Steve Russell: Tribes can learn from the comedy of Congress

Monday, February 4, 2013  

"Federal Indian control law, as some Indian lawyers call it, is wicked complicated. It is complicated because it is intellectually incoherent, based on values the US purports to despise and policy goals rendered moot by events. Because it is wicked complicated, and because it affects a relatively tiny and powerless group of people, few policy wonks bother to learn much about it.

Even judges are reluctant to expend much energy out at the margins, so we get Justice William Rehnquist, in the 1978 case of Oliphant v. Suquamish Tribe relying on racist stereotype to remove all tribal criminal jurisdiction over non-Indians.

Rehquist’s error lives on in the failure of Congress to reauthorize the Violence Against Women Act, principally over VAWA reinstating tribal court jurisdiction over non-Indian men who come on Indian land and abuse Indian women. This amendment was inserted after finding that non-Indian men abuse most Indian women who are abused in an intimate relationship. The state courts have no jurisdiction and the federal courts are disinterested in simple assaults until they become homicides."

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