This article will discuss the historical balance that many tribes worked to achieve with respect to women, children, and healthy families; the impacts of domestic violence on Native women and children; the complex jurisdictional issues related to issuing and enforcing tribal protection orders; the inability of tribes to access the NCIC to enter tribal protection orders into a federal protection order registry; and a lack of recognition and enforcement of tribal protection orders by outside jurisdictions.
I. Tribal Historical Balance
Since time immemorial, tribes have sought to maintain balanced systems of social control and dispute resolution. Historically, many tribes viewed women as sacred, important decision makers, and central to the wholeness and wellness of the family unit and the overall community. With colonization, Native women became targets of oppression, violence, and dehumanization. The colonization movement only served as an opportunity to further victimize Native women and children by diminishment in the status of women, destruction and disease, boarding schools, and learned violence.
While tribal cultures vary considerably, common threads of spirituality and community reveal tribal child-rearing practices and beliefs that promote a natural system of child protection quite distinct from Western individualized child-rearing customs.
[Prior to contact with European immigrants, traditional Native spiritual beliefs] reinforced that all things had a spiritual nature that demanded respect, especially children. Not only were children respected, but they were also taught to respect others. Extraordinary patience and tolerance marked the methods that were used to teach Native children self-discipline. . . . Child-rearing responsibilities were often [extended beyond the nuclear family to] extended family and community members. In this way, the protection of children in the tribe was the responsibility of all the people in the community.4
Today’s Tribal communities may be comprised of tribal members of a federally recognized tribe and non-natives residing within a tribe’s territorial boundaries. Native victims, as well as non-native victims, may seek tribal court protection from a perpetrator. Native victims residing outside of a tribe’s Indian country may return to the tribal court seeking protection from their perpetrators because they have a distrust of outside jurisdictions and the tribal court understands the culture, language, and traditions of the victim.
The statistics relative to Native women and their children involving domestic violence and sexual assault are horrific. Native women are victimized at rates higher than any other race. “Data demonstrates that 56.1 percent of Native women have experienced sexual violence; 66.4 percent have experienced psychological aggression by an intimate partner; and 55.5 percent have experienced physical violence by an intimate partner.”5 “In addition, Native women suffer domestic violence and physical assaults at rates higher than any other woman in the United States.”6 “According to the U.S. Department of Justice, in at least 86 percent of reported cases of rape or sexual assault against American Indian and Alaska Native women, survivors report that the perpetrators are non-native men.”7 Despite the alarming rates of violence, it is likely that violence against Native women occurring in Indian country is a vastly underreported crime.
Native women residing in Indian country suffer domestic violence and physical assault at rates far exceeding women of other ethnicities and locations. A 2004 Department of Justice report estimates these assault rates to be as much as fifty percent higher than the next-most-victimized demographic.8 In a 2008 Centers for Disease Control study, thirty-nine percent of Native women surveyed identified as victims of intimate partner violence in their lifetime, a rate higher than any other race or ethnicity surveyed. This finding has been common over the years.9
Native children do not escape the ravages of domestic violence. Every single day, a majority of Native children are exposed to violence within the walls of their own homes. According to a report by the Attorney General’s Advisory Commission on American Indian/Alaska Native Children Exposed to Violence, Ending Violence So Children Can Thrive, “Native . . . children suffer exposure to violence at rates higher than any other race in the United States.”10 Additionally, “Native youth are 2.5 times more likely to experience trauma than their non-Native peers.”11 The Commision also found that “Native children experience posttraumatic stress disorder at the same rate as veterans returning from Iraq and Afghanistan and triple the rate of the general population.”12
Domestic violence may impact victims and children in various ways that impede reporting the violence or help-seeking including, but not limited to, difficulty concentrating, partial amnesia, isolation, economic hurdles, and an overwhelming fear of losing his/her children. Children in tribal communities do not escape the wrath of domestic violence. Children who have been exposed to intimate partner violence in their families are also at high risk for severe and potentially lifelong problems with physical health, mental health, school and peer relationships, and disruptive behavior. Children who witness or live with intimate partner violence are often burdened by a sense of loss or by profound guilt because they believe that they should have somehow intervened or prevented the violence—or, tragically, that they caused the violence.13
II. Tribal Power to Issue Civil Protection Orders
In the face of this trauma, tribes are persistently called upon to utilize tribal self-governing power to protect victims/children of domestic violence, sexual assault, and stalking in Indian country. One way the tribe addresses victim safety is through the issuance of a civil protection order. Jurisdiction is one of the most confusing aspects of tribal law.
