The history of the relations between tribal, state, and federal jurisdictions has culminated in an overly complicated bureaucratic system that has its roots in the institutional oppression of Indigenous Peoples. Over the course of the establishment of the United States federal government, tribal governments have faced a progressive restriction of their sentencing powers and this has resulted in rates of sexual assault against American Indian and Alaska Native women that have reached epidemic levels. Also, because non-Native men perpetrate the majority of sexual assault cases involving American Indian and Alaska Native women, prosecution is often outside of the reach of tribal jurisdiction (Owens 502). The history of the colonization of Indigenous Peoples has manifested itself in different forms of violence, of which include the sexual assault of American Indian and Alaska Native women and the expansion of federal jurisdiction over offenses concerning Indian Country.
The Department of Justice has reported that approximately 86% of cases involving rape or sexual assault committed against American Indian and Alaska Native women is perpetrated by non-Native men (Owens 502). Owens claims that this relationship can be seen as an extension of colonization and the oppression of Indigenous Peoples as a whole (Owens 502). The epidemic of rapes committed against American Indian and Alaska Native women indicates a larger systemic problem with the prosecution of primarily non-Native rapists.
The various legislative acts that have been passed to either expand or, for the most part, restrict tribal jurisdiction over offenses pertaining to Indian Country, have worked to grant more authority to the federal government. The Indian Country Crimes Act (1817) expanded the federal jurisdiction reach to cover offenses involving both non-Indian and Indian perpetrators in Indian Country (Anderson 924). Another act that authorized greater federal control over Indian Country was the Major Crimes Act (1885), which provides a list of 16 major crimes punishable by the federal government, and involves the offenses that deal strictly with Indian victims and defendants (Anderson 925). In 1953, Public Law 280 was passed with the intention of removing federal jurisdiction by granting states a greater degree of jurisdiction, and this was done without the consent of tribal governments (Anderson 917). The Indian Civil Rights Act (1968) was enacted in order to address this issue and require states to receive tribal consent before adopting Public Law 280, but this was done too late seeing as some states had already assumed their jurisdiction as paramount (Anderson 931). These different acts demonstrated a historical trend in the transfer of power from tribal governments to state and federal governments.
The Tribal Law and Order Act was passed in 2010 with the goal of resolving violent crime in Indian Country but fails to address the infrastructural changes necessary for improving tribal systems of prevention, policing, and prosecution (Owens 518). Furthermore, although its purpose is to address the epidemic of the sexual assault of Indigenous women, the Tribal Law and Order Act exemplifies the bureaucratic ineffectiveness of the prosecution of offenses involving rape committed against American Indian and Alaska Native women. American Indian and Alaska Native women encounter more referrals and confusion because of the new agencies established by the act (Owens 511). Another issue with the justice system, as understood by the Tribal Law and Order Act, is the discretion that federal prosecutors have in refusing cases related to sexual assault in Indian Country (Owens 511). These pitfalls of the Tribal Law and Order Act indicate that greater federal authority, whether that is in terms of jurisdiction or investigative powers, is not conducive to more successful justice systems that concern offenses in Indian Country.
If anything, the federal government faces limitations in the enforcement of the Tribal Law and Order Act because of jurisdiction granted to states under Public Law 280. The states that obtained jurisdictional authority under Public Law 280 were able to maintain their powers even in spite of congressional acts like the Indian Civil Rights Act, which indicates a prioritization of state and federal jurisdiction over tribal jurisdiction. Also, given the case-by-case variation regarding the Indian or non-Indian status of the defendant and/or the victim, the federal government does not always retain jurisdictional authority over Indian Country (DOJ 1997). That being said, however, the majority of acts pertaining to jurisdiction in Indian Country have worked to empower the federal government in its authority over offenses in Indian Country.
Overall, the relationship between tribal, state, and federal jurisdictions reflects a history of power transfers primarily between state and federal governments that have largely deprived tribal governments of their ability to prevent, police, and prosecute offenses committed in Indian Country. The Tribal Law and Order Act of 2010 only further complicates these relations and begs to question why both federal and state jurisdictions have continually encroached upon issues pertaining to sovereign tribal nations. In order for the sovereignty of tribal nations to be respected, the federal government must reevaluate its ever-growing jurisdictional powers over Indian Country.