From the Lincoln Journal Star:
She needs to call 911. She needs police to arrest the drunken boyfriend who assaulted her. She needs to go to the hospital, because she might be pregnant and he might be HIV-positive. And she needs a lawyer.
She could be one of so many women on Native reservations, where alcoholism and domestic violence often are rampant. In fact, Amnesty International reported in 2007 that Native women were 2 1/2 times more likely to be sexually assaulted.
Yet when a Native woman dials 911, a series of legal obstacles arise. Many stem from laws governing tribes — laws that can amplify the horror of sexual assault on Native reservations.
Among them is a 1950s federal regulation allowing government agencies, such as Indian Health Services, to avoid testifying in state and tribal courts.
The perceived benefit: Less courtroom involvement keeps agencies neutral.
But critics say information being withheld can include forensic evidence that could convict a rapist.
“So we have serial rapists that stalk our women,” said Charon Asetoyer, whose South Dakota-based group fights for Native women’s reproductive rights.
“Basically, what is happening is our Native women are not getting equal protection under the law, and that is a violation of our constitutional rights.”
Native womanhood was not always so rife with violence.
For centuries, tribes revered their mothers and daughters, and Native women often enjoyed the same autonomy as men. Some were shamans or councilwomen.
They could declare war, historians say, or regulate trade and negotiate with enemy tribes.
But over time, European settlers introduced misogynistic attitudes often veiled in religious teachings; diaries of early missionaries reveal how some encouraged Native men to demand subservience.
“I told him then that he was the master,” wrote Paul Le Jeune, a Jesuit missionary who worked with the Montagnais-Naskapi people in 17th-century Canada. “And that in France, women do not rule their husbands.”
Some modern Native leaders say those early teachings — along with forced removals, allotments and boarding schools — debased the status of Native women.
Although tribes eventually were given land to call their own, many Native nations lack the resources to prosecute crimes, leaving them vulnerable when it comes to protecting their own communities, some judges and lawyers say.
“Therein lies the problem of domestic violence,” said Karen Artichoker, former director of a Pine Ridge Indian Reservation shelter that counsels abusive men and houses battered women. “It is the influence of a Western society that has strategically changed the way we live.”
But many Native women are confronting these historical injustices, helping to improve a tribe’s ability to enforce tribal and criminal laws and the policies protecting victims of domestic violence.
Each year, these women — in education, health, law and the media — are channeling their historical role as Native lawgivers to help restore the sanctity of women throughout Indian Country.
“If I’m oppressed in San Jose or Washington, D.C., or San Francisco, I am going to stand up for my rights,” Asetoyer said. “It doesn’t matter whether you come from or work in an urban area or a reservation. This land is our land.”
It is the stuff of grade-school textbooks: Iroquois women had a great deal of power before settlers arrived. They owned land, controlled commodities and, most famously, elected men to represent them in national councils.
For many, these facts now usually are mentioned in passing, somewhere between Columbus reaching the New World and Squanto helping the Pilgrims. Less known, however, is the negative effect land grabs had on women’s lawgiving powers.
Cherokee women experienced one of the most well-documented declines in power.
Through the late 1700s, Cherokee women were civically engaged. They owned land and had a say during wartime. But this changed after the tribe ceded large tracts of land to the U.S. government in 1795.
The Cherokee, wanting to hold on to land still in their name, assimilated into Southern farming culture. To fit in, the men needed to play landowner, so inheritance patterns switched.
“The Cherokee always knew it was the women’s land,” said Donovin Sprague, a professor of American Indian studies at Black Hills State University. “But it was government policy that changed all that.”
So when President Andrew Jackson’s administration drew up the Treaty of New Echota in 1835, only men signed it. That relinquished the tribe’s remaining territory in the Southeast and laid the groundwork for the Trail of Tears — a forced march to Oklahoma in which more than 4,000 Cherokee died of starvation and exposure.
Almost a century later, the Indian Reorganization Act of 1934 all but silenced Cherokee women by encouraging tribes to draft written constitutions and elect chairmen.
“The Indian Reorganization Act destroyed this tradition, this role of women as lawgivers,” said Sprague, a Miniconjou Lakota. “Even though men were seen as the lawgiver, they were displaced in alcohol and had lost purpose in life.”
Native women turned to the arts. And they organized themselves through quilting circles, sometimes more effectively than their male representatives.
Native women returned to the higher rungs of tribal politics in the mid-1980s. But when they came back, they found a legal system ensnarled in limits on what a tribe can and cannot do.
Specific laws and court rulings have diminished Indian Country’s power to arrest and prosecute criminals. And some in tribal law enforcement say this contributes to higher crime rates and an overall sense of lawlessness.
Anita Fineday, tribal court chief for the White Earth Indian Reservation in northwestern Minnesota, deals with these kinds of issues every day.
Her reservation has an annual budget of $1 million for law enforcement, she said. With 9,200 residents to protect, that amounts to about $109 per person. The nearby town of Detroit Lakes, population 8,030, devoted $1.3 million to police in 2008, or $157 per person.
