Policy Innovation: Special Domestic Violence Criminal Jurisdictions

In terms of lifetime physical violence, nearly 52% of Native American women will be physically abused compared to 30.5% of white women, 41.2% of African American women, and 29.7% of Hispanic women (Crepelle Reference Crepelle2020; Institute for Women’s Policy Research 2023). A major reason for the high levels of domestic violence among Native American women is that tribal nations have been functionally prohibited from prosecuting non-Native offenders of violence against Native Americans on their lands. In considering a 2012 bill that would address this jurisdictional limitation, the Senate Committee on Indian Affairs recognized the vulnerability of abused Native American women:

In their 2018 report, the NCAI illustrated the precarious position of Native American women in the face of domestic violence by non-Native men. It provided an example of an assault of a Native American woman by her non-Native American husband in a public parking lot of a gas station. Tribal and state police officers each arrived at the scene:

The vulnerability of Native American women to domestic violence at the hands of non-Native offenders without prosecution is a failure of governance to protect women. Other work on domestic violence policy has shown the ineffectiveness of federal and state policies to address domestic violence and finds that significant inequity exists across state lines in women’s human security in this domain (Schiller and Sidorsky Reference Schiller and Sidorsky2022; Sidorsky and Schiller Reference Sidorsky and Schiller2020; Sidorsky and Schiller Reference Sidorsky and Schiller2023). We turn our attention here to the security of Native American women, many of whom live under the legal jurisdiction of tribal governments.

Background on Creation of SDVCJs

Native American women are at increased risk of intimate partner violence, especially at the hands of non-Native men. This type of relational violence has led to extensive jurisdictional problems because prior law and the Supreme Court’s decision in Oliphant restricted tribal nations’ abilities to hold non-Native American individuals accountable for crimes against their people on tribal land. Essentially, non-Native American individuals could avoid punishment for abusing their Native American partners in Indian Country. The creation of SDVCJs can be traced to Section 908 of the 2013 bill, which

To assist tribal nations that were interested in establishing an SDVCJ, the OVW was authorized to spend $5 million, an amount that was not fully appropriated until 2022 (US Department of Justice 2023).

When VAWA was reauthorized and signed into law on March 15, 2022, Congress expanded SDVCJs beyond domestic violence to prosecute crimes committed by Native and non-Native individuals by creating Special Tribal Criminal Jurisdictions (STCJs). In addition to including domestic violence crimes, the newly expanded authority covers “assault of Tribal justice personnel, child violence, obstruction of justice, sexual violence, sex trafficking, and stalking” (US Department of Justice 2023). Congress increased authorization levels to fund both the domestic violence courts and the expanded STJCs to $25 million, largely in response to the testimony of many tribal leaders who spoke of the deficiencies of the original law. While this article addresses adoption of SDVCJs prior to 2022, it is important to note Congress’s acknowledgment of tribal nations’ concerns regarding federal–tribal legal authority.

To be approved to implement an SDVCJ, tribal nations must comply with federal law, which includes providing adequate due process to non-Native defendants. Some tribal nations were already largely in compliance with the requirements to become an SDVCJ, while others had to rewrite much of their legal code at a large financial cost. Examples of what tribal nations are required to do to be eligible to become an SDVCJ include providing the defendant the right to counsel; providing indigent defendants appropriate counsel at the expense of the tribal government; ensuring the right to a trial by an impartial jury that does not exclude non-Natives; and providing protections specified in the Indian Civil Rights Act, such as not having to testify against oneself, having a speedy and public trial, and freedom from excessive bail, fines, or cruel and unusual punishment (NCAI 2013).

Here, Laura Evans’s framework of institutional niches is helpful in understanding how the SDVCJ program functions and has evolved; she writes an “institutional niche is a source of outside support that can provide small but meaningful subsidies for the cultivation of expertise” (2011b, 6). Access to these grants and the technical support that comes with them could be a variable that explains why some tribal nations have implemented SDVCJs and others have not. Tribal nations may apply for up to $450,000 to be used over 36 months to help them meet the federal requirements for an SDVCJ; tribal nations that have already received funding from this grant may apply for a continuation award of up to $300,000 over the course of 24 months (OVW 2022a, 7).

