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Electronic copy available at: http://ssrn.com/abstract=1086131
ESSAY
TRIBAL EFFORTS TO COMPLY WITH VAWA'S
FULL FAITH AND CREDIT REQUIREMENTS:
A RESPONSE TO SANDRA SCHMIEDER
Sarah Deer*
and
Melissa
L.
Tatum*
*
In
1994,
Congress enacted a sweeping change in the law of protection orders when
it passed the full faith and credit provisions of the Violence Against Women Act
(VAWA).'
The key portion of the statute bluntly declares that
[alny protection order issued that is consistent with subsection (b) of this section by the
court of one State or Indian tribe (the issuing State or Indian tribe) shall be accorded full
faith and credit by the court of another State or Indian tribe (the enforcing State or Indian
tribe) and enforced as if it were the order of the enforcing State or tribe.2
With this statute, Congress intended to make one protection order valid throughout
the United States. The "one order" system would allow those persons holding a
protection order to avoid the hurdles
and
hassles of obtaining multiple protection orders,
one for each jurisdiction in which the person travels, lives, or works.
Although VAWA's mandate is broad, Congress left the details of how to
accomplish that mandate up to each state and each tribe. As a result, each jurisdiction
can use different procedures, so long as the congressional objective is achieved. Law
*
Sarah Deer is an enrolled citizen of the Mvskoke (Creek) Nation. She currently serves
as
staff attorney
for the Tribal Law and Policy Institute in California. She is also an instmctor of online Tribal Legal Studies
through UCLA Extension and Turtle Mountain Community College. Formerly, she worked at the United
States Department of Justice in the Office on Violence Against Women. Ms. Deer also lectures frequently in
this area at both regional and national conferences.
**
Melissa
L.
Tatum is an associate professor at the University of Tulsa College of Law and also serves
as
co-director of TU's Native American Law Center. She is author of three law review articles addressing the
intersection of tribal governments and VAWA's full faith and credit requirements:
A Jurisdictional Quandary:
Challenges Facing Tribal Governments in Implementing the FUN Faith and Credit Provisions of the Violence
Against Women Acts,
90 Ky. L.J. 123 (2001-2002);
Establishing PenaNies for Violations of Protection Orders:
What Tribal Governments Need to Know,
13 Kansas J.L.
&
Pub. Policy 123 (2003); Law
Enforcement
Authority in Indian Country: Challenges Presented by the Full Faith and Credit Provisions of the Violence
Against Women Acts,
4 Tribal L.J.
-
(forthcoming 2004) <http://tlj.unm.edulindex.htm>. In addition,
Professor Tatum lectures frequently in this area at both regional and national conferences.
1. Pub. L. NO. 103-322, tit. IV, 108 Stat. 1902 (1994).
2. 18 U.S.C.
5
2265(a) (2000). Subsection (b) requires that the issuing court possess jurisdiction and
provide the respondent with due process.
Id.
5
2265(b).
Electronic copy available at: http://ssrn.com/abstract=1086131
404
TULSA LA
W
RE
VIE
W
[Vol.
39:403
professors, attorneys, judges, victim advocates, and police officers are all struggling to
understand the federal requirements. As part of this process, the changes prompted by
VAWA's full faith and credit procedures have spawned a wealth of law review articles
and conferences addressing this issue.
Sandra Schmieder is the author of one such piece, a comment entitled
The Failure
ofthe Violence Against Women Act's Full Faith and Credit Provision in Indian Country:
An Argument for ~mendment.~
In that comment, Schmieder argues that VAWA's full
faith and credit provisions are ineffective in Indian country, largely because tribal
governments are refusing to enact the required implementing legislation.4 According to
Schmieder, "many tribes ignore the statute because they view it as an infringement on
tribal so~erei~nty."~ Schmieder then proceeds to consider several methods to correct
this problem and ultimately proposes that "Congress should amend [VAWA's full faith
and credit provisions] to expressly create both a federal right and a private cause of
action that allows individuals to sue tribal officials for prospective injunctive relief if a
tribe fails to enact full faith and credit legislation."6
We have worked in this area of law for several years, and our experiences are not
consistent with the premises of Schmieder's comment. Accordingly, we write to explain
our experiences and explore the areas in which we disagree with Schmieder's analysis.
In Part
I
of this essay we explore our differences of opinion
as
to the relevant law. Part
I1 turns its attention to disagreements on factual issues, after which Part 111 examines
Schmieder's proposed solution. After exploring the areas in which we disagree with
Schmieder, we turn our attention in Part
IV
to examining the sources of our
disagreement. Despite our differences with Schmieder, we do agree with her that
problems exist with the cross-jurisdictional enforcement of protection orders in Indian
country. We explore those problems in Part V.
At its heart, Schmieder's argument rests on the premise that VAWA's full faith
and credit requirements are not self-executing7 Rather, she contends that each state and
each tribe must first enact implementing legislation before the full faith and credit
provisions become effective. Schmieder does not support this assertion with any
analysis or any citation. This lack of analysis is troubling, given that the conclusion
seems counterintuitive.
VAWA's full faith and credit requirements are a clear federal command-
qualifying protection orders "shall be accorded full faith and
redi it."^
The statute does
3.
Sandra
J.
Schmieder, Student Author,
The Failure of the Violence Against Women Act
S
Full Faith and
Credit Provision in Indian Country: An Argument for Amendment,
74
U.
Colo.
L.
Rev.
765
(2003).
4.
Id.
at
767.
5.
Id.
(citing H.R. Subcomm. on Crime
&
J.
of the Comm. on Jud.,
Crime Prevention and Criminal Justice
Reform Act: Hearing an H.R. 3315,
103d Cong. (1994) [hereinafter
Hearing on H.R. 33/51
(written testimony
of Helen Elaine Avalos, Asst. Atty. Gen., Navajo Dept. of
J.,
on behalf of Peterson
Zah,
Pres. of the Navajo
Nation)) (footnote omitted).
6.
Id.
at792.
7.
Id.
at766.
8.
18
U.S.C.
§
2265(a).