The health and wellbeing of American Indian and Alaska Native families are in peril as their children are exposed to domestic violence and other multiple forms of violence in Indian country at rates highest among all U.S. races. For Native youth, this exposure to violence results in increased rates of physical, mental, and emotional damage, and over-representation in the juvenile justice system. While tribal governments acknowledge their responsibility to keep tribal citizens safe, various federal intrusions and restrictions placed upon tribal sovereignty impede tribes from doing so. Of scant data available, non-Indians are committing a majority of sexual violence against American Indians. Non-Indians are committing crimes against women and children in Indian country, due in part to a huge gap in tribal criminal jurisdiction.
However, a 2013 shift in federal policy supporting tribal sovereignty has loosened some of the previous federal restrictions placed on tribal courts related to criminal jurisdiction. In particular, Section 904 of the Violence Against Women Act of 2013 (VAWA) relaxed the federal restriction against prosecuting non-Indians for certain crimes. However, Section 904 is far too narrow to protect child victims of domestic violence and ancillary crimes in Indian country. As we argue in this paper, Section 904 must be amended to allow tribal courts to exercise special domestic violence criminal jurisdiction over non-Indians who commit domestic violence and ancillary crimes against Native children in Indian country.