Historically, tribes had inherent sovereign over all persons within a tribe’s Indian country. Inherent tribal sovereignty still exists subject to federal restraints. Generally, the jurisdictional analysis proceeds as follows:
(1) Tribes may have restricted tribal sovereign powers in their own tribal constitutions and tribal laws,14
(2) The U.S. Supreme Court has held that Congress has the power to place restrictions on a tribe’s inherent sovereign powers by U.S. Supreme Court case law and/or federal statutes, and15
(3) Congress also has the power to loosen or remove restrictions placed on tribal sovereignty.16
While the intricacies of determining tribal civil jurisdiction is beyond the scope of this article, the basics of tribal civil jurisdiction to issue a protection order is addressed. Jurisdictional laws at the tribal level determine what types of civil domestic violence cases over which a tribal court has authority. If the tribal judge finds jurisdiction over the subject matter and over the person pursuant to the tribal constitution and tribal codes, then the tribal court has the tribal power to issue a civil protection order. Then the analysis requires a determination of whether Congress has placed restrictions on tribal authority to issue protection orders.
U.S. law has placed some restrictions on tribal civil jurisdiction, but the restrictions are different than those for tribal criminal jurisdiction. Two U.S. Supreme Court cases from the 1980s and 1990s directly address tribal court civil jurisdiction over nonmembers: Montana v. United States17 and Strate v. A-1 Contractors.18 Montana held that, absent tribal-government interests, tribal courts have no civil regulatory authority over non-Indian defendants on fee land that is owned by non-Indians and located within a reservation unless (1) the parties had entered into a consensual relationship through commercial dealings or (2) “the conduct of non-Indians . . . threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”19 Note that nonmembers include members of other federally recognized tribes and non-Indians.
This two-pronged test is referred to as the Montana test. Either of the two prongs would be sufficient to support tribal civil jurisdiction over nonmembers on fee land in Indian country. Therefore, if neither of the two Montana factors listed applies, tribal courts may not have civil jurisdiction over nonmembers on fee lands. Strate held that the tribal court lacked jurisdiction over a civil case between nonmembers arising out of a vehicle accident on a state highway (non-Indian fee land in Indian country) traversing the reservation.20 The tribe’s interest in safe driving did not meet either prong set forth in the Montana test.21
Once any federal restrictions have been identified, the analysis then turns to whether Congress has loosened the restrictions. Congress has recently affirmed tribal authority to issue protection orders over all persons. The Violence Against Women Reauthorization Act of 2013 (VAWA 2013) clarifies the tribal court’s authority to issue protection orders in protection order cases involving tribal members and nonmembers pursuant to 18 U.S.C. § 2265(e) (updated 2013) by setting forth the following:
For purposes of this section, a court of an American Indian/Alaska Native tribe shall have full civil jurisdiction to issue and enforce protection orders involving any person, including the authority to enforce any orders through civil contempt proceedings, to exclude violators from American Indian/Alaska Native land, and to use other appropriate mechanisms, in matters arising anywhere in the Indian country of the Indian tribe (as defined in section 1151) or otherwise within the authority of the Indian tribe.22
Therefore, if the tribal constitution and tribal code provide for tribal civil jurisdiction to issue the protection order and Congress has affirmed tribal civil jurisdiction to issue protection orders, the tribe likely has jurisdiction to issue a protection order.
Once a tribal court protection order has been issued, the next issue is whether the tribal protection order is entitled to full faith and credit in all states and tribes in the United States. Full faith and credit of the tribal protection order is needed as the victim moves into and out of Indian country. Tribes have been expressing concerns about the lack of enforcement of tribal orders by state and local law enforcement to the Office on Violence Against Women during tribal consultation meetings.
