The Evolution of Judicial Power: How the Supreme Court Effectively Legalized Rape on Indian Reservations

According to the 2010 National Intimate Partner and Sexual Violence Survey, nearly one in five women in the United States has experienced sexual violence. While the statistics are staggering, the rate of sexual assault on Indian reservations is more than twice the national average. According to the Department of Justice, one in three American Indian and Alaska Native women has been raped or has experienced an attempted rape during her lifetime. Moreover, the primary assailants are males who are not members of tribal communities. Why are rape cases often not prosecuted? What explains the elevated rates of sexual violence on reservations? Why are non-Indian males the primary assailants? I put emphasis on the pivotal Oliphant v. Suquamish Indian Tribe decision that changed the landscape of judicial power on reservations. The result has produced unintended consequences, which greatly diminished the legal capacity to prosecute sexual assault cases in tribal courts. Consequently, three phases of evolution in U.S. history indicate that rape was effectively legalized. These three phases of evolution are dependent on colonialism. The criminal behavior of non-Indian males can be explained through the historical evolution of judicial power, which has in effect legalized rape in tribal communities. An examination of the hidden institutional elements considers the evolutionary trajectory of interactions between the U.S. government and tribal reservations. This broader frame analysis provides new insights toward the impact of Oliphant on the lives of American Indian and Alaska Native women