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Excerpted From: Jonathan Riedel, Mirrored Harms: Unintended Consequences in the Grant of Tribal Court Jurisdiction over Non-Indian Abusers, 45 American Indian Law Review 211 (2021) (210 Footnotes) (Full Document)

JonathanRiedelThere are two truths about modern life on Indian reservations. The first truth is that rates of domestic violence in tribal territory are astonishingly high. A total of 55% of Indian women have experienced physical violence, compared with 34.5% of women in the United States as a whole. Indian women are 1.2 times more likely than white women to experience violence over their lifetime and 1.7 times more likely to experience it in a given year. At a rate of 34%, Indian women are twice as likely to experience rape as white women and to experience more violent rape when it occurs. This is also a problem deeply intertwined with race: 90% of women reported that the intimate partner violence they experienced was at the hands of a non-Indian perpetrator, while intra-racial rates of sexual violence are actually lower among Indian women than among white women.

The second truth about life on Indian lands is that tribes are largely unable to remediate this problem through criminal prosecution. Tribal sovereignty, a concept that was recognized well before the founding of the United States and has consistently been recognized since the late 1960s, provides that unless the federal government says otherwise, tribes have complete authority to exercise civil and criminal jurisdiction over persons and conduct on Indian land. But tribes' ability to govern their own affairs has also been constricted for centuries. Congress has attempted to assimilate them; the executive has planned to eradicate them; and a series of Supreme Court decisions has given the federal government plenary power over them. In the context of criminal jurisdiction, the Supreme Court limited the tribal sovereignty concept in 1977, where it held, in Oliphant v. Suquamish Tribe, that tribes had no inherent authority to prosecute non-Indians for crimes committed on Indian land. Later, the Court extended this holding to Indians who were not members of the governing tribe as well as to many civil cases. This departure from commonly understood tribal sovereignty principles created a vacuum that disproportionately affected Indian victims of domestic violence. Non-Indians could commit crimes on Indian land with virtual impunity, as they were immune from prosecution by the tribe and, usually, the state. Although the federal government retained criminal jurisdiction on Indian land, this was cold comfort: two-thirds of sexual violence and 46% of assault crimes on tribal reservations went unprosecuted, despite making up more than half of all referred cases.

In response to these problems, Congress passed Special Domestic Violence Criminal Jurisdiction (SDVCJ) in its 2013 reauthorization of the Violence Against Women Act. This provision “recognize[s] and affirm[s]” the “inherent power” of tribes to exercise criminal jurisdiction over non-Indians, effectively overruling the Oliphant Court's analysis of tribal sovereignty, but only with respect to crimes of domestic violence. Many tribes and advocacy organizations applauded this legislation for its enhancement of tribal sovereignty and for its effort to combat the scourge of domestic violence in Indian territory. Tribes, which have their own constitutions, legislative systems, courts, and criminal codes, can now voluntarily opt in to prosecuting non-Indians for committing domestic violence crimes against Indians. The tribes themselves define the crime, the procedure, and the punishment, so long as they also abide by other provisions of federal law.

Despite the best intentions of the legislators, however, a number of defects in the legislation undermine both of its goals--protecting Indian victims of domestic violence and enhancing tribal sovereignty. In this paper, I focus on the former problem and argue that Special Domestic Violence Criminal Jurisdiction (SDVCJ) has created unintended harms that mirror the very harms that the domestic violence movement as a whole has been trying to address. In particular, because Special Domestic Violence Criminal Jurisdiction (SDVCJ) limits tribal jurisdiction based on the type of crime and the identities of the perpetrator and victim, tribal prosecutors end up with few tools to address the plight of domestic violence on their lands.

I do not argue that Special Domestic Violence Criminal Jurisdiction (SDVCJ) is a net detriment to remediating domestic violence or tribal sovereignty. Like many new developments, whether in law, science, medicine, or technology, the first iteration of an undeniably good thing is full of glitches. This paper exposes those glitches in Special Domestic Violence Criminal Jurisdiction (SDVCJ) and views them through the lens of domestic violence scholarship so that legislators are familiar with the defects when they craft new legislation. Special Domestic Violence Criminal Jurisdiction (SDVCJ) constitutes a step in the right direction but, to maintain its effectiveness, it must be reformed.

This paper proceeds in four parts. In Part I, I identify how the limitations on the type of crimes that can be prosecuted in tribal courts mirror problems from early periods in the domestic violence movement; specifically, I discuss the perception that only physical assaults are sufficiently serious to be worthy of state sanction, the failure to recognize that domestic violence is about power and control over a victim rather than discrete incidents, and the systematic challenges in the investigation and prosecution of domestic violence crimes. In Part II, I explore how a perpetrator can manipulate the elements of Special Domestic Violence Criminal Jurisdiction (SDVCJ), and that even if criminal jurisdiction may be found, non-Indian abusers receive more protections than Indian abusers, which serves to downplay the severity of battering. In Part III, I argue that Special Domestic Violence Criminal Jurisdiction (SDVCJ)'s definition of a victim puts the onus on her to prove that she is worthy of protection, reflecting the traditional blame placed on the woman for failure to prevent her own battering. Finally, in Part IV, I discuss potential solutions to these problems and conclude that an extension of Special Domestic Violence Criminal Jurisdiction (SDVCJ) is appropriate. In particular, I argue that any future iteration of Special Domestic Violence Criminal Jurisdiction (SDVCJ) should encompass all crimes committed within a domestic violence context and without regard to the identity of perpetrator or victim, rather than employ a limited focus on discrete incidents and individuals.

[. . .]

While much legislation has unintended consequences, not all legislation has consequences that mirror the harms the law intends to address. The numerous unintended consequences resulting from Special Domestic Violence Criminal Jurisdiction (SDVCJ)'s limited scope mimic the harms that the domestic violence movement has been working to remedy over the last several decades. Special Domestic Violence Criminal Jurisdiction (SDVCJ) is not hopeless; indeed, some remedial legislation is awaiting a Senate vote. But without a broad understanding of domestic violence and a commitment to filling the gaps that put American Indian women at high risk of revictimization, these problems will endure. Let us hope the waiting period is short.

First place winner, 2019-20 American Indian Law Review National Writing Competition. J.D. 2020, New York University School of Law; B.A. 2009, Colgate University.

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