In response to a framing paper for the 2016 consultation, tribal leaders from different parts of the country expressed concerns about the lack of enforcement of tribal orders by state and local law enforcement and provided recommendations on how to address the specific challenges identified. Some tribal leaders expounded upon testimony provided at prior consultations on this topic and others who had not previously testified on the issue provided additional information. Common themes included the need for training on tribal courts’ authority to issue orders and on state and local responsibilities for enforcing them, as well as technical assistance for tribes and local jurisdictions on building collaborative relationships.23
III. Full Faith and Credit of Tribal Protection Orders
A protection order is only as strong as the enforceability of the order. Victims believe that protection orders will be enforced across all jurisdictional boundaries and that the safety measures put forth by one judicial forum will be recognized by all other judicial forums. However, that is not always the case. When victims seek to enforce tribal court protection orders outside of the jurisdictional boundaries of the issuing tribal court, issues related to full faith and credit will impact victim safety despite a powerful federal law that commands the seamless enforcement of all protection orders across jurisdictional lines.
VAWA 2013 states:
Any protection order issued that is consistent with subsection (b) by the court of a state, Indian tribe or territory shall be accorded full faith and credit by the court of another state, tribe or territory and enforced by the court and law enforcement of the other state, Indian tribe or territory as if it were the order of the enforcing State, Indian Tribe, or territory.24
To be “consistent with subsection (b)” a tribal court protective order must, on the face of the document itself, have findings that include: (1) the tribal court has subject matter jurisdiction, (2) the tribal court has personal jurisdiction, and (3) due process has been satisfied according to tribal law. Though the analysis seems simple, anecdotal evidence reveals victims are still experiencing difficulties with enforcement of tribal court protection orders in jurisdictions outside of the issuing tribe’s Indian country.25
Many Tribal governments have been active in seeking ways to make do with the current jurisdictional structure. However, working around the current jurisdictional maze will continue to deliver suboptimal justice because of holes in the patchwork system and these “work-arounds” still do not provide Tribal governments with full authority over all crime and all persons on their lands.26
Once the tribal protection order has been issued, it is critical that the tribal protection order be entered into the National Crime Information Center (NCIC) database.
IV. Tribes Struggle to Gain Access to National Crime Information Center to Enter Tribal Protection Orders
Tribal testimony at the 2016 [Office on Violence Against Women] consultation continued to emphasize the importance of tribes’ ability to access and enter information into national crime information databases for the purpose of facilitating enforcement of tribal protection orders, as well as a host of other criminal and civil purposes tied to public safety. Although VAWA 2005 and the Tribal Law and Order Act of 2010 (TLOA) require the Attorney General to ensure that tribal law enforcement officials who meet applicable federal or state requirements be permitted access to national crime information databases, the reality is that the ability of tribes to fully participate in national criminal justice information sharing via state networks depends upon various regulations, statutes, and policies of the states in which a tribe’s land is located.27
“NCIC is a criminal records database allowing criminal justice agencies to enter or search for information about stolen property, missing or wanted persons, and domestic violence protection orders; to get criminal histories; and to access the National Sex Offender Registry.”28 Law enforcement utilizes NCIC to verify a protection order for a variety of reasons. When law enforcement cannot locate and view a protection order in the system, it is highly likely the protection order will not be enforced. Tribes have been requesting access to the NCIC for many years.
DOJ has repeatedly heard from tribes at consultations and elsewhere that they face barriers to accessing and entering information into national crime information databases, which jeopardizes their ability to protect their communities and prevent domestic and sexual violence. Although VAWA 2005 and the Tribal Law and Order Act of 2010 (TLOA) require the Attorney General to ensure that tribal law enforcement officials who meet applicable federal or state requirements be permitted access to national crime information databases, the reality is that the ability of tribes to fully participate in national criminal justice information sharing via state networks depends upon various regulations, statutes, and policies of the states in which a tribe’s land is located.
