Author:Douglas, Maura
Position:Violence Against Women Reauthorization Act of 2013

The commitment to bring safety and justice and restore the sacredness of women has only just begun; the sovereignty of women has always been sacred. (1) American Indian and Alaska Native women face the highest rates of sexual assault of any group in the United States, and most often such attacks are by non-Indian offenders. Since Oliphant v. Suquamish Indian Tribe, tribes cannot exercise criminal jurisdiction over non-Indians, even for crimes committed against an Indian victim in federally recognized Indian country. A history of complex jurisdictional and intergovernmental issues between federal, state, and tribal authorities further impede the investigation and prosecution of these crimes. In the Violence Against Women Reauthorization Act of 2013 (VAWA 2013), Congress extended criminal jurisdiction to tribes in a limited context over non-Indian defendants--so long as they possess ties to the tribe and to the victim as a domestic or dating partner. The requirement that a defendant must have a relationship with the victim, tribe, and land is novel. Indeed, during the VAWA 2013 legislative debates weighing the jurisdictional grant, even Senate opposition conceded that once jurisdiction was extended to crimes of domestic violence, "there would be no principled reason not to extend it to other offenses as well." Federal Indian law affirms Congress's plenary authority to recognize tribal sovereignty, but does the law require special domestic violence criminal jurisdiction for tribes to be so restricted? I argue it does not. This Comment first investigates the history of jurisdiction in Indian country and recognition of inherent tribal sovereignty by Congress. Second, it considers the problem of sexual violence in Indian country. Third, it assesses the main arguments in opposition to the current jurisdictional grant in VAWA 2013 to determine whether Congress can and should recognize tribal authority to prosecute all non-Indian crimes of sexual violence, as well as concurrent crimes of domestic and dating violence, committed against Indian victims in Indian country. In light of these oppositional arguments, this Comment argues that Congress can and should recognize such jurisdictional authority of tribal governments, and proposes specific language to affirm the inherent powers of tribes to further protect their land and their people.

Introduction 747 I. Tribal-Federal Relations and Jurisdiction in Indian Country 751 A. Early Tribal-Federal Relations 753 B. Criminal Jurisdiction in Indian Country Pre-Oliphant 755 1. Tribal Jurisdiction 755 2. Concurrent Tribal, State and/or Federal Jurisdiction 758 C. Policy, Jurisdiction, and Oliphant in Indian Country 761 II. The Jurisdictional Maze and Sexual Assault in Indian Country 764 A. Data on Violence Against American Indians/Alaska Natives 764 B. Investigating and Prosecuting Crimes in Indian Country 767 C. Congressionally-Authorized Studies in VAWA 2005 770 III. Congressional Response: VAWA 2013 772 A. Twenty -First Century Legislative Action 772 B. Concernfor Defendants' Rights 775 C. Inherent Tribal Sovereignty and Sources of Power 778 IV. Implementing and Expanding Tribal Criminal Jurisdiction 781 A. Implementation of Current VAWA Tribal Jurisdiction 782 B. Expanding Tribal Criminaljurisdiction 783 Conclusion 786 INTRODUCTION

Victims of sexual assault suffer one of the greatest attacks on their human rights: the right to be free from violence and to maintain their own bodily sovereignty. American Indian (2) women face the highest rates of sexual assault of any group in the United States, and indigenous feminism recognizes the intersectional impact of race, gender, and colonization on those lived experiences. (3) Vice President Biden--who originally introduced the Violence Against Women Act (VAWA) to Congress in 1990 (4)--received a letter in 2011, right before the Act's reauthorization was being considered, from Assistant Attorney General Ronald Weich stating that violence against American Indian and Alaska Native women was and should be considered an "epidemic." (5) Non-Indian perpetrators in particular feel, and seemingly can be, immune from prosecution due to the complexities of jurisdictional authority between tribal, state, and federal governments over non-Indian defendants in Indian country. (6)

