Addresing the Epidemic of Domestic Violence in Indian Country by Restoring Tribal Sovereignty

Unprosecuted domestic violence committed by non-Indians in Indian Country is a serious problem, without an effective federal or state solution absent an Act of Congress. The Supreme Court has created – and Congress has not done enough to solve – a terrible irony. The law enforcement jurisdiction closest to the crime and with the greatest capacity and motivation for responding quickly, efficiently, and fairly, has been stripped of the authority to react, leaving Indian women to suffer, and crimes of domestic violence to remain unresolved and unprosecuted. This Issue Brief recommends a legislative solution to alleviate this jurisdictional gap by recognizing tribal jurisdiction over non-Indians for domestic violence misdemeanors. The proposal would place the onus on Indian tribes to demonstrate their capacity to prosecute nonIndians in a manner consistent with federal and state courts and require tribes to provide comparable criminal procedure protections to these defendants before they may assert jurisdiction. This limited proposal offers a reasonable means for tribes to accept this authority and build a track record of success. Ideally, after more and more tribes begin to prove their capacity to prosecute non-Indians for domestic violence, either the Court or Congress will again recognize full tribal authority to provide for law and order on Indian reservations. Part I of this Issue Brief describes the legal and historical landscape of Indian tribal authority to prosecute Indian Country crimes. Part II sets out the legal rule, created by the Supreme Court without Congressional sanction, denying Indian tribes the authority to prosecute non-Indian criminal perpetrators. Part III offers an incremental solution, in which Congress would reaffirm tribal criminal jurisdiction over non-Indians in certain circumstances. Part IV offers responses to the possible constitutional and criminal procedure issues that may arise under this legislative proposal