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Domestic Violence in Indian Country

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Sandra J. Schmieder

 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.

 
Related Pages:
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Professor Vernellia R. Randall
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