By Matthew L.M. Fletcher, Professor of Law at Michigan State University College of Law and the Director of the Indigenous Law and Policy Center. He authored Addressing the Epidemic of Domestic Violence in Indian Country by Restoring Tribal Sovereignty, an ACS Issue Brief, published in March 2009.
The United States Department of Justice (DOJ) has, for the first time, proposed a dramatic expansion of American Indian tribal criminal jurisdiction in its recommendations to Congress on the reauthorization of the Violence against Women Act. After decades of declining to support expanded tribal criminal jurisdiction, this proposal is a major watershed in the fight against Indian country crime. DOJ finally supports the reaffirmation of at least limited authority to prosecute such crime by the first responders in Indian country – Indian tribes.
In its narrative proposal (available here), DOJ acknowledges the epidemic of violence against American Indian women occurring daily in the United States, and especially in Indian country. Recent studies by university researchers and Amnesty International, among others, conclude that American Indian women suffer possibly the highest rates of violent crime – most notably, sexual assaults – of any demographic in the United States.
The proposal is a limited one, given the political climate, but symbolically important. It recognizes inherent tribal jurisdiction to enforce civil protection orders against all persons, Indian and non-Indian, an open question in current law. It also recognizes limited tribal criminal jurisdiction authority over non-Indians who commit domestic violence-related crimes. Sexual assaults are not included in the proposal. Despite these limitations, DOJ’s recommendations – coming on the heels of 2010’s Tribal Law and Order Act, which was the first significant expansion of tribal sentencing authority since 1986 – may pave the way toward greater ability of Indian tribes to respond to violent crime against Indian women in the future.