Because of the unique nature of the relationship between tribal nations, federal government, and state governments, the creation of SDVCJs is exceptional. One comparison that can be made to SDVCJs is the adoption of domestic violence (DV) courts in the non-Native criminal justice system. DV courts were created to address the deficiencies in the adjudication of domestic violence cases, and to do a better job of treating the specific conditions of cases and the abuser–victim dynamic. A 2009 report identified 208 DV courts across the country, although most of these courts are concentrated in just two states: New York and California (Labriola et al. Reference Labriola, Bradley, O’Sullivan, Rempel and Moore2010). The rationale for DV courts is that because they only focus on DV cases, and handle the case from arraignment to resolution, they can harness their full attention on holding offenders accountable and trying to prevent recidivism, through batterer programs, protective orders, and rehabilitation. There has been mixed evidence on the success of DV courts, with some studies showing they are effective in providing advocacy services to victims and others showing they do not really affect DV recidivism rates (Cissner, Labriola, and Rempel Reference Cissner, Labriola and Rempel2015; Gover, Boots, and Harper Reference Gover, Boots and Harper2021; Gutierrez, Blais, and Bourgon Reference Gutierrez, Blais and Bourgon2016; Labriola et al. Reference Labriola, Bradley, O’Sullivan, Rempel and Moore2010; Pinchevsky Reference Pinchevsky2017).Footnote ³ In comparison, SDVCJs are a much more recent innovation, and though there are a number of cases that have been brought to date, there is no study yet of their overall effectiveness in meeting similar goals to those of DV courts.

Patterns of Tribal Adoption of SDVCJs

Table 1 lists all the federally recognized tribal nations that have implemented an SDVCJ, and figure 1 geographically illustrates the states that have tribal nations with SDVCJ programs. Figure 2 provides a timeline of the number of tribal nations that adopted an SDVCJ from 2014–22. To get a sense of which states have the largest number of federally recognized tribal nations compared to the number of those tribal nations that have an SDVCJ, we provide a table (see appendix table A1) that lists the number of federally recognized tribal nations in each state.

Figure 1 Location of Tribal Nations with SDVCJs

Source: author-generated from NCAI (2022b).

Figure 2 Number of Tribal Nations Adopting SDVCJs by Year

Although the state of Alaska has the largest number of tribal nations, most of these Alaskan tribal nations were ineligible to adopt an SDVCJ because they are not considered Indian Country, which is one of the criteria for these jurisdictions. The provisions of the Alaska Native Claims Settlement Act of 1971 mean all tribes but one (Metlakatla) in Alaska ceded their claims to territory so there are no jurisdictions that they legally control, which made them ineligible to establish SDVCJs (Senate Committee on Indian Affairs 2021). In 2013, when SDVCJs were created, Alaska Senator Lisa Murkowski argued that the bill was “not the place to hash out territorial disputes” and said that Congress would have to consider separate legislation to grant territorial ownership to tribes in Alaska (Granitz Reference Granitz2013).Footnote ⁴ The 2022 VAWA reauthorization addressed the limitations of SDVCJs by creating the Alaska Pilot Program, which allows tribal members living in Alaska Native villages to establish STCJs working with the state (Murkowski Reference Murkowski2022). According to the US Justice Department, “VAWA 2022 requires the Attorney General, in consultation with the Secretary of the Interior and affected Tribes, to establish a process to designate up to five Tribes per calendar year to exercise STCJ over all persons present in the Tribe’s Village” (US Department of Justice 2023). Enabling the members of tribes in Alaska to exercise this type of sovereignty over crimes committed in their communities is a considerable opportunity, but it remains unclear how many tribes will apply to implement it.

The West and Southwestern regions are the most likely to have tribal nations with SDVCJ adoption. California, which has the second highest number of federally recognized tribal nations in the United States, does not have any tribal nations with an implemented SDVCJ, although three tribal nations have received grant funding since 2016 to start the process (OVW 2022b). Larger numbers of Native Americans living within a state may not be a sufficient condition to predict SDVCJ adoption. We also see a mixture of Native nations located in liberal and conservative states adopting SDVCJs so there is considerable ideological diversity in the political leanings of states with high Native populations.

