This article in the LA Times raises the question of what law governs the crime of sexual abuse of a Native American women by non-Native men. there is a huge problem that is being regularly ignored in our country. What happens when a white man sexually abuses an Indian woman, and neither American law or Reservation law has jurisdiction?
For more than a decade, a white man married to an Indian woman sexually terrorized his entire family on the Eastern Cherokee reservation in North Carolina. If his wife complained about the rapes and beatings with a baseball bat, he shocked her with a Taser. While raping his wife, he would force his teenage daughters to stand by so he could fondle their genitalia to compensate for erectile dysfunction. Afterward, he would show them his AK-47 and threaten to kill them if they ever left him or told anyone.
When his wife finally reported the incidents to tribal police, there was a problem. Although Eastern Cherokee prosecutor James Kilbourne wanted to prosecute, the tribe did not have criminal jurisdiction over the non-Indian husband. On the other hand, local and state authorities didn’t have jurisdiction either, because the victims were Indians.
In 21st century America, how is it that the availability of justice on Indian reservations is determined by the race of the perpetrator and victim? Although the federal government recognizes Indian tribes as sovereign nations, Congress and the Supreme Court have severely restricted tribes’ ability to protect their citizens from violent crime.
The first blow came in 1885, when the Major Crimes Act declared that the federal government — not Indian tribes — had jurisdiction over murders, rapes and felony assaults involving Indians. Then, in 1978, the U.S. Supreme Court further stripped tribes of criminal jurisdiction over non-Indians in Oliphant vs. Suquamish Indian Tribe. The legacy of that fundamentally flawed decision is a jurisdictional void that has produced an epidemic of violence against Indian women and children.
On most reservations today, tribes prosecute misdemeanors committed by Indians, and the state prosecutes crimes committed by non-Indians against non-Indians. But when a non-Indian victimizes an Indian, only U.S. attorneys can file charges.
But U.S. attorneys often don’t pursue such cases. In fact, they decline to prosecute crimes committed on reservations nearly twice as often as those committed off-reservation, according to Justice Department data recently analyzed by the Wall Street Journal.
-Amanda Kissel and Bridget Crawford
Amnesty International’s 113-page report issued in April 2007, “United States of America: Maze of injustice: The failure to protect indigenous women from violence,” is available at http://news.amnesty.org/index/ENGAMR510712007.
The same site also has links to the AI report “USA: Sexual violence against Native American and Alaska Native women: Briefing on Oklahoma, North and South Dakota and Alaska,” and to a short video, “Sexual Violence Against Indigenous Women in the USA.”
Some excerpts from the AI news release (24 Apr 2007) “Authorities fail to protect Indigenous women from shocking rates of rape”:
— American Indian and Alaska Native women are 2.5 times more likely to be raped or sexually assaulted than women in the United States in general; more than one in three Native women will be raped in their lifetimes.
— The U.S. Government has undermined the authority of tribal justice systems to respond to crimes of sexual violence by consistent under-funding. Federal law limits the criminal sentences that tribal courts can impose for any one offense to one year and prohibits tribal courts from trying non-Indian suspects — even though data collected by the Department of Justice shows that up to 86 percent of perpetrators are non-Indian.
— Among the recommendations in the report: The U.S. Congress should fully fund and implement the Violence Against Women Act (VAWA) — and in particular Tribal Title (Title IX), the first-ever effort within VAWA to fight violence against Native American and Alaska Native women. This includes a national baseline study on sexual violence against Native women, a study on the incidence of injury from sexual violence against Native women and a Tribal Registry to track sex offenders and orders of protection.