For four decades, a dangerous loophole in federal law has been allowed to remain even though it threatens women and children on a daily basis.
In 1978, the Supreme Court ruled that it would not allow tribal governments to prosecute crimes committed on reservations by non-Indians. Despite acknowledging in his decision that the court was “not unaware of the prevalence of non-Indian crime on today's reservations which the tribes forcefully argue requires the ability to try non-Indians,” Justice William Rehnquist concluded that only Congress could change the law.
This decision has allowed violent crimes to be committed with virtual impunity against native people, disproportionately impacting women and children, while Congress has failed for the past 40 years to address the issue as lives are devastated and families are torn apart. The loophole allows some criminals to escape justice. No one is in favor of that.
Reservations in the United States today have residents of all races, with non-Indians actually outnumbering Indians on many reservations. But tribal law enforcement officers report that some non-Indians flaunt the law openly, knowing they can’t be prosecuted by local authorities. Because of this, tribes are too often unable to protect women and children from violent crimes committed within their homes.
This dangerous loophole would not be allowed anywhere else in the United States. But it exists on our reservations, in our communities, and non-Indian crime has proliferated as a result.
Congress can change that. What tribal nations are seeking in the current reauthorization of VAWA is the opportunity to better protect our community from crimes on tribal lands regardless of the race of the perpetrator. In 2013, Congress narrowed the loophole, but only for domestic violence crimes in exceptionally narrow circumstances. Crimes like rape, stalking, child abuse, intimidating witnesses, lying to investigators or assaulting police are still beyond a tribe’s authority.
Like anything unfamiliar, tribal courts may be mysterious to those who have not encountered them. Most tribal courts are virtually indistinguishable from the state courts nearby. Many of the tribal court judges are members of the state bar and have practiced law in state and tribal court. Tribal nations have written constitutions, statutes and regulations; most operate like any other contemporary justice systems, with an impartial judge and jury.
Some tribes have been operating like this since the early 19th century. Many have a body of case law with decisions that cite to, and draw influence from, state and federal court decisions. And all are subject to basic United States constitutional-like requirements through the Indian Civil Rights Act, which incorporates many due process rights such as protections against unreasonable searches and seizures, the right against self-incrimination, and many others. Criminal defendants in tribal courts have the right of habeas corpus review in federal court, and, in certain circumstances, even a right to be released pending review.
During the debates surrounding VAWA reauthorization in 2012, concerns were raised about the tribal jurisdiction changes for domestic violence, mainly on whether tribal courts could be fair to non-Indians. In the past five years, since that version of VAWA went into effect, tribal nations have shown us that they can — and they are.
All defendants have the opportunity to appeal their detention in federal court, yet not a single defendant has done so. In fact, several non-Indian defendants have been acquitted in tribal court. In terms of civil liberties for criminal defendants, several layers of protection ensure all persons are treated fairly. Most tribal nations’ constitutions and/or statutes protect civil liberties, and share the same language and principles as amendments to the U.S. Constitution. Many tribal appellate court decisions actually provide more protections for suspects and defendants than the American system requires. Some have explicit separation of powers provisions written into their constitutions that prohibit inappropriate governmental interference with their court systems.
Tribal nations are small, local governments that simply want what every other government in the United States wants: the ability to keep our families safe. Restoring tribal jurisdiction is the right thing to do and the time to act is now. Congress should act to protect Indian women and children by approving tribal provisions in the reauthorization of the Violence Against Women Act of 2019 and reauthorizing VAWA.
Justice Sarah Deer, a citizen of the Muscogee (Creek) Nation of Oklahoma, is a professor at the University of Kansas and serves as chief justice for the Prairie Island Indian Community Court of Appeals, as well as an adviser to Amnesty International USA. She is a 2014 MacArthur Fellow and a 2019 inductee in the National Women’s Hall of Fame.