Saturday, February 17, 2018

How the rural lawyer shortage affects the expansion of tribal sovereignty under VAWA - Part I

After viewing "Sovereignty," a play that dealt with Cherokee history and focused on the reauthorization of the Violence Against Women Act and the expansion of tribal sovereignty that is made possible by it, I decided to dig up an old paper that I wrote for an independent study while in law school. This paper is about 4 years old so I apologize for any anachronisms that are present, I tried to correct them where I could. This paper looked at how the rural lawyer shortage can hinder the ability of tribes to avail themselves of the expanded sovereignty that VAWA provides for. The paper looks at the problem from the side of lack of resources for tribes and also the the inherent difficulty that all rural spaces face in attracting young lawyers to move there. This is perhaps the best example of how the rural lawyer shortage has created a public safety crisis. 

I am sharing here to increase awareness about this issue and because after re-reading it, I felt that the information was too important to not be made available in some venue.

I have decided to keep the original footnotes in order to preserve the paper as much as possible and allow my audience to check my data. I apologize in advance for the deviation from my usual posting format. 

This is part 1 of 3. I hope you enjoy. 

I. Introduction to Tribal Jurisdiction

The right of a sovereign to make and enforce its laws is foundational to its existence. The structural integrity of the system is bolstered only by the trust of people who exist within its sphere. After all, the United States of America is nothing but a collection of sovereigns co- existing under a hierarchical but yet confusing system. Many Americans are familiar with the rights afforded to the federal government, states, counties and towns, but fewer are familiar with the rights of tribes. In Cherokee v. Georgia1, Chief Justice John Marshall defined tribes as “domestic, dependent nations” that exist outside of the influence of the states, but yet are “dependent” upon the United States government. Despite being affirmed as quasi sovereign nations by the United States Supreme Court, tribes have historically encountered barriers to making and enforcing their own laws. All three branches of government have waged war on the rights of Indian tribes to exercise the most fundamental right afforded to a sovereign, the ability to make and enforce laws. This process has resulted in a lack of trust in their system and the degradation of their rights as a sovereign entity.
At particular issue is the right of tribes to assert criminal jurisdiction over crimes within their lands. In Ex parte Crow Dog2, the Supreme Court held that tribes had exclusive jurisdiction over crimes committed by Indians against other Indians on tribal land. Congress responded to this by passing the Major Crimes Act3, which placed the right to try and punish certain crimes within the jurisdiction of the federal government. The Supreme Court upheld this intrusion into tribal sovereignty with United States v. Kagama4, which established that tribal rights exist at the mercy of the federal government and can be diminished or even eradicated at any time. Over the next century, the federal government would continue to take away the right of tribes to exercise even the most basic rights of a sovereign entity. When the question of the tribe’s rights to exercise tribal jurisdiction over non-members came up in Oliphant v. Suquamish Indian Tribe5, the Supreme Court said that tribes lack criminal sovereignty over non-Indians without explicit permission from Congress, this logic was extended further in Duro v. Reina6 when the Supreme Court held that tribes lack jurisdiction over non-member Indians. In the latter case, Congress almost immediately fixed it by passing a law which extended tribal jurisdictions to all Indians. What was not fixed however was the gap that did not allow tribes to prosecute non-Indians who commit crimes on the Reservation.

a. Sexual Assault on the Reservation

According to the United States Department of Justice, Native American women are two and a half times more likely to be sexual assaulted than a non-Native and one in three will be sexually assaulted in their lifetime7. The sexual assault epidemic on Indian reservations is the product of a perfect storm of factors: the Major Crimes Act8 placing rape as one of the major crimes under which the federal government can assert jurisdiction over Indian defendants, the provision of the Indian Civil Rights Act9 that limits tribal courts to one year sentences and the Oliphant v. Suquamish Indian Tribe10 decision which stripped tribes of the right to prosecute non-Indians for crimes committed on the reservation.

For a non-Indian, a reservation represents a place where they have virtual free reign. The only jurisdiction that can prosecute them for their crimes is the federal government and the task for doing this often falls in the laps of often overworked US Attorney's offices that are often located in distant cities far away from the confines of the reservation. According to a policy brief prepared by the National Congress of American Indians in 2013, 67% of Native sexual assault victims describe their attacker as non-Native11. These are people over whom the tribe has no jurisdiction whatsoever, they cannot be prosecuted by the tribe for assault or any other related offense. These men are also not strangers who are wandering onto the reservation and then leaving. According to the same policy brief cited above, 39% of Native women will be subjected to sexual violence by a romantic partner and in 71% of instances of sexual assault, the perpetrator is known to the victim12. 46% of reservation residents are also non-Native13.

The jurisdictional black hole that exists has historically had to be filled by the federal government. This is problematic for a number of reasons, the most obvious of which is the spatial isolation that exists for many tribes. Indian reservations are often located in the most remote locations in the country and are often hundreds of miles away from the closest U.S. Attorney’s Office. There are some instances however where a closer jurisdiction can assert control. In Public Law 280 states, the state authorities can assert jurisdiction over crimes committed on reservations but these states are the minority and far from the norm. The inability of tribes to assert jurisdiction differ from the situation present in most locales where the county prosecutor (often located within very close proximity) can prosecute the crime. In 2013, the Department of Justice found that only 69% of criminal cases referred by tribes to the federal government were actually prosecuted14. The problem however is that there is no recourse for tribes when the federal government declines to prosecute. Citing previous data, the New York Times found that only one-third of sexual assault cases are actually prosecuted by the federal government15.

