WASHINGTON, D.C. — During an historic hearing dedicated to their missing and murdered Native sisters throughout the Americas, Native women and tribal advocates resorted to an international human rights body to raise global awareness on the epidemic of violence against Native women in the United States. Representatives of the United States appearing at the hearing admitted that this level of violence against Native women is “an assault on the national conscience.” Continue reading
WASHINGTON, D.C. — The epidemic proportions of violence against Native women in the United States continues to gain global attention. The Inter-American Commission on Human Rights will hold a hearing on Oct. 25, 2011 at 10:15 a.m. at the General Secretariat Building of the Organization of American States (OAS) in Washington, D.C. The Commission is an autonomous organ of the OAS, created by countries to protect human rights in the Americas.
Criminal Justice in Indian Country: Roadblocks for Domestic Violence Survivors
Seattle University School of Law, Sullivan Hall Courtroom
Wednesday, October 12, 2011, 11am-1pm
Jurisdictional issues in Indian Country affect tribal members nationwide. Some types of crime, including domestic violence, often fall into jurisdictional gaps and are not prosecuted. Because tribal courts do not have jurisdiction over non-Indians, tribal members have no recourse through tribal courts when a perpetrator is a non-Indian. Between 2005 and 2010, the federal government refused to prosecute 50% of violent crimes that allegedly took place in Indian Country, and approximately 75% of sexually-based alleged crimes against women and children. However, some tribes are experimenting with creative ways of addressing these problems. This event, hosted by the Seattle University Human Rights Network, the Center for Indian Law and Policy, the Seattle University Native American Law Students Association, and the Seattle University Women’s Law Caucus, will inform attendees about the jurisdictional problems, as well as possible solutions in navigating these legal systems and addressing domestic violence. The enactment of the Tribal Law and Act of 2010, along with horrendous statistics of violence against women and children in Indian Country, makes this issue particularly timely and important for students interested in Indian law and advocacy.
Here is the link to the post, titled “DOJ Takes Step Toward Addressing Violent Crime Against American Indian Women.”
An excerpt:
The United States Department of Justice (DOJ) has, for the first time, proposed a dramatic expansion of American Indian tribal criminal jurisdiction in its recommendations to Congress on the reauthorization of the Violence against Women Act. After decades of declining to support expanded tribal criminal jurisdiction, this proposal is a major watershed in the fight against Indian country crime. DOJ finally supports the reaffirmation of at least limited authority to prosecute such crime by the first responders in Indian country – Indian tribes.
In its narrative proposal (available here), DOJ acknowledges the epidemic of violence against American Indian women occurring daily in the United States, and especially in Indian country. Recent stu
dies by university researchers and Amnesty International, among others, conclude that American Indian women suffer possibly the highest rates of violent crime – most notably, sexual assaults – of any demographic in the United States.
The proposal is a limited one, given the political climate, but symbolically important. It recognizes inherent tribal jurisdiction to enforce civil protection orders against all persons, Indian and non-Indian, an open question in current law. It also recognizes limited tribal criminal jurisdiction authority over non-Indians who commit domestic violence-related crimes. Sexual assaults are not included in the proposal. Despite these limitations, DOJ’s recommendations – coming on the heels of 2010’s Tribal Law and Order Act, which was the first significant expansion of tribal sentencing authority since 1986 – may pave the way toward greater ability of Indian tribes to respond to violent crime against Indian women in the future.
Here.
An excerpt:
Lorena Halwood, who works with domestic violence victims on the Navajo Nation, said family abuse violates not only the law but the traditional Navajo way of life, which preaches harmony and talking with one another to mitigate problems. She stood with others in the Navajo Nation’s capital this week, asking tribal lawmakers to support legislation that would specifically criminalize domestic violence for the first time on the reservation.
“A lot of the victims have come to accept there’s nothing anybody can do,” she said.
Halwood’s work with domestic violence spans 16 years, creating a network of safe houses for victims awaiting transport to one of two shelters on the 27,000-square-mile reservation, the size of West Virginia. She’s seen broken jaws and noses, sexual assault and rape cases, and has made 2 a.m. visits to the emergency room.
Tribal police often are late in arriving to the scene because of the remoteness of the reservation. Halwood said women’s in-laws often blame them for the abuse, and women find it difficult to leave without transportation or a support system.
She welcomed any change that would make offenders realize they’re not getting off with what she says commonly is a slap on the wrist and a warning not to hit a woman again.
“If we have harsher penalties, stiffer sentences, then maybe they’ll see `I’m not supposed to be doing this. The next time I might spend more time in jail away from my family, my children,'” she said.
Here:
Mr. Tom Perrelli
Associate Attorney General, Ll.S.
Department of Justice, Washington, DC
Dr. Rose Weahkee
PH.D.
Division of Behavioral Health, Indian Health Service, Ll.S. Department of Health and Human Services, Washington, DC
The Honorable Donald W. Rodgers
Chief
Catawba Indian Nation, Rock Hill,SC
written testimony
Ms. Carmen O’Leary
Director
Native Women’s Society of the Great Plains, Timber Lake, SD
Here are the documents:
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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