Tribal Jurisdiction and Domestic Violence: The Need for Non-Indian Accountability on the Reservation

Domestic violence is a severe problem for tribes across the nation, as their female members are victimized at highly disproportionate rates compared to members of dominant society. Many tribes have sophisticated domestic violence codes to combat the problem, but they are powerless to prosecute the majority of those who will abuse Indian women: non-Indian men. In 1978 the Supreme Court stripped tribes of their power to prosecute non-Indians in criminal matters, which not only damaged tribal sovereignty but also meant the difference between a life free from abuse and one with constant fear, intimidation, and pain for Indian women.

The federal government has, since that time, had almost exclusive jurisdiction’ over non-Indians who commit crimes on the reservation. Federal prosecutors with heavy workloads and limited resources often plead out cases of domestic violence to far lesser crimes or decline to prosecute these offenses at all. Tribes that have the resources and commitment to stop violence against Indian women are forbidden to take action against non-Indian offenders. This lack of accountability on the part of dominant society must stop immediately, and tribes must have the power to prosecute these non-Indian offenders to provide the protection these women deserve.

This Note argues that Congress should restore tribal jurisdiction over non-Indian criminal offenders. The primary purpose of restoring tribal jurisdiction is to protect Indian women from abuse by repeat offenders, and ensure these women receive the justice they deserve. Allowing tribes to assert jurisdiction over nonIndian offenders will also show that the federal government has not forgotten the sovereign status of Indian nations, established almost 200 years ago. As sovereign nations, tribes should be permitted to enforce laws covering their territory and ensure justice for their members by responding to the unique problems facing American Indians. Tribal jurisdiction over non-Indians is essential to accomplishing these goals and must be restored by Congress at once.