Comment   |   Volume 166, Issue 3

Sufficiently Criminal Ties: Expanding VAWA Criminal Jurisdiction for Indian Tribes

166 U. Pa. L. Rev. 745 (2018)

February 2018

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.

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