Dominique Daye Hunter
One in three Native American womxn* will be raped in their lifetime.1 This is nearly twice the rate of reported rapes by all other races annually.2 Three fourths of Native womxn have experienced some type of sexual assault including rape, sexual harassment, incest, child sexual assault, sex trafficking, sex exploitation, unwanted sexual contact, spousal rape, and inappropriate exposure without consent. These are only the accounts that were reported. Many chose not to report for one or more of the following reasons: fear of retaliation, fear of not being believed, fear of the justice system or failure thereof, feeling they did not have enough evidence, and fear of friends, family, or community members finding out about the assault or the accusation of such.
The statistics for domestic violence in Indian country are just as harrowing, with similar outcomes. American Indian womxn experience domestic violence at a rate 50% higher than the next most effected demographic,3 and 39% of Native womxn have self-identified as victims of intimate partner violence.4 Barriers in protecting victims include limited shelters on and near reservations, and “social isolation [which] precludes some American Indian and Alaskan Native women from obtaining adequate medical care including the availability of rape kits being performed by trained medical staff to aid in prosecution.”5
Violence in Indian Country, impacted and compounded by the effects and policies of colonization, continues at epidemic levels and effects all community members. The legislation in the Tribal Law and Order Act, signed into law in 2010 by President Barrack Obama, was aimed to address these horrific realities. I will first discuss the history of such legislation, list the intentions and actual outcomes of the Tribal Law and Order Act, and analyze more recent legislation change such as the Violence Against Women Act of 2013.
Long before the Violence Against Women act of 1994, community organizations such the White Buffalo Women’s Society in South Dakota organized to advocate for American Indian womxn. WBWS sought to fight violence against womxn in their communities by opening the first shelter for domestic violence victims on tribal land. 6 VAWA 1994 legislation began the long journey of helping Indigenous and other victims through supporting and funding these community initiatives, as well as implementing other initiatives with the collaboration of the federal government and tribes. The Violence Against Women act of 1994 set out to transform mainstream culture and beliefs surrounding domestic and sexual violence from that of apathy and silence, to a crime worth acknowledging and holding the perpetrator accountable for. The Act aimed to spread awareness of domestic violence issues across America, and create political change by training judicial entities such as those in the courts and law enforcement, and by enforcing the implementation of these laws.7
However, combined with the echoes of the Oliphant v. Suquamish Indian Tribe Supreme Court case of 1978 which “held… that the tribes lost authority to try non-Indians when they became dependents of the United States,” and revoked this authority which many tribes had previously been acting under, VAWA 1994 did little to combat violence in Indian Country.8 Outcomes of cases such as Oliphant v. Suquamish have a foundation in the Cherokee Nation v. Georgia (1831) case of the Marshall Trilogy which found that the Cherokee Nation, and by association all tribes’, were domestic dependent nations.
This set the precedent for the next and final case of the Marshal Trilogy, Worcester v. Georgia (1832), as well as many after, which limited how tribes interacted with non-Native people on tribal lands.9 In 2005, VAWA was updated to include the following provisions, “Develop and enhance effective plans for tribal governments to respond to violence committed against Indian women; strengthen the tribal criminal justice system; improve services available to help Indian women who are victims of violence; create community education and prevention campaigns; address the needs of children who witness domestic violence; provide supervised visitation and safe exchange programs; provide transitional housing assistance; and provide legal advice and representation to survivors of violence who need assistance with legal issues caused by the abuse or the violence they suffered.”
VAWA 2000’s establishment of the Tribal Domestic Violence and Sexual Assault Coalitions Grant Program, or Tribal Coalitions Program, helped propel the 2005 addition, and put forth the goal of “build[ing] the capacity of survivors, advocates, Indian women’s organizations, and victim service providers to form nonprofit, nongovernmental tribal domestic violence and sexual assault coalitions to end violence against American Indian and Alaska Native women.”10 However, funding was still inadequate to meet tribal judicial needs, who still did not have the ability to prosecute non-Indians, who constituted a large percentage of perpetrators in these cases. This would lead to the need for further reform in the form of the Tribal Law and Order Act.
The Tribal Law and Order Act of 2010, was brought to fruition by the work of Attorney General Eric Holder in collaboration and deliberation with tribal governments to strengthen tribal nations’ response to violence, especially, but not exclusively towards Indian womxn.11 The findings of the act acknowledge the epidemic rates of domestic and sexual violence against American Indian womxn, as well as children, elders, and men, and the responsibility of the United States federal government to provide for the safety and security of Indian people on tribal land according the treaties and trust responsibility, the relevance and authority of tribal law enforcement in Indian country, and the inadequate number of tribal law enforcement officers.
