Date of Award
Bachelor of Arts
Public Policy and Law
This thesis will primarily examine the sexual assault crisis Native American women face and the jurisdictional issues that influence whether and how tribes prosecute and punish perpetrators. Federal Indian policy and various Supreme Court cases have increasingly undermined tribal sovereignty over the past few centuries, resulting in tribal governments lacking the ability to respond to sexual violence against their members. Native women who experience sexual violence often find themselves entangled in a complex web of jurisdictional issues, resulting in a lack of clarity about which government body has authority. As a result, their cases are frequently left unprosecuted, denying them access to justice.
Recent legislation has allocated greater sentencing and jurisdictional authority to tribes, and McGirt v. Oklahoma (2020) represents a continuation of restoring tribal sovereignty. The Court ruled that the territory designated for the Creek Nation within Oklahoma has maintained its status as “Indian country” as recognized since the 19th century. Despite this positive trend, the Court in Castro-Huerta v. Oklahoma (2022) held that Oklahoma has concurrent jurisdiction with the federal government to prosecute crimes committed by non-Natives against Natives on tribal land. Castro-Huerta further complicates the jurisdictional confusion because it adds another government entity into the sphere of jurisdiction in Indian country. This thesis analyzes the underlying debate in McGirt and Castro-Huerta and explains the Native female perspective in the debate. After covering relevant federal Indian policy and law, various solutions that have been recommended will be discussed in depth.
This thesis argues for a short-term solution to prove tribes have the capacity to protect their own members in order to combat the most recent attack on tribal sovereignty and the welfare of Native women. This thesis also recommends that Oliphant v. Suquamish Indian Tribe (1978) should be congressionally overturned, as the Court ruled in this case that tribes lack the right to prosecute non-Natives who commit crimes against Natives on tribal land. In order to truly empower Native women and address their longstanding challenges, it is imperative to emancipate them from the intricate web of jurisdictional constraints, while also upholding the autonomy of tribes. This will enable them to seek justice and recourse after years of being denied both.
DeMarco, Erin Geraldine, "Tribal Sovereignty and Native American Women’s Rights in the Wake of Castro-Huerta". Senior Theses, Trinity College, Hartford, CT 2023.
Trinity College Digital Repository, https://digitalrepository.trincoll.edu/theses/1044
Indigenous, Indian, and Aboriginal Law Commons, Jurisdiction Commons, Law and Gender Commons, Law and Race Commons, Legal History Commons, Legislation Commons
Senior thesis completed at Trinity College, Hartford CT for the degree of Bachelor of Arts in Public Policy and Law.