Joshua B. Gurney

Volume 70, Issue 3, 887-918
Domestic violence has riddled the indigenous communities of the United States for decades. Within this problem lies another—non-Indians perpetrate crimes of domestic violence against Indian women at disproportionately high rates. Exacerbating this issue is the complicated web of criminal jurisdiction split between federal, state, and tribal governments. To ostensibly solve the problem, Congress enacted the Violence Against Women Reauthorization Act of 2013. The Act contained an important provision that returned criminal jurisdiction to tribes, called “Special Domestic Violence Criminal Jurisdiction.”

Special Domestic Violence Criminal Jurisdiction, by most accounts, has been a resounding success. But it suffers from critical limitations, namely, requirements that make its implementation impossible for most tribes. This Note proposes a solution to these limitations that would allow all tribes to exercise criminal jurisdiction over crimes of domestic violence: an SDVCJ fix. By examining Supreme Court precedent and applying a more consistent constitutional analysis, this Note advances a theory by which tribes could prosecute non-Indian defendants notwithstanding the inability to provide all facets of due process.