Indigenous Studies Resource Guide: Missing and Murdered Indigenous Women: Journal Articles at UB

Crime and violence have long been a serious problem in Indian Country. In recent years, though, the extraordinary levels of gang activity and high rates of sexual violence against Native American women have received a large amount of media attention. Responding to this problem, Congress passed the Tribal Law and Order Act of 2010. Through this legislation, Congress seeks to lower the rates of crime in Indian Country, particularly with regard to crimes committed against Native American women; the Act significantly increases the resources and authority of federal prosecutors and agencies in Indian Country and increases the sentencing authority of tribal courts.

This Article considers the major provisions of this landmark Act and concludes that it is an important piece of legislation that could potentially have profound effects in many parts of Indian Country. Although the Act was widely supported, however, this Article argues it does not do enough and is instead only a short-term remedy to the problems facing Indian Country. The Article proposes several pieces of legislation that would provide long-term solutions, including increasing the sentencing authority of tribal courts and legislatively overturning the jurisdictional limitations imposed on tribal courts by the United States Supreme Court in Oliphant v. Suquamish Indian Tribe. Both of these major reforms could be used as tools to increase the status and skill of tribal courts, eventually making them a much more equal third sovereign.

While vigorous debate surrounds the proper scope and ambit of inherent tribal authority, there remains a critical antecedent question: whether Congress or the courts are ultimately best situated to define the contours of inherent tribal authority. In February 2013, Congress enacted controversial tribal jurisdiction provisions as part of the Violence Against Women Act reauthorization recognizing and affirming inherent tribal authority to prosecute all persons, including non-Indian offenders, for crimes of domestic violence in Indian country. This assertion by Congress of its authority to set the bounds of tribal inherent authority -- beyond where the United States Supreme Court has held tribal inherent authority to reach -- underscores the importance of addressing the question of which branch ought to resolve the issue.

This Article proposes a framework drawn from Supreme Court jurisprudence in the field of state sovereignty to argue that when sensitive issues of sovereignty are at stake, the comparative competence of the respective branches must be considered. Unlike any preceding work in this field, this Article proposes a model based on the indicia of institutional competence to suggest that Congress, rather than the courts, is the branch best suited to determine the scope of inherent tribal sovereignty.

Each year more than 4 million women are the victims of domestic violence at the hands of their partners -- this is an epidemic from which Native American women are not immune. Fortunately, there are an increasing number of institutions that help women in abusive relationships find support within their communities. However, many governmental and non-profit resources aimed at supporting victims of domestic violence are geared towards white women. As a result, the dilemmas faced by battered women of other ethnic and socioeconomic backgrounds are often unexamined and misunderstood.

Native American victims of domestic violence face a particularly bleak situation. The numerous obstacles confronting Native American women specifically those seeking restraining orders against or criminal prosecution of their abusers are frequently overlooked and unreported. This Comment highlights the complicated issues facing Native American women victimized by domestic violence, including the failure of the federal government to uphold its obligation to provide effective assistance to Native American women in abusive relationships. Additionally, we will make policy proposals for federal, state, and tribal governments and law enforcement.

Part I, examines how domestic violence negatively impacts tribal communities in ways distinct from other communities. To this end, statistics on domestic violence against Native American women are considered. Part II, presents an overview of tribal sovereignty and federal Indian law to illustrate how criminal jurisdiction in Indian Country is fractured among state, tribal, and federal law enforcement. Understanding tribal sovereignty is critical to comprehending the complicated legal framework in which Native American women find themselves when attempting to seek help from tribal, state, and federal law enforcement or judicial institutions. Part III analyzes the roles of tribal, state, and the federal governments in preventing and responding to domestic violence in an effort to diagram the jurisdictional puzzle of federal, state, and tribal authority in Indian Country. Part IV, examines congressional efforts to safeguard victims of domestic violence in Indian Country, focusing on the Violence Against Women Act of 2005. Part V presents policy recommendations which are particularly relevant as the federal government implements the directives in the Violence Against Women Act of 2005.

