Unguarded Indians: The Complete Failure of the Post-Oliphant Guardian and the Dual-Edged Nature of Parens Patriae

49 Pages Posted: 20 Jan 2019

See all articles by Dr. Gavin Clarkson, Esq.

Dr. Gavin Clarkson, Esq.

New Mexico State University - Department of Finance

David DeKorte


Date Written: May 20, 2010


Indian Country is the only location in the United States where the race of both the victim and the offender are relevant for purposes of jurisdiction and prosecution. As a result, American Indian women and children are victimized at astonishingly higher rates than the rest of society, primarily by non-Indian offenders. Pedophiles have found employment as teachers in BIA schools even after being caught molesting Indian children, and their predation of Indian children has continued with little or no fear of prosecution. American Indian females are victims of violence more than two and a half times the national average. One third of all Indian women will be raped in their lifetime. What is even more troublesome is that in more than 90% of these cases, the offender is a non-Indian. In 21st century America, how is it that the race of perpetrator and victim determines the availability of justice on Indian reservations? The fault lies with both Congress and the Supreme Court, who have together created a jurisdictional void on most Indian reservations. If a non-Indian assaults an Indian, the tribe cannot prosecute, and neither can the state; only the United States Attorney can prosecute. This void allows any non-Indian offender to commit a crime on a reservation with a much higher probability of remaining free than anywhere else in the United States. Although this situation has been roundly criticized for more than three decades, nothing has been done to solve the problem. This article suggests that parens patriae, the very legal doctrine originally used to subjugate Indian Country, can instead be used by tribes to restore their inherent sovereignty and finally provide the necessary protection for tribal members.

Suggested Citation

Clarkson, Gavin and DeKorte, David, Unguarded Indians: The Complete Failure of the Post-Oliphant Guardian and the Dual-Edged Nature of Parens Patriae (May 20, 2010). 2010 University of Illinois Law Review, p. 1119. Available at SSRN: https://ssrn.com/abstract=3313668

Gavin Clarkson (Contact Author)

New Mexico State University - Department of Finance ( email )

1110 N Tornillo St
Las Cruces, NM 88001
United States
575-91-GAVIN (Phone)

David DeKorte

Independent ( email )

No Address Available

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