Unguarded Indians: The Complete Failure of the Post-Oliphant Guardian and the Dual-Edged Nature of Parens Patriae
Gavin Clarkson & David DeKorte | 2010 U. Ill. L. Rev. 1119
Indian Country is the only location in the United States where the race of both the victim and the offender are relevant for purposes of ju-risdiction and prosecution. As a result, American Indian women and children are victimized at astonishingly higher rates than the rest of soci-ety, primarily by non-Indian offenders. Pedophiles have found employ-ment as teachers in Bureau of Indian Affairs schools even after being caught molesting Indian children, and their predation of Indian children has continued with little or no fear of prosecution. American Indian fe-males are victims of violence more than two and a half times the national average. One-third of all Indian women will be raped in their lifetime. What is even more troublesome is that in more than ninety percent of the-se cases, the offender is a non-Indian.
In twenty-first century America, how is it that the race of the perpe-trator and victim determines the availability of justice on Indian reserva-tions? The fault lies with both Congress and the Supreme Court, which have together created a jurisdictional void on most Indian reservations. If a non-Indian assaults an Indian, the tribe cannot prosecute, and neither can the state; only the U.S. Attorney can prosecute. This void allows any non-Indian offender to commit a crime on a reservation with a much higher probability of remaining free than anywhere else in the United States.
Although this situation has been roundly criticized for more than three decades, nothing has been done to solve the problem. This Article suggests that parens patriae, the very legal doctrine originally used to subjugate Indian Country, can instead be used by tribes to restore their inherent sovereignty and finally provide the necessary protection for trib-al members.