This article examines the unique hurdles to effective prosecution of domestic violence crime occurring in Indian country.

These hurdles include both the practical issues of poverty and rural isolation, and complex legal problems related to the question of jurisdiction. A crime occurring in Indian country could potentially, depending on the nature of the crime and the parties to it, be prosecuted by either the federal, state, or tribal government. The jurisdictional questions and their answers raise further practical problems, many of which have been indicated by commentators. I will discuss these problems as well, and any solutions commentators have proposed for solving the practical problems. However, over the course of my research, I have found that most commentators advocate for reform of the existing legal system, rather than searching for ways to make it work. Although I believe such reform to be a laudable goal, the most recent actions taken by Congress and the Court do not suggest that it is likely to occur in the foreseeable future. On the other hand, there is comparatively little discussion of how the federal, state, and tribal governments can work within the existing system. Therefore, I will describe the Indian country legal framework in detail with an eye to finding the means that the tribes currently have to prosecute domestic violence crimes under existing law, and how they best go about pursuing these means. I will discuss some of the reformminded solutions proposed by other commentators, and attempt to identify the potential weaknesses of my own suggestions. In addition to my inquiry into issues of criminal law and criminal prosecutions, I will also briefly discuss a few of the options at the disposal of Indian tribes and Indian

domestic violence victims that lie outside the realm of criminal sanctions against the abusers.

PART I: STATISTICAL OVERVIEW OF THE PROBLEM

When it comes to socio-economic statistics, American Indians as a group come off looking quite grim. The statistics go from bad to worse when the 60% of Indians who live in urban areas are discounted, and the focus shifts exclusively to rural, tribal lands.1 Educational and economic opportunities are few and far between on most reservations, and the statistics bear this out.2 A higher percentage of Indians have less than a high school education compared to the general population, with a similar disparity at the bachelors degree level.3 The median income for Indians is significantly less than that of the general population, with 25.7% of Indians living below the poverty line.4 Unemployment rates vary from tribe to tribe and reservation to reservation, but hover around 50% for Indians as a group.5 Having seen these statistics, it comes as no surprise that Indians as a group report higher rates of crime victimization than the general population. From 1992 to 2001, The Bureau of Justice Statistics determined that American Indians on average were victims of one violent crime per ten people, a rate twice that of African Americans, two and a half times that of whites, four and a half times that of Asian-Americans, and two and a half
1

Robert Bachman, Heather Zaykowski, Rachel Kallmyer, Margarita Potoyeva & Christina Lanier, National Institute of Justice, U.S. Dep't of Justice, NCJ 223691, Violence Against American Indian and Alaskan Native Women and the Criminal Justice Response: What is Known 17 (2008) (unpublished report, on file with the National Institute of Justice) available at http://www.ncjrs.gov/pdffiles1/nij/grants/223691.pdf. 2 Id. 3 Id. at 16. 4 Id. 5 Id.

times that of the general population.6 Over the same time period, Indians experienced rape and sexual assault at a rate twice that of the general population.7 Alcohol was a factor reported in 62% of violent crimes against Indians, compared to 42% for the general population. 8 The general trend of statistics on crime against Indians extends to crimes of domestic violence. The Bureau also found that between 1993 and 1998, 23.2 American Indian females per 1000 were victims of intimate partner violence; a rate of victimization twice that of African Americans (11.2 for every 1,000), nearly triple that of whites (8.1 per 1,000) and twelve times the victimization rate of Asian Americans (1.9 per 1,000).9 The BJS statistics on domestic violence against Indian women reveal another disturbing trend: the vast majority of domestic violence assaults against Indian women are committed by non-Indian men.10 A study from 1992 to 1996 showed that about 9 in 10 American Indian victims of rape or sexual assault were estimated to have had assailants who were white or black.11

PART II: PROBLEMS CAUSED BY THE CURRENT JURISDICTIONAL SYSTEM

Stephen W. Perry, Bureau of Justice Statistics, U.S. Dep't of Justice, NCJ 203097, American Indians and Crime: A BJS Statistical Profile 1992-2002 5 (2004) available at http://www.ojp.usdoj.gov/bjs/pub/pdf/aic02.pdf. 7 Id. 8 Id. 9 Callie Rennison, Bureau of Justice Statistics, U.S. Dep't of Justice, NCJ 176354, Special Report on Violent Victimization and Race 1993-1998 9 (2001) available at http://www.ojp.usdoj.gov/bjs/pub/pdf/vvr98.pdf. 10 Id. at 10. 11 Amy Radon, Note, Tribal Jurisdiction and Domestic Violence: the Need for Non-Indian Accountability on the Reservation, 37 U. Mich. J. L. Reform 1275, 1282 (2004), quoting Lawrence A. Greenfeld & Steven K. Smith, Bureau of Justice Statistics, U.S. Dep't of Justice, American Indians and Crime, in Bureau of Justice Statistics NCJ 173386 (1999).