b. Congress Responds

In 2010, Congress responded to many of the problems outlined above by passing the Tribal Law and Order Act. The act authorized tribes to sentence a defendant to up to three years for each offense committed (to a maximum of nine total years)16. However, this provision did not immediately apply to all tribes. In order to take advantage of the enhanced sentencing provision, tribes have to meet certain guidelines. First of all, they have to be able to provide counsel to defendants that meet certain competency standards17. For indigent defendants, the tribe must (at their own expense) provide counsel that are licensed in a jurisdiction whose standards ensure “competence and professional responsibility18.” Finally, the tribes must be able to provide law-trained judges to preside over the proceedings19. Tribes that unable to meet these guidelines are required to continue to adhere to the sentencing restrictions established under ICRA. Given the huge expenses involved, the Tribal Law and Order Act is hardly a cure all or the enhancement to tribal sovereignty that it appears to be.

The Tribal Law and Order Act also did not address one of the most pressing problems in Indian Country: crimes committed by non-Indian defendants. The provisions of the Tribal Law and Order Act only spoke to crimes committed by Natives and did not authorize tribes to exercise jurisdiction over non-Indian defendants. In 2013 however, President Obama signed into the law the reauthorization of the Violence Against Women Act (VAWA). Contained within the bill is a provision that allows tribes to exercise jurisdiction over non-Indian defendants who commit crimes against Indian victims with whom they are in an intimate relationship20. There are of course the following limitations: “[the defendant must be someone who] (a) resides in Indian country (b) is employed in Indian country, or (c) is the spouse, intimate partner, or dating partner of an Indian living in Indian country or a Tribal member21.” There are also certain requirements that tribes must meet in order to exercise this extra jurisdiction, many of these requirements are similar to what was prescribed in the Tribal Law and Order act. For example, tribes must be able to provide competent counsel for indigent defendants and have trials presided over by law trained judges22.page5image15240 page5image15400 page5image15560
c. The Difficulty with Compliance

While both of the pieces of legislation outlined above are major victories for tribal sovereignty, they also provide tribes with a mandate that may prove difficult to meet. Tribes can only take advantage of the provisions outlined in the Tribal Law and Order and Violence Against Women Acts if they can provide for law trained judges and be able to afford counsel for indigent defendants. It is no secret that Indian reservations are some of the most impoverished places in the country. In order to comply with the act, tribes have to expend a significant amount of revenue to hire law trained lawyers and judges. The Tribal Law and Order Act did provide some additional funding to tribes to pursue hiring law trained judges and advocates. The Act allowed the Legal Services Corporation to provide grants to tribes and other entities that serve defendants in Indian Country to fund the defense of criminal defendants23. However, it does not provide for grants to legal services for anything above a misdemeanor offense24. It does provides grants to tribes (outside of the LSC framework) to hire defense council and other “tribal court personnel25.” However, the funding is paltry compared to the funding allocated to the other provisions of the Tribal Law and Order Act26.

Tribes may also encounter difficulties that are external to their financial resources. Since the statute requires that tribes be able to provide law trained judges and lawyers, it is important that tribes be able to make their reservations appealing places to live for law school graduates. Attracting lawyers to live in rural South Dakota, the Upper Peninsula of Michigan or northern Maine is a challenge in and of itself. Tribes not only have to expend revenue to pay the salaries and benefits of the law trained people that they hire, but they also have to pay to provide amenities that would make their reservation competitive with other places that a lawyer may decide to live. Reservations are not only competing with urban areas, but even other rural areas that may lure a potential lawyer away. The cost of hiring a team of lawyers can go far beyond the face value of salaries and benefits but can extend into a value far beyond what was originally expected. page6image18936 page6image19096
30 U.S. 1
109 U.S. 556 (1883),

18 U.S.C.A. § 1153 (West) 
118 U.S. 375 (1886)
435 U.S. 191 (1978)
495 U.S. 676 (1990)

Patricia Tjaden & Nancy Thoennes, Full Report of the Prevalence, Incidence, and Consequences of Violence Against Women: Findings From the National Violence Against Women Survey 22-23 (United States Dep’t of Justice 2000), note 3
25 U.S.C.A. § 1302 (West)
10 435 U.S. 191 (1978)
11 Policy Insights Brief: Statistics on Violence Against Native Women 4 (NCAI Policy Research Center, 2013) Id.at3,5
13 Id. at 6

14 Timothy Williams, U.S. Says It Pursues More Prosecutions on Indian Lands, N.Y. Times, May 31, 2013 
15 Id.16 Seth Fortin, The Two-Tiered Program of the Tribal Law and Order Act, 61 UCLA L. Rev. Discourse 88, 95 (2013) 
17 Id.18 Id.
19 Id.20 Winter King & Sara Clark, Navigating VAWA's New Tribal Court Jurisdictional Provision, Indian Country Today (Mar. 31, 2013) jurisdictional-provision-148458
21 Id.22 Id.
23 Seth Fortin, The Two-Tiered Program of the Tribal Law and Order Act, 61 UCLA L. Rev. Discourse 88, 97 (2013)
24 David Patton, Tribal Law and Order Act of 2010: Breathing Life into the Miner's Canary, 47 Gonz. L. Rev. 767, 786 (2011)
25 Seth Fortin, The Two-Tiered Program of the Tribal Law and Order Act, 61 UCLA L. Rev. Discourse 88, 97 (2013)
26 Id.


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