Updated 11:28 a.m. Jan 11, 2013
In 2005, two Native American women in Oklahoma were kidnapped, blindfolded, and raped by three non-native men. Because they were blindfolded, they didn’t know if they were assaulted on state, federal, or tribal land. And, due to a tragic gap in the justice system, the location of the crime mattered — a lot.
If the crime had occurred on tribal land, the non-native status of the attackers would have meant that the tribe could not handle the case locally. Serious offenses by non-natives on tribal land, like rape and murder, are prosecuted at the federal level. This inability for tribes to prosecute non-natives committing crimes on their land was cited in a 2007 Amnesty International report on the justice system’s failure to protect indigenous women. Why does this happen? A scarcity of federal prosecutors is one reason non-natives who commit crimes on tribal land get away with no prosecution. The New York Times reported that in 2011, 65 percent of rape cases on reservations went unprosecuted by the Justice Department. Misdemeanor crimes by non-natives, like domestic violence, often fall into a jurisdictional morass, say advocates, with no one authority taking charge of their prosecution.
That could have changed this year. The most recent version of the Violence Against Women Act, which was first passed in 1994, sought to ease the epidemic of violence against Native women by allowing tribal courts to prosecute non-tribal members for domestic violence, dating violence and violating restraining orders.
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But the bill, which had passed the Senate last April, languished until the House let it expire last week. So far, politicians have offered little to explain the cause of the bill’s failure. In an NPR interview, justice correspondent Carrie Johnson said:
“…from what I’ve been able to figure out from talking to people on the Hill, people in the Justice Department and people in the victims’ advocacy community, it was this notion that expanding some jurisdiction for the tribal courts raised bigger questions about the authority of the tribal courts.”
Kelsen Young, the executive director of the Montana Coalition Against Domestic and Sexual Violence agreed with this assessment. She also pointed out a second issue. “I think some people don’t take the issue of violence against native women seriously,” she said in a phone call with HCN.
The U.S. Justice Department reports that 86 percent of American Indian or Alaskan Native women who report sexual assault say the crime was perpetrated by non-natives. Yet because tribal courts can’t prosecute, many women raped on reservations are shunted into a jurisdictional morass.
Young said that for federal offenses, Montana only has only one U.S. attorney to prosecute all federal crimes on tribal lands. So it’s impossible for the courts to keep up.
In a recent opinion piece by the Tribal Councilwoman for the Eastern Band of Cherokee Indians, the author’s friend who was abused by her non-native husband just inside her reservation said, “If he had only beaten me 50 yards away, maybe he could have been arrested.”
Even without falling into a tribal versus non-tribal legal black hole, Native women face retaliation, unresponsive law enforcement, and Indian Health Service hospitals that may not have rape kits in stock. One in three American Indian women have been or will be raped during their lives, according to the Justice Department. That’s more than twice the rate of other American women. Clearly, the justice system fails to hold sexual predators and abusers on tribal land accountable.
Sarah Jane Keller is an intern at High Country News.
Members of the Navajo Nation Advisory Council Against Domestic Violence lead a walk against family violence in Window Rock, Arizona. Image by Donovan Shorteyprovided through flickr Creative Commons.
Note: This story has been updated to clarify that 86 percent of Native American women who report sexual assault say it was perpetrated by non-natives. An earlier version stated 86 percent of Native American reported sexual assault by nonnatives. We are happy to report the percentage of sexual assaults is not that high.
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