| excerpted From: Domestic
Violence in Indian Country, A
Provision in Indian Country: an Argument for Amendment , 74 University
of Colorado Law Review 765-794, 765-804 (Spring 2003) (150 Footnotes
omitted)
In August of 1994, Congress passed the Violence Against Women Act (VAWA),
which includes a provision requiring
states and Indian tribes to give "full faith and credit" to
protection orders issued by the courts of other states and tribes.
The provision, (""), purports to ensure that victims of
domestic violence do not lose the protection of their restraining orders
when they travel out of the issuing jurisdiction.
This Comment addresses the effectiveness of the VAWA's full faith and
credit statute. Although the statute purportedly applies to Indian
tribes, it is not operational in Indian country because many tribes have
not implemented statutes giving full faith and credit to foreign
protection orders. To achieve the goal of the full faith and credit
provision of the VAWA and protect women in Indian country, Congress must
therefore amend the statute to make it enforceable against Indian
tribes.
Before became law, only seven states statutorily accorded full faith
and credit to protection orders issued by other states or tribes.
To receive protection under a foreign restraining order in the other
forty-three states, domestic violence victims had to petition the local
state or tribal court for a new protection order.
Due process required service of the perpetrator with the protection
order petition, which revealed the victim's new location. The system
forced victims to choose between losing the protection of a restraining
order or announcing their whereabouts to their abusers. Neither of these
two options provided safety to women fleeing abusive partners.
On its face, the VAWA's full faith and credit clause appears to
correct this problem. The statute requires states and tribes to enforce
a protection order issued by a sister state or tribe "as if it were
the order of the enforcing State or tribe."
The victim need not petition a court in her new jurisdiction
for an additional protection order. Moreover, the statute neither
requires a victim to register her order with the court or local police
when she enters a different state or Indian reservation,
nor requires notice to the abuser. In an
attempt to ensure that victims traveling in Indian country receive the
full benefit of their protection orders, Congress extended the civil
jurisdiction of tribal courts to allow them to fully enforce protection
orders issued in other jurisdictions.
Although Congress clearly intended to extend substantive protections
to victims of domestic violence across the nation, it did not make the
full faith and credit provision of the VAWA self-executing. Accordingly,
states, territories, and Indian tribes must take it upon themselves to
enact legislation that complies with the VAWA. As of March 2001,
forty-seven states maintained full faith and credit statutes of some
sort. Because no uniform full faith and
credit code for states exists, each state that has passed this
legislation has constructed its own method of enforcing foreign
protection orders. Unfortunately, only
twenty-four states have acknowledged the full text of by enacting
statutes that explicitly enforce protection orders issued by tribal
courts.
Much of the VAWA's ineffectiveness in Indian country results from
non- compliance by tribal governments. Although the full faith and
credit provision of the VAWA requires implementation by individual
tribes, many tribes simply do not
pass resolutions giving full faith and credit to foreign protection
orders. In part, this omission arises from intentional oversight; many
tribes ignore the statute because they view it as an infringement on
tribal sovereignty. The refusal to
recognize foreign restraining orders leaves a gaping hole in the
effectiveness of and undermines its purpose of protecting domestic
violence victims from re-victimization.
This gap in enforcement of the VAWA's full faith and credit provision
endangers Indian women, who are statistically more likely to experience
domestic violence than any other demographic.
Native American women are more than twice as likely as black women to be
the victims of rape or sexual assault, and three times more likely than
the average American woman. These
statistics likely contributed to Congress's inclusion of tribal lands in
the full faith and credit provision of the VAWA, but the statute's
shortcomings demand further attention from federal legislators.
Because many tribes fail to honor foreign protection orders,
attorneys and domestic violence victims' advocates favor the use of
legal mechanisms to compel Indian tribes to pass resolutions that comply
with the VAWA's full faith and credit mandate. They view the problem of
domestic violence as a national epidemic that requires a cohesive,
nation-wide response. Conversely, tribes and proponents of tribal
sovereignty maintain that the VAWA's requirement is not,
and should not become, enforceable against Indian tribes because it
infringes on tribal self-governance. Disputes about the extent of tribal
sovereignty have existed since the early years of the United States.
In Worcester v. Georgia, the Supreme Court held that "Indian
nations [are] distinct political communities, having territorial
boundaries within which their authority is exclusive . . . ."
The source of this sovereignty, according to the Court, is not
Congress's delegation of authority, but tribes' status as
"independent political communities . . . from time
immemorial." Because of the
long-standing principle that Indian tribes have the exclusive right to
self-govern, there is some doubt as to the legality and appropriateness
of federal statutes requiring tribal entities to recognize and enforce
orders of foreign courts.
This Comment considers whether plaintiffs can compel tribes to
implement full faith and credit statutes, thus giving effect to the VAWA,
in light of tribal sovereignty. Part I establishes that Congress has the
authority to enact legislation abrogating tribal sovereignty, and that
the VAWA's full faith and credit statute applies to tribes. Part II then
explores legal mechanisms that an individual injured by a tribe's
failure to enforce a foreign protection order could use to overcome
tribal sovereign immunity and compel a tribe to comply with in its
current form. Part II concludes that the prognosis for enforcement of
through federal litigation seems
dismal. Part III explores the possibility of conditioning federal
law-enforcement funding on tribal enactment of full faith and credit
statutes that comply with the VAWA, but concludes that such conditioning
would conflict with the long-held federal policy favoring tribal self-
governance. Part IV suggests that to accomplish the goal of the VAWA's
full faith and credit provision, Congress must expand the statute so
that it contains an enforcement mechanism. Congress should tread
carefully, however, to ensure that the legislation reflects dual
objectives: the effectuation of the full faith and credit provision and
deference to tribal sovereignty and self-determination. These competing
goals are best reconciled by allowing interested parties to sue tribal
officials for prospective injunctive relief in the federal courts.
. Law clerk for the Honorable Wade
Brorby, United States Court of Appeals for the Tenth Circuit; J.D.,
University of Colorado School of Law, 2002; B.A., Nebraska Wesleyan
University, 1999. |