American Indian and Alaskan Native (“AI/AN” or “Native”) women have faced disproportionately high rates of violence since colonists first arrived in North America. But, while non-Native communities have had the power, rooted primarily in criminal jurisdiction, to experiment and develop innovative, culturally appropriate programs aimed at eliminating domestic violence, a series of federal legislation and Supreme Court decisions stripped AI/AN tribes of such power. Today, Native communities continue to lack criminal jurisdiction over most non-Native perpetrators of crime, who are overwhelmingly responsible for acts of domestic violence against Native women. While the passage of the 2013 reauthorization of the Violence Against Women Act (“VAWA”) created Special Domestic Violence Criminal Jurisdiction, the program’s limited return of jurisdiction resulted only in putting tribes in the position that the rest of the country was in during the 1980s and ’90s — able to prosecute and punish offenders but still unable to treat the problem of domestic violence holistically.

This Note argues that violence in Indian country will not be meaningfully reduced until tribes have full autonomy over their criminal systems. This can only be achieved when tribal criminal jurisdiction is equivalent to that exercised by states. Outside Native lands, specialized domestic violence courts have had success in reducing violence through community-based, collaborative approaches and integrated drug and alcohol treatment. With expanded criminal jurisdiction, tribes would be able to learn from the developments in antiviolence theory in practice over the last forty years, giving them the opportunity to make rapid progress in closing the gap in experience and finding what works in reducing violence in their communities. Furthermore, the similarities between tribal governments and those of state and local municipalities are strong indicators that tribes should have criminal jurisdiction over all crimes committed in their territories. In dismantling tribal jurisdiction over crimes committed by non-Natives and then returning limited jurisdiction in a piecemeal fashion, the federal government has stifled the ability of tribes to develop effective responses while further entrenching a white supremacist, colonial system over sovereign peoples. It is due time for the federal government to support these communities as they seek to heal and rebuild.

In 2010, large deposits of oil and natural gas were found in the Bakken shale formation, much of which is encompassed by the Fort Berthold Indian reservation, home to the Mandan, Hidatsa, and Arikara Nation (“MHA Nation” or “Three Affiliated Tribes” or “the Tribe”). However, rapid oil and gas development has brought an unprecedented rise of violent crime on and near the Fort Berthold reservation. Specifically, the influx of well-paid male oil and gas workers, living in temporary housing often referred to as “man camps,” has coincided with a disturbing increase in sex trafficking of Native women. The social risks of oil development on American Indian reservations like Fort Berthold are distinct from development in other areas in the United States. The complex and shifting nature of federal Indian law presents legal and practical challenges to law enforcement in civil and criminal contexts. Further, the historical exploitation of Indian lands and people informs current social and economic conditions that contribute to increased sex trafficking of Native women and children. This paper begins by describing the intersection of sex trafficking and oil and gas development on the Fort Berthold reservation. Next, the paper describes the jurisdictional regime within federal Indian law and other barriers to law enforcement that have created a situation ripe for trafficking and other crime on the Fort Berthold reservation. Third, the paper will examine strategies to address this complex issue including: corporate engagement of relevant companies; tribal capacity and coalition building; and remedies contained in the Violence Against Women Act of 2014. This paper asserts that all of the stakeholders involved in oil development on the Fort Berthold reservation – federal, state, tribal, and public and private companies – must work cooperatively to decisively eliminate sex trafficking of Native women and children.

With the possible exception of the Indian Major Crimes Act, the classification of “Indian” for the purposes of the ICCA and the Duro Fix is not “racial” even if it includes non-enrolled people of Indian ancestry with significant connections to tribal communities. Furthermore, although the first prong of the Rogers test should be eliminated on policy grounds, the holding of the Zepeda court that the first prong could be satisfied by proof of blood quantum from any Indian tribe, recognized or not, is highly suspicious, seems to be arbitrary, and boosts the argument that the classification of “Indian” in such cases is a racial classification.

Acknowledging the problems plaguing current law enforcement on Indian reservations, this article has endorsed a position which would allow Indian tribes to determine the meaning of “Indian” for the purpose of the Duro fix. The Article also argued that the universe of “Indians” for the purpose of federal jurisdiction should be limited to enrolled tribal members and those eligible for such membership unless the relevant tribe has enacted precise standards delineating who is an Indian for the purpose of federal jurisdiction on its reservation.

