Soon after Native American Diane Millich and her non-Indian husband got married, they moved into her home, located on the Southern Ute Indian reservation where she grew up. Millich s husband began routinely abusing her, and within a year she suffered "more than 100 incidents of being slapped, kicked, punched and living in terror[.]" (1) Millich made numerous attempts to call her local tribal and county police for help during these episodes of violence. In fact after one instance of beating his wife, Millich s husband himself called the sheriff to report what he had done. Because he knew that there was nothing the sheriff could do. That no help would come. That he would never be prosecuted for what he did. Why? Because Millich was a Native American, Millich s husband was not, and he was abusing her on tribal land. And because of these circumstances, as Millich later observed, "The law couldn't touch him," (2) Unfortunately Millich s circumstance is not an isolated oversight of the law. Many Indian women have not been able to seek help or justice because they happened to be trapped in this scenario: an Indian victim of a non-Indian abuser on tribal land. A recent amendment to the Violence Against Women Act (VAWA), however, was passed to change all this.
A historic piece of legislation has recently been enacted which gives Native American victims of domestic abuse a new hope in being able to bring their abusers to justice. Before the passage of this act, a jurisdictional gap existed which permitted non-Indian perpetrators of domestic and sexual abuse to escape prosecution. The Violence Against Women Reauthorization Act of 2013, however, seeks to close this gap by granting tribes special criminal jurisdiction over domestic abuse crimes in Indian country. The legality of the unprecedented jurisdiction will undoubtedly be challenged soon after its implementation, and the Supreme Court may have to determine the constitutionality of the Act.
Part I of this Note describes the exigent situation of sexual violence in Indian country against Native Americans (especially by non-Indians) by presenting statistics on the issue. Part II examines how, despite these high rates of domestic violence, the interaction of federal cases, congressional acts, and tribal sovereignty had prevented federal, state, and tribal governments from having the jurisdictional authority and effective means to prosecute non-Indian abusers in Indian country. Part III explores how the latest amendment to the Violence Against Women Act offers a solution to this injustice. Specifically, Title IX of the Act closes the jurisdictional gap by granting tribes "special domestic violence criminal jurisdiction" over non-Indians in Indian country. (3) Finally, Part IV presents the likely claims that will be raised in federal court against the VAWA Amendment. These include challenging Congress's authority to enact the special criminal jurisdiction, and questioning whether fundamental constitutional rights can be upheld in tribal courts under the Act.
Domestic Violence Issues in Indian Country
The need for greater protection of Indian (4) women against crimes of domestic and sexual violence is dire, as evidenced by numerous studies. According to the Department of Justice, from 1992 to 2001 the average violent crime rate among Indians was approximately two and one half times the national rate, and Native Americans were twice as likely to experience rape or sexual assault compared to all other races. (5) Another study found "31.4% of Native American and Alaska Native women (that is, every 1 out of 3) are likely to be raped in their lifetimes. Compare this to the 17.7% of White women and 18.8% of African-American women likely to be raped, and the results are staggering." (6)
Unfortunately, Indian women mainly experience sexual and domestic violence at the hands of non-Indians. One compilation of the National Crime Victimization Surveys (NCVS) from 1992 to 2005 shows that American Indian and Alaska Native women are almost three times as likely to experience rape or sexual assault as compared to White, African American, or Asian American women. (7) Of the American Indian and Alaska Native women who suffered rape or sexual assault, two-thirds of them identified the offenders as non-Indian. (8) The same compilation also revealed that American Indian and Alaska Native women suffer the highest rates of intimate partner violence (the majority of which are assaults) than women of any other race. (9) Nearly two-thirds of American Indian and Alaska Native women victims of assault reported that the offender was non- Indian. (10) The results of another study were even more damning: "Over 85% of perpetrators in rape and sexual assault against Native American women are described by their victims as being non-Indian." (11) It is clear that Indian women require protection from their non-Indian abusers, as well as legal means to bring them to court. However, the current legal structure in the United States and Indian country prevents effective prosecution of non-Indian perpetrators of domestic violence when such crimes occur in Indian country. (12) A "jurisdictional gap" exists in Indian country that prevents Native American victims of abuse from seeking prosecution of their abusers.
