From ABA:
Crisis Situation for Native American Women in a Broken Legal System
Fall 2009
By Cynthia L. Cooper
Cynthia L. Cooper, an independent journalist in New York City, is a former practicing lawyer who writes frequently about justice topics.
The stories of Helen Parisien, manager of the Bridges Against Domestic Violence near one of the Lakota Indian reservations in South Dakota, stand out most for how common she says they are. She described her experiences in detail to the U.S. Senate Committee on Indian Affairs in September 2007.
“I received a call concerning a young woman who reported being physically beaten and raped. . . . I had to make numerous calls in an attempt to get cooperation from law enforcement. . . . When I finally reached the investigator, I was told he would be down that same afternoon to interview the victim. He did not come down. . . . The police never did do an investigation. In continuing conversations with this woman, she told me that she lived in daily fear of being found by her abuser,” Parisien said. “While it may seem to you that these incidents are extreme, I am sorry to say they are the norm.”
A broken system in handling sexual assault and domestic violence cases of Native Americans and Alaskan Natives is marked by confounding criminal jurisdiction and a woeful lack of resources. “Women and children bear the brunt of it because they are the ones with the least power,” says lawyer Caitlin Collier, who provided legal assistance to victims for the South Dakota Coalition Against Domestic Violence and Sexual Assault.
Violence against Native American women has reached crisis levels. The Department of Justice reported that Native American women face the highest rates of sexual assault in the United States, more than double the rates experienced by other women. One in three Native women is sexually assaulted in her lifetime, according to the Department of Justice. Advocates reported 44 rapes in a single weekend on the Pine Ridge Reservation in South Dakota.
“We’ve created an atmosphere for violence, and the victims are women,” says Loretta A. Tuell, a Washington, D.C., lawyer who represents tribes.
The federally recognized tribes — there are more than 550 — are sovereign nations with a special relationship to the United States. Tribal authority is both recognized and limited by federal law. But a crazy-patch scheme puts the prosecution for sexual violence in tribal, federal, or state jurisdiction depending on a confusing conglomeration of rules.
“It’s hard to know where to begin because it’s such a mess,” says Sarah Deer, an assistant professor at William Mitchell College of Law in St. Paul, Minnesota, and a scholar on women and Indian law. For example, tribal courts may not prosecute non-Indians, no matter what crimes they commit. Yet, according to reports from the Justice Department, more than 85 percent of the perpetrators of rape and sexual violence against Indian women are non-Indians. “For the tribes, their hands are tied,” Deer says.
The situation results in “rape with impunity,” according to Amnesty International USA, which in 2007 released a report, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA.
“The issues of sexual assault and domestic violence are certainly very serious issues in Indian Country and within Alaska Native communities,” says Sen. Lisa Murkowski (R-Alaska), a former prosecutor now serving on the Senate Committee on Indian Affairs. “The jurisdictional scheme on Indian reservations provides law enforcement challenges, as well as a lack of adequate resources to cover remote and rural communities on Indian reservations,” she adds.
Tuell is more blunt: “People who want to commit crimes go onto reservations.”
Determining Jurisdiction
Jurisdiction is a primary part of the mess. Indian tribes retain the power to establish tribal courts, and about 350 exist, many of which include appellate systems. However, in 1883 Congress placed authority for most felonies in Indian Country — as the land is known in federal law — in federal courts in the Major Crimes Act. Public Law 280 in 1953 assigned jurisdiction for certain reservations to selected states (California, Minnesota, Nebraska, Oregon, Wisconsin, and later Alaska). In addition, all states had the option to take over jurisdiction between 1953 and 1968, and a number did so. A 1968 law, the Indian Civil Rights Act, limited the sentencing authority of tribal courts: currently one year’s imprisonment or a $5,000 fine.
Other complications for sexual assault victims came after the 1978 ruling of the U.S. Supreme Court in Oliphant v. Suquamish Indian Tribe (435 U.S. 191), holding that tribal courts do not have criminal jurisdiction over non-Indians absent specific congressional approval. The case arose from a Pacific-Northwest tribe that charged a non-Indian with assault on a tribal police officer. Writing the 6-2 majority opinion, then-Associate Justice William Rehnquist said that the guarantees of due process were not the same in the tribal court, noting for example that non-Indians were excluded from juries. Id. at 194.
Lack of jurisdiction over non-Indians is a problem, says Matthew Fletcher, an associate professor at Michigan State University College of Law and director of the Indigenous Law and Policy Center at the university in East Lansing, Michigan. “Large numbers of people who are not tribal citizens reside or conduct business in Indian Country, or have Indian spouses and intimate partners who reside there.”
Note that Amnesty International reports that 3,600 of the 9,000 residents of the Standing Rock Reservation in the Dakotas were non-Native.
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