In this article, we have examined the policies of the Trump Administration as they relate to extractive development on and near Indian country, and policies related to the protection of Native people from rape and sexual assault. As demonstrated above, the Administration’s policies are likely to increase both the environmental and physical vulnerabilities of Native people. Native people will not only likely face exasperated physical insecurity, but their environments will likely be increasingly stripped on natural resources. As a result, the raping of Indian county continues. But, this article is not without hope. At least two ways forward, improvements upon the status quo exist. Tribal governments possess the requisite capacity to address the environmental and criminal challenges presented here. Further, changes to federal law, such as the Oliphant fix suggested above, provide meaningful opportunities for change. The rape of Indian country envisioned in this article is not a foregone conclusion; together change can protect our land and bodies.

Indian Country is home to some of the highest rates of violent crime in the United States. Specifically, Indian women are at least twice as likely as women in any other demographic in the United States to be victims of domestic violence, dating violence, and sexual violence, and most Indian women report that their attacker was non-Native. On March 7, 2013, President Obama signed the Violence Against Women Reactivation Act of 2013, which contained provisions to help alleviate this crisis in Indian County. These provisions include Sections 904 and 905, which outline special criminal jurisdiction over certain non-Indian perpetrators of domestic violence, dating violence, and sexual violence in Indian Country. This Student Note proposes a method of interpretation of Sections 904 and 905 and argues that, upon a constitutional challenge to this special domestic violence jurisdiction, the Supreme Court should find that that these provisions validly expand inherent tribal sovereignty and do not represent a delegation of Congressional power. To reach this conclusion, Court should first return to the texts that form the foundation of tribal sovereignty, namely the Constitution and the Marshall Trilogy. Incorporating these early principles of robust inherent tribal sovereignty, the Court should then look to the legislative intent of Congress, as it has many times in Federal Indian law, to confirm that Congress has validly exercised its power to expand inherent tribal sovereignty. However, in explicating Congress’ power to enact such legislation, this Note further proposes that the Court should clarify that Sections 904 and 905 are consistent with a more limited understanding of Congress’ power to legislate in Indian Country that requires legislation to be rationally related to Congress’ unique obligations to the Indian tribes. Thus, on a constitutional challenge, this Note argues that the Court should uphold Sections 904 and 905 because they are both a valid exercise of Congress’ power to expand tribal inherent sovereignty and consistent with Congress’ unique obligations to the tribes.

As part of the Violence Against Woment Act, Congress included a requirement that tribes and states give full faith and credit to each others' protection orders. Several authors, including Sandra Schmieder, have explored the contours of VAWA's full faith and credit requirements. In her comment, The Failure of the Violence Against Women Act's Full Faith and Credit Provision in Indian Country: An Argument for Amendment, Schmieder argues that VAWA's full faith and credit provisions are ineffective in Indian country, largely because tribal governments are refusing to enact the required implementing legislation. Melissa Tatum and Sarah Deer have worked in this area of law for years, and their experiences are not consistent with the premises of Schmieder's comment. Accordingly, they penned this article, published in the Tulsa Law Review, to explore the sources of their disagreement with Schmeider and explore the problems that do exist with the cross-jurisdictional enforcement of protection orders in Indian country.

That year, Congress finally addressed – or at least began to address – the issue of domestic Violence in Indian Country. On April 26, 2012, the Senate passed S. 1925 a version of VAWA that attempted to close the Oliphant gap by reauthorizing tribes to exercise criminal jurisdiction over non-Indians who violate Indian women. The tribal protections were dropped in the House version of the bill, however. This paper discusses the House's arguments for doing so, and concludes that they were baseless.

The VAWA reauthorization bill would extend funding for important services; provide additional protections for victims of domestic violence, dating violence, sexual assault, and stalking; and would ensure that tribal courts have jurisdiction over domestic violence that occurs on tribal land.

