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.
While observers agree there is an epidemic of violent crime against Indian women, few agree as to its cause. There are two obvious places to look for the source of all this horrible crime. They are the Major Crimes Act (MCA), 18 U.S.C. § 1153, and the Supreme Court’s decision in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
The MCA, enacted in 1885, federalized felony cases in Indian country. As a result, the United States Attorney’s Offices have primary jurisdiction in nearly all states over Indian country felonies. So when a perpetrator, Indian or non-Indian, commits an act of violence against an American Indian woman, the U.S. Attorney has the primary enforcement responsibility. Sometimes, this is literally physically impossible. Consider a typical case at a reservation located in the western Upper Peninsula of Michigan, which is covered by the U.S. Attorney’s Office in Grand Rapids, Michigan. On a good day, it’s an 11 hour drive to the reservation. In winter, it may be impossible. Add in the quick timeframes for properly using a rape kit (far less than 11 hours), and sexual assaults in Michigan Indian country simply cannot be prosecuted. Other districts are similar. The Turtle Mountain Band Reservation in northwest North Dakota is more than 10 hours from Fargo, where the U.S. Attorney’s Office is located. The U.S. Attorney’s Office in Cheyenne, Wyoming is as far from the Wind River Reservation as you can get in the state. And so on.
Moreover, as Dean David Getches wrote in 1979 (over 30 years ago), there is no safety net of criminal prosecution authority if the federal government declines to prosecute a case. Back then, the federal government declined to prosecute about 75 percent of cases referred to the U.S. Attorneys. In Indian country, numbers are uncertain, but that percentage is almost certainly higher. And if the feds cannot prosecute, there simply is no one else.
Which brings us to the second significant cause of the rise of Indian country crime against Indian women – Oliphant v. Suquamish Indian Tribe. In 1978, then-Associate Justice Rehnquist issued an opinion effectively holding that no Indian tribe could assert criminal jurisdiction over non-Indians. Rehnquist’s opinion is one of the most notorious opinions in federal Indian law, which is saying something, having been crafted out of 150 years of self-serving legislative history for bills never enacted by Congress, Interior Solicitor’s opinions later withdrawn, and U.S. Attorney General opinions defending the rights of slave owners to murder their slaves. Regardless, the Oliphant opinion could have held that the relatively small Suquamish Tribe could not assert criminal jurisdiction over non-Indians because the Tribe had little authority over its own reservation territories. Or the opinion could have held that under the Indian Civil Rights Act, convicted non-Indians have the habeas right in federal court, and required tribal courts to comply with federal constitutional guidelines.
Instead, the Oliphant Court reached the broadest ruling possible. As a result, non-Indian perpetrators of violent crime against Indian women in Indian country have virtual immunity from prosecution. As any expert on domestic violence knows, these kinds of crimes have a snowball effect. If the perpetrator isn’t stopped early on, when the crimes are mere misdemeanors, they have a troubling tendency to escalate to felonious assault and even murder. Only then does the federal government step in, when it’s simply too late.
Many tribes aren’t ready to take on greater criminal jurisdiction, but for those that are, this legislation is an important step toward protecting the most vulnerable and important people in Indian country.