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Arguments of the Opposition (#3 in the TLOA & SAVE Series)

Despite the straightforward appearance of the TLOA and SAVE there has been quite a bit of opposition to these acts passing into law or being enforced as the case may be.  The main argument against enacting such legislation is the altering of tribal jurisdictional authority inherent to these acts.  The existing law enforcement and judiciary practices for offenders on tribal lands are a veritable quagmire.  From professors of law to Supreme Court Justices such as Kennedy and Thomas, many have noted the flaws in the piecemeal system.  However, cynics of the TLOA and SAVE do not believe the answer to the problem lies in giving tribal courts further judiciary power.

The problem for many naysayers lies in the partial repeal of earlier Supreme Court cases concerning tribal sovereignty and jurisdiction included in the premises of the legislation.  The case of Oliphant vs. Suquamish Indian Tribe (1978) denied tribal courts the “inherent criminal jurisdiction to try and to punish non-Indians.”  Supporters of the Supreme Court decision argue that it would not be just to allow a non-Indian to be tried in a tribal system that he or she doesn’t understand or that might overlook certain Constitutional rights in its practices.  The Congressional Research Service also noted that such offenders have no voice or representation in the formation of court procedure as tribal members do.

Another argument, highlighted recently an article published by Indian Country Today, is that the data these acts use as an argument for legislative change is false.  The Bureau of Justice Statistics is pegged by opponents of TLOA and SAVE as having gathered biased data or represented its findings in an unclear manner.  The fact that citizens were allowed to self-designate their race and don’t all live on tribal lands is viewed as a problem.  Scott Seaborne, author of the article, argues that much of the violence in Indian Country proper is Indian upon Indian and thus any act which allows for the prosecution of non-Indians is out of line and may even have an ulterior motive.  In this instance, the motive is explained with the fabricated word “super-sovereignty.”  It all begins to reek of a conspiracy theory when allegations are made that tribes are seeking a way to “legislatively secede from the United States” while still consuming taxpayer dollars of course.

Additional Resource: CRS Report Tribal Criminal Jurisdiction over Non-Indians in the Violence Against Women Act (VAWA) Reauthorization and the SAVE Native Women Act

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