Tribal Criminal Jurisdiction over Non-Indians in the Violence Against Women Act (VAWA) Reauthorization and the SAVE Native Women Act [May 15, 2012] [open pdf - 286KB]
"American Indians in general experience violent crimes at a rate much higher than the general population. This trend carries over to domestic violence: American Indian women experience domestic and dating violence at more than twice the rate of non-Indian women.2 Most of this violence involves an offender of a different race. This fact creates a jurisdictional problem because tribal courts do not have criminal jurisdiction over crimes committed within the tribe's jurisdiction by non-Indians. States generally do not have jurisdiction over such crimes either. Although such crimes are subject to federal jurisdiction, frequently overburdened federal prosecutors are not able to prosecute them. Thus, it appears that American Indian women are left with a higher risk of domestic violence and less protection than non-Indian women. Proposed amendments to the Violence Against Women Act (VAWA) contained in the Violence Against Women Act Reauthorization Act (VAWA Reauthorization) and the SAVE Native Women Act (SAVE Act) are aimed at remedying this practical jurisdictional void. These amendments would expand the inherent jurisdiction of tribal courts to include non-Indian on Indian crimes of domestic and dating violence committed within the tribes' jurisdiction. Opponents of these amendments are concerned that, under current law, tribal courts are not required to provide the identical constitutional protections to criminal defendants as state and federal courts. The bills would provide that courts exercising special domestic violence criminal jurisdiction shall provide to defendants 'all other rights whose protection is necessary under the Constitution of the United States in order for Congress to recognize and affirm the inherent power of the participating tribe to exercise criminal jurisdiction over the defendant.' As discussed below, it is not clear what protections the tribes must provide to exercise this power."
CRS Report for Congress, R42488