SLOUCHING TOWARDS AUTONOMY: REENVISIONING TRIBAL JURISDICTION, NATIVE AMERICAN AUTONOMY, AND VIOLENCE AGAINST WOMEN IN INDIAN COUNTRY.

• Date: 22 December 2020
• Author: Mantegani, Joseph

INTRODUCTION 316 I. MAPPING JURISDICTION & LAW ENFORCEMENT IN INDIAN COUNTRY 321 A. Sovereignty and the Jurisdictional Backdrop 321 1. An Introduction to Tribal Sovereignty 321 2. Major Crimes Act 323 3. Public Law 280 324 4. Indian Civil Rights Act 326 5. Oliphant v. Suquamish Indian Tribe 327 B. Recent Jurisdictional Expansion 329 1. Tribal Law & Order Act 329 2. Violence Against Women Reauthorization Act 331 C. Recent Federal Legislation 332 II. REENVISIONING TRIBAL JURISDICTION IN THE SEXUAL VIOLENCE CONTEXT 337 A. The Roots & Continuation of Sexual Violence 337 B. Where Legislation Falls Short 341 1. Lack of Focus on Day-to-Day Violence Against Women 342 2. SDVCJ's Shortcomings 343 3. Statutory Sentencing Limitations 345 C. A Look Forward: Proposed Solutions 346 1. Overruling Oliphant 346 2. Adequate Allocation of Resources 347 3. Tribal Autonomy 349 CONCLUSION 350 INTRODUCTION

Soon after Diane Millich, a then twenty-six-year-old enrolled member of the Southern Ute tribe, married a white man, her life became one filled with "beatings and threats, reconciliations and divorce." (1) At one point, "[a]fter one of his beatings... he even called the county sheriff himself in a grotesque effort to show how powerless law enforcement was: the state had no jurisdiction on the reservation. (2) The proper response would seem obvious: contact police; obtain a restraining order; permit the justice system to do its job. As a white man and non-member of any tribe, though, Ms. Millich's husband was untouchable on the reservation. (3) She reached out to tribal police, who were powerless to exercise jurisdiction over him; she went to federal authorities, who had jurisdiction but chose not to exercise it. (4) Federal authorities finally asserted their authority, but not until her husband opened fire at her workplace, a Bureau of Land Management office, and wounded a co-worker. (5)

Malign actors purposefully seize on the confusing jurisdictional situation on reservations. (6) In an interview, the author of a book on jurisdiction and sexual violence against native American women described the situation:

In researching my book, I would go into the dark corners of the internet and find chat rooms where rapists and pedophiles would talk to each other about how to commit crimes. One forum was called "How to rape a woman and get away with it." Something that repeatedly came up was the suggestion that if you're not a Native person you should specifically target... Native people on reservations because you can do whatever you want there. A tribal police officer could even be present and they couldn't touch you. (7) Diane Millich's story and the excerpt above show the complex and intersectional web of racism, sexism, lack of resources, poverty, and jurisdictional gaps affecting Native American women in Indian country. (8) A commonly cited statistic is that one in three Native American women is raped in her lifetime. (9) More recent data paints a much starker picture: an average of 7.2 in 1000 Native women is raped each year, contrasted with 1.9 in 1000 for all races. (10) A 2010 study, conducted by the Centers for Disease Control and Prevention, revealed that "49 percent of Native women report a history of sexual violence." (11)

These statistics almost certainly do not reflect the true extent of the problem. Experts in the field feel that "federal statistics represent at best a very low estimate." (12) Anecdotal data also reveal a pervasive, universal impact on Native American women. (13) And there is another factor that distinguishes crimes of sexual violence committed in Indian country from those committed elsewhere: 90% of Native women who are raped are victims of someone of another race. (14)

In the United States, Native American women constitute 1.8% of the missing persons list, despite being 0.8% of the population--a figure that is inevitably "low, given that many tribes don't have access to the [FBI's National Crime Information Center] database." (15) When localized, the figures become more striking. In Montana, Native women are 3.3% of the population, and 30% of the missing girls and women list. (16) North Dakota's Fort Berthold Reservation illustrates the crisis's root causes: the lack of tribal jurisdiction on reservations, and the Indian country oil boom, such as the boom on the Bakken formation (17)--which is located in part on Fort Berthold. (18) Deer and Warner point to "man camps," large, temporary camps of transient, often non-Indian, oil workers as a major cause for skyrocketing violent crime rates, including sex trafficking. (19)

Consider this in the context of the practical, day-to-day realities of life and law enforcement in Indian country. As an example, the Fort Berthold reservation, home to around 7,300 people, (20) covers 980,000 acres (21)--roughly the size of Rhode Island. The reservation has a police force of twenty officers, and at times, only two are on duty. (22) Prosecutorial shortages--the tribe has one prosecutor--caused one judge to dismiss 5,000 cases. (23) It's a small wonder that some believe "you can do whatever you want there." (24) The lack of tribal autonomy, paired in part with the lack of resources and the vastness of many reservations, has contributed directly to the missing and murdered indigenous women crisis.

