UCLA School of Law

Abstract

Federal courts have wreaked havoc on tribal jurisdiction by injecting incertitude over their most basic authority, including the authority to issue and enforce civil protection orders. This jurisdictional incertitude causes not just legal disruption, but also further compromises the safety of Native people who are disproportionately victimized, especially by gender-based forms of violence. While Congress has been slow to remedy the onslaught of judicial limitations on tribal jurisdiction, Congress has at least remedied tribal authority to issue and enforce protection orders in 18 U.S.C. § 2265(e). However, even in this remedy, jurisdictional incertitude remains.Through its plenary power, Congress has the authority to remedy tribal jurisdiction by either affirming inherent tribal power, or by delegating new federal powers to tribes. The precise nature of the Congressional action–affirming or delegating--determines the source of power a tribe exercises. The source of a tribe’s power affects in turn the ways in which a tribe may exercise that power—in this case, the power to issue or enforce a protection order. Native victims bear the consequences of this decision. This Article examines how implicit divestiture led to the need for Congressional reassurance that tribes possess the authority to issue and enforce protection orders over all persons. This Article then examines the potential consequences of whether that reassurance is an affirmation of inherent tribal powers, or instead a delegation of federal powers. Finally, this Article analyzes, the plain language and legislative intent behind 18 U.S.C. § 2265(e)—as well as overarching federal and international policies—to determine whether this reassurance of tribal civil power is an affirmation or a delegation.