Amber Halldin on Tribal Civil Responses to Non-Indian Violence Against Women

Amber Halldin (my former student at UND!) has published “Restoring the Victim and the Community: A Look at the Tribal Response to Sexual Violence Committed by Non-Indians in Indian Country through Non-Criminal Approaches” in the North Dakota Law Review. An excerpt:

This article will examine how tribes respond to non-Indians that commit sexual violence against Native people in Indian country. Jurisdictional issues create particular problems for tribes to remedy the violence committed in their communities, because tribes are often forced to rely on non-criminal prosecution remedies. Through the use of traditional tribal punishments and newly developed tactics, Indian tribes are working towards better protecting their members despite federal law barriers.

Biden Promises More Justice on Reservations

Biden promises more justice on reservations
By JODI RAVE of the Missoulian

KALISPELL – On Sunday, Democratic vice-presidential nominee Sen. Joe
Biden said an Obama-Biden administration would increase federal
prosecutions in Indian Country and strengthen tribal court
jurisdiction over crimes occurring within reservation borders,
regardless of the race of the criminal.

“There will be a much, much, much heightened sensitivity to
legitimate causes within reservations that, quite frankly, we’ve just
been taking advantage,” said Biden, author of the 1994 Crime Bill.
Tribal justice systems “should have greater say. I tried to get that
in the original crime bill when I wrote it. I find it absolutely
fascinating that we have this dual jurisdiction.”

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Amnesty Letter to NYTs Editor re: Indian Justice

From NYTs:

Re “Broken Justice in Indian Country” (Op-Ed, Aug. 11):

N. Bruce Duthu rightly points to the need to restore tribal authority over cases of rape and sexual assault committed against Native American and Alaska Native women and to ensure that perpetrators are brought to justice.

Senator Byron L. Dorgan of North Dakota recently introduced legislation that would be a tremendous step in this direction. The bill should be strengthened in collaboration with tribal leaders and then passed.

It is also critical to ensure that all available forensic evidence is gathered promptly and correctly after these crimes are reported. Amnesty International researchers have found that often it is not.

Native women who report rape may not get a police response for hours or days, especially in rural areas. Many Indian Health Service hospitals lack personnel trained to provide emergency services to victims of sexual assault. If a rape kit is not administered or is administered improperly, the chances that the perpetrator will be brought to justice are greatly diminished.

Congress should help by increasing financing to ensure that there are enough police officers on tribal lands to respond to these crimes and that sexual assault nurse examiner programs are established in all Indian Health Service hospitals. Larry Cox

Executive Director

Amnesty International USA

New York, Aug. 12, 2008

Bruce Duthu NYT Op/Ed on Tribal Justice

From the NYTs:

ONE in three American Indian women will be raped in their lifetimes, statistics gathered by the United States Department of Justice show. But the odds of the crimes against them ever being prosecuted are low, largely because of the complex jurisdictional rules that operate on Indian lands. Approximately 275 Indian tribes have their own court systems, but federal law forbids them to prosecute non-Indians. Cases involving non-Indian offenders must be referred to federal or state prosecutors, who often lack the time and resources to pursue them.

The situation is unfair to Indian victims of all crimes — burglary, arson, assault, etc. But the problem is greatest in the realm of sexual violence because rapes and other sexual assaults on American Indian women are overwhelmingly interracial. More than 80 percent of Indian victims identify their attacker as non-Indian. (Sexual violence against white and African-American women, in contrast, is primarily intraracial.) And American Indian women who live on tribal lands are more than twice as likely to be raped or sexually assaulted as other women in the United States, Justice Department statistics show.

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CERD Concluding Observations Address Discrimination Against Native Americans

The Committee for the Elimination of Racial Discrimination (CERD) included several recommendations focused on discrimination against Native Americans in its concluding observations on the latest periodic report submitted by the United States. It expressed particular concerns about persistent sexual violence against Native American women, the failure of the U.S. to consult with indigenous peoples before taking actions on lands of cultural and religious significance to them, and the lack of follow up on its earlier recommendations on the situation of Western Shoshone indigenous peoples and their lands. Its recommendations included:

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Sen. Dorgan Concept Paper on Violent Crime in Indian Country

From Sen. Dorgan’s office:

November 7th, 2007 – Over the past year, the Senate Committee on
Indian Affairs has held three oversight hearings, a series of
listening sessions, and multiple meetings with tribal leaders to
discuss the longstanding problem of violent crime in Indian Country.
Senator Byron Dorgan, Chairman of the Senate Committee on Indian
Affairs, has developed a concept paper which has been sent to tribal
leaders. The concept paper, found here, is a compilation of comments
from tribal leaders that examines the problems and lists a number of
proposed solutions to law enforcement issues in Indian Country.

The Committee will continue to meet with tribal leaders over the next
few months in the development of legislation to address this issue.
For those who wish to provide additional comments, we invite you to
share your comments and ideas with us through our website. Please
click on the link below and share with us your thoughts on this
important matter. However, if you wish to submit any documents in
addition to your comments, please e-mail
with both your comments and attachments. Similarly, you may fax the
information to (202) 228-2589.

Congressional Authority to Reaffirm Tribal Criminal Jurisdiction over Non-Indians

The recent testimony before the Senate Indian Affairs Committee regarding the possible Congressional reaffirmation of tribal criminal jurisdiction over non-Indian domestic violence and sexual assault perpetrators — that we blogged about earlier — is now complete with the final version of Riyaz Kanji’s testimony on Congressional authority to take this action.

Violence Against Indian Women

The Senate Indian Affairs Committee heard powerful testimony from Indian women last week on the pervasive problem of violence against women. Riyaz Kanji of Ann Arbor’s Kanji & Katzen testified that Congress has authority to extend criminal jurisdiction over non-Indians to Indian tribes, if it chooses.

The Amnesty Report that helped to jump start this issue in Congress is here.

Sarah Deer’s recent editorial in Indian Country Today on the topic is here. And some of her related material is here, an article in the Suffolk Law Review.