And the crisis is not abating. In January 2020, sixteen-year-old Selena Not Afraid's body was found a mile from the rest stop where she had disappeared; it took law enforcement three weeks to find her body. (25) A few months before that, eighteen-year-old Kaysera Stops Pretty Places had gone missing in Hardin, Montana, a town that borders the Crow Reservation in the Eastern plains of the state not far from where Not Afraid disappeared. (26) Two days later, her body turned up, allegedly wrapped in plastic, in the backyard of a home less than a mile from the Hardin courthouse. (27)

Not Afraid, Stops Pretty Places, and many other women represent the terminal stage of this endemic problem, one that like any scourge is best eradicated before it manifests. The missing and murdered indigenous women are an extreme end of the spectrum of violence against women. But there are earlier points on this spectrum that, if addressed, can stem the violence experienced by indigenous women. In other words, any attempt to stop the missing and murdered indigenous women crisis cannot focus on the missing and murdered alone; it must also focus on the role of daily violence against women and the lack of power tribes have to protect their most vulnerable citizens. The root causes of the crisis in Indian country--racism, sexism, cultural genocide--are entrenched, and this Comment neither attempts to nor proposes fixes for those root causes. This Comment does, however, argue that limitations on autonomy and jurisdiction prevent tribes from protecting their own citizens and exacerbate these systemic problems.

Part II addresses the jurisdictional backdrop in Indian Country. Section A introduces tribal sovereignty and describes the statutory and common-law background that gave rise to modern tribal criminal jurisdiction over non-Indians. Section B examines two recent Congressional Acts that have attempted to remedy the levels of violence faced by Native American women by granting tribes increased jurisdiction. Section C then examines currently pending legislation that attempts to remedy gaps left from the earlier legislation.

Part III draws attention to how this jurisdictional background and history of legislation impacts culture, daily life, and law enforcement on today's reservations. Section A describes the endemic nature of sexual violence against Native American women, particularly in the context of colonialism, and explains how that history drives the need for increased autonomy. Sections B and C analyze legislative shortcomings, explain how prior jurisdictional legislation has continued to fail Native American women, and propose solutions. Specifically, Congress must overturn Oliphanl v. Suquamish Indian Tribe, properly fund tribal law enforcement, and allow tribal courts to operate as any others would.

1. MAPPING JURISDICTION & LAW ENFORCEMENT IN INDIAN COUNTRY

   1. SOVEREIGNTY AND THE JURISDICTIONAL BACKDROP

      In Indian country, any criminal investigation is hampered by the fact that the race of both the victim and the suspect determine which authority--tribal, state, or federal--has criminal jurisdiction over the case. This way of determining jurisdiction has its roots in both jurisdictional statutes and common law decisions. Several pieces of legislation have further muddied this jurisdictional confusion, primarily the Major Crimes Act, (28) Public Law 280, (29) and the Indian Civil Rights Act. (30) Hovering over all these statutes is the Supreme Court's decision in Oliphant v. Suquamish Indian Tribe, (31) which held that Indian tribal courts do not have "criminal jurisdiction over non-Indians." (32) Each statute and decision has modified tribal jurisdiction to varying degrees. However, the import of these actions cannot be fully appreciated without first understanding the history of tribal sovereignty.

      1. An Introduction to Tribal Sovereignty

         The history of tribal sovereignty is one of erosion, ongoing since the country's founding. The Constitution contains two references to Indian tribes, both of which allude to sovereignty. First, it states that tribes are not taxed; (33) and second, it assigns Congress the power to regulate commerce with the Indian tribes. (34) The latter power has been construed to grant Congress plenary power over tribal affairs. (35)

         Early Supreme Court decisions tentatively upheld tribes' sovereign status, but also emphasized Congress's importance in tribal life. In Cherokee Nation v. Georgia, (26) the Marshall Court declared tribes to be dependent nations whose relationship to the United States "resembles that of a ward to his guardian." (37) And one year later, in...