Overall, the outcomes of SDVCJ adoption have been positive. A five-year review of the tribal nations that adopted the program, published by the NCAI, reported 143 arrests, 74 convictions, and 24 pending cases among the 18 implementing tribal nations at that time (NCAI 2018). Of the arrests, 125 were for domestic or dating violence and 34 were for protection order violations. In terms of the breakdown of defendant by sex, 90% were male and 10% were female; the opposite was true of the sex of the victims, 90% of whom were female and 10% of whom were male. Additionally, 33 defendants were sentenced to incarceration for their crimes in addition to being sent to batterer intervention programs and/or banishment. The most telling statistic from the report was that 85 defendants accounted for 378 prior contacts with tribal police before the implementation of an SDVCJ—proving yet again how vulnerable Native American women are to repeated violence from intimate partners (NCAI 2018, 14).

The tribal nation with the highest number of arrests was the Pascua Yaqui, located in Arizona (Arizona Rural Policy Institute n.d.). Prior to the enactment of the 2013 VAWA bill, the Pascua Yaqui Tribe had many of the legal characteristics necessary to become an SDVCJ, including having a public defender’s office since 1995 and a fair and constitutional jury selection system. Leaders of the tribal nation, including then Chief Prosecutor Alfred Urbina, traveled to Washington, DC, to lobby for expanded federal authority to prosecute Native offenders, including expanded prison sentences. These tribal and leadership lobbying efforts, along with the sponsorship by Rep. Ed Pastor (D-AZ), produced new legislation called the Tribal Law and Order Act of 2010 (TLOA). This act laid the foundation for federal support to tribal nations to prosecute serious crime more aggressively, but tribal nations were not allowed to prosecute domestic violence crimes committed by non-Native Americans; instead, they had to request that a US attorney take the case. The 2013 VAWA created SDVCJs specifically to allow tribal nations to prosecute non-Native Americans for domestic violence crimes fully within their own community without the necessity of using a federal prosecutor (Deer et al. Reference Deer, Eagle, Stoner, Martell and White2015).

The Pascua Yaqui Tribe was a leader among tribal nations pushing for implementation of an SDVCJ even before it tried its first case: in 2015 it held the first VAWA trial advocacy training (Allen Reference Allen2018). In May 2017, the Pascua Yaqui SDVCJ court considered a case against a non-Native American on domestic violence charges and convicted a 19-year-old man for domestic violence and malicious mischief (Krol Reference Krol2018). In 2018, the Pascua Yaqui were awarded a $450,000 OVW grant to help with the implementation of their SDVCJ (OVW 2022b). Because the Pascua Yaqui had already met many of the statutory due process requirements and had invested in their judicial system, they were well situated to adopt an SDVCJ and become one of the leading tribal nations to successfully implement it.

The Quapaw Nation demonstrates a different trajectory in its adoption of an SDVCJ, in that they worked with local officials to make an SDVCJ a reality for their tribal nation. The Quapaw Nation adopted an SDVCJ in the spring of 2022; at that time they had two women serving on their six-person business committee (not including the male business president). The Quapaw Nation’s largest hurdle in adopting an SDVCJ was the creation of cross-deputization agreements with local law enforcement agencies so that they could assist Quapaw Nation marshals in pursuing domestic violence crimes on their reservation. The Quapaw Nation’s road to SDVCJ implementation is therefore not as reliant on advocacy toward the federal government, but rather advocacy and good working relationships with local law enforcement. This opportunity to establish and build trust with local law enforcement may not be present for all tribal nations that could enact an SDVCJ.

Evans’s work is again helpful here in understanding the Quapaw Nation’s adoption of an SDVCJ. She shows that tribal governments are powerful when they develop their own expertise and knowledge—as well as take advantage of the experience of others—as they work with local governments, and describes expertise as “knowledge about the preferences of other actors, the approaches that are more likely to persuade, the problems that the group faces, and the possible solutions to those problems” (Reference Evans2011a, 663). Notably, the Quapaw Nation Marshal Service hired Charles Addington, a former director of the Bureau of Indian Affairs Office of Justice Services and more recently senior advisor to the assistant secretary for all law enforcement, security, and school safety throughout the country, to generally improve public safety (Fox 23 News 2022). One of the intangible elements of both SDVCJ adoption and its potential success may very well rest with these interpersonal relationships and the development of expertise.

