Native women are subjected to the highest rates of sexual assault, domestic violence, and murder of any demographic in the United States. Over half of American Indian and Alaska Native women will experience sexual violence and/or domestic violence in their lifetime, and Native women face a murder rate ten times higher than the national average. Five thousand, seven hundred twelve Native women are reported missing as of 2018. Further examination of these horrifying statistics reveals that the overwhelming majority (at least 70%) of violence against Native women comes from non-Indian perpetrators. An estimated 90% of Native women who experience sexual violence are harmed by an interracial perpetrator. Though these statistics are heartbreaking enough as is, advocates in Indian country claim these estimates are lower than the actual rates of sexual assault against Native women. Despite the apparent evidence of an epidemic of violence in Indian Country, thanks to a gap in criminal jurisdiction, many of these crimes go unpunished.
In 1978, the Supreme Court decided that Indian tribal courts cannot assert criminal jurisdictional authority over non-Indians – regardless of the non-Indian person’s connections to the tribe and/or the reservation. Generally, to successfully assert criminal tribal jurisdiction one must consider a three part analysis: 1) the location of the crime 2) the Indian status of both the perpetrator and victim 3) the type of crime under investigation.
As to the first prong – tribal criminal jurisdiction can only be considered if the crime itself took place in Indian country. Next, the official Indian status of the parties involved dictates jurisdiction. For the tribe to successfully assert criminal jurisdiction, the perpetrator must have official Indian status, either as an enrolled member of a federally recognized tribe or through direct federal recognition. This itself raises concerns because Indian status is not a precise test, tribes do not all follow the same method of recognizing membership. When both parties are recognized Indians, tribal courts have exclusive criminal jurisdiction over misdemeanor crimes. If the crime falls within the Major Crimes Act (MCA), even if all parties are Indian, the federal government may assert criminal jurisdiction. If both parties are not Indian, and the victim is a non-Indian, generally there is concurrent jurisdiction between the federal government and the tribe. However, if a non-Indian perpetrator acts against an Indian victim, there is no tribal jurisdiction. Save a select few exceptions within the Violence Against Women Reauthorization Act of 2013 (VAWA), the tribe cannot prosecute a non-Indian perpetrator, even if the crime occurs within Indian country against an Indian victim. The final consideration is the classification of the criminal activity. The federal government may assert jurisdiction over crimes within the MCA. VAWA allows tribes to prosecute non-Indian crimes of domestic violence, violence against a partner, or violation of a restraining order if the violence occurred against an Indian within Indian country.
Federal Indian law cases and statutes have significantly convoluted the relationship between federal, state, and tribal jurisdiction. This confusion makes prosecutions within Indian country difficult. Consequently, an overwhelming number of cases with Native women victims go unprosecuted. Generally, tribes do not have the option to prosecute non-Indian perpetrators of interracial sexual assaults, and often the federal government fails to step in. U.S. Attorneys fail to prosecute 67% of cases within their jurisdiction involving Native women victims.
VAWA acts as a perfunctory plug for this hole in jurisdiction that non-Indian perpetrators often escape through. Systematic failure on the part of the federal government to investigate and prosecute criminal cases led to VAWA’s recognition of tribal authority to exercise limited criminal jurisdiction over non-Indian perpetrators when an Indian within Indian Country is a victim of domestic violence, dating violence, or violation of a protective order. Since VAWA does not grant the tribe recourse for sexual assaults outside of these narrow definitions, it fails to address a significant jurisdictional loophole when the non-Indian perpetrator cannot be classified as an “intimate partner.”
Additionally, VAWA addresses only the limited prosecutorial rights of the tribe. It does not clarify any right of tribal authority to investigate, detain, or remove a potential threat. This generates a problem when it comes to responding to allegations of domestic violence and who has the authority to do any preliminary investigations. Limited law enforcement resources in Indian country also perpetuates this issue.
The ideal answer to alleviating this crisis in Indian country would be to recognize tribal criminal jurisdiction under the same analysis as state criminal jurisdiction. Unfortunately, due to a long history of dictating otherwise, the federal government has set up a system that would result in an exponential financial burden on tribes if changed. Unless the federal government is willing to both recognize an extension of tribal criminal jurisdiction and provide resources during this transfer of authority to increase law enforcement and the reach of tribal courts, there is the potential that even more violent crimes would go unprosecuted.
The inordinate amount of violent crimes against women in Indian country is a direct result of colonization and the continued limitation of tribal sovereignty. This is a crisis that both deserves and demands our attention so we might all work towards solutions that ensure the safety of Native people.
– L. Moose
Tribal Criminal Jurisdiction
Adam Crepelle, Tribal Courts, the Violence Against Women Act, and Supplemental Jurisdiction: Expanding Tribal Court Jurisdiction to Improve Public Safety in Indian Country, 81 Mont. L. Rev. 59 (2020). (available on Westlaw)
Alison Burton, What About the Children? Extending Tribal Criminal Jurisdiction to Crimes Against Children, 52 HAR. CIV. RIGHTS-CIV. LIBS. L. REV. 193, 195 (2017). (available on Westlaw)