After the Supreme Court's decision in Oliphant v. Suquamish Indian Tribe, tribal governments could not criminally prosecute non-Indian defendants, even for committing a crime against an Indian victim in Indian country. (7) The Bureau of Justice Statistics has reported previously that in over eighty percent of reported incidents of rape or sexual assault of American Indian victims, the perpetrator was identified as white (nearly four in five cases) or black (nearly one in ten). (8) Only the federal government--or in some limited circumstances, state governments (9)--could exercise jurisdiction over cases involving a non-Indian and Indian party. (10) But with scant resources, and where sometimes a federal prosecutor or police agency could be hundreds of miles away, these incidents are frequently under-investigated, under-reported, and under-enforced. (11) Jurisdictional deficiencies and tribes' inability to prosecute non-Indian offenders created a system where, according to Amnesty International, non-Indians could rape American Indian women with near impunity. (12)

Congressional response to this epidemic culminated in Title IX of the VAWA Reauthorization Act of 2013 (VAWA 2013). Congress recognized what was coined special domestic violence criminal jurisdiction to participating tribes for a "very narrow set of cases over non-Indians who voluntarily and knowingly established significant ties to the tribe." (13) While predominantly viewed as a tremendous victory for tribal communities, and for tribal sovereignty since Oliphant, VAWA 2013 intentionally qualified the jurisdictional power of tribal governments with several limitations. First, to lawfully exercise the jurisdiction, tribal governments must afford defendants certain constitutional and procedural rights that Congress had not otherwise required tribes to provide.

Second, the tribal prosecution must show that the non-Indian defendant has a connection to both the tribe--through employment, residence, and/or intimate relationship with an Indian--and to the Indian victim, because the statute only recognizes tribal jurisdiction over crimes of domestic and dating violence, as well as violations of protective orders. Thus, the "sufficient ties" jurisdictional requirement here extends beyond the common understanding of a sovereign's criminal jurisdictional authority to (at minimum) prosecute crimes by any party within its territorial bounds. (14) Tribal jurisdiction over logically connected or similar crimes, identified below, is not recognized:

Crimes between two non-Indians; [c]rimes between two strangers, including sexual assaults; [c]rimes committed by a person who lacks sufficient ties to the tribe, such as living or working on its reservation; and [c]hild abuse or elder abuse that does not involve the violation of a protection order. (15) The legislative record of these VAWA 2013 provisions reflects the ongoing tension between Congress's plenary power (16) to recognize tribal authority and whether the exercise of such recognized authority stems from federal authority or from the tribe's inherent sovereignty--the bounds of which have yet to be adequately defined by Congress or the Court.

Ultimately, the substantial limitations of special domestic violence tribal jurisdiction do not find support in the historical recognition of tribal sovereignty and power. Specifically, that a defendant must have a relationship with the victim, the tribe, and the land (with the crime committed thereon) is novel. Even Senate opposition to the legislation conceded that once the jurisdiction was extended to crimes of domestic violence, "there would be no principled reason not to extend it to other offenses as well." (17) While tribes were unable to prosecute non-Indians at all after Oliphant and before VAWA 2013, the express limitations of the jurisdictional grant require further examination in light of history, policy, and congressional intent to determine whether further extending tribal jurisdictional authority is lawful and warranted.

If Congress was constitutionally able to recognize inherent tribal sovereignty to prosecute some non-Indians for certain enumerated crimes committed in Indian country, subject to additional restrictions, then should it follow that tribes possess the same sovereignty to exercise jurisdiction over non-Indians committing any sexually violent crime or applicable concurrent crime against an Indian within Indian country? That is the focus of this Comment--considering the issue of jurisdiction over crimes committed within, not outside of, Indian country. Part I will review the historical underpinnings to the jurisdictional landscape in Indian country and the relationship between federal and tribal governments before and after Oliphant. Part II provides an empirical overview of the issue of sexual violence in Indian country, which will shed light on why Congress chose to recognize tribal authority to prosecute some non-Indian crimes within Indian country under VAWA 2013 in the first place. (18) Part III outlines the text of VAWA 2013 as enacted, and then considers the main arguments against the Act's limited jurisdictional grant for tribes: first, that such a grant would violate the constitutional rights of non-Indian defendants; and second, that even if those rights could be protected, Congress cannot constitutionally recognize inherent tribal sovereignty over non-Indians, and as such, exercising this jurisdiction would be use of congressionally delegated authority subject to the Constitution. These arguments, which ultimately failed in Congress, will be applied to a hypothetical law extending...

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