In response to these concerns, in August 2015, DOJ announced the Tribal Access Program for National Crime Information (TAP) to address tribal access to national crime information by providing participating tribes with state-of-the-art biometric/biographic computer workstations with capabilities to process finger and palm prints, take mugshots, and submit records to national databases, as well as the ability to access Criminal Justice Information Services Division (CJIS) systems for criminal and civil purposes through DOJ’s Criminal Justice Information Network.29
While the TAP program has been extended and remains ongoing, approximately fifty tribes are able to utilize TAP to load tribal protection orders into the NCIC system.30
When enforcement of a protection order is sought, no matter the jurisdiction, there are essentially two mechanisms of enforcement—civil enforcement and criminal enforcement. The enforcing court will apply its jurisdiction’s civil and/or criminal laws to any enforcement of a foreign protection order.31
V. Tribal Civil Enforcement of a Tribal Protection Order
Note that all perpetrators, Native and non-Indian, who violate valid protection orders in Indian country may be held civilly accountable in tribal courts under some circumstances. Some examples of civil remedies include contempt of court, exclusion from the reservation, fines and fees, restitution, attorney fees and court costs, perpetrator reeducation programs, community service, forfeiture, and loss of licensure or other privileges. The issuing tribe’s tribal code may contain other suitable civil remedies. Creative civil remedies for initial nonviolent violations may prove beneficial for holding all perpetrators accountable to the orders of the court.
In terms of a tribe’s civil enforcement for violations of a protection order occuring in Indian Country, VAWA 2013 specifically addresses some possible civil remedies: (1) tribal court enforcement for violations of protection orders through civil contempt or (2) exclusion of the violator from tribal lands.32 VAWA also recognized that tribes may have “other appropriate mechanisms” potentially available to enforce violations of protection orders in tribal courts such as monetary penalties, community service, restitution, forfeiture, and posting of a Peace Bond.33
Creative civil remedies34 that could be used for the perpetrators include the following:
- Civil contempt (not to be confused with criminal contempt, which is a crime requiring all the safeguards of a criminal action be afforded to the defendant/perpetrator);
- Monetary penalties;
- Posting of a Peace Bond (which would be forfeited if the perpetrator violates the terms of the Peace Bond);
- Community service;
- Restitution (requiring the individual to pay back for damages caused; examples might include paying money, gathering firewood, or providing elements for ceremonies);
- Shaming (might include community service in a public place or wearing a sign or certain clothing in public recognized as a punishment);
- Forfeiture (of items that belong to the perpetrator);
- Removal of the name of a person (such as a perpetrator, a rapist, or someone who has committed child sexual abuse) from the lease of a tribal housing property or reassigning the lease to the victim;
- Restriction on access or rescinding of a business license with the tribe;
- Limit on a person’s access to tribally funded benefits (such as barring small business loans or limiting access to the tribally funded gym);
- Restriction or rescinding of hunting or fishing licenses or privileges;
- Disenrollment of the person as a member of the tribe;
- Rescinding of future per capita disbursements; and/or
- Restriction of access to tribal employment or to certain types of tribal employment (such as positions working with youth, the elderly, or other vulnerable persons).
VI. Tribal Criminal Jurisdiction to Enforce a Protection Order
A combination of federal statutes and federal court decisions have created a complex maze of laws and regulations that make it difficult to address crime committed in Indian country and to enforce protection orders issued by courts in Indian country. The primary obstacles created by this complex maze include fractured criminal jurisdiction in Indian country among federal, tribal, and state governments and the sentencing limitations imposed by the Indian Civil Rights Act (ICRA).
Tribal criminal jurisdiction has been limited by federal law. In Oliphant v. Suquamish Indian Tribe,35 the Supreme Court limited the ability of tribal governments to try and punish non-Indians. The analysis of tribal criminal jurisdiction involves determining whether the perpetrator is Indian or non-Indian, whether the victim is Indian or non-Indian, and where the crime was committed. When domestic violence or a violation of a protection order occurs on tribal land, the jurisdiction over the criminal action may be in more than one court. On some tribal lands, the jurisdiction is in tribal and federal court; while on other tribal lands, the jurisdiction may be in tribal and state court. This varies depending upon whether federal law has delegated a state jurisdiction over the criminal matters of a tribe or whether federal law makes the crime committed one of general federal applicability irrespective of where the crime is committed; this includes drug offenses, firearms offenses, mail fraud, and embezzlement.36
VII. Indian Civil Rights Act and Tribal Criminal Sentencing Authority
Federal laws also place restrictions on a tribe’s criminal sentencing power, which includes criminally sentencing a defendant for a violation of a protection order. ICRA37 applies to a tribal court’s criminal sentencing authority. Federal restrictions placed upon a tribe’s criminal sentencing authority greatly impair a tribe’s ability to hold perpetrators accountable for compliance with protection orders. It limits a tribe’s ability to sentence for any one crime to one year in jail and/or a $5,000 fine. If a person is convicted of more than one crime such as kidnapping and rape, federal law allows up to one year for each offense for a maximum sentence of three years. Note that ICRA does not limit other sanctions a tribe might use, including restitution, banishment, and probation.
