“A nation is not conquered until the hearts of its women are on the ground…” -- Cheyenne proverb
This week’s debate on the Violence Against Women Act marks, what may be a very important stage in improving relations between tribal governments, state and federal governments and the protection of women. The law has been up for re-authorization for five years, and has a few sticking points, mostly around the protection of Native and immigrant women, and gay and lesbian people. Republicans until Tuesday, had proposed amendments to strip Native American rights and jurisdiction over non- Native perpetrators of violence on the reservation. In what appears to be a change of heart, Tuesday’s passage of SB 47 with tribal jurisdiction intact, was a step in recognizing that as Senator Patrick Leahy said, in debates, “… a victim is a victim is a victim."
Why is this particularly important? Presently, 34% of American Indian and Alaska Native women will be raped in their lifetimes; 39% will be subjected to domestic violence in their lifetimes; 67% of Native women victims of rape and sexual assault report their assailants as non-Native individuals, and, on some reservations, Native women are murdered at more than ten times the national average. Not good. This set of facts is paired with unfortunately high declination rates: U.S. Attorneys declined to prosecute nearly 52% of violent crimes that occur in Indian country; and 67% of cases declined were sexual abuse related cases. This means, in the end, that Native women have been, in the words of Senator Maria Cantwell, “ treated as second class citizens under the law.”
I asked Lisa Brunner, Executive Director of Sacred Spirits, a national tribal organization working on the issues, her thoughts. “Some of the concern stems from a lack of understanding of tribal jurisdiction, in some cases, tribes are just implementing criminal codes in place which allow this legal process. The answer is to fund the tribal justice system. As well, there are safeguards built into the provision which ensure that all rights guaranteed under the Constitution are given to non-Native defendants in tribal court.”
The National Congress of American Indians, in their letter to Congress last week explained:
The special domestic violence jurisdiction is narrowly restricted to apply only to instances of domestic or dating violence where: 1) the victim is an Indian, 2) the conduct occurs on tribal lands; and 3) where the defendant either lives or works on the reservation, i.e., where the defendant has significant ties to the community.
NCAI also pointed out that “Indian tribes are not a racial class, they are a political body – so the question is not whether non-Indians are subject to Indian court – the question is whether tribal governments, political entities, have the necessary jurisdiction to provide their citizens with the public safety protections every government has the inherent duty to provide… Indeed, placing more funding in the hands of state or federal authorities to administer this process, concerns tribes deeply as there has been little, to no action on most of these cases, with 62% of the cases being declined for prosecution.”
The answer, as in many conflicts, may be education and effort. In this case, it’s a combined effort to support justice in the law, and the infrastructure for justice in Native America. The facts are very disturbing. As well, it may be time to understand what a justice system looks like that is multi- jurisdictional. Native people are subjected to both tribal and non tribal law, and, unfortunately, make up a disproportionate segment of North Dakota’s prison population. That’s a different issue, but it does seem fair, that non-Native people committing crimes in Indian territory should not be sheltered by a lack of jurisdiction, or in some cases, interest. We will see how the House of Representatives’ debate goes.
At some level, psychologically and beyond, this is of absolute importance to tribal nations. The ability of a tribal government to protect those who are most vulnerable is crucial to the dignity of a people. The folly of the Supreme Court’s Oliphant v. Suquamish Indian Tribe, decision which precluded tribal criminal jurisdiction over non Indians on the reservation is apparent. The VAWA brings into the spotlight the need to protect tribal citizens, and address protection and prosecution of non Natives who have chosen to live within Indian country. At some level, if you live there, just as tribal citizens off reservation, it seems fair that jurisdiction should apply. It is also not logistically feasible for federal or state governments to maintain the predominant criminal jurisdictional authority over Indian country. Non-Indian authorities are often situated far from reservations and do not have the manpower to thoroughly investigate and prosecute the high number of reservation crimes that fall under their jurisdiction post-Oliphant. And, as evidenced in the case of violence against Native women, follow through is non -existent. Native nations have the absolute right and need to protect our citizens.
As Cantwell testified, "The notion that this is somehow abrogating individual rights just because the crime takes place on a tribal reservation is incorrect. So I ask my colleagues, do you want to continue to have this unbelievable growth and petri dish of crime evolving? Because criminals know, when you have a porous border that is where they are going to go."