Violence against indigenous women and girls ruins lives, destroys families, destabilizes communities and weakens nations. And it occurs far too often in far too many places, including the United States.
Crimes Against Indigenous Women
Just three weeks after he was confirmed as US Ambassador to the United Nations Human Rights Council, Keith Harper, Cherokee, called on the UN World Conference on Indigenous Peoples scheduled for September to address the appalling rates of violence against indigenous women, reiterating the often-violated truth that they have the same human rights as everyone else.
A 2013 UNICEF report, "Breaking the Silence on Violence against Indigenous Girls, Adolescents and Young Women," defines gender-based violence as "physical, sexual and psychological/emotional violence in the family and community, as well as such violence perpetrated or condoned by the State. Specific forms and manifestations include domestic violence, child marriage, forced pregnancy, honour crimes, FGM/C [female genital mutilation], femicide, non-partner sexual violence and exploitation, sexual harassment, trafficking and violence in conflict situations."
A report issued by the Canadian House of Commons' Special Committee on Violence Against Indigenous Women in March 2014 names these factors as causes of violence against indigenous women and girls: the legacy of residential schools that led to a breakdown of the family and the community; widespread poverty; lack of adequate housing; and racism - all factors that also pertain to the United States.
Add to these causes gender inequality as an American core value; an historic use of sexual violence as a form of genocide and a weapon of war; limited access to basic law enforcement, justice and health services; and a jurisdictional morass often incomprehensible even to legal experts, and the vulnerability of indigenous women in the United States is undeniable.
This vulnerability is witnessed in a 2007 report from Amnesty International, "Maze of Injustice," describing the plight of US Native women victims of violence. "Sexual violence against women from Indian nations is at epidemic proportions and . . . Indian women face considerable barriers to accessing justice."
There are many reasons why so many Native women victims of violence, sexual and otherwise, never see justice. For example, a shortage of law enforcement officers means cases in remote locations may not be investigated for several hours - or days - by which time perpetrators and witnesses may be long gone and evidence compromised. Prosecution could mean victims and witnesses have to travel tens or hundreds of miles - often over dirt roads in rattletrap vehicles - to be present in court. If the case is delayed, the trip is wasted. Clinics and hospitals are sparse on rural reservations, and transportation may not be available to access medical help, meaning that no official hospital record exists to verify the injuries. In some instances, rape victims must pay for the rape kits that could document their injuries.
A major cause of these impediments is the jurisdictional tangle that exists in Indian Country. The complex relationships among federal, state and tribal law enforcement and legal systems result from decades of ill-considered, inconsistent and arbitrary decisions on the part of Congress and the US Supreme Court.
A Legacy of Racist Legislation
Following millennia during which Native tribes successfully policed their own communities, the Major Crimes Act of 1885 gave the federal government jurisdiction over several serious crimes committed by Indians or non-Indians on Indian lands, including rape and murder, a move that was and is characterized as a direct assault on tribal sovereignty. More than 20 other crimes, including child sexual assault, have been added to the list since the law was passed.
Then in 1953, during the termination era, Pulic Law 280 (PL280) gave what had been federal criminal jurisdiction in Indian Country to certain states - California, Minnesota, Nebraska, Oregon, Wisconsin and Alaska - and gave the states of Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota and South Dakota, Utah and Washington the right to assume such jurisdiction if they wanted it. This change in jurisdiction meant even less federal money for tribal court systems, which had never been adequately funded anyway. Only a few states continue to exercise authority under PL280, but its consequences - including grossly underfunded public safety institutions on tribal lands - persist.
In 1968, the Indian Civil Rights Act limited the penalties tribal courts could impose for any crime to a maximum of one year of jail time and/or a $3,000 fine.
Then came the case commonly referred to as Oliphant. In Oliphant v. Suquamish, the US Supreme Court stripped from tribal authorities the right to prosecute crimes committed in Indian Country by non-Indians. This decision was critical in denying indigenous women legal protections against violence. Many non-Indians live on Indian reservations for a variety of reasons (and many women, especially those with young kids, have intimate partners or spouses who are not tribal members).
