This post contains mentions of sexual violence
The Violence Against Women Reauthorization Act of 2019 (H.R. 1585) that addresses the jurisdictional problem described in this article was voted on during the first week of April, 2019. The bill passed the House with a vote of 263-158. 33 Republicans voted for the measure. VAWA faces an uphill battle in the Senate in the coming months.
The #MeToo and “Times Up” movements have thankfully brought forth a national and international conversation about the prevalence of sexual harassment and sexual violence. #MeToo has in many ways exposed the realities of sexual violence, and how it manifests differently across the nation and the world for different groups of people. For American Indian and Alaskan Native women in the United States, these realities are particularly chilling. While #MeToo has brought many important conversations to light, indigenous women and activists have been sharing their stories and trying to make their voice heard for ages. Their issues need to be amplified, and something needs to change.
Survivors, regardless of demographic, face an antagonistic and patriarchal system that makes obtaining justice particularly difficult and jarring. American Indian and Alaskan Native survivors must contend with these barriers alongside the history of colonialism and injustices against native people. Indigenous women simply can’t access justice, or at least not in the way that most other people in the United States can. These women are living lives marked by violence, experiencing sexual violence at a rate higher than any other racial or ethnic group in the nation. They often cannot do anything about it. Lisa Brunner, a member of White Earth Nation in Minnesota, and an advocate for survivors with the Sacred Spirits First Nations Coalition, describes an encounter with a young girl to Al Jazeera, “[The girl said], ‘When I’m raped, we won’t report it, because we know nothing will happen. We don’t want to cause problems for our family.’”
The National Intimate Partner and Sexual Violence Surveys (NISVS) from the Centers for Disease Control (CDC) indicate that American Indian and Alaskan Native women will experience sexual violence 12.4% more than the average. Indigenous women also experience higher rates of violence in general – 84.3% report experiencing violence in their lifetime. Across the board, these disparities remain constant across every type of sexual violence.
What’s more striking than this high rate of sexual violence is the nature of the perpetrators. For non-Hispanic white women who experience sexual violence, 32% of perpetrators were an interracial partner, and 91% were an intra-racial partner (another person of the same race). Comparatively, 96% of indigenous women who have experienced sexual violence identified the perpetrator as an interracial partner (a different race, non-native).
What does this mean, and why does it matter? It is related to the muddled relationship between the states, tribes, and the federal government that has continuously complicated prosecution of crimes by non-native criminals on native land. The 1978 Supreme Court decision in Oliphant v. Suquamish determined that Indian tribal courts do not have criminal jurisdiction over non-Indians for conduct occurring on Indian land. Up until 1958, on native land, both the federal government and tribal authority had this type of jurisdiction. In 1958, the adoption of Public Law (PL) 280 in some states, also granted the state the ability to hear criminal cases from Indian territory. Oliphant v. Suquamish determined that only states with PL280 and the federal government could hear these cases though.
There are 326 reservations in the United States, which combined have a population of over 4.5 million people. According to the US Census, 77% of people who live on reservations are not native nor part of a tribe. Tribal courts are the judicial system on many of these reservations, and function very similarly to other courts in the United States. Many of these courts receive funding from the Department of the Interior, but have limited jurisdiction when it comes to criminal procedure due to the Oliphant v. Suquamish ruling. This gets especially complicated in cases of sexual violence, considering the statistics behind the perpetrators and the demographics of people who live on tribal land.
Though the 2013 reauthorization of the Violence Against Women Act (VAWA) recognizes tribal criminal jurisdiction over non-Indian perpetrators of domestic violence, there’s still a lot lacking for other types of sexual violence and child abuse. Some critics of expanding jurisdiction of tribal courts worry about due process rights, failing to understand how the courts themselves operate. As Native American lawyer and professor Sarah Deer of Muscogee (Creek) Nation described in a March 2019 House hearing on Violence Against Women Act, “Tribal courts operate much like states and federal courts do … We look at the same due process rights, in fact sometimes given more scrutiny because we’re looking not just at the tribal constitution, but also federal civil rights statutes through the Indian Civil Rights Act, as well as what the Violence Against Women Act requires in terms of habeas petitions.”
If tribal courts can’t prosecute most sexual violence crimes, who can? If PL 280 is passed in a state, this would fall to the Department of Justice or state governments. The problem then changes from jurisdiction to lack of resources that tribal police have. Historically, the DOJ has refused to prosecute 35-40% of cases on Indian land for reasons of “lack of police on the ground” and “shortfalls for training, forensics equipment, [and] personnel.” A Government Accountability Office (GAO) report indicates that this number of cases can be as high as 67%. State governments have similar problems in prosecuting cases of sexual violence on Indian territory, and so most are dropped at that level as well. The result is that many indigenous women can’t get justice. This is why a change in tribal jurisdiction is so important – it’s all a cycle. If non-native offenders face little repercussions for their actions, it emboldens others on tribal lands to abuse their power, and abuse women. What stopping them? Quite literally, nothing – The Department of Justice certainly isn’t doing anything, and tribal courts are not allowed to take action.
The proposed VAWA Reauthorization Act of 2019 seeks to change that by expanding jurisdiction of tribal courts to prosecute non-native offenders for sexual assault, child abuse co-
occurring with domestic violence, stalking, sex trafficking, and assaults on tribal law enforcement officers on tribal lands. Nevertheless, even if these necessary provisions are finally passed (and that’s not a guarantee as critics of the bill try to remove them), there’s a long way to go. Most indigenous women live off tribal land, and still face high rates of violence. There’s no question – This is systematic abuse, and though it relates the reservation system and VAWA, let’s not forget that this stems in large-part from the U.S. government’s poor treatment of indigenous people, and more broadly people of color, throughout history.
The #MeToo movement and the national conversation on sexual violence is here to stay. So is the horrifying reality for indigenous women, unless something more is done. As activists, it’s important to include everyone in this call for justice.
Blog by Elena Mieszczanski, NOW Government Relations Intern