AN AVOIDABLE CONUNDRUM: HOW AMERICAN INDIAN LEGISLATION UNNECESSARILY FORCES TRIBAL GOVERNMENTS TO CHOOSE BETWEEN CULTURAL PRESERVATION AND WOMEN'S VINDICATION.

• Author: Redlingshafer, Catherine M.

INTRODUCTION

Gender violence in American Indian (1) communities is a serious, complex issue due to a myriad of legal and cultural barriers. (2) Today, rates of rape and other sexual assaults are higher for American Indian women than any other demographic in the country. (3) In fact, a Department of Justice report found that the assault rates for American Indian and Alaska Native women could be as much as fifty percent higher than the next most victimized demographic. (4) Significantly, a majority of these sexually motivated crimes are committed by non-Indians-individuals who, for the most part, cannot be held accountable in tribal courts, (5) and who, all too often, are not held accountable in federal courts. (6)

In the last 150 years, both caselaw and legislative action concerning criminal justice in American Indian communities have been inconsistent and often discriminatory. Members of the federal government have even conceded that the history of the federal government's dominance over American Indian criminal justice systems is a "national disgrace." (7) Instead of protecting individual rights and supporting tribal autonomy, federal legislation has effectively perpetuated crime in Indian country. (8) Studies show that the federal government's failure to hold perpetrators in Indian country accountable actually emboldens offenders, specifically sexual offenders. (9) In other words, the federal government's decision to prevent tribal courts from prosecuting accused criminals encourages criminals to continue engaging in illegal activity on tribal lands. This lack of accountability has created a vicious cycle: since no prosecutorial action is taken after a crime is reported, (10) victims feel discouraged from even reporting the crime in the first place. (11)

The federal government first stripped tribal courts of their criminal justice authority in the nineteenth century and has taken very small steps to return minimal power to the tribes. (12) The most recent attempts to give tribes the authority to combat violence in their communities are represented in the 2010 Tribal Law and Order Act (TLOA) and the 2013 Reauthorization of the Violence Against Women Act (VAWA). TLOA has many facets, but, most importantly, it authorizes tribal courts to impose enhanced sentences on offenders. (13) This necessary authorization, however, is shackled by strict requirements. (14) The 2013 VAWA reauthorization provided a much needed expansion of tribal criminal jurisdiction, however, as with TLOA, many of the provisions in the Act are only available to tribes that meet rigid qualifications (15)-qualifications that could impact the integrity, autonomy, and traditions of American Indian tribes.

VAWA's tribal provisions were not implemented until March 2015; therefore, there is very little data available to measure their effectiveness. VAWA did, however, initiate a one-year pilot project, commencing in February 2014. (16) Only three tribes qualified to participate in the project, and the data on their experiences was recently released. (17) This Note analyzes that data and concludes that the three participating tribes were well suited to implement VAWA because of their preexisting legal infrastructures and overall demographics. However, this Note argues that, because of its rigid requirements, VAWA will not impact most tribes as positively as it did the three pilot tribes.

These laws, while an improvement and a necessity, make clear that "sovereignty comes at a price." (18) The federal government is effectively coercing tribes to either implement a version of the federal criminal adjudication system (and give up their own, traditional tribal court system), or else deal with the consequences of a system that cannot prosecute or punish many perpetrators. Moreover, even if the tribes decide to incorporate VAWA's requirements in order to expand its jurisdiction, the limitations on TLOA's enhanced sentencing authority essentially makes the wider jurisdictional grant toothless. In other words, even if a tribe is authorized to prosecute a perpetrator, without the power to adequately sentence the individual, the prosecution is futile.

This Note makes two arguments concerning the state of American Indian legislation, and then proposes an alternative. First, this Note argues that the recently enacted legislation regarding criminal justice in American Indian societies will work to encourage cultural assimilation and result in the loss of tribal traditions and autonomy. In effect, the legislation is putting tribes in an impossible position: it is unfairly coercing them to choose between (1) the preservation of their own culture and customs, and (2) the ability to prosecute those victimizing their members. Second, this Note argues that even if a tribe decides to risk its culture and tradition in order to adopt the federal policies needed to protect its members, the legislation does not go far enough. The two prominent legislative enactments in place-TLOA and VAWA-are wrought with so many limitations and qualifications that, in practice, they do not give tribes enough power to protect their members.