The interracial nature of domestic violence in Indian country is unique problem in American jurisprudence. Domestic violence in general is often characterized by victims who believe that they have no advocates and no options,12 but in case of Indian women abused by non-Indian men, the victims may be right. Under the federal statutes governing jurisdiction in Indian country,13 and Supreme Courts decision in Oliphant v. Suquamish Indian Tribe,14 only the federal government has the authority to prosecute crimes by nonIndians against Indians occurring in Indian country. If the abuser is an Indian, a tribal court may have jurisdiction, but it may not impose a sentence greater than one year in prison or a $5,000 fine,15 and due to overcrowding in tribal jails, tribal courts rarely impose the full year.16 For a variety of reasons, crimes of domestic violence often fall through the cracks, and are not prosecuted at all. The federal system is simply not designed to prosecute non-major crimes, most of which are misdemeanors.17 Resources are finite, with funds seldom being allocated towards assaults, the result being that such crimes are simply not prosecuted.18 Distance is often as much a problem as money; for example, on the Fort Peck Reservation in Montana, the nearest federal courts are 250 miles away in Billings or Great Falls.19 As a result, it has become common knowledge on the Fort Peck Reservation that a non Indian person can get away with a misdemeanor crime against an Indian person.20 The acts of
12

See Sarah M. Buel, Fifty Obstacles to Leaving, a.k.a. Why Abuse Victims Stay 28 Colorado Lawyer 19 (1999). 13 18 U.S.C. 1152 (2000). 14 See 435 U.S. 191 (1978). 15 25 U.S.C. 1302(7) (2006). 16 See Riley, Promises Made, Justice Broken, infra note 23 17 Victor H. Holcomb, Prosecution of Non-Indians for Non-Serious Offenses Committed Against Indians in Indian Country, 75 N.D.L.R. 761, 767 (1999). 18 Id. 19 Id. See also Kevin K. Washburn, American Indians, Crime, and the Law, 104 Mich. L. Rev. 709, 711 (2006). 20 Id.

violence on Indians go unpunished, and it becomes open season to assault Indians.21 The problems of Fort Peck are fairly representative of Indian country as a whole; United States Attorneys have been widely criticized for decades for failing to give proper attention to Indian country cases.22 Declination rates are alarming; a six-month study by the Denver Post revealed that [b]etween 1997 and 2006, federal prosecutors rejected nearly two-thirds of the reservation cases brought to them by FBI and Bureau of Indian Affairs investigators, more than twice the rejection rate for all federally prosecuted crime.23 Even when a federal prosecutor does take on a domestic violence case in Indian country, regardless of whether the defendant is Indian or non-Indian, the problems are far from over. Our system of justice grants prosecutors a great deal of discretion in carrying out their duties, but it also presumes that they will take the mores and values of their community into account when exercising that discretion.24 Underlying this is a further presumption that prosecutors, even federal prosecutors, are members of the community in which they work.25 This is not the case in Indian country, where a federal prosecutor may live hundreds of miles from the reservation and may not even speak the language used in that community.26

21 22

Id. Washburn, supra note 19 at 733; See Carole Goldberg-Ambrose with Timothy Carr Seward, Planting Tail Feathers: Tribal Survival and Public Law 280, at 162 (1997) (In practical application, federal law enforcement agents, particularly the Federal Bureau of Investigation and the U.S. Attorney's Office, have demonstrated a history of declining to investigate or prosecute violations of the Major Crimes Act.); Tim Vollmann, Criminal Jurisdiction in Indian Country: Tribal Sovereignty and Defendants' Rights in Conflict, 22 U. Kan. L. Rev. 387, 403 (1974) ([O]verburdened U.S. Attorneys are not notorious for seeking further responsibilities of prosecution in Indian Country ....); See also Radon, supra note 11 at 1278 (Because federal prosecutors decline to prosecute [domestic violence], the law provides no deterrent effect ....). 23 Michael Riley, Promises, Justice Broken, The Denver Post, November 21, 2007, available at http://www.denverpost.com/news/ci_7429560; See also 24 See Washburn, supra note 19 at 727. 25 Id. at 728. 26 Id. at 729.

Furthermore, the federal government is generally held in very low esteem in Indian country, thanks to its history of broken promises and atrocities in war.27 The Indian community is often less than eager to cooperate with the federal prosecutor who represents that government; as a result, any federal prosecution creates a political dynamic within the tribe.28 Kevin K. Washburn explains the dynamic using child sex abuse as an example, but his reasoning is equally applicable to domestic violence: When the federal government accuses a community member of a heinous offense and brings a criminal complaint or an indictment, the community may naturally become protective of the accused defendant in the face of this outside authority, even if the charges are based on a report by another tribal member. The family may not perceive its choice as one between the perpetrator and the victim, but between a tribal member and the United States government.29 Washburn suggests that the political dynamic can be removed from the situation by the use of a tribal prosecutor, eliminating the need for family and friends of the victim to make the choice.30 A tribal prosecutor would also eliminate the barriers of language, distance, and detachment from the community that federal prosecutors face.31 Appointment of tribal prosecutors could very well result in more effective prosecutions; however, absent a change in the legal structure, any such prosecutor would need to be trained in the applicable federal law. Such a person would be in an ideal position to help oversee a coordinated program of law enforcement in which tribal and
27 28

Id. at 735. Id. at 736. 29 Id. (emphasis added) 30 Id. at 738. 31 See Id.

