Mirrored Harms: Unintended Consequences in the Grant of Tribal Court Jurisdiction over Non-Indian Abusers

Abstract

1st Place Winner of the American Indian Law Review National Writing Competition 2019-2020. Rates of domestic violence are astonishingly high in Indian country. More than half of Indian women have experienced physical violence in their lifetimes. They are twice as likely to experience rape as white women and to experience more violent rape when it occurs. Their plight is also deeply intertwined with race: Ninety percent of women reported that the intimate partner violence they experienced was at the hands of a non-Indian perpetrator. At the same time, tribes are largely unable to address this problem through their criminal laws due to the centuries-long erosion of tribal sovereignty. In the 1977 case of Oliphant v. Suquamish Tribe, the Supreme Court held that tribes had no inherent authority to prosecute non-Indians for crimes committed on Indian land. This departure from commonly understood tribal sovereignty principles created a vacuum that disproportionately affected Indian victims of domestic violence. Non-Indians could act with virtual impunity, immune from prosecution by the tribe and, usually, the state. Meanwhile, the federal government, which retained criminal jurisdiction, declined to prosecute an astonishing two-thirds of sexual violence cases and nearly half of assault crimes. 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 Oliphant with respect to crimes of domestic violence. Tribes overwhelmingly applauded this legislation for its enhancement of tribal sovereignty and for its effort to combat the scourge of domestic violence in Indian territory. Despite the best intentions of the legislators, however, a number of defects in the legislation undermine its goal of protecting Indian victims of domestic violence. In this paper, I argue that SDVCJ has created unintended harms that mirror the very harms that the domestic violence movement as a whole has been trying to address. I do not argue that SDVCJ is a net detriment to remediating domestic violence or enhancing tribal sovereignty, but that the harms present in the current iteration of SDVCJ should concern legislators and advocates seeking to actually address domestic violence. In particular, I track how limitations on the type of crimes that can be prosecuted — essentially, only physical assaults — mirror problems from early periods in the domestic violence movement, including the perception that only physical assaults are sufficiently serious to be worthy of state sanction and the failure to recognize domestic violence as an exertion of power and control over a victim rather than a series of discrete, isolated incidents. I also explore how the elements of SDVCJ can be manipulated by a perpetrator based on his own identity or the identity of the victim — a problem that is unique to the intersection of SDVCJ and the political classification and racial makeup of Indians on tribal lands — and argue that this, too, mirrors existing and prior harms of domestic violence’s interaction with the law. I further argue that 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, I discuss some potential solutions, and conclude that SDVCJ should be expanded to encompass all crimes committed within a domestic violence context and without regard to the identity of perpetrator or victim.