Instead, this Note suggests that the federal system of appeals is capable of solving the current dilemma. In reviewing tribal court decisions, federal courts should give administrative agency-like deference to tribal courts because the tribal courts are better positioned to interpret their own laws (laws that are often rooted in tradition and culture), just as administrative agencies are better positioned to interpret ambiguity in their respective fields. (19) By inquiring into whether the tribal courts acted reasonably, the federal government can ensure that basic individual liberties are upheld in tribal proceedings. Simultaneously, the tribal courts would interpret and implement their own laws, thus preserving tribal autonomy.

Part I of this Note begins by discussing the historical context of gender violence in American Indian communities. Then, it examines several significant pieces of federal legislation, as well as a notable Supreme Court case, concerning crimes that occur on tribal lands or crimes involving American Indian victims. Overall, the purpose of Part I is to show the evolution of federal American Indian law in order to give context to the current state of the law. Part II analyzes the pilot project data for the three VAWA pilot project-qualifying tribes: the Pascua Yaqui Tribe, the Tulalip Tribes, and the Confederated Tribes of the Umatilla Indian Reservations. This Part particularly focuses on how each tribe's court system had previously incorporated VAWA's procedural requirements (20) and argues that, because of this preexisting legal infrastructure, these tribes were ideal (and unrepresentative) participants in the pilot project. Part III outlines why the legislation currently in place is inadequate to combat gender violence in American Indian communities and argues that the restrictions in TLOA and VAWA should be relaxed. Furthermore, this Part contends that the federal system of appeals could smoothly solve the issue at hand by reviewing tribal court decisions with a high level of deference. Finally, the conclusion summarizes the Note's arguments and calls for (1) Congress to repeal the TLOA and VAWA limitations, and (2) courts to implement a deferential standard of review in reviewing tribal court decisions.

1. HISTORICAL BACKGROUND AND LEGISLATION

   Implementation of federal law in Indian country has been described as an "anomalous zone" because of the overall complexity and lack of consistency in both legislation and case law. (21) After depriving tribal courts of essentially all of their authority in the late nineteenth century, (22) the federal government slowly began returning some power to the tribes to enable them to combat crime within their territory. Culminating in the passage of the Tribal Law and Order Act of 2010 and the 2013 Reauthorization of the Violence Against Women Act, federal legislation has come a long way. However, as this Part points out, there is still a long way to go in order to give tribal governments the power they need to address crime in their communities.

   This Part has several goals. First, it briefly discusses the history of gender violence in native communities, including its origins and inseparable link to colonization. Then, it describes the major legislative acts and cases that laid the foundation for the current legal framework concerning American Indian criminal justice systems. Finally, the most recent legislative enactments are examined, followed by an analysis of the current state of the law.

   1. Colonization and Historical Trauma

      Many scholars believe that gender violence in indigenous communities stems from colonization. (23) Until colonization, most tribes did not experience domestic violence. (24) In fact, women "thriv[ed] under a unique form of gender balance" where their opinions were considered in both "politics and production." (25) But as colonial power intensified, native women were deprived of their role in "spiritual, sexual, economic, social, political, diplomatic, and military realms." (26)

      Based on the oppression and domination of the native peoples, many American Indian communities suffer from "historical trauma," which is "unresolved trauma and grief that continue to adversely affect the lives of survivors of such trauma." (27) Examples of these adverse effects include internalized oppression and the normalization of violence. (28) Unfortunately, this normalization of violence oftentimes manifests itself in gender violence. (29)

   2. Federal Legislation and Case Law

      Prior to colonization, individual tribes handled criminal adjudication according to their own tribal customary law. (30) "[C]onflict between Indians and settlers [however,] slowly introduced federal jurisdiction into Indian country criminal justice matters." (31) Given the unique position American...