federal authorities cooperate. Any such program would cost money, but at least one study has suggested that the cost may be worth paying.32 Funds provided through a federal program called Services-Training-Officers-Prosecutors Violence against Indian Women have helped tribes to set up cross-deputization agreements with other law enforcement agencies, and a review of the program found that it had significantly improved law enforcement responses to domestic violence calls.33 Funds were used to train tribal officers, improve communication between tribal, state and local, and federal officers, and improve the documentation of evidence.34 The end result of the program was some goodwill generated between the differing law enforcement agencies,35 and an increase in the number of domestic violence arrests.36 A similar project was tried on the Warm Springs reservation in Oregon, where a federal magistrate judge was appointed specifically to hear, in federal court, non-Indian misdemeanor crimes arising on the reservation.37 The Department Of Justice appointed a Warm Springs tribal prosecutor as an assistant U.S. attorney,38 whose job is to the nonIndian cases before the magistrate judge and engage in a cooperative effort with federal authorities.39 However, such a solution may not be satisfactory for larger tribes such as the Cherokee and Navajo, who have strong, well-established judiciaries of their own, and would not need federal resources to prosecute non-Indian crime, if only they had jurisdiction over it.40

32 33

See Bachman et al., supra note 1 at 103 Id. 34 Id. 35 See Id. 36 Id. at 104 37 Radon, supra note 11 at 1300. 38 See Washburn, supra p. 6 39 Radon, supra note 11 at 1300-1301. 40 Id. at 1301.

PART III: THE CRIMINAL JURISDICTIONAL SYSTEM IN INDIAN COUNTRY

In questions of criminal law among Indians, and of Indian Law in general, a large part of the inquiry and sometimes the entire inquiry is the question of who has jurisdiction. In some exceptional cases, there will be a federal statute or treaty that governs the whole inquiry, but most often a complicated analysis is necessary, applying the facts to a long series of statutes and cases. I will discuss the exceptions first, because they cut off the rest of the analysis immediately. The most common and most sweeping of these exceptions is Public Law 280, passed in 1953,41 which gave five states criminal jurisdiction over crimes offenses committed by or against Indians in Indian country within the states boundaries, with a few exceptions for specific tribes.42 The five named states were California, Minnesota, Nebraska, Oregon, and Wisconsin, and Alaska was added when it was admitted as a state.43 However, Public Law 280 was unpopular from the start, with states viewing it as an unfunded mandate and tribes resenting the appropriation of their sovereignty.44 When Congress passed the Indian Civil Rights Act of 1968,45 Public Law 280 was amended to allow states to retrocede jurisdiction over areas of Indian country on a case-by-case basis to federal and tribal authorities. A number of such retrocessions have occurred, and for a case arising in a Public Law 280 state, a lawyers first step would be to find out whether the state has retroceded jurisdiction or not.46
41 42

67 Stat. 588 (1953), (codified as amended in scattered sections of 18 and 25 U.S.C.). 18 U.S.C. 1162(a) (2006). 43 William C. Canby, Jr., American Indian Law in a Nutshell 234 (4th ed. 2004). 44 See Radon, supra note 11 at 1296; Holcomb, supra note 17 at 778. 45 25 U.S.C. 1301-1303 (2006). 46 See Canby, supra note 43 at 134.

Other exceptions to the general framework that follows exist, but are rare. One example is that of Maine, where the Indian Claims Settlement Act governs criminal jurisdiction.47 Assuming no such exceptions are present, the jurisdictional analysis proceeds. In Indian law, there are three possible sovereigns who may have jurisdiction over a criminal case: the federal government, the tribal government, or the government of the state whose boundaries encompass those of the tribe. Whether the case may be heard in federal, state, or tribal court depends on two issues: (1) whether the events giving rise to the case took place in Indian country, and (2) which of the parties involved were Indians.48 If the first question is answered in the negative, that is, if the events giving rise to the case did not take place in Indian country, the state has general criminal jurisdiction over all parties, Indian or non-Indian.49 If the events did take place in Indian country, further analysis will be required. The question of what is Indian country is statutorily defined. 18 U.S.C. 1511 sets out three categories of land that make up Indian country, stating: [T]he term Indian country, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian
47 48

25 U.S.C. 1721-1735 (2006). Canby, supra note 43 at 125. 49 See Hagen v. Utah, 510 U.S. 399 (1994)

allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.50 Although the statute is concerned, on its face, only with criminal jurisdiction, the Court has recognized that it generally applies as well to questions of civil jurisdiction.51 Subsection (a) refers to the limits of an Indian reservation as if there are clear geographical boundaries, but this has not been the case for over a century. In 1887, Congress passed what was known as the Dawes Act,52 which authorized the president to carve up reservations into individual allotments,53 the idea being that the Indians tribes should abandon their nomadic lives on the communal reservations and settle into an agrarian economy on privately-owned parcels of land, and thus become assimilated into American society.54 Any allotment that was not given to an individual member of the tribe was opened to settlers, and some reservations became heavily settled by nonIndians.55 The result was a checkerboard pattern of land ownership within the reservation boundaries, with some parcels becoming owned in fee by non-Indians, its Indian title having been extinguished, and the remaining land becoming the land referred to in subsection (c): either the Indian allotments owned in fee by individual members of the tribe, or the surplus allotments, that is, reservation land opened to settlement but never settled, still held in trust for the tribe or its members by the federal government.56