The Oliphant ruling means that violence committed by non-Indians on tribal lands must be investigated and prosecuted by radically understaffed federal agencies and courts. And that more often than not means, for example, dispatching an FBI agent from an urban area to a rural reservation hundreds of miles away when a rape or beating is reported. The agent must interview whatever witnesses are still available when he finally gets there, collect whatever evidence has not been destroyed or compromised, and take whatever findings he can make to a US assistant attorney general, who must decide which cases, among the dozens or hundreds on his desk, can be successfully prosecuted. Under these circumstances, domestic violence cases in Indian Country are most often lost long before they get anywhere near a court.
So this was the situation in 2007 when the US Senate Committee on Indian Affairs held a hearing on the prevalence of violence against Native women: Tribes did not have jurisdiction over non-Natives, period. Tribes did have jurisdiction over their own members and members of other tribes for "misdemeanors," including crimes of domestic violence, but tribal courts could impose, even for the most egregious crimes against women, sentences that did not exceed one year in jail and/or a fine of up to $3,000.
Whether or not a tribe had jurisdiction, or whether it was the state or federal government that had jurisdiction, depended on the answers to several questions. Was the victim a tribal member? Was the crime committed on the reservation? (This is a seemingly easy question with possibly a complicated answer (or no answer) since many reservations include allotments and inholdings owned by individual Indians or by non-Indians, which are not part of the reservation.) Is the state a PL280 state? Was the crime allegedly committed by a tribal member or by a non-Indian?
These limitations were further complicated by the fact that not all tribes could afford a tribal court system in the first place, and most tribal detention facilities were and are wholly inadequate. The Interior Department's Office of Inspector General (OIG) wrote in a September 2004 report, "Neither Safe Nor Secure: An Assessment of Indian Detention Facilities," that BIA [Bureau of Indian Affairs] jails in Indian Country were a "national disgrace." The OIG wrote: "Our assessment found evidence of a continuing crisis of inaction, indifference and mismanagement throughout the BIA detention program appears to have had a laissez-faire attitude about these horrific conditions at its detention facilities."
Senate Committee on Indian Affairs Hearing
The blame, however, goes to Congress. A 2003 report, "A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country," from the US Commission on Civil Rights states that lack of funding from DOJ and BIA severely limits tribes’ ability to provide adequate crime prevention, victim assistance, public safety and correctional programs for their people. For example: "The estimated backlog for [jail] construction is $400 million, yet the 2003 enacted budget includes less than $5 million for tribal detention facilities. The 2004 request provides no funding at all." That was 10 years ago, and the situation has only gotten worse.
During the Senate Committee on Indian Affairs 2007 hearing, Alexandra Arriaga, director of government relations for Amnesty International USA., talked about the implications of jurisdictional intricacies. "Support workers told Amnesty International about the rapes of two Native American women in 2005 in Oklahoma. In both cases the women were raped by three non-Native men . . . Because the women were blindfolded, support workers were concerned that the women would be unable to say whether the rapes took place on federal, state or tribal land. There was concern that, because of the jurisdictional complexities in Oklahoma, uncertainty about exactly where these crimes took place might affect the ability of these women to obtain justice."
The situation in Alaska was then and remains now unique. "Alaska reported 83.5 rapes per 100,000 females compared to a US average of 31.7 rapes per 100,000. Alaska Natives make up 8 percent of the total population of Anchorage yet the percentage of Alaska Native victims was 24 percent. In an informal poll taken in one of the off-road communities, 100 percent of the women there are or have been a victim of domestic violence, sexual assault or stalking," according to Tammy M. Young, director of the Alaska Native Women's Coalition in Sitka.
Tribal Law and Order Act of 2010
In an interview in 2007, before President Obama appointed him assistant secretary - Indian Affairs for the US Department of the Interior, Kevin Washburn, Chickasaw, then-associate professor of law at the University of Minnesota Law School and a former federal prosecutor in New Mexico, said, "Crime and criminal justice are the most important place for self-determination because a criminal code and the processes we use for enforcing our criminal code are some of the key places where communities define themselves." Troy Eid, chairman of the Indian Law and Order Commission, echoed this principle in a 2014 interview, saying that local government is the best way to prevent crime and that Native American tribal governments believe that it is their sovereign right to enforce their own criminal laws on their own lands.