The Tribal Law and Order Act (TLOA) loosened the federal restriction on a tribe’s sentencing authority and relaxed the federal sentencing restriction previously mentioned, but only if if a tribe complies with the prerequisites listed in the ICRA.
If the tribe meets the ICRA requirements for TLOA enhanced sentencing authority38 the tribe’s court system can exercise enhanced criminal sentencing authority, sentence a defendant to three years and a $15,000 fine for a single offense, and stack those sentences up to a total of nine years. Even if a tribe satisfies the federal prerequisites, however, this authority does not apply to every defendant convicted in tribal court. Rather, it applies only to defendants who are being sentenced to more than one year of imprisonment and (1) have previously been convicted of the same or a comparable offense by any jurisdiction in the United States or (2) are being prosecuted for an offense that is punishable by a term of imprisonment for more than one year if prosecuted in a state or federal system.39
VIII. Special Domestic Violence Criminal Jurisdiction (SDVCJ) over Non-Indians
Generally, tribal governments cannot criminally prosecute a domestic violence perpetrator who is not considered Native unless the tribe is exercising Special Domestic Violence Criminal Jurisdiction (SDVCJ).
The VAWA 2013 SDVCJ, codified at 25 U.S.C. § 1304, reaffirms tribal jurisdiction and loosens previous federal restrictions placed on tribal criminal jurisdiction regarding certain crimes committed by non-Indians against Native victims in Indian country to include violation of a protection order.40 Exercising SDVCJ may lead to safer tribal communities because ninety percent of Native American victims of intimate-partner violence describe the offender as non-Native.41 “Additionally, 90 percent of Native female victims of intimate partner physical violence report an non-Indian perpertrator.”42 If a tribe chooses to exercise criminal jurisdiction over non-Indians as a tool to combat violence, the non-Indian must have particular contacts with the tribe. Note that 18 U.S.C. § 1304 requires that the non-Indian offender have sufficient connections to the tribe by either
- Residing in Indian country of the participating tribe,
- Being employed in Indian country of the participating tribe,
- Being the spouse, intimate partner, or dating partner of a tribal member, or
- Being a spouse, intimate partner, or dating partner of a Native who resides in Indian country of the participating tribe.
Additionally, section 1304 sets forth the elements of the three crimes related to this SDVCJ to include dating violence, domestic violence, or violation of a protection order. Tribes that choose to exercise SDVCJ43 are required to provide certain rights to defendants that include
- Effective assistance of counsel equal to at least that guaranteed by the U.S. Constitution,
- A licensed indigent defense attorney,
- Sufficiently trained judge to preside over the SDVCJ case,
- Tribal criminal laws that are made available to the public,
- Record of the criminal proceedings,
- Trial by an impartial jury that ensures that the jury pool reflects a fair cross-section of the community, and
- Timely notification of the defendant’s rights to include the right to habeas corpus review and the request of a stay of sentencing from the trial court.44
IX. State Enforcement of Tribal Protection Orders
When a state refuses to recognize and/or enforce a tribal protection order that meets VAWA’s full faith and credit requirements, this lack of enforcement confirms that the perpetrator is in control and need not fear the consequences of the violation.45 States usually espouse legal deficiencies in tribal court orders, state law enforcement liability, and a failure to verify the tribal protection order through NCIC or a state crime database.46 It is clear that tribal court orders do not have to mirror state court orders to be enforceable, and most state statutes provide immunity (civil and criminal) for law enforcement officers enforcing a protection order that law enforcement has a good faith belief is valid. VAWA does not require a tribal protection order to be entered into a state or federal criminal database to be enforceable. Given many tribes are not allowed access to the state or federal criminal database systems, VAWA’s mandate of enforcement of all protection orders should be the mandate that all jurisdictions espouse. Unfortunately, that is not the case in many states.
