This Note makes two arguments concerning the state of American Indian legislation, and then proposes an alternative. First, this Note argues that the recently enacted legislation regarding criminal justice in American Indian societies will work to encourage cultural assimilation and result in the loss of tribal traditions and autonomy. In effect, the legislation is putting tribes in an impossible position: it is unfairly coercing them to choose between (1) the preservation of their own culture and customs, and (2) the ability to prosecute those victimizing their members. Second, this Note argues that even if a tribe decides to risk its culture and tradition in order to adopt the federal policies needed to protect its members, the legislation does not go far enough. The two prominent legislative enactments in place—TLOA and VAWA—are wrought with so many limitations and qualifications that, in practice, they do not give tribes enough power to protect their members.
Instead, this Note suggests that the federal system of appeals is capable of solving the current dilemma. In reviewing tribal court decisions, federal courts should give administrative agency–like deference to tribal courts because the tribal courts are better positioned to interpret their own laws (laws that are often rooted in tradition and culture), just as administrative agencies are better positioned to interpret ambiguity in their respective fields. By inquiring into whether the tribal courts acted reasonably, the federal government can ensure that basic individual liberties are upheld in tribal proceedings. Simultaneously, the tribal courts would interpret and implement their own laws, thus preserving tribal autonomy.
Catherine M. Redlingshafer,
An Avoidable Conundrum: How American Indian Legislation Unnecessarily Forces Tribal Governments to Choose Between Cultural Preservation and Women's Vindication,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol93/iss1/9