Untangling the Court’s Sovereignty Doctrine to Allow for Greater Respect of Tribal Authority in Addressing Domestic Violence

Lauren Oppenheimer

Domestic violence in Indian country has increasingly become a subject of concern for Congress over the past fifty years. While domestic violence is a systemic problem throughout the United States, Native American women experience higher rates of domestic violence than any other group. Indeed, “American Indian and Alaska Native women ‘are 2.5 times more likely to be raped or sexually assaulted than women in the United States in general.”’ The Centers for Disease Control and Prevention (“CDC”) estimates that roughly forty-six percent of American Indian and Alaska Native women have been physically abused by an intimate partner. Further, the U.S. Department of Justice reports that approximately sixty percent of Native American women have been victimized by an intimate partner.

The pressing problems posed by the disproportionately high incidence of domestic violence against Native American women are further exacerbated by the “‘complex patchwork of federal, state, and tribal law,’ governing Indian country.” Tribal courts, for example, have struggled to enforce their tribes' criminal laws against Native American perpetrators of domestic violence because state and federal laws have curbed their sentencing authority. It was not until the latter part of the twentieth century that Congress extended the federal government's jurisdiction through the Major Crimes Act to address criminal offenses for which both the perpetrator and the victim are Native Americans. This intervention, however, has not been entirely positive. In fact, arguably, it has undermined tribal sovereignty and the ability of Native American tribes to directly address the violence that occurs in their communities.The Supreme Court's recent decision in United States v. Bryant, which upheld a repeat offender law that expands federal authority over Native American domestic violence offenders, affirms the notion that Congress enjoys virtually unchecked power in this area. The Court's decision could further minimize the degree of respect or deference Congress accords tribal sovereignty. Less respect for or deference to tribal sovereignty would impede Native American tribes' authority to address domestic violence in their communities and potentially undermine the effectiveness of related policies.

This Comment analyzes legal and academic positions regarding tribal sovereignty, applies these positions to the difficulties tribes face in enforcing domestic violence laws, and advocates for a shift in the mainstream understanding of tribal sovereignty toward one that is more respectful of tribal autonomy. This Comment additionally addresses what that shift must entail when considering whether a law respects tribal sovereignty and proposes amending the law at issue in United States v. Bryant to potentially include a waiver provision that would both increase the degree of control accorded to the tribes in prosecuting repeat domestic violence offenders and safeguard sovereignty.