Rhetoric Versus Reality: The Jurisdiction of Rape, the Indian Child Welfare Act, and the Struggle for Tribal Self-Determination

This note examines the rape crisis affecting Native American women today and the jurisdictional issues that affect how and whether tribes may prosecute and punish rapists. This note also examines the efficacy of the Indian Child Welfare Act (ICWA) in preventing inappropriate removal of Native children from their tribal environment. A comparison of these two subjects reveals that, although tribes are theoretically experiencing an era of tribal self-determination, federal Indian law and policy, both old and new, continue to prevent tribes from achieving health and independence. Ultimately, the note concludes that a true solution to the problems affecting tribes can arise only from tailoring legal solutions to the individual tribes themselves, rather than relying on blanket federal policies that fail to consider the diversity of tribal cultures and conditions