50 51

18 U.S.C. 1511 (2006). DeCoteau v. District County Court for Tenth Judicial Dist., 420 U.S. 425, 428, n2 (1975). See also McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 177-178, n. 17 (1973); Kennerly v. District Court of Montana, 400 U.S. 423, 424, n. 1 (1971); Williams v. Lee, 358 U.S. 217 at 220-222, nn. 5, 6, and 10 (1959). 52 General Allotment Act of 1887, 24 Stat. 388, (codified as amended in scattered sections of 25 U.S.C.). 53 Canby, supra note 43 at 21 54 Solem v. Bartlett, 465 U.S. 463, 466 (1984). 55 Id. at 467. 56 See Solem, supra note [#]

10

Subsection (a) therefore is concerned with cases in which events giving rise to case occur on land that was once within the boundaries of a reservation, but was subsequently opened to settlement and transferred to non-Indian ownership. In such cases, courts must decide whether Congress intended to diminish the reservation; that is, whether the intent was to permit non-Indians to live and own land on a reservation, or whether it was to extinguish a portion of the reservation.57 In Solem v. Bartlett, the Court laid out a test to determine whether an allotment act had diminished a reservation, stating that explicit reference to cession or other language evidencing the present and total surrender of all tribal interests indicated intent to diminish, especially in conjunction with any language committing Congress to compensating the tribe for the opened land.58 The Court held that, even with such language present, it should not imply a diminishment lightly, and consider as well the manner in which the transaction was arranged or considered at the time; subsequent treatment of the area by the concerned governments; and later demographic consequences of the opening.59 Subsection (b), referring to dependent Indian communities, is an acknowledgment that not all Indian tribes in the United States had a reservation formally established at some point in their history. The subsection codifies the Courts decision in United States v. Sandoval,60 which held that even without an established reservation, lands belonging to an Indian tribe that has been regarded and treated by the United States as requiring special consideration and protection, like other Indian communities, should be considered Indian country for jurisdictional purposes.61 The Court has since
57 58

Canby, supra note 43 at 127. Solem, 465 U.S. at 470-71. 59 Canby, supra note 43 at 128 60 231 U.S. 28 (1913) 61 Id. at 39.

11

held that special consideration and protection requires both the tribe and the land it occupies to be under the superintendence of the federal government.62 This result may not have been what the Sandoval Court intended, given that the Indians in Sandoval had owned their land in fee simple;63 the land had not at any time been under the superintendence of the government. Subsection (c) is the simplest to analyze; it includes any allotment owned by an Indian, even if not within the boundary of a reservation,64 and any allotment still held in trust by the federal government, that is, land that was opened for settlement, but never settled by non-Indians.65 Unlike the question of Indian country, there is no federal statute that determines who is an Indian. It is a question of law that is determined on a case-by-case basis, and is often troublesome and may lead to counter-intuitive results. For a person to be considered an Indian for jurisdictional purposes, that person must be a member of a federally recognized tribe.66 Although most tribes make some amount of Indian blood a prerequisite of membership,67 the federal government considers the question of Indian or non-Indian to be a social-political distinction, not a racial one.68 Indian status for legal purposes derives not from an individuals ancestry, but from the unique relationship between the federal government and the tribes. Therefore, if the federal government does not recognize a tribe, no individual member of that tribe can be considered an Indian, and

62 63

Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 531 (1998). Sandoval, 231 U.S. at 39. The Indians in this case were the Pueblo Tribe of New Mexico who had gained ownership of their land by grants from the King of Spain when the land was under Spanish rule. Congress confirmed the grants after the U.S. gained control of the land in the Mexican War. 64 Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010, 1022 (8th Cir. 1999) 65 Id. 66 Canby, supra note 43 at 9. 67 Id. at 10. 68 United States v. Heath, 509 F.2d 16 (9th Cir. 1974).

12

if the federal government ceases to recognize a tribe, that tribes members lose their legal status as Indians.69 A tribe may lose recognition by an act of Congress,70 so long as Congress is plain and unambiguous in its intent to terminate tribal status.71 A tribe may also voluntarily abandon its status.72 The Secretary of the Interior is responsible for publishing a list of all federally recognized tribes in the Federal Register.73 Once the existence of a federally recognized tribe has been established, the question of membership presents its own issues. Courts follow a two-prong test, first articulated in United States v. Rogers,74 which considers: (1) the degree of Indian blood; and (2) tribal or governmental recognition as an Indian. The question is usually easily settled if the person is formally enrolled in a tribe. Enrollment standards differ from tribe to tribe, but, unless limited by treaty or statute, a tribe has the power to determine tribe membership.75 A tribal determination satisfies the second prong of the test, and the first as well, assuming the tribe has a blood quantum requirement. However, although enrollment is the most common evidentiary means of establishing Indian status it is not the only means nor is it necessarily determinative.76 For example, a person with some Indian blood who lives among a tribe, self-identifies as a tribal member, and is treated by the tribe as a member of the tribal community may still be found by a court to be a member, even if that person is not enrolled.77 Furthermore, a member of a tribe may

69 70

Id. at 19. Canby, supra note 43 at 58. 71 Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 258 F.2d 370 (1st Cir. 1975). 72 Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir. 1979). 73 25 U.S.C. 479a-1 (2006). 74 465 U.S. 567 (1845). 75 United States v. Wheeler, 435 U.S. 313, 322 n.18 (1978). 76 United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979). 77 See United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005).

