NATIVE PEOPLE AND VIOLENT CRIME: Gendered Violence and Tribal Jurisdiction

* Corresponding author: Professor Sarah Deer, Department of Women, Gender, and Sexuality Studies, University of Kansas, 1541 Lilac Lane, Lawrence KS 66045. E-mail: [e-mail].

[A] community that cannot create its own definition of right and wrong cannot be said in any meaningful sense to have achieved true self-determination.

—Kevin Washburn, “Federal Criminal Law and Tribal Self-Determination,” North Carolina

Law Review (2005, p. 779)

INTRODUCTION

Based on multiple reports funded and published by the federal government, it is clear that Native people suffer from one of the highest rates (if not the highest rate) of violent crime in the United States. But the question of why Native people suffer from such high rates of violence has not been the subject of in-depth study. This article seeks to answer that question by introducing the reader to some of the fundamental tenets of federal Indian law that affect the ability of a tribal nation to take action when violent crime occurs. The article proceeds in three main sections. First, I review the current data that establishes the extremely high rates of violence perpetrated against Native people. Next, I explain the most important federal laws that define and proscribe the criminal authority of tribal nations. The second section explores some of the most important federal reforms to Indian law since 2010. The final section delves into some of the difficult lingering questions in the aftermath of changes made during the Obama administration.

TERMINOLOGY

Any article that discusses American Indian and Alaska Native populations must be thoughtful and deliberate about appropriate terminology. In short, there is no single, agreed upon set of terms and phrases when it comes to tribal populations. While I will use some terms interchangeably, the following list introduces some key vocabulary decisions:

• American Indian and Alaska Native: Refers to the indigenous population of the lower forty-eight contiguous United States and the state of Alaska. I use “Native people” or “Native women” as a shorthand reference to the same population. Note: not all American Indian and Alaska Native people reside on reservations or in Indian country. In fact, most Native people live off-reservation. This article, however, focuses on crimes committed on tribal lands.

• Federal Indian law: An umbrella term describing federal laws that govern the relationship...