The findings also explain the: “complicated jurisdictional scheme that exists in Indian country— [which] (A) has a significant negative impact on the ability to provide public safety to Indian communities; (B) has been increasingly exploited by criminals; [and] (C) requires a high degree of commitment and cooperation among tribal, Federal, and State law enforcement officials.” Other findings include the relation of domestic violence to substance abuse, and the inconsistency and disorganization of the Bureau of Indian Affairs and the Department of Justice in collaborating with tribal governments.
The purpose of the act was “(1) to clarify the responsibilities of Federal, State, tribal, and local governments with respect to crimes committed in Indian country; (2) to increase coordination and communication among Federal, State, tribal, and local law enforcement agencies; (3) to empower tribal governments with the authority, resources, and information necessary to safely and effectively provide public safety in Indian country; (4) to reduce the prevalence of violent crime in Indian country and to combat sexual and domestic violence against American Indian and Alaska Native women; (5) to prevent drug trafficking and reduce rates of alcohol and drug addiction in Indian country; and (6) to increase and standardize the collection of criminal data and the sharing of criminal history information among Federal, State, and tribal officials responsible for responding to and investigating crimes in Indian country.” 12
This standardization of sexual assault policies and protocols was piloted and directed by Indian Health Service facilities. This program was designed to improve evidence collection and increase conviction rates. The Tribal Law and Order Act was also intended to provide additional training for tribal law enforcement, and to increase funding and therefore prosecution of crimes, particularly of domestic and sexual assault victims, in Indian country. Indeed, before the bill was signed into law, the BIA saw a 500% increase in applications for Bureau officers, which resulted in the largest hiring increase in history. 13
However, critics of TLOA say that the funding, programs, training, and additional power were not adequate to meet demand. At a roundtable discussion held by the Senate Committee on Indian Affairs, on February 25th this year, Judge William A. Thorne Jr. (Pomo Coast Miwok) and others gathered to voice their concerns and collaborate on possible solutions. Problems mentioned included a continuous lack of funding, a lack of rehabilitation programs, an overflow of juveniles in adult detention centers due to deplorable conditions, an overflow (about 80%) of substance abuse related, non-violent cases due to lack of treatment facilities, and the impossibility of training when most police and detention officers’ time is consumed with crisis situations such as shambled jails left without electricity for months.
Assistant director for the BIA’s Office of Justice Services, Jason Thompson stated that “Lots of things in TLOA require we find resources to make them happen.”14 The Committee also held that the jurisdictional labyrinth was still an integral issue, pointing mainly to tribes effected by Public Law 280, which was supposed to “mandator[ily] confer Indian country criminal jurisdiction to [states such as] Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin.” 15 However, most states are apathetic if not obstinate to lend resources and act to the fullest extent of the law. Some even sporadically pull funding from certain tribal programs.
The Violence Against Women Reauthorization Act of 2013 sought to alleviate some of these issues. Signed into law on March 7, 2013 by President Barrack Obama, and effective as of March 7, 2015, the Act was intended to, along with providing additional funding, allow “tribes… to exercise their sovereign power to investigate, prosecute, convict, and sentence both Indians and non-Indians who assault Indian spouses or dating partners or violate a protection order in Indian country… and clarifies tribes’ sovereign power to issue and enforce civil protection orders against Indians and non-Indians.” VAWA 2013 has made its impact for domestic, intimate partner/dating violence, and criminal violations of protections orders.
However, even VAWA 2013 fails to protect or support Indian womxn who are assaulted by strangers on the reservation, Indian womxn living in cities, and “crimes between two non-Indians” which would include Native American community members who may not have tribal membership due to circumstances such as low blood quantum, yet still live on tribal land. Under this act, tribes will also be unable to prosecute perpetrators for “child abuse or elder abuse that does not involve the violation of a protection order.” 16 It also does not specifically protect or make provisions for transgender Indigenous womxn. Why should a non-Native person not be held accountable for violence committed against community members just because they do not have “sufficient ties”? This allows serial rapists from outside the area, and working near the reservation, such as in mining camps, to continue to prey on Native womxn, children, elders and others who are at-risk.
Why aren’t community members that are ineligible for tribal membership, but are tribal descendants afforded the same basic rights of protection and justice as any other citizen? Who would they call to help them if they were assaulted? Why are these policies published in pieces, leaving our communities to put together the parts to a broken, unjust legal system? These loopholes and exclusions have dire consequences for American Indian womxn, other individuals, families, and communities off and on reservations. While updates are made, womxn are assaulted and murdered.