13

become emancipated from tribal relations,78 and still retain Indian status as a tribal member. In the past, the Court has held that an enrolled member of a federally recognized tribe could lose Indian status by leaving the tribe and adopting non-Indian ways.79 However, Canby suggests that a modern court would be unlikely to consider such behavior in and of itself to constitute an unequivocal abandonment of the tribe by the individual.80 It is unclear what conduct, if any, a court would consider constituting abandonment of the tribe absent some action on the part of the tribe. Once the threshold questions of whether the events took place in Indian country and which of the parties is an Indian have been answered, and it has been determined that neither Public Law 280 nor any claims settlement act or other statute applies, the answers must be analyzed using two federal statutes: the General Crimes Act,81 and the Major Crimes Act.82 There are some federal criminal statutes effective throughout the nation that apply automatically in Indian country as well as the states, including statutes punishing treason, drug trafficking, and a few other crimes.83 These statutes have little to do with Indian law,84 and although interesting, they have nothing directly to do with domestic violence, and are therefore beyond the scope of this inquiry. As one might guess, the specific crime charged partially determines which statute is used. The General Crimes Act states that:

78 79

United States v. Antelope, 430 U.S. 641, 647 (1977). E.g., Nagele v. United States, 191 F. 141 (9th Cir. 1911). 80 Canby, supra note 43 at 10. 81 18 U.S.C. 1152 (2006) 82 18 U.S.C. 1153 (2006) 83 Canby, supra note 43 at 153 84 Id.

14

Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country. This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.85 Although there are few federal criminal statutes on the books, Congress has filled the vacuum by passing the Assimilative Crimes Act,86 providing that an enclave of federal jurisdiction within the territory of a state may assimilate any provisions of the local state criminal code that lack a corresponding federal criminal statute. Because the Assimilate Crimes Act is a general law of the United States, it is applied via the General Crimes Act to Indian country.87 As Washburn points out, when in Indian country, the two statutes combined allow a federal prosecution of virtually any conceivable offense, whether a misdemeanor or a felony.88 However, it is important to note that the General Crimes Act specifically excludes offenses committed by one Indian against the person or property of another Indian.89 The act was designed to police the interactions between Indians and non-Indians in
85 86

18 U.S.C. 1152 (2006). 18 U.S.C. 13 (2006). 87 See Williams v. United States, 327 U.S. 711 (1946) 88 Washburn, supra note 19 at 716 (2006). 89 18 U.S.C. 1152 (2006).

15

Indian country, while leaving the tribes to police conduct among their own members. On its face, the act also extends federal jurisdiction to crimes committed in Indian country by non-Indians against other non-Indians, but the Court has held that not be the case.90 In United States v. McBratney, the Court held that the state rather than federal government had criminal jurisdiction over crimes committed by a non-Indian against another nonIndian, there being no federal interest in the case.91 In Donnelly v. United States,92 the Court elaborated on its holding in McBratney, stating that states have exclusive jurisdiction for white on white crime, but declined to bring crimes by or against Indians within the McBratney rule, and held that the federal government retains jurisdiction where an Indian is victimized by whites and others not of Indian blood.93 The General Crimes Act was passed in its first form in 1817,94 and whatever else it may have done, it did leave the tribes with exclusive jurisdiction over crimes by one Indian against another. This view of tribal jurisdiction was upheld by the Supreme Court in Ex Parte Crow Dog,95 holding that the General Crimes Act, as it existed at the time, prevented the federal government from exercising jurisdiction. However, Congress disagreed, and passed the Major Crimes Act in 1885.96 The Major Crimes Act grants the federal government jurisdiction over certain enumerated major crimes committed by

90 91

See United States v. McBratney, 104 U.S. 621 (1881). Id. But see United States v. Billadeau, 275 F.3d 692 (8th Cir. 2001), (holding that the federal government had jurisdiction to prosecute a non-Indian for victimless crimes of traffic offenses occurring in Indian country). 92 228 U.S. 243 (1913). 93 Id. at 271-272. 94 Canby, supra note 43 at 156 95 109 U.S. 556 (1883). The case arose when Crow Dog, a Sioux Indian, murdered another Sioux Indian who had been working with the Bureau of Indian Affairs. The case arose in what was then the Dakota Territory, so the federal government sought to prosecute. 96 18 U.S.C. 1153 (2006).

