Excerpted From: Danielle Alvarez, How Bad Men Provisions Provide Native American Women Relief from Violence and Sexual Assault, 31 Federal Circuit Bar Journal 227 (September 2022) (176 Footnotes) (Full Document Requested)

DanielleAlvarezMore than four out of every five Native American and Alaska Native women 80%--have been victims of violence, and more than 50% have been sexually assaulted. and Alaska Native women are disparately impacted by violence and sexual assault and Native American women are more than twice as likely as women generally in the United States to be assaulted or the victims of other sexual crimes. women are nearly three times more likely to be raped or sexually assaulted than women of any other race.

There are several potential explanations for the high and disparate levels of violence against Native American and Alaska Native women, including the lack of tribal criminal jurisdiction over non-Native Americans. Non-Native Americans who live both on and off of reservations commit most of the sexual violence against Native American women. Because tribal courts historically lacked jurisdiction over non-Native Americans, these perpetrators faced little to no repercussions within the reservations. Worse, due to judicial and legislative action manipulating tribal jurisdiction, Native American women often lack an adequate means of recourse, leaving many crime victims silent.

Although tribal courts no longer completely lack jurisdiction over non-Native Americans, it is unclear whether partial tribal jurisdiction will provide sufficient relief given its recency and uncertain coverage over perpetrators unacquainted with their Native American victims. Nine treaties with the United States, dating back to 1868, may provide federal equitable relief to the women of twelve tribes. Bad Man provisions contained in these treaties provide victims of violence with a cause of action and sufficient equitable relief against previously untouchable perpetrators. The U.S. federal government gave Native American victims causes of action against perpetrators and pledged to compensate individual tribal members for any wrong committed by “Bad Men” subject to U.S. authority, including U.S. citizens and nonmember Native Americans.

Legal scholars have contested Bad Man provisions utility primarily because of the financial obligations they impose upon the federal government. Some scholars have contested Bad Man provisions by questioning the use of federal funds to compensate Native American victims of crime. Others view these provisions as a promising avenue for recourse. The applicability, expiration, and scope of such provisions have been challenged and adjudicated, and only a few plaintiffs have successfully raised Bad Man provision claims. Although there have been legislative attempts to remedy the lack of sufficient recourse, Native American women remain incredibly vulnerable and lack sufficient protections and relief.

This Note argues that the Federal Circuit should apply Bad Man provisions to grant equitable relief to all Native American women who are victims of sexual assault by any individuals under the authority of the United States, regardless of whether their tribes have treaties containing such provisions. The Federal Circuit should consider legislative history, subsequent legislation, and language to find that Congress intended Bad Man provisions to serve as the model for providing federal equitable relief to all Native American tribe members. Extending this coverage to women from all Native American tribes who have been the victims of violence by non-Native American perpetrators would provide them with a sufficient means of legitimate recourse.

Part I of this Note presents background on Bad Man provisions, the evolution of tribal jurisdiction, and the trajectory of Bad Man provision use. Using case law and legislative history, Part II assesses the possibility of raising Bad Man provision claims in sexual assault suits and treating Bad Man provision language as the standard for providing equitable relief to Native American tribes. Finally, Part III recommends that the Federal Circuit construe Bad Man provisions as applicable to sexual violence claims brought by any tribal member. Doing so would help deter the egregious treatment of Native American women by imposing liability on the federal government and provide victims of sexual assault and violence with sufficient relief.

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The Federal Circuit should use the Bad Man provision language present in nine treaties with federally recognized Native American tribes as a means of providing relief to all Native American women who have been the victims of sexual assault or violence from any aggressor. Legislative history and basic tenets of statutory interpretation make it apparent that such use is feasible. Although the issue of sexual assault and violence against Native American women, especially on reservations, will not be further regulated or deterred through the use of this treaty language, it could provide a temporary means of obtaining substantial monetary relief for victims.

The imposition of monetary obligations on the federal government by the Federal Circuit in its interpretation and application of Bad Man provision liability may pressure the executive and legislative branches to pursue legitimate reform. The federal government assumed a guardian-ward relationship with federally recognized tribes and has long failed to fulfill its obligations to the Native American members of those tribes. Contractual obligations require the federal government to compensate the women of the twelve tribes with Bad Man provision protections, but basic legislative analysis suggests that a parallel obligation is owed to all Native American women.

J.D., May 2022, The George Washington University Law School; B.A., 2019, University of Florida.