Honoring Sovereignty: Aiding Tribal Efforts to Protect Native American Women from Domestic Violence

Source: (2008) California Law Review 96:185ff

…These statistics emphasize the fact that non-Indian perpetrators of violent crimes are responsible for introducing a large percentage of violence into tribal communities. … Professors Gloria Valencia-Weber and Christine Zuni, in their
influential work on domestic violence against Native American women and the tribal legal framework for combating this violence, note that: Although there are differences among the tribes, respect for the physical integrity of women is
not an area where cultural values among tribes differ significantly. … United States’ courts, the Congress, the Executive, and even the public conceive of sovereignty in Western terms, often deeming tribal sovereignty unworthy of acknowledgement by United States courts. … That federal, state and local law enforcement agencies are often unable to be a reliable source of protection against domestic violence motivates the policy considerations – such as a retrocession of jurisdiction to tribes in P.L. 280 states and increased resources for state and local law enforcement agencies in P.L. 280 states who decline retrocession – we propose infra Part IV regarding the importance of tribal law enforcement mechanisms. … Adequate tribal jails directly impact the safety of Native American women victimized by domestic violence. … We will examine two models of peacemaker courts, Navajo and Chickasaw, to shed light on the more general differences between the peacemaker model and the U.S. adversarial model. … Finally, as a direct result of VAWA’s new provisions for combating abuse of Native American women, the Office on Violence Against Women began soliciting
applications for grants to tribal governments intended to: (1) Develop and enhance effective governmental strategies to curtail violent crimes against and increase the safety of Indian women consistent with tribal law and custom; (2) increase tribal capacity to respond to domestic violence, dating violence, sexual assault, and stalking crimes against Indian women; (3) strengthen tribal justice interventions including tribal law enforcement, prosecution, courts, probation, correctional facilities; (4) enhance services to Indian women victimized by domestic violence, dating violence, sexual assault, and stalking. … Limited Oliphant Waiver with an Opt-In Provision for Tribes Perhaps the most controversial and potentially most effective mechanism for ensuring the safety of Native American women who are the victims of domestic violence would be a federal congressional statute waiving the jurisdictional restrictions outlined by the Supreme Court in Oliphant, which held that tribes do not have criminal jurisdiction over non-Indians who commit crimes in Indian Country. … Funding initiatives that allow tribes to build adequate facilities and staff their police forces with an appropriate number of law enforcement officers will greatly aid tribal police forces in responding to domestic violence. (excerpt)