By Mackenzie Walz
Associate Editor, Vol. 24
On December 22nd, 2018, the United States government entered a partial shutdown after Congress and the White House failed to reach an agreement over the amount of funding to appropriate for the construction of a wall at our southern border. Since that moment, the national conversation has focused on the plight of immigrants and of federal workers. But the shutdown had another dire consequence, which, despite the effort of some Senators, went virtually unnoticed: the Violence Against Women Act expired, which left the fate of several grant programs critical to the protection of many Native American women uncertain.
The Violence Against Women Act (VAWA) was passed by Congress in 1994 in response to persistent advocacy from survivors, advocates, police, attorneys, and scientists to address the prevalence of violence plaguing women throughout the country. After years of blatant inattentiveness to this violence, the passage and substance of VAWA was revolutionary. The Act aims to reduce domestic violence, dating violence, sexual assault, and stalking by increasing the availability of victim services and by holding offenders accountable. These objectives are carried out through the appropriation and disbursement of funds to programs run by independent nonprofit organizations or state, local, and tribal governments. Congress established the Office on Violence Against Women (OVW) within the Department of Justice to administer the grant programs. While four of the grant programs are considered “formula grant programs” and are funded through congressional appropriation, the remainder of the grant programs are discretionary, meaning OVW has the authority to determine the scope, eligibility, and funding of these programs.
VAWA has reduced the prevalence of domestic violence throughout the United States, but it has not eliminated it. Domestic violence still affects people from all different socioeconomic, racial, religious, and sexual identity backgrounds. According to the National Coalition Against Domestic Violence, one in three women will experience intimate partner violence in their lifetime.
While domestic violence affects every segment of society, it does not affect every segment equally. One group reporting higher rates of intimate partner violence is Native American women. The victimization rate for Native American women is ten times higher than the national average. A significant reason Native American women continue to be plagued by this violence at a disproportionate rate, despite the passage of VAWA, is due to a 1978 Supreme Court decision, Oliphant v. Squamish Indian Tribe. This case essentially held that tribal governments had no criminal jurisdiction over non-Indian defendants who perpetrated acts of domestic violence or sexual assault against Native Americans on tribal land. With this law on the books, VAWA was immediately rendered less effective on tribal lands upon passage in 1994: tribal programs could receive grants to increase education and victim services, but tribal governments were jurisdictionally barred from punishing, and therefore deterring, non-Indian perpetrators.
In the 2013 amendments to VAWA, Congress eliminated this barrier by recognizing the inherent authority of tribal governments to exercise “special domestic violence criminal jurisdiction” (SDVCJ) over both Indian and non-Indian perpetrators of sexual assault and domestic violence against Native Americans on tribal land. Since these amendments, through VAWA grants, the DOJ has assisted Indian tribes in implementing SDVCJ. As of February 2016, ten tribes have implemented SDVCJ, which has allowed the tribes, collectively, to make 51 arrests.
Another reason Native American women experience higher rates of intimate partner violence is because, as a historically marginalized population, they experience unique barriers, such as poverty, racism, isolation in rural communities, and limited access to culturally appropriate services. Congress has established one formula program and OVW has established three discretionary programs targeted exclusively at addressing these barriers as they manifest within tribal communities: Grants to Support Tribal Domestic Violence and Sexual Assault Coalitions, Grants to Indian Tribal Governments Program, and Tribal Sexual Assault Services Program.
Many recipients of the aforementioned grants have attested to the grants playing a vital role in helping their communities reduce these barriers: the funding has enabled their communities to provide legal and emotional services to victims within rural, isolated communities, and to obtain and educate staff on the culturally specific situations of Native American women. Specifically, grantees of the Indian Tribal Governments Program emphasized how the grant funding has been essential to establishing and operating victim services within their communities. A recipient from the Chugachmiut Tribe attested that “without the support of the Tribal Governments Program, there would be no funded staff to work towards these aims” and a recipient from the Wampanoag Tribe of Gay Head Aquinnah emphasized that the grant funding “has allowed the Tribe to hire a dedicated person (via contract and now staff), to address the issues of violence against its women and girls.”