By 2008, there was legislation pending in Congress intended to ameliorate some of the impediments to justice in Indian Country. It would take two more years to get it passed, but finally in 2010, President Obama signed the Tribal Law and Order Act (TLOA) into law. Possibly not coincidentally, in December 2010, the United States became the final nation to endorse the United Nations Declaration on the Rights of Indigenous Peoples, with Canada, the second to the last nation to sign on, having done so just a month prior. Article 22 guarantees indigenous women and children full protection against all forms of violence and discrimination.
TLOA includes a number of provisions intended to reduce crime against Native women, such as expanded training of tribal enforcement officers on the best ways to interview victims of domestic and sexual violence and the importance of collecting evidence to improve rates of conviction, deputizing special assistant US Attorneys to prosecute reservation crimes in federal courts, and the reauthorization of alcohol and substance abuse prevention programs
But the two most important provisions were the expansion of tribal court sentencing authority to three years in jail and/or a $15,000 fine and the establishment of the Indian Law and Order Commission charged with figuring out how to implement the law.
The nine-member commission, which included some of the most respected names in federal Indian law, met for two years and issued its report, "A Roadmap to Making Native America Safer," in November 2013. The commission "concluded that criminal jurisdiction in Indian country is an indefensible morass of complex, conflicting, and illogical commands, layered in over decades via congressional policies and court decisions and without the consent of tribal nations."
One of the report's recommendations was that tribes be allowed to set up their own criminal justice and law enforcement systems completely independent of federal oversight. This would be local control par excellence, whenever the tribe stated that it wanted that control, without the requirement that tribal courts or law enforcement be subject to any kind of federal certification. The only stipulation would be that Congress establish a US Court of Indian Appeals, to which a defendant could appeal if she felt her Constitutional rights were being violated.
Violence Against Women Reauthorization of 2013
Earlier that year, Congress had passed the Violence Against Women Act (VAWA) 2013 reauthorization, which would add significant clout to TLOA in regard to protecting Native women. VAWA gave tribal courts and law enforcement authority to investigate, prosecute, convict and sentence some non-Indians who allegedly commit acts of domestic violence or dating violence or violate certain protection orders in Indian country, beginning in 2015.
It is the first time since Oliphant that tribes have been able to bring non-Indians who commit crimes on their reservations to justice. For tribes that can implement the law, the question of jurisdiction will no longer pertain for Native women abused by anyone who resides in Indian country, is employed in Indian country, or is the spouse, intimate partner, or dating partner of an Indian living in Indian country or a tribal member.
This provision was massively controversial with House Republicans, who argued that tribal courts wouldn't uphold the constitutional rights of non-Native Americans. Their objections caused the reauthorization of VAWA to fail in 2011 and 2012. The provision was removed in an alternative version of the bill backed by House Majority Leader Eric Cantor, but it was the Senate version of the bill that finally passed. In a comment only he could have made, Vice President Joe Biden, who authored the original 1994 VAWA, has called those who opposed the reauthorization "Neanderthals," according to Politico.
Nonetheless, this is progress. Sort of.
There are specific and intentional provisions in TLOA and VAWA 2013 saying that those laws do not apply in Alaska, where 229 of the nation's 566 federally-recognized tribes reside. In Alaska, the state prevails. The ILOC report devotes an entire chapter to Alaska and its appalling criminal free-for-all, especially in native villages, where crimes often are neither reported nor prosecuted because the villages are so remote they cannot even be accessed from the outside during the winter. In these places, native women have no protection at all from domestic violence (or any other crimes).
For most tribes in the Lower 48, the VAWA 2013 provisions go into effect in 2015, but in February, DOJ instituted a pilot program whereby three tribes - the Pascua Yaqui Tribe of Arizona, the Tulalip Tribes of Washington and the Umatilla Tribes of Oregon - have begun exercising special criminal jurisdiction over certain crimes of domestic and dating violence, regardless of defendant's Indian or non-Indian status.
The Pascua Yaqui Tribe already has a sophisticated tribal court system. However, the tribe's experience in preparing to try cases under VAWA has been anything but easy.