Native women and children deserve to be as safe as other women and children in the United States. Tribes have demonstrated enormous strength to overcome obstacles to exercising full self-governance in achieving victim/children safety. Federal restrictions placed on a tribe’s jurisdiction including a tribe’s ability to hold non-Indians accountable for committing crimes in Indian country and to institute adequate criminal sentences in these cases present a formidable barrier to Native victim safety and to justice. That obstacle grows when tribes cannot access NCIC to input tribal protection orders into the federal database. The obstacle seems insurmountable when states refuse to recognize and enforce tribal protection orders.
By following the VAWA 2013 federal mandates, regarding issuing and enforcing tribal protection orders, victims would be safer, and all sovereigns would be respected. Perhaps a former tribal judge, Theresa Pouley, said it best, “The combination of the silence that comes from victims who live in fear and a lack of accountability by outside jurisdictions to prosecute that crime, you’ve created if you will, the perfect storm for domestic violence and sexual assault, which is exactly what all of the statistics would bear out.”47
1. Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 83 Fed. Reg. 34,863 (July 23, 2018).
2. Kelly Gaines Stoner & Lauren Van Schilfgaarde, Addressing the Oliphant in the Room: Domestic Violence and the Safety of American Indian and Alaska Native Children in Indian Country, 22 Widener L. Rev. 239 (2016) (citations omitted).
3. See, e.g., Violence Against Women Reauthorization Act of 2019, 116th Cong. § 2 (2019) (“The term ‘domestic violence’ means a pattern of behavior involving the use or attempted use of physical, sexual, verbal, emotional, economic, or technological abuse or any other coercive behavior committed, enabled, or solicited to gain or maintain power and control over a victim . . . .”).
4. Att’y Gen.’s Advisory Comm. on Am. Indian/Alaska Native Children Exposed to Violence, Ending Violence So Children Can Thrive 74–75 (2014) [hereinafter Ending Violence So Children Can Thrive].
5. André B. Rosae, Nat’l Inst. of Justice, U.S. Dep’t of Justice, Research Report: Violence Against American Indian/Alaska Native and Alaska Native Women and Men 2 (May 2016).
6. Brief for Nat’l Network to End Domestic Violence et al. as Amici Curiae Supporting Respondents, Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008) (No. 07-411), 2008 WL 749303; Steven W. Perry, Bureau of Justice Statistics, American Indians and Crime: A BJS Statistical Profile, 1992–2002 (2004).
7. Amnesty Int’l, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Assault in the USA 4 (2007).
8. Perry, supra note 6.
9. Ctrs. for Disease Control & Prevention, Morbidity and Mortality Weekly Report: Adverse Health Conditions and Health Risk Behaviors Associated with Intimate Partner Violence (2008).
10. Ending Violence so Children Can Thrive, supra note 4, at 6.
11. Id. at 38.
13. Perry, supra note 6.
14. Worcester v. Georgian, 6 Pet. 515, 559 (1832); United States v. Maurie, 419 U.S. 544, 557 (1975) (tribes have the power of self-government). See also Cohen’s Handbook of Federal Indian Law, § 4.02, at 222 (12th ed.) Indian nations posessess all powers of a sovereign government except as limited by lawful federal authority.
15. Lone Wolf v. Hitchcock, 187 U.S. 375, 564–65 (1903) (plenary authority over Indians has been exercised by Congress from the beginning. See also Cohen’s Handbook of Federal Indian Law, § 4.02, at 222-223 (12th ed.) (The enature of tribal power is marked by adherence to three underlying fundamental principles: (1) tribes possess all the inherent power of any sovereign state; (2) a tribe’s presence within the boundaries of the United States subjects the tribe to federal legislative power; and (3) inherent tribal powers are subject to qualification by treaties and by express legislsation of Congress. See also Cohen’s Handbook of Federal Indian Law, § 4.02, at 226–227 (12th ed.) (The U.S. Supreme Court has also imposed limitations on trial authority through the “implicit divestiture theory.”).