The Jurisdictional Gap
Despite the high rates of domestic and sexual violence experienced by Native American women, the interplay of federal, state, and tribal criminal jurisdiction has formed a jurisdictional gap that permits many non-Indian domestic violence offenders in Indian country to escape prosecution. To understand the origins of this criminal jurisdictional gap, as well as tribal sovereignty and jurisdiction generally, it is necessary to examine the fundamental principles of Indian law developed in the three influential cases written by Chief Justice Marshall in the early nineteenth century: Johnson v. M'Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia (13). Though Indian law has greatly expanded and progressed in the nearly two centuries since the Marshall trilogy, several of the holdings and reasoning presented in these cases remain relevant to current determinations of Native American sovereignty and jurisdiction. In considering the specific topic of tribal jurisdiction, it is also imperative to examine the three more recent Supreme Court cases on the topic--Oliphant v. Suquamish Indian Tribe, Duro v. Reina, and United States v. Lara (14)--as well as legislative acts created to regulate criminal jurisdiction in Indian country. These foundational cases and federal statutes define the current legal structure of criminal jurisdiction in Indian country, and thus clarify not only why a jurisdictional gap regarding non-Indian domestic violence offenders in Indian country exists, but also what remedies may be legally pursued to fix the injustice.
Historical Foundations of Tribal Sovereignty and Jurisdiction--The Marshall Trilogy
In Johnson v. M'Intosh, Chief Justice Marshall determined that the doctrine of discovery was the appropriate legal theory to apply in defining the rights of Native Americans in regard to land possession. (15) Legal title to the lands of North America passed from the European nations that had "discovered" them to their successor, the United States. Consequently, the federal government of the United States held the preemption right, or the "exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest[.]" (16) Native Americans were merely occupants of the lands they inhabited, and lacked the power to transfer possession of the land to another party. (17) Marshall also vaguely noted, though, that discovery also granted tribes "a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise." (18) The next case in the trilogy, Cherokee Nation v. Georgia, produced a very fragmented opinion. Marshall only wrote for himself and one other Justice when he held that Indian tribes are not "foreign states" as contemplated in Article III of the U.S. Constitution. (19) Instead he described them as "domestic dependent nations[,]" recognizing that tribes did maintain some aspects of sovereignty, and characterized their relation to the United States as one "resembl[ing] that of a ward to his guardian." (20)
The language of the final trilogy case, Worcester v. Georgia, however, suggested that a greater degree of tribal sovereignty existed than implied in Cherokee Nation. While writing for the 5-1 majority, Marshall never once re-described tribes as "domestic dependent nations" and instead wrote that "Indian nations ha[ve] always been considered as distinct, independent political communities, retaining their original natural rights ... from time immemorial," with the exception of their right to conduct tribal interactions with other nations. (21) The Court held that state governments do not have the authority to enact laws that affect the "distinct communities" of Indian tribes, and under the U.S. Constitution and laws, the only intercourse between Indian nations and the Unites States occurs through the federal government. (22) Though Indian Law has developed and changed since the Marshall trilogy, several of the Court's holdings have had lasting effects. For example, the reasoning in Cherokee Nation and several other Supreme Court cases collectively have come to enumerate the federal government's unique trust responsibility to Native American tribes. (23) Under Worcester, states are still prevented from exercising their jurisdictional authority in Indian country, save in a very limited number of circumstances in which the federal government has explicitly authorized such an extension. Furthermore, the concept of implicit divestiture in Indian law was first introduced in Johnson--under the doctrine of discovery, Indian tribes lost their ability to independently transfer...