Beyond VAWA: Localism as an Argument for Full Tribal Criminal Jurisdiction

43 Pages Posted: 25 Jan 2021

Date Written: November 15, 2020

Abstract

American Indian and Alaskan Native (“AI/AN” or “Native”) women have faced disproportionately high rates of violence since colonists first arrived in North America. But, while non-Native communities have had the power, rooted primarily in criminal jurisdiction, to experiment and develop innovative, culturally appropriate programs aimed at eliminating domestic violence, a series of federal legislation and Supreme Court decisions stripped AI/AN tribes of such power. Today, Native communities continue to lack criminal jurisdiction over most non-Native perpetrators of crime, who are overwhelmingly responsible for acts of domestic violence against Native women. While the passage of the 2013 reauthorization of the Violence Against Women Act (“VAWA”) created Special Domestic Violence Criminal Jurisdiction, the program’s limited return of jurisdiction resulted only in putting tribes in the position that the rest of the country was in during the 1980s and ’90s — able to prosecute and punish offenders but still unable to treat the problem of domestic violence holistically.

This Note argues that violence in Indian country will not be meaningfully reduced until tribes have full autonomy over their criminal systems. This can only be achieved when tribal criminal jurisdiction is equivalent to that exercised by states. Outside Native lands, specialized domestic violence courts have had success in reducing violence through community-based, collaborative approaches and integrated drug and alcohol treatment. With expanded criminal jurisdiction, tribes would be able to learn from the developments in antiviolence theory in practice over the last forty years, giving them the opportunity to make rapid progress in closing the gap in experience and finding what works in reducing violence in their communities. Furthermore, the similarities between tribal governments and those of state and local municipalities are strong indicators that tribes should have criminal jurisdiction over all crimes committed in their territories. In dismantling tribal jurisdiction over crimes committed by non-Natives and then returning limited jurisdiction in a piecemeal fashion, the federal government has stifled the ability of tribes to develop effective responses while further entrenching a white supremacist, colonial system over sovereign peoples. It is due time for the federal government to support these communities as they seek to heal and rebuild.

Suggested Citation

Tamborelli, Deanna, Beyond VAWA: Localism as an Argument for Full Tribal Criminal Jurisdiction (November 15, 2020). Boston University Law Review, Vol. 100, No. 305, 2020, Available at SSRN: https://ssrn.com/abstract=3730994

Deanna Tamborelli (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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