The expiration of VAWA did not immediately cease the administration of these programs. VAWA grants are typically awarded for two- or three-year periods, and any funding already distributed was not affected by the expiration. But, during the shutdown, current grantees were unable to request additional funding if their existing funds ran out, and any prospective organizations could not apply for grants. This consequence of the expiration was significant for two primary reasons. First, because grant recipients from all of the programs discussed above had previously expressed a need for additional resources, particularly for community outreach and education, as well as housing and transportation for current victims. Second, because, in all of the grant programs providing services to Native American women, one of the most common reasons victims were not served or were only partially served between July 1, 2013 and June 30, 2015, was because the programs had reached capacity. Together, the need for additional resources and the lack of program capacity suggest that these recipients had more work to do within their communities. But, the expiration of VAWA left grantees without recourse to expand or improve their operations, and prevented any new organizations from applying for funding to step in and fill the gaps.
While VAWA was reauthorized as part of the continuing resolution that reopened the government on January 25th, 2019, this resolution only lasts through February 15th. If Congress does not pass a long term reauthorization bill prior to February 15th and the government enters another partial shutdown, once again, VAWA will expire and the fate of these critical grant programs will be uncertain. As Congress and society writ large debate the morality and dignity of a border wall, let’s not forget about the Violence Against Women Act, which seeks to secure the morality and dignity of women – especially Native American women – within the United States. After all, we “cannot have a conversation about human rights and human dignity without talking about the right of every woman on this planet to be free from violence and free from fear.”
 Senator Kamala Harris tweeted “Don’t let this go unnoticed: the Violence Against Women Act, which helps survivors of domestic abuse and sexual assault, expired with the government shutdown.” Alanna Vagianos, The Violence Against Women Act Just Expired, Huffington Post (Dec. 27, 2018, 11:13 AM), https://www.huffingtonpost.com/entry/the-violence-against-women-act-just-expired_us_5c24d8aae4b05c88b6fe046e.
 Jenny Gathright, Violence Against Women Act Expires Because of Government Shutdown, NPR (Dec. 24, 2018, 3:21 PM), https://www.npr.org/2018/12/24/679838115/violence-against-women-act-expires-because-of-government-shutdown.
 While this group is highly diverse and can be identified by many names, this article will use the term “Native American” to ensure consistency throughout.
 Office of the Vice President, 1 is 2 Many: Twenty Years Fighting Violence Against Women and Girls 5 (Sept. 2014), https://obamawhitehouse.archives.gov/sites/default/files/2014_vawa_report.pdf [hereinafter 1 is 2 Many].
 Monica N. Modi et. al., The Role of Violence Against Women Act in Addressing Intimate Partner Violence: A Public Health Issue, J. Womens Health 253-59 (2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3952594/
 U.S. Dep’t of Justice, Grant Programs to End Violence Against Women, (Nov. 2016), https://www.justice.gov/ovw/page/file/914131/download.
 U.S. Dep’t of Justice, The 2016 Biennial Report to Congress on the Effectiveness of Grant Programs Under the Violence Against Women Act 8 (2016), https://www.justice.gov/ovw/page/file/933886/download [hereinafter 2016 Biennial Report].
 Vagianos, supra note 1.
 Modi, supra note 6.
 2016 Biennial Report, supra note 8, at 43-44.
 Id. at 41-42.
 In addition to these grant programs that are designed to exclusively address the needs of the Native American community, both Congress and OVW have established programs to address, more broadly, the needs of underserved populations, which incidentally assist Native American communities. Legal Assistance for Victims; Rural Sexual Assault, Domestic Violence, Dating Violence, and Stalking Assistance Program; Sexual Assault Services Program- Grants to Culturally Specific Programs; Transitional Housing Assistance Grants for Victims; and Grants for Outreach and Services to Underserved Populations. 2016 Biennial Report, supra note 8, at 173-201, 227-34, 266-75.
 The DOJ interviewed several grant recipients about their experiences with these programs and published their perspectives in the 2016 Biennial Report. See 2016 Biennial Report, supra note 8.
 Id. at 239-65.
 Id. at 240-41.
 Id. at 244.
 Id. at 245.
 Id. at 3.
 Gathright, supra note 2.
 Elise Viebeck, Violence Against Women Act extended in bill that reopened government, The Washington Post (Jan. 27, 2018), https://www.washingtonpost.com/powerpost/violence-against-women-act-extended-in-bill-that-reopened-government/2019/01/27/26485bf2-225e-11e9-90cd-dedb0c92dc17_story.html?utm_term=.8ade7b878441.
 1 is 2 Many, supra note 4 (emphasis added).