16

Indians in Indian country.97 The Act has been amended several times since being passed, and the list of major crimes now includes: murder, manslaughter, kidnapping, maiming, a felony under chapter 109A, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury (as defined in 1365 of this title), an assault against an individual who has not attained the age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a felony under 661 of this title.98 Particularly relevant to an inquiry into domestic violence is assault resulting in serious bodily injury which, by its definition,99 can include certain domestic violence assaults. Also relevant is chapter 109A, which refers to crimes of sexual abuse.100 Section 661 deals with theft and embezzlement,101 and does not touch on domestic violence. The Major Crimes Act on its face says nothing about tribal jurisdiction over crimes committed by non-Indians against Indians. The General Crimes Act,102 affirmed by McBratney103 and Donnelly,104 granted the federal government jurisdiction over such crimes, but left open the possibility of concurrent tribal jurisdiction. As a practical matter, during the periods of removal to reservations and the Allotment Act[s], the declining power of the tribes left them in no position to enforce their laws against non-Indians,105 and the question never came up. However, by the 1970s, some tribes, dissatisfied with

97 98

Id. Id. 99 See 18 U.S.C. 1365 (2006). 100 See 18 U.S.C. 2241 (2006). 101 See 18 U.S.C. 661 (2006). 102 See 18 U.S.C. 1152 (2006). 103 See 104 U.S. 621 104 See 228 U.S. 243 105 Canby, supra note 43 at 136

17

federal enforcement efforts against non-Indians, began to reassert criminal jurisdiction over the non-Indian offenders, contending that such jurisdiction was inherent in tribal self government.106 The Court put a stop to such attempts in Oliphant v. Suquamish Indian Tribe,107 holding that the exercise of criminal jurisdiction over non-Indians was inconsistent with the tribes status as domestic dependent nations,108 and could only exist by the express delegation of Congress. As a result, only the federal government has the authority to try non-Indians for crimes committed against Indians in Indian country. The Major Crimes Act and Oliphant were both clear federal intrusions on tribal sovereignty, but neither of the two expressly divested the tribes of criminal jurisdiction over their own members. Victimless crimes by Indians are subject to exclusive tribal jurisdiction.109 Tribes also retain exclusive jurisdiction over non-major crimes by a member Indian against a member Indian under the General Crimes Act.110 At least one circuit has held that the tribes retain jurisdiction, concurrent with the federal government, to prosecute their own members even for major crimes,111 and the Supreme Court has yet to disagree. However, the Indian Civil Rights Act of 1968 prevents tribes from imposing a sentence of greater than one year in prison, a $5000 fine, or both,112 that is, imposing a sentence appropriate for a major crime. The Court in Oliphant did not address the question of whether a tribe could exercise criminal jurisdiction over Indians who were not members of that tribe. That question was reached in 1990 in Duro v. Reina,113 when the Court held that a tribe had no
106 107

Id. at 137. 435 U.S. 191. 108 Id. at 209. 109 United States v. Quiver, 241 U.S. 602, 606 (1916). 110 18 U.S.C. 1152 (2006). 111 See Wetsit v. Stafne, 44 F.3d 823 (9th Cir. 1995). 112 25 U.S.C. 1302(7). 113 495 U.S. 676 (1990).

18

jurisdiction over non-members, stating that retained sovereignty of the tribe is but a recognition of certain additional authority the tribes maintain over Indians who consent to be tribal members.114 However, Congress disagreed, and immediately passed the legislation referred to as the Duro Fix; an amendment to the Indian Civil Rights Act of 1968 to include within tribal powers of self-government the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.115 The phrase recognized and affirmed was somewhat at odds with the Courts depiction of the inherent powers of tribes in Oliphant, where the Court engaged in an exhaustive historical analysis to prove that tribes in fact had almost no inherent powers at all, only such authority as was afforded to them by Congress.116 The Court resolved this discrepancy fourteen years later in United States v. Lara,117 stating that criminal jurisdiction over non-members is part of the inherent authority of tribes, and that Congress may relax restrictions that the political branches have, over time, placed on the exercise of a tribe's inherent legal authority.118 The Court also held that, because the tribes power to prosecute non-member Indians was an inherent power recognized and affirmed by Congress, rather than a delegated power granted by Congress, the tribes power was not federal, and a person prosecuted by the tribe could not raise a double jeopardy claim if later prosecuted by federal authorities.119 From the above analysis, it is possible to come up with a general guide to who has jurisdiction over whom for what crimes in Indian country, assuming as always that
114 115

Id. at 693. 25 U.S.C. 1301(2) (2006) (emphasis added). 116 See Oliphant, 435 U.S. 191. 117 541 U.S. 193. 118 Id. at 196. 119 Id. at 208.

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neither Public Law 280 nor any other exceptional statute applies. When an Indian of any tribe commits a crime against an Indian, the victim Indians tribe always has jurisdiction under the General Crimes Act as interpreted in Crow Dog.120 If that crime is an enumerated major crime, the tribes jurisdiction is concurrent with that of the federal government, pursuant to the Major Crimes Act.121 When an Indian commits a crime against a non-Indian, the tribe and the federal government have concurrent jurisdiction; if the federal government prosecutes the crime, it will do so under the Major Crimes Act122 for major crimes and under the General Crimes Act123 for other crimes. When a nonIndian commits a crime against an Indian, the federal government has exclusive jurisdiction; the state being excluded by the General Crimes Act124 and the tribe excluded by the Courts holding in Oliphant.125 When a non-Indian commits a crime against a nonIndian, the state has exclusive jurisdiction under the Courts rule in McBratney.126

PART IV: WORKING WITHIN THE EXISTING LEGAL STRUCTURE

In cases where the defendant is an Indian, tribal courts have no jurisdictional problems, but they are limited in their sentencing powers by the Indian Civil Rights Act of 1968.127 In the domestic violence context, this becomes a problem for tribes when attempting to deal with repeat offenders and the more heinous assaults. The tribes options in those cases are to (1) prosecute the crime anyway and impose the maximum
120 121

See Crow Dog, 109 U.S. 556. 18 U.S.C. 1153 (2006). 122 Id. 123 18 U.S.C. 1152 (2006). 124 Id. 125 See 435 U.S. 191. 126 See 104 U.S. 621. 127 25 U.S.C. 1302(7) (2006).