There is a considerable body of research that has shown the ways in which Native nations lobby and advocate for their interests and that such lobbying has a very long history. In his work, Daniel Carpenter writes that “[i]n the early nineteenth century, Native North Americans began to petition,” and that “these petitioning moments enhanced organizational democracy. They also advanced procedural democracy by effectively placing Indigenous issues on local, ecclesiastical, tribal, state, and national agendas” (Reference Carpenter2021, 119). This historical work makes clear that the debates over these petitions struggled with the assertion of sovereignty in an act of necessary engagement with their oppressors. Today, the examples of the Pascua Yaqui and Quapaw Nation cases suggest that they perceived their heavy investment of time, money, expertise, and lobbying to once again be a necessary component to advance their interests in a power structure that is inherently disempowering to them.

Maggie Blackhawk’s work (Reference Blackhawk2019; Reference Blackhawk, Bara, Beck, Cole, Collins, Hasan, Kloss and Leshem2020) discusses how Native nations advocate through the law itself, and particularly reveals the ways in which the national government has been an agent of oppression of Native peoples and was not always the solution to protecting minority rights. The work of Maraam A. Dwidar (Reference Dwidar2022) builds on this by exploring the federal rule-making process to understand how interest groups representing marginalized peoples such as women, people of color, and Native nations work together to affect the bureaucratic process. Dwidar not only shows that Native nations are some of the most active public commenters on federal rules, but that they and other interest groups representing marginalized groups are more likely to work together in influencing bureaucratic policy making. In short, scholars have provided evidence of tribal nation lobbying and advocacy at all levels of government. Although we cannot directly measure the presence of lobbyists and lawyers in the adoption of an SDVCJ, it stands to reason that Native nations with higher institutional capacity will have more resources to deploy lobbyists and lawyers. We argue that measures of financial capacity can be proxies for a tribal nation’s ability and inclination to engage the federal government through lobbying and advocacy, and their potential willingness to adopt an SDVCJ.

Models and Results

Most eligible tribal nations have not adopted SDVCJs. We seek to understand why some tribal nations would forego the opportunity to create a federally sponsored judicial venue that would broaden their authority to adjudicate domestic violence crimes. We believe financial barriers are a large deterrent for many tribal nations to adopt this program. There may be additional factors that affect whether a tribal nation will implement an SDVCJ, including the percentage of Native Americans enrolled on the reservation, female leadership within the tribal nation’s government, and the levels of domestic violence in the state.

We collected data for 354 tribal nations across 33 states and identified 31 SDVCJ-implementing tribal nations.Footnote ⁵ Some tribal nations are one federally recognized tribal nation but have multiple bands, with each band having their own forms of government. For example, the Chippewa Tribe in Minnesota has six bands (Bois Forte, Fond du Lac, Grand Portage, Leech Lake, Mille Lacs, and White Earth). We opted to treat the bands as individual tribal nations as there is an example in Oklahoma of the Chickasaw and Choctaw Nations—both of which are in the Shawnee Tribe—adopting SDVCJs while the Osage Nation has not and yet is also part of the Shawnee Tribe. Our decision to count tribal nations in this way follows the practice of the United States Census Bureau, which we relied upon for specific data used in the analysis.

Collecting accurate data on the incidence of domestic violence for each tribal nation is not feasible for this study. Overall, it is difficult to assess the true number of domestic violence incidents nationwide because of underreporting by victims and different record keeping across states (Schiller and Sidorsky Reference Schiller and Sidorsky2022). Although the Centers for Disease Control (CDC) is now working with state departments of health and state departments of law enforcement to coordinate reporting of domestic violence, that data is not yet fully available, and may not identify domestic violence as specifically committed on tribal lands. As a proxy, we averaged the female murders by family members in a tribal nation’s state from 2010–16, which encompasses the time before and after the 2013 VAWA reauthorization created the SDVCJ program. For Native nations that cross multiple states we averaged the number of female murders by family members across the states in which the tribal nation resides. This data was collected from the Federal Bureau of Investigation’s Uniform Crime Report; we concede this data is at best a conservative estimate of levels of domestic violence committed against Native American women.

