Slouching Towards Autonomy: Reenvisioning Tribal Jurisdiction, Native American Autonomy, and Violence Against Women in Indian Country

Joseph Mantegani | March 1, 2021

Native American women face rates of sexual violence far beyond those experienced by any other race. But when those women live on reservations, their own tribes are restricted in their authority to protect their members. A maze of criminal jurisdiction overlies Indian country, one that depends on the location of the crime, the agreements a particular tribe has with local or federal authorities, the applicable federal jurisdictional statutes, and the offender’s race.

Since Oliphant v. Suquamish Indian Tribe in 1978, tribes have not had criminal jurisdiction over non-Indians who commit crimes on their reservations. Rather, tribes must rely on state or federal law enforcement to investigate and prosecute any crime committed by non-Indians. Congress has chipped away at the prohibition, but the fact remains: in no other place in America is a perpetrator’s race the determining factor in whether they can be prosecuted by the community most impacted by their offense.

This lack of jurisdiction and tribal sovereignty takes on a disturbing tone in the context of sexual violence against women. Congress’s attempts to remedy the endemic issue have been piecemeal, paternalistic, and wholly inadequate. Even though the issue is still on their mind—there are several pieces of pending legislation addressing sexual violence in Indian Country—the most important steps have not been taken.

This Comment explores the jurisdictional backdrop, the most recent enacted legislation to address the issue, and currently pending legislation. It places that jurisdictional framework in the context of Native American communities, describing how tribes’ lack of autonomy exacerbates plights that trace back to early colonialism. Finally, it argues that absent adequate resource allocation, true tribal autonomy, and a return of tribal criminal jurisdiction over non-Indians by overruling Oliphant, tribes will remain treated as second-class in America.