Laura Saylor has posted “Back to Basics: Special Domestic Violence Jurisdiction in the Violence Against Women Reactivation Act of 2013 and the Expansion of Inherent Tribal Sovereignty” on SSRN.

Here is the abstract:

Indian Country is home to some of the highest rates of violent crime in the United States. Specifically, Indian women are at least twice as likely as women in any other demographic in the United States to be victims of domestic violence, dating violence, and sexual violence, and most Indian women report that their attacker was non-Native. On March 7, 2013, President Obama signed the Violence Against Women Reactivation Act of 2013, which contained provisions to help alleviate this crisis in Indian County. These provisions include Sections 904 and 905, which outline special criminal jurisdiction over certain non-Indian perpetrators of domestic violence, dating violence, and sexual violence in Indian Country. This Student Note proposes a method of interpretation of Sections 904 and 905 and argues that, upon a constitutional challenge to this special domestic violence jurisdiction, the Supreme Court should find that that these provisions validly expand inherent tribal sovereignty and do not represent a delegation of Congressional power. To reach this conclusion, Court should first return to the texts that form the foundation of tribal sovereignty, namely the Constitution and the Marshall Trilogy. Incorporating these early principles of robust inherent tribal sovereignty, the Court should then look to the legislative intent of Congress, as it has many times in Federal Indian law, to confirm that Congress has validly exercised its power to expand inherent tribal sovereignty. However, in explicating Congress’ power to enact such legislation, this Note further proposes that the Court should clarify that Sections 904 and 905 are consistent with a more limited understanding of Congress’ power to legislate in Indian Country that requires legislation to be rationally related to Congress’ unique obligations to the Indian tribes. Thus, on a constitutional challenge, this Note argues that the Court should uphold Sections 904 and 905 because they are both a valid exercise of Congress’ power to expand tribal inherent sovereignty and consistent with Congress’ unique obligations to the tribes.