Why the tribe does not receive additional funding seems paradoxical.
Fineday, an Ojibwe, said the federal government would award more if White Earth exercised its criminal jurisdiction over reservations. But a controversial federal enactment from 1953 — Public Law 280 — transferred the federal government’s criminal jurisdiction over Indian Country to six states, one of which is Minnesota.
Joe Plumer, tribal attorney for White Earth, said the 56-year-old federal legislation led to gaps in law enforcement, and those gaps directly affect Native women’s safety.
“To the extent that counties have primary jurisdiction over White Earth, they don’t carry it (law enforcement) out evenhandedly,” he said.
For example, Plumer said, one of the three counties that oversees White Earth does not recognize protection orders filed in tribal court.
“Counties will say that because tribes don’t provide any taxes, the counties don’t have to provide any services or diminish the quality of their services,” Plumer said.
And even in regions where Public Law 280 is not used, the Department of Justice finds that federal and state governments provide significantly fewer resources for policing in Indian Country.
A U.S. Supreme Court decision, Oliphant v. Suquamish Indian Tribe 1978, was another blow to Native women. The justices ruled that tribal courts do not have jurisdiction over non-Natives, even if an offense occurs on tribal lands — a ruling that still holds today.
Oliphant left many tribes at a loss in policing reservations, some legal experts note, and it put women at greater risk of being abused without consequence.
Although tribal police can arrest a non-Native, a tribal court cannot prosecute the perpetrator.
“It’s a huge problem in tribal communities, where in domestic violence situations the perpetrator is non-Indian,” said Jennifer Bear Eagle, a Lakota attorney at Fredericks Peebles & Morgan, an Omaha law firm specializing in tribal law.
“The federal government — in non-Public Law 280 states — is supposed to step in at that point.”
But that rarely happens, she said, because the government is strapped for resources.
And although they, too, are strapped for resources, it hasn’t stopped Native women from aggressively seeking justice for their clients.
Asetoyer, whose activism dates to the American Indian Movement’s 1969 takeover of Alcatraz, is not afraid to call out Indian Health Services over questionable practices.
For example, in 2005, her group reported that not all IHS emergency rooms provided rape kits, or forensic exams, for sexual assault victims. Four years later, the 2009 congressional omnibus bill dedicated $7.5 million to sexual assault training for IHS hospitals.
Now the nonprofit is working on the next step — getting forensic evidence into court. It is one thing to perform forensic exams, Asetoyer said. To convict a perpetrator, however, a doctor or nurse needs to present evidence in court. But the 1950s federal regulation can stall their testimony, and the resource center wants to change that.
“Why are our health providers exempt from providing evidence that would convict a rapist?” Asetoyer said. “(IHS is) protecting sexual predators by not allowing their examiners to provide evidence in court.”
IHS “will not be able to address (Asetoyer’s accusations) at this time because of pending legislation on this issue,” Thomas Sweeney, director of public affairs for IHS, wrote in an e-mail. The pending legislation would make IHS testimony more likely.
In the meantime, Native lawgivers will persevere.
Advocates such as Asetoyer will reach out to abuse victims, informing women of what to expect from their doctors and nurses. Still others, such as Sarah Deer, a Muscogee Creek law professor at William Mitchell College of Law in St. Paul, write legal articles about the roadblocks Native women face.
“I don’t understand what the resistance is (on IHS’ part),” said Deer, a leading scholar on the obscure federal regulation. “I think Native women deserve better.”
Community-based groups are trying to help by connecting victims with shelter, health care and legal aid. And two shelters on South Dakota reservations try to bridge the gaps that can impede a Native woman’s access to justice.
In 1985, Asetoyer founded the nonprofit Native American Women’s Health Resource Center, providing shelter for abuse victims on the Yankton Sioux Reservation.
Another group, Cangleska, helps more than 800 Oglala Lakota break free from abusive relationships yearly.
“Before Cangleska, women on the Pine Ridge Indian Reservation were going to jail seeking shelter from domestic violence,” said Artichoker, the shelter’s former director and an enrolled member of the Oglala Sioux Tribe. “They were hiding in the fields. But then the elders said something had to be done.”
Cangleska — Lakota for “sacred circle” — pushed for a mandatory arrest law, which became part of the tribe’s penal code in 1995. It provides some relief from Oliphant, Artichoker said, because the law applies to Natives and non-Natives on Pine Ridge, the nation’s second-largest reservation.
Women were less willing to report abuse before the law existed, shelter coordinator Norma Rendon said.
“The police would look at the woman, bloody and beat, and ask, ‘Are you OK?'” Rendon said. “And she would say, ‘Oh, I’m fine,'” because she did not want to further aggravate her partner.
Now, if an officer believes an assault occurred or could happen, that alone is probable cause for arrest.
“Women are a lot safer,” Rendon said. “They aren’t afraid to call the police.”
Turtle Talk 