Comparative Institutional Competency and Sovereignty in Indian Affairs
58 Pages Posted: 24 Mar 2013 Last revised: 10 Jun 2015
Date Written: March 20, 2013
While vigorous debate surrounds the proper scope and ambit of inherent tribal authority, there remains a critical antecedent question: whether Congress or the courts are ultimately best situated to define the contours of inherent tribal authority. In February 2013, Congress enacted controversial tribal jurisdiction provisions as part of the Violence Against Women Act reauthorization recognizing and affirming inherent tribal authority to prosecute all persons, including non-Indian offenders, for crimes of domestic violence in Indian country. This assertion by Congress of its authority to set the bounds of tribal inherent authority -- beyond where the United States Supreme Court has held tribal inherent authority to reach -- underscores the importance of addressing the question of which branch ought to resolve the issue.
This Article proposes a framework drawn from Supreme Court jurisprudence in the field of state sovereignty to argue that when sensitive issues of sovereignty are at stake, the comparative competence of the respective branches must be considered. Unlike any preceding work in this field, this Article proposes a model based on the indicia of institutional competence to suggest that Congress, rather than the courts, is the branch best suited to determine the scope of inherent tribal sovereignty.
Keywords: Tribal sovereignty, American Indian law, Native American law, Violence Against Women Act, domestic violence, criminal law, tribal civil authority, Oliphant, Garcia, Lara, state sovereignty
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