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sentence they are able, (2) hope the federal government steps in to prosecute the abuser under the Major Crimes Act, or (3) try a remedy from outside the realm of criminal law. One example of an extra-criminal remedy is mediation in the form of the traditional peacemaking practiced by the Navajo and Pueblo nations.128 The process of talking a problem out in a traditional manner may be more helpful to the Navajo people to most, given that traditional Navajo values, and indeed most traditional American Indian values, are utterly inimical to violence against ones intimate partner.129 In addition, most tribes have a provision in their civil code for the granting of a protection from abuse order.130 It bears mentioning that tribes have the jurisdiction to issue protection from abuse orders against non-Indians as well, and enforce them by means of civil contempt proceedings, exclusion of violators from Indian lands, and other appropriate mechanisms131 Furthermore, such orders must be accorded full faith and credit by states and the federal government.132 The exclusion and contempt remedies are two of the most powerful legal tools the tribes have left that can still be applied to nonIndians, and both of them should be considered as supplements to any criminal action the tribe takes against non-Indians. As a purely legal matter, a federal prosecutor may have it somewhat easier in asserting jurisdiction over an Indian country domestic violence case that either a state or tribal prosecutor. If it can be proven that the crime took place in Indian country and at least one of the parties is an Indian, the federal prosecutor may proceed. Furthermore, many crimes of domestic violence could be characterized as either major crimes or non128

Gloria Valencia-Weber and Christine P. Zuni, Domestic Violence and Tribal Protection of Indigenous Women in the United States, 69 St. Johns L. Rev. 69, 114-115 (1994) 129 Id. at 69-70 130 Id. at 122-123 131 18 U.S.C. 2265(e) (2006). 132 18 U.S.C. 2265(a) (2006).

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major crimes,133 depending on how the indictment was drawn up, granting the federal prosecutor even more leeway. However, given the costs and distances involved and the likelihood of uncooperative witnesses in a foreign community,134 an overworked federal prosecutor may decide that the offices limited resources are better allocated elsewhere than a domestic assault out on the reservation. The practical problems facing federal prosecution of Indian country crimes are greater than the legal issues involved. Conversely, for the tribes, they would be glad to prosecute domestic violence crimes using whatever resources they have, but the legal issues get in their way. As discussed throughout, the biggest problems are created by non-Indian abusers. To get around Oliphant, the tribe must show that the defendant is an Indian; for this purpose, United States v. Broncheau is instructive.135 In Broncheau, the 9th Circuit held that it was enough simply to allege that the defendant was an Indian for the federal government to establish jurisdiction under the Major Crimes Act,136 and that determination of Indian status could be made on a case-by-case basis without any bright line standards.137 A tribal attorney could argue that the same reasoning applies for purposes of tribal jurisdiction. The defendant in such a situation would challenge jurisdiction by raising an affirmative defense, which is what happened in United States v. Bruce.138 If the defendant could easily prove that he was not an Indian, the tribe would have to release him, but the tribe could use the intervening time to build a better case, perhaps a strong enough case to convince perennially reluctant federal prosecutors to take action. The
133 134

See 18 U.S.C. 1153 (2006); 18 U.S.C. 1365 (2006); 18 U.S.C. 661 (2006); discussion supra p. 17. See discussion supra Part II. 135 See 597 F.2d 1260 136 Id. at 1263 137 See Id. 138 See 394 F.3d 1215 (Defendant who was prosecuted under the General Crimes Act met her burden of proof on her affirmative defense that she was an Indian).

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Eastern Band of Cherokee Indians has had some success using this tactic,139 suggesting it could be used by other tribes. If nothing else, it allows the tribe to separate a victim from her abuser for at least a short while. One potential disadvantage to such tactics is that there is always the chance that a tribe will end up having to defend its legal strategy before an appellate court, perhaps even the Supreme Court. As commentators have pointed out,140 Indian tribes have not had great success in vindicating their powers of sovereignty at the Supreme Court level in recent years.141 McSloy goes so far as to say that he believes that taking Indian cases to the Supreme Court has been prima facie malpractice for the last twenty years.142 Despite the Courts apparent antipathy towards tribal sovereignty, commentators have been relentless in their criticism of Oliphant.143 Radon argues for Congress to overturn it, stating that it is fundamentally unfair to force tribal prosecutors to seek loopholes in Supreme Court Jurisprudence.144 She argues that the cooperative measures between tribes and the federal or even state governments,145 although helpful, are nonetheless a federal intrusion on tribal sovereignty, and that tribes should not be forced to accept such an intrusion in order to protect Indian domestic violence victims from non139 140