This article addresses the different rules that apply in different jurisdictions for determining when an indigent defendant is entitled to counsel at public expense in the United States, with a focus on the right to appointed counsel in tribal court prosecutions. Under federal constitutional law, an indigent charged with a misdemeanor is not constitutionally entitled to appointed counsel unless the conviction results in a sentence of incarceration or a suspended sentence of incarceration. The federal Indian Civil Rights Act (ICRA) provides for a different right to appointed counsel for different defendants depending on the crime charged, whether the crime carries a term of imprisonment and, if it does, how long that term is.

Under ICRA’s general provisions, which only apply to Indian defendants, a tribal court does not need to provide indigents with counsel at tribal expense when the court impose a sentence of incarceration of one year or less. Under amendments to ICRA made by the Tribal Law and Order Act of 2010, a tribal court cannot impose a sentence of incarceration over one year on an indigent unless the defendant is provided a licensed attorney at tribal expense. In VAWA 2013 for the first time since divesting tribes of criminal jurisdiction over non-Indians, Congress authorized tribes to prosecute non-Indians who have some connection to their reservation community for certain domestic violence offenses committed in Indian country against Indian victims. Under VAWA 2013, to exercise criminal jurisdiction over non-Indians, tribes must provide indigent defendants with counsel at tribal expense if a term of imprisonment of any length may be imposed. This is a more robust right to appointed counsel than ICRA confers on Indian tribal court defendants, and than the Constitution confers on state and federal court defendants.

This article examines ICRA’s tiered right to appointed counsel provisions against the backdrop of two major bodies of law – the Supreme Court’s conceptualization of poor defendants’ constitutional right to counsel at public expense in state criminal prosecutions, and the current status of tribal court jurisdiction over non-Indians under federal law. This article explains how the Supreme Court arrived at a very complicated constitutional rule for determining when state trial courts must provide appointed counsel to poor defendants; offers an explanation of how the federal constitutional right to appointed counsel became so convoluted; examines the various right to counsel provisions in ICRA, analyzing how they do, or do not, track the federal constitutional right to appointed counsel; and addresses whether VAWA 2013 should be read to create a right to appointed counsel for the benefit of non-Indian tribal court defendants greater than that required by the Constitution in state and federal courts, or a right to appointed counsel that is co-extensive with the Sixth Amendment.

This article concludes that Congress created a more robust right to appointed counsel under VAWA 2013 than that required by the Constitution in state and federal courts, and greater than that applicable to Indian defendants in tribal court. The article calls on Congress to amend ICRA to address this inequitable and unjustifiable procedural imbalance.

Through European colonization in North America, the time-honored rule of law, or good way of life, in Indigenous communities was displaced with external forums and processes, primarily from the British juridical traditions. In contemporary Canada, the use of external laws as a tool of colonization and the injustice experienced by Aboriginal peoples in Canadian courts has been the focus of media attention, policy papers, and legal reports for decades. The Canadian justice system is viewed by many as external and a means of subjugation for First Nation, Métis and Inuit peoples. As the Canadian government has attempted to come to terms with the long shadow cast by colonization, Indigenous peoples are consistently and increasingly calling for the ability to fully self-govern and reinstate Indigenous law and legal principles.

In 2015, the Canadian Truth and Reconciliation Commission (TRC) issued its ninety-four (94) Calls to Action to support reconciliation between the settler-nation of Canada and Aboriginal peoples in their homelands. This monumental undertaking has introduced a new standard in global relations as setting forth concrete and aspirational goals to heal a legacy of colonialism, genocide, the abduction of generations of Aboriginal children to residential schools, historical trauma, and the entrenched poverty conditions experienced within reserves and Indigenous communities. TRC Call to Action 42 provides staunch support for Indigenous justice systems to be reinstated and supported in Canada.

"We call upon the federal, provincial and territorial governments to commit to the recognition and implementation of Aboriginal justice systems in a manner consistent with the Treaty and Aboriginal rights of Aboriginal peoples, the Constitution Act, 1982, and the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by Canada in November of 2012."

This ringing call for recognition of Indigenous justice systems in Canada speaks directly to the ending of colonial suppression of Indigenous self-governance.

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