The domestic dependent relationship of tribes to the federal government, greatly impacts tribes’ ability to prosecute violent crimes that are far too common and often end in tragedy. It is especially frustrating that many times these cases are left unsolved due to the apathy of the Federal Bureau of Investigation, jurisdictional boundary confusion and inconsistencies; limited funding, and an overall racist, outdated federal policy which sees tribal governments as incompetent and unable to provide “civilized” justice in their courtrooms.
With the current presidency of Donald Trump, and the negligent if not malignant attitudes and policies regarding womxn, Indigenous Peoples, and “minority” groups, the work of legislation like VAWA is geared to be stalemated if not reversed. This is especially concerning for American Indian people, due to their special status in the United States and relationship to the federal government.
As President Obama stated in his address during the official signing of the Tribal Law and Order Act, “…When one in three Native American womxn will be raped in their lifetimes, that is an assault on our national conscious, it is an affront to our shared humanity, it is something that we cannot allow to continue.”
We deserve justice.
*Womxn: The English-translation for a common Indigenous idea; a person who identifies as a feminine person as a spiritual identity and role within their community rather than western identifiers such as physical, anatomical, and physiological characteristics.
1 Tjaden, P. & Thonennes. (2000). The Prevalence, Incidence, and Consequences of Violence Against Women: findings from the National Violence Survey Against Women. National Institute of Justice & the Centers for Disease Control & Prevention. http://www.ncjrs.gov/txtfiles1/nij/183781.txt
2 Steven W Perry, American Indians and Crime- A BJS Statistical Profile 1992-2002, Bureau of Justice Statistics, US Department of Justice, Office of Justice Programs, December 2004. http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=386
3 Steven W Perry, American Indians and Crime- A BJS Statistical Profile 1992-2002, Bureau of Justice Statistics, US Department of Justice, Office of Justice Programs, December 2004.
4 Adverse Health Conditions and Health Risk Behaviors Associated with Intimate Partner Violence, United States, 2005, MMWR February 8, 2008/ 57(05); 113-117. http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5705a1.htm
5 U.S. Department of Justice. Violence Against American Indian and Alaska Native Women and the Criminal Justice Response: What is known. 2008:9
6 Twenty Years of the Violence Against Women Act: Dispatches from the Field. (2016, June). Retrieved December 1, 2016, from https://www.justice.gov/ovw/file/866576/download
7 The History of the Violence Against Women Act. (n.d.). Retrieved December 2, 2016, from http://www.ncdsv.org/images/OVW_HistoryVAWA.pdf
8 687. Tribal Court Jurisdiction. (n.d.). Retrieved December 02, 2016, from https://www.justice.gov/usam/criminal-resource-manual-687-tribal-court-jurisdiction
9 Prucha, Francis Paul. The Great Father: The United States Government and the American Indians. Abridged, Lincoln, University of Nebraska Press, 1984.
10 Tribal Communities. (n.d.). Retrieved December 02, 2016, from https://www.justice.gov/ovw/tribal-communities
11 Tribal Law and Order Act. (n.d.). Retrieved December 02, 2016, from https://www.justice.gov/tribal/tribal-law-and-order-act
12 Tribal Law and Order Act. (n.d.). Retrieved December 2, 2016, from https://www.justice.gov/sites/default/files/usao-az/legacy/2010/10/14/Tribal Law Order Act 2010.pdf
13 (2010, July 29). Retrieved December 02, 2016, from https://www.youtube.com/watch?v=h4K1UYCC0dQ
14 Lee, T. H. (2016, March 18). Tribal Law and Order Act Five Years Later: What Works and What Doesn’t. Retrieved December 02, 2016, from http://indiancountrytodaymedianetwork.com/2016/03/08/tribal-law-and-order-act- five- years-later-what-works-and-what-doesnt-163670
15 Frequently Asked Questions about Public Law 83-280. (n.d.). Retrieved December 02, 2016, from https://www.justice.gov/usao-mn/Public-Law 83-280
16 Violence Against Women Act (VAWA) Reauthorization 2013. (n.d.). Retrieved December 02, 2016, from https://www.justice.gov/tribal/violence-against-women-act-vawa-reauthorization-2013-0
Dominique (Saponi/African/Irish/Polish descent) is the co-founder of Indigenous Womxn In Solidarity Empowered and Rising and owner of Est. Time Immemorial Clothing.
Dominique is also a poet/spoken word artist, short story writer, and aspiring recreational therapist. She is currently working on her B.S. in Nonprofit Leadership Management with an emphasis in American Indian Studies, and lives in Phoenix, AZ.