of violence against Native victims in this country. If Native women calling BIA law enforcement for help have the choice between calling for help and being raped or not calling for help and not being raped, they are in a no-win, incredibly violent, unjust situation. The BIA and DOI should publicly apologize to L.B. for the rape she endured, and they should pay the damages she is owed. They also need to instigate programs geared towards training officers to report other officers who rape Native women. The officer who raped L.B., Officer Bullcoming, bragged in his deposition that he had done the same thing to at least 12 other women. There is no way he has done this to so many women, and his fellow officers and supervisors did not know. Why didn’t the BIA do something about Officer Bullcoming’s behavior? This situation is inexcusable, and the fact that DOI and BIA won’t accept responsibility for their wrongdoing here is beyond the pale.

As you can see, NIWRC’s VSI does important, critical work. Please consider making a donation to the NIWRC specifically to support the ongoing advocacy of the VSI. Oftentimes, the VSI is the only voice Native women and children survivors have in a court proceeding concerning their safety and welfare. As a non-profit, the NIWRC relies on donations from individuals who believe in its mission.

We have worked so hard over these past 20 years to achieve historic victories in the restoration of Tribal sovereignty not once—but twice! But VAWA 2013 and VAWA 2022 are under attack in the courts, and the inherent right of our Tribal Nations to protect our women and children from those who seek to harm them remains vulnerable. Give today and support the next 20 years of the NIWRC VSI!