Radon, supra note 11 at 1304. See L. Scott Gould, Tough Love for Tribes: Rethinking Sovereignty After Atkinson and Hicks, 37 New Eng. L. Rev. 669, 692 (2003) (stating that the current court views tribal sovereignty as being based on consent of members rather than geographical territory); Stephen Paul McSloy, The Miners Canary: A Birds Eye View of American Indian Law and Its Future, 37 New Eng. L. Rev. 733, 738-739 (2003) (stating that in conflicts between states rights and tribal rights, the tribes always lose unless the federal government has a strong interest in the tribes position). 141 But cf. Lara, 541 U.S. 196 (holding that a tribes power to exercise criminal jurisdiction over nonmember Indians is inherent, although Congress may restrict it or relax restrictions on it) 142 McSloy, supra note 140 at 738 143 See Radon, supra note 11 at 1312 (Arguing that Congress should overturn Oliphant by statute); Holcomb, supra note 17 at 781 (Stating that the Oliphant rule for non-Indian-on-Indian crime effectively deprives Indians of constitutional rights); Geoffrey C. Heisey, Oliphant and Tribal Criminal Jurisdiction Over Non-Indians: Asserting Congresss Plenary Power to Restore Jurisdiction, 73 Ind. L. J. 1051, 1062 (1998) (Arguing that Oliphant was wrongly decided based on an unsupported version of history). 144 Radon, supra note 11 at 1304. 145 See discussion supra Part II

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Indian abusers.146 She further suggests that, if Oliphant were overturned, not every tribe need automatically assume full criminal jurisdiction over non-Indians; tribes could choose to opt out if they did not feel that they had the resources to maintain a court system.147 In addition, tribes could be required to adopt the full provisions of the Bill of Rights before assuming jurisdiction over non-Indians, to assure that tribal courts offer the same protections as state and federal courts.148 I agree with Radon that a system in which tribes are restored to full criminal jurisdiction over all crimes arising from within their territory, regardless of the Indian or non-Indian status of the perpetrator, is both just and desirable. I also agree that it would provide the best protection for Indian victims of any crime, but especially of domestic violence, considering its interracial component that is exacerbated by the current system. However, I do not foresee such a scenario coming to pass. If the tribes are to regain sufficient sovereignty to prosecute non-Indian criminals, such a grant must come from Congress, and Congress, though it has had the opportunity and is aware of the problem, has not taken action. In 1990, Congress ignored an opportunity to overturn Oliphant when it passed the Duro Fix, in which it recognized an affirmed the inherent power of tribes to prosecute non-member Indians, but not non-Indians.149 If Congress had been in any doubt as to its constitutional authority to recognize and affirm the inherent sovereignty of Indian tribes by expanding their criminal jurisdiction, the Court removed those doubts in 2004 when it decided Lara.150 It cannot be argued that Congress is completely ignoring plight of Indian domestic violence victims in Indian country,
146 147

Radon, supra note 11 at 1302-1303. Id. at 1310. 148 Id. at 1309. 149 See 25 U.S.C. 1301(2) (2006). 150 See 541 U.S. 193.

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because in the four years since Lara was decided, Congress has invested in programs such as Services-Training-Officers-Prosecutors Violence against Indian Women,151 and the Warm Springs project.152 It appears that Congress prefers to throw money at the problem, and although this is not entirely a bad thing, it is unlikely to lead to the overturning of Oliphant. Even if Congress were to do as Radon suggests and actively pursue granting full criminal jurisdiction to tribal governments, there is one great hurdle that remains. The jurisdiction that the tribes seek to exercise is territorial jurisdiction; that is, full jurisdiction over all cases arising from events occurring within their territory, regardless of party. However, tribal territory in many areas is no longer a distinct geographical entity; removal and allotment have taken their toll, and it now requires a three-part statute to determine where Indian country even is.153 Tribes cannot effectively exercise territorial jurisdiction without territory; therefore, if Congress truly wanted to restore one to the tribes, it would have to restore the other. It would be an exercise in re-drawing the map in large tracts of the West. I find it very difficult to believe that non-Indians currently living on land that may have been part of a reservation prior to allotment would vote for any senator or congressperson who voted to remove their land from the jurisdiction of their state and place it under that of an Indian tribe. The issue is a political loser.

CONCLUSION

151 152

See discussion supra p. 7. See discussion supra pp. 7-8 153 See discussion supra pp. 9-12.

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Domestic violence in Indian country is a difficult problem, especially when the victims are Indians and the abusers are non-Indians. Practical and legal issues combined with 400 years of animosity create a dynamic unlike any other. Tribes and their advocates are in constant struggle, and they should accept whatever help or money they can get from the federal government and spend it wisely, on the reservation. The federal government, for its part, should not limit itself to cutting checks. Domestic violence is a problem with many exacerbating factors, and comprehensive stimulus plans for Indian country could cut down on some of them. Encouraging, and funding, greater tribal participation in the judicial process is of inestimable importance, so that tribes may see crimes investigated and prosecuted by people who share their community values; those values which, as discussed,154 are inimical to violence against women.

154

See discussion supra p. 21.

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