Michalyn Steele, 𝘊𝘰𝘮𝘱𝘢𝘳𝘢𝘵𝘪𝘷𝘦 𝘐𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯𝘢𝘭 𝘊𝘰𝘮𝘱𝘦𝘵𝘦𝘯𝘤𝘺 𝘢𝘯𝘥 𝘚𝘰𝘷𝘦𝘳𝘦𝘪𝘨𝘯𝘵𝘺 𝘪𝘯 𝘐𝘯𝘥𝘪𝘢𝘯 𝘈𝘧𝘧𝘢𝘪𝘳𝘴, 85 U. Cᴏʟᴏ. L. Rᴇᴠ. 759 (2014).
Tribal sovereignty, American Indian law, Native American law, Violence Against Women Act, domestic violence, criminal law, tribal civil authority, Oliphant, Garcia, Lara, state sovereignty
While vigorous debate surrounds the proper scope and ambit of inherent tribal authority, there remains a critical antecedent question: whether Congress or the courts are ultimately best situated to define the contours of inherent tribal authority. In February 2013, Congress enacted controversial tribal jurisdiction provisions as part of the Violence Against Women Act reauthorization recognizing and affirming inherent tribal authority to prosecute all persons, including non-Indian offenders, for crimes of domestic violence in Indian country. This assertion by Congress of its authority to set the bounds of tribal inherent authority -- beyond where the United States Supreme Court has held tribal inherent authority to reach -- underscores the importance of addressing the question of which branch ought to resolve the issue.
This Article proposes a framework drawn from Supreme Court jurisprudence in the field of state sovereignty to argue that when sensitive issues of sovereignty are at stake, the comparative competence of the respective branches must be considered. Unlike any preceding work in this field, this Article proposes a model based on the indicia of institutional competence to suggest that Congress, rather than the courts, is the branch best suited to determine the scope of inherent tribal sovereignty.
85 Colo. L. Rev.
Colorado Law Review