We also collected the number of Native American female homicides during this same period for each of the states where an SDVCJ-implementing tribal nation is located. What we gain in specificity in knowing the victim was a Native American woman, we lose in knowing whether it was a domestic violence-related homicide; the data does not specifically say the reason behind the murder, although we know a significant portion of female homicides are related to domestic violence.Footnote ⁶ We also know that this data underreports the number of Native American female homicides. As was noted by Secretary of the Interior Deb Haaland, hundreds of Indigenous girls and women go missing every single year, with many of their cases going unsolved or not categorized as homicides due to lack of evidence (McDaniel Reference McDaniel2021). The issues of violence and sexual assault in Indigenous communities has also been found to be a key issue among Native American voters (Sanchez et al. Reference Sanchez, Foxworth and Evans2021). As of June 2023 this is the best data available specifically noting ethnicity, sex, and homicide by state for the years we are studying. This data was collected from the Murder Accountability Project (2022), a nonprofit organization that works to understand which homicide cases go unsolved. For tribal nations that cross multiple states we added the number of female murders in each of the states in which the tribal nation resides.

A considerable body of research has shown that the presence of women in government may lead to increased focus on women’s issues and that women are more likely than men to focus on issues that are perceived as more feminine, such as education, welfare, and reproductive rights (Poggione Reference Poggione2004; Reingold Reference Reingold, Wolbrecht, Beckwith and Baldez2008; Swers Reference Swers1998; Reference Swers2005). Furthermore, Carpenter’s work (2021) has demonstrated that women in Native nations have played a prominent role in fighting to keep their land. Domestic violence is a gendered issue, with most victims being women and children. For example, Nadia Brown (Reference Brown2014) has shown that Black female state legislators disproportionately focus on domestic violence in their bill sponsorship. Yet other work shows that the percentage of women in a state legislature does not predict the passage of domestic violence firearm laws (Schiller and Sidorsky Reference Schiller and Sidorsky2022). We have accounted for this by collecting the sex of the tribal nation leader as well as the percentage of tribal council members who are women using the Directory of Tribal Leaders from the US Department of Interior, websites, and social media accounts of the tribal nations, and through directly contacting the tribal nations themselves in some instances. Summary statistics for these variables are presented in table 2.

Table 2 Political Representation Predictors of SDVCJ Adoption Summary

Note: We were able to collect the sex of the leader of the tribal nation from 30 implementing SDVCJs and 305 nonimplementing tribal nations.

As discussed above, a large part of implementing an SDVCJ is meeting the significant financial burdens associated with putting tribal codes in compliance with federal law, as well as being prepared for the detention, healthcare, and public defense costs. Closely related to financial capacity is also institutional capacity and the ability of a tribal nation’s institutions to adopt an SDVCJ. We have collected data on each tribal nation’s self-governance compacting with the BIA. To measure financial capacity, we collected the median household income from the United States Census Bureau (2022).

We also collected data on whether the tribal nation received an SDVCJ grant. More affluent tribal nations may be in a better position to afford the costs associated with implementing an SDVCJ and federal grants may provide just enough funding for other tribal nations that would not be able to afford it on their own. Earlier research has questioned the profitability of casinos for tribal governments because only a handful of tribal nations generate most of the revenues from all casinos (Evans Reference Evans2011b; Henson et al. Reference Henson, Taylor, Bean, Bishop, Black, Grant and Jorgensen2002; National Indian Gaming Commission 2019). Therefore, it is possible that the number of casinos on tribal lands may improve the fiscal capacity of the tribal nation, but we think it is a better measurement of the increased likelihood of relationships between Native and non-Native Americans that could end up as abusive situations. Table 3 displays the summary statistics for the financial variables we will be testing. Adoption of TLOA is included here in the summary statistics but was not included in the final statistical model.

Table 3 Financial and Institutional Predictors of SDVCJ Adoption Summary

Note: For the nonimplementing tribal nations, 19 have received SDVCJ funds but have not implemented a jurisdiction yet; 11 out of 31 implementing tribal nations have received SDVCJ funds; nine of the nonimplementing tribal nations and two of the implementing tribal nations were close to implementing TLOA as of 2018. Median income does not include Little Traverse Bay Bands of Odawa Indians for the SDVCJ-implementing tribal nations as it was not available.