Pascua Yaqui Tribe Chief Prosecutor Alfred Urbina explained in an interview with Truthout earlier this year some of the challenges faced by tribes that seek to implement the new VAWA provisions, among them the question of who will defend the accused non-Indian perpetrator. In order for VAWA to work, the attorney would need to be well-versed in Indian law, Indian sovereignty, and Native American court systems. The issue of defense attorneys is further complicated by the fact that VAWA requires that the attorneys and judges in cases where a white person is being tried be state-licensed.
Other procedural issues exist because tribes are sovereign nations and certain aspects of government-to-government relationships have to be worked out, Urbina told Truthout. For example, how does a tribe get a warrant served off-reservation? What if a tribes needs to have a suspect extradited from state or federal custody to tribal custody? Who is going to provide translators so non-English speaking defendants can confer with their attorneys and follow court proceedings? Then there is the issue of costs. For example, who will pay the costs of keeping a defendant in jail pending trial, costs that could include very expensive medical care?
The Pascua Yaqui Tribe is working to meet the requirements of VAWA to the letter. To do otherwise could mean a case would end up in a federal appeals court on constitutional grounds.
Urbina estimated it could cost a tribe up to $500,000 to get their justice system to the point where it would meet VAWA's prerequisites for prosecuting non-Indians for domestic violence crimes. The Pascua Yaqui Tribe has sufficient resources on its own to do this, but other tribes will need significant federal assistance to get their court systems to the point where they can exercise the jurisdiction VAWA gives them. However, another compromise to get the law passed was that there was no money appropriated to help tribal governments in this regard, and the federal government's historic stinginess in funding tribal institutions suggests that finding half a million dollars to help each tribe that wants to set up a court system in compliance with VAWA is unlikely.
Limits of the Law
So the law, revolutionary as it is, may have limited impact as only tribes with significant independent resources (usually derived from gaming or natural resource development) will be able to meet its requirements.
And in Alaska, it will have no impact at all as things currently stand. US Associate Attorney General Tony West has spoken out in favor amending VAWA to remove the exclusion of Alaska Natives from its protections, and Sen. Mark Begich, D-Alaska, expressed a similar position to Truthout. The Tundra Drums quoted West as saying, "One step [U.S.] Attorney General Holder and I believe we can take is to enhance the ability of Alaska Natives to issue and enforce domestic violence protection orders in the same way tribes in the Lower 48 can do now. And that's why the department supports Congress' repeal of Section 910 of last year's reauthorization of the Violence Against Women Act."
But Alaska Gov. Sean Parnell is strongly opposed, possibly concerned that supporting Alaska Native self-determination in this area could led to their wanting more control over the state's vast natural resources. Parnell has responded to the domestic violence crisis in his state by holding anti-domestic violence parades and by offering an agreement under which a person arrested for domestic violence and certain other crimes would have the option of having the case tried in tribal court, according to Alaska Attorney General Michael Geraghty.
West made his comments at the final meeting of the Advisory Committee of the Attorney General's Task Force on American Indian and Alaska Native Children Exposed to Violence, an acknowledgement of the fact that even if the domestic violence is not aimed at them directly, children are also victims. Studies have shown that children exposed to high levels of stress suffer damage to brain development that seriously impinges on their ability to learn in school. When children cannot learn, when they cannot become productive citizens or leaders, the future of their communities, and therefore of the nation as a whole, is in jeopardy.
Domestic violence ruins lives, destroys families, destabilizes communities and weakens nations.The U.S. Department of Justice Reports:
* Depending on which stats one looks at, between 67 percent and 90 percent of rapes against American Indians and Alaska Natives (AIAN) are committed by non-natives. Sixty-three percent of AIAN women victims of assault identify the perpetrators as non-natives.
* One-third of AIAN women report being raped over the course of their lives. Seventy-one percent of AIAN women victims of rape or sexual assault know their rapists; 38 percent are the women's intimate partners.
* Three out of five AIAN women have been assaulted in their lifetimes.
* In some counties, the murder rate for AIAN women is over 10 times the national average. Murder, in fact, is the third cause of death for American Indian women, according to testimony offered by Karen Artichoker, director of the Sacred Circle National Resource Center to End Violence Against Native Women, during the 2007 Senate Committee on Indian Affairs oversight hearing on violence against Native women.