16. Lone Wolf v. Hitchcock, 187 U.S. 553, 553 (1903) (Congress has always exercised plenary authority over the tribal relations of the Indians, and the power has always been deemed a political one not subject to be controlled by the courts.).
17. 450 U.S. 544 (1981).
18. 520 U.S. 438 (1997).
19. Montana, 450 U.S. at 565–66.
20. Strate, 520 U.S. at 448.
21. Id. at 452–53.
22. Spurr v. Pope, 936 F.3d 478, 486 (6th Cir. 2019) (quoting 18 U.S.C. § 2265(e)) (upholding a tribe’s authority over all persons to issue protection orders in matters arising within Indian country).
23. Office on Violence Against Women, U.S. Dep’t of Justice, 2017 Update on the Status of Tribal Consultation Recommendations 5 (2017) [hereinafter Status Recommendations of 2017].
24. 18 U.S.C. § 2265(a) (2019) (more particularly, to be consistent with “subsection (b),” the Tribal Court must make evident that the three-strand braid required for all remedies is intact; that is, the Tribal Court must make clear on the face of the protective order document that (1) it has subject matter jurisdiction over the action, (2) it has personal jurisdiction over the parties, and (3) due process has been observed).
25. See Jennifer Walter & Heather Valdez Freedman, Emerging Strategies in Tribal-State Collaboration: Barriers and Solutions to Enforcing Tribal Protection Orders, Tribal L. & Pol’y Inst. 2 n.4 (2019), http://www.walkingoncommonground.org/files/Enforcing%20TPOs%20BJA%20Approved%20Final%203_7_19.pdf.
26. Indian Law & Order Comm’n, A Roadmap for Making Native America Safer: Report to the President and Congress of the United States, at ix (2013).
27. Status Recommendations of 2017, supra note 23, at 6.
28. National Crime Information Systems, U.S. Dep’t of Justice, https://www.justice.gov/tribal/national-crime-information-systems (last visited Oct. 25, 2019).
29. Office on Violence Against Women, U.S. Dep’t of Justice, 2016 Update on the Status of Tribal Consultation Recommendations 4 (2016).
30. Tribal Access Program (TAP), U.S. Dep’t of Justice, https://www.justice.gov/tribal/tribal-access-program-tap (last visited Oct. 6, 2019).
31. K. Gaines-Stoner & S. Campbell, Tribal Courts Power to Protect, 24 Domestic Violence Rep., no. 1, Oct./Nov. 2018, at 4; see also 18 U.S.C § 2265 (2013).
32. See 18 U.S.C. § 2265.
33. See Hallie Bongar White et al., Creative Civil Remedies Against Non-Indian Offenders in Indian Country, 44 Tulsa L. Rev. 427 (2008).
35. 435 U.S. 191 (1978).
36. See generally Bryan H. Wildenthal, Federal Labor Law, Indian Sovereignty, and the Canons of Construction, 86 Or. L. Rev. 413 (2007).
37. 25 U.S.C. §§ 1301–1304 (2019).
38. Id. § 1302(c).
39. Id. § 1302(b).
40. Id. § 1304.
41. Nat’l Congress of Am. Indians, VAWA 2013’s Special Domestic Violence Criminal Jurisdiction (SDVCJ) Five-Year Report 3 (2018) (citing S. Rep. No. 112-265, at 5 (2012)); S. Rep. No. 112-153, at 3–11 (2011); Perry, supra note 6.
42. Nat’l Congress of Am. Indians, supra note 41, at 3 (citing Nat’l Inst. of Justice, Dep’t of Justice, Violence Against American Indian and Alska Native Women and Men: 2010 Findings from the National Intimate Partner and Sexual Violence Survey 26 (May 2016)).
43. Tribal Law & Pol’y Inst., Tribal Legal Code Resource: Tribal Laws Implementing TLOA Enhanced Sentencing and VAWA Enhanced Jurisdiction (2016).
44. See 25 U.S.C. § 1304 (2018).
45. See Walter & Freedman, supra note 25.
46. Id. at 7.
47. See Nat’l Congress of Am. Indians, supra note 41, at 4.