Characteristics of the tribal nations themselves may also influence whether they adopt an SDVCJ (see table 4). We are particularly interested in the composition of the individuals living on reservations. The vast majority of domestic violence crimes on Native land are committed by non-Native Americans. In turn, a larger percentage of non-Native Americans living in Indian Country may increase domestic violence between Native Americans and non-Native Americans. There is substantial variation in the percentage of Native Americans that make up an entire reservation population, from a minimum of less than 5% (The Little Traverse Bay Band of Odawa Indians in Michigan) to over 75% (The Alabama-Coushatta Tribal Nation of Texas). Additionally, the number of enrolled members versus the number of reservation residents varies. The size and composition of a tribal nation’s land could differ in the degree of influence on the adoption of an SDVCJ. A larger number of reservation residents may mean more tax revenue for the tribal nation to fund an SDVCJ. We believe these variables are important in understanding SDVCJ adoption.

Table 4 Tribal Characteristics Summary in the Sample

Note: Percentage of residents who are Native American does not exclusively count enrolled tribal members, it also includes anyone else who identifies as Native American but may be enrolled in another tribal nation.

As a final variable of interest, as discussed above, we include a measure of state-level domestic violence firearm laws to gauge a state’s overall policy climate on domestic violence homicides. Any kind of gun control measure is subject to high levels of partisan conflict, and we expect that tribal nations located in states that take more aggressive steps to protect women from domestic violence will be more inclined to adopt an SDVCJ.Footnote ⁷

Predicting SDVCJ Adoption

We collected data on all 31 tribal nations that have adopted an SDVCJ, as well as the remaining tribal nations that have not adopted an SDVCJ but were eligible to do so. We constructed a model using logistic regression with robust standard errors.Footnote ⁸ Table A2 in the appendix contains the summary statistics for each variable used. Because of the large variation in the number of reservation residents (a low of 0 to a high of 800,117), we use the log of this variable in our models. The variables are grouped into the areas we believe predict SDVCJ adoption: tribal characteristics, fiscal and institutional capacity, representation predictors, crime predictors, and regional adoption of SDVCJs.

To measure the representation variables, we included an interaction between the percentage of women on the tribal council with female tribal leader. To avoid overestimation, we only included the percentage of women on the tribal council with the interaction variable. We included an impact column that displays the predicted probabilities of the significant variables computed using Clarify. Figure 3 contains the graphical representation of the results in our model.

Figure 3 Predicting SDVCJ Adoption in Tribal Nations

In table 5, we see that the number of reservation residents increases the likelihood of SDVCJ adoption by 4.9%. As per hypothesis 4, the number of casinos increases the likelihood of SDVCJ adoption, but the percentage of residents who are Native American was not statistically significant (hypothesis 5). Both financial capacity variables are significant, albeit with some unexpected results. Receiving an SDVCJ grant increased the likelihood of adopting an SDVCJ by 15%, providing support for hypothesis 3. Counter to our expectations in hypothesis 2, the higher the median income within a tribal nation, the lower the likelihood that a tribal nation will adopt an SDVCJ. As per hypothesis 1, being a self-governing tribal nation compacting with the federal government increased SDVCJ adoption by 10%. The DVFLs within the state and the regional tribal diffusion variables did not reach standard levels of statistical significance.Footnote ⁹

Table 5 Prediction of SDVCJ Adoption, Logistic Regression Robust Standard Errors

Note: + p < 0.10, * p < 0.05, ** p < 0.01. Logistic regression calculated with robust standard errors. For predicted probabilities for binary independent variables that are statistically significant, the impact reports the estimated change in the probability of adopting an SDVCJ as the value of the variable is changed from 0 to 1. For continuous variables, the impact reports the estimated change in probability of adopting an SDVCJ as the value of the variable is changed from its first quartile value to its third quartile value.

A tribal nation’s financial capacity matters in terms of support from the federal government to adopt an SDVCJ program, and often starts with the earlier investment in the criminal justice system through TLOA adoption. Because of the high collinearity between TLOA and SDVCJ (r = 0.64), which we believe may be explained by the same set of antecedent variables, we chose to omit TLOA from the model that predicts SDVCJs, which are the more permanent judicial structure and more directly adjudicate domestic violence crimes. We found a very small effect associated with higher median household income, which decreases the likelihood of SDVCJ adoption.