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Circle of Violence: An Open Letter to People Regarding the Rape and Sexual Assault of Indian Women

Gyasi Ross and Michael O. Finley
8/4/11

The time has come to make meaningful change. Native women need to be protected from the sexual predators who repeatedly victimize them, without consequence or repercussion.

The statistics are appalling: More than one-third of Indian women will be either raped or sexually assaulted in their lifetimes. Moreover, non-Natives (primarily white men) commit 4 out of 5 of those rapes or sexual assaults. To put this statistic into perspective, that means that if your mother, your sister and your niece are sitting on a couch across the room from you, statistically one of those three Indian women will be either raped or sexually assaulted, most likely by a non-native man (including non-tribal member male).

Circle of Violence series

Equally dreadful, nearly three out of five Indian women have been assaulted by either their spouse or intimate partner, and many of these asssaults are committed by non-Indian partners. Truly dastardly acts of the lowest form right? It’s worse: Surveys analyzing murder rates in counties largely composed of tribal lands found that Native women are murdered at a rate more than ten times the national average.

That’s all bad.

It is a travesty that any woman of any race has to wonder whether or not the law will protect her from rape, sexual assault and/or domestic violence, which in most cases, leaves the victim deeply and emotionally scarred, if not dead. Indian women, like all women, deserve to feel safe in their own homes and homelands. That is a fundamental human right. Indeed it’s the very right recognized by the United Nations Declaration on the Rights of Indigenous Peoples, Article 22, which specifically affirmed that “states shall take measures, in conjunction with the indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.”

Click here for a list of resources for victims of abuse.

It has taken the U.S. only thirty-something years to agree to this simple, fundamental right. To its credit, the Obama Administration has taken that very stand, saying—caveats aside—that the Declaration “expresses the aspirations of the United States, aspirations that this country seeks to achieve within the structure of the U.S. Constitution, laws, and international obligations, while also seeking, where appropriate, to improve our laws and policies.”

Still, Native women, unlike most women in the United States, cannot feel safe right now.

That’s a fact.

Worse yet, tribes do not have the capacity, legally, to protect their women from violent non-Native sexual predators on our own lands. Talk about worthless sovereignty. Many might argue that the ability to protect your people is the most fundamental aspect of a nation’s sovereignty. If Native people cannot protect the lifegivers in our own territory, what good is so-called “sovereignty” or “self-determination?”

The emasculation of Indian peoples’ ability to protect our women stems from a particular Supreme Court case that originated on one of the author’s home reservations, Oliphant v. Suquamish Tribe. That case said that the executive branch and the legislative branches of the U.S. government snatched away Tribes’ ability to protect their homelands from non-Indians. Thus Indians cannot prosecute non-Indian criminals in tribal court. Obviously this created a jurisdictional maze on Indian reservations where criminal jurisdiction became a game of “Who’s On First”—nobody knows because it’s expensive, laborious and, seriously, why do the county or feds really care what happens to those Indians on the reservation? Consequently, the U.S. Department of Justice, which has exclusive jurisdiction over non-Natives committing crimes against Indians on Indian reservations — has failed pathetically to protect Indian women. Think about that: The DOJ is the only agency, per the Major Crimes Act and Oliphant case, that can prosecute the above hypothetical (your sister, your mom or your niece getting raped or sexually assaulted)—and it does nothing. Don’t believe that? According to a Government Accountability Office study, between 2000 and 2009, federal prosecutors declined one-half of all Indian Country crimes referred to them. Those same federal prosecutors declined to pursue charges in 67% of sexually related crimes during that same time period. Heck, in many instances the federal prosecutors did not even tell the Indian women that the federal prosecutor declined the case, therefore putting her in the position where she could run into the sexual predator again on the reservation.

Still, there’s hope. We are Indian people—we would not have made it this far if we did not retain hope. This is the ‘silver lining around the dark cloud’. But only if we act.

In 2005 Congress enacted Title IX of the Violence Against Women Act to address violence against Indian women. Specifically, Congress found that “Indian tribes require additional criminal justice and victim services resources to respond to violent assaults against women; and the unique legal relationship of the United States to Indian tribes creates a federal trust responsibility to assist tribal governments in safeguarding the lives of Indian women.”

So, how does that help us?

Well, after Oliphant, there was another Supreme Court case that involved tribes and criminal jurisdiction; that case was called United States v. Lara. Importantly, Lara held that Oliphant did not “set forth constitutional limits that prohibit Congress from taking actions that modify or adjust the tribe’s status.” Lara specifically did not weigh in on whether Congress could legislatively restore tribes’ ability to prosecute non-Indians. That’s huge.

Why?

Well, the Violence Against Women Act is up for reauthorization this year. This may be our only chance to fix the system, and there are three facts that give us leverage:

1) the U.S. Attorney’s absolutely and inarguably pathetic record of protecting Indian women,
2) the economic development of tribes that has undoubtedly created much more stable and competent tribal court systems than existed when Oliphant came down, and
3) the United States’ economic vulnerability—that is, prosecutions cost a lot of money, and if tribes can incur that cost in order to protect our homelands more effectively than the United States, that might be a “win-win.”

Because of the interest from the Administration, the DOJ (under the leadership of Secretary Holder) has taken the initiative to propose changes. But the proposed changes fall short. According to the “Framing Paper” circulated by DOJ to tribal leaders, titled Proposed Federal Legislation to Help Tribal Communities Combat Violence Against Native Women, they propose three legislative amendments to the reauthorization wherein the most favorable is a partial Oliphant fix. Granted each of the proposed changes are intended to help curtail the problem. However, like many of the past authorizations (2000 and 2005, respectfully) that included amended improvements piecemeal, they have yielded little relief or protection to the Native women victims. The statistics simply haven’t changed much over the years despite changes to the legislation.

Bad case law that singles out tribes and results in harmful treatment must be given strict scrutiny and must be rejected where it denies equal protection. Indeed, those tribes that are capable and ready to take over criminal jurisdiction of non-Indians within their reservations need and deserve a clean Oliphant fix in the reauthorization.

Therefore, it is incumbent upon us to contact our tribal leadership ASAP to make this a priority at the tribal council level. After your tribal council members understand how important this issue is, direct your elected leaders to contact United States legislators and DOJ to press this opportunity to stop sexual violence against Indian women; we have a draft letter for your representatives, congressmen and congresswomen. We must attack now—this may be our only opportunity. This is not a sure-fire formula, to be sure. Still, it is the best that we have right now. We must protect our women. After all, if we do not, history shows us that no one else will.

Respectfully,

Michael O. Finley, Chairman, Confederated Tribes of the Colville Reservation

Gyasi Ross, Attorney, Blackfeet

Get Involved! Support the National Task Force to End Sexual and Domestic Violence Against Women, the National Resource Center to End Violence Against Native Women and/or the NCAI Task Force to End Violence Against Native Women. Helpful literature: Restoration of Native Sovereignty and Safety for Native Women, Vol. XVI, A Call to Action: VAWA Reauthorization.

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rezdweller's picture
Things are beginning to change, for instance, I spent the week at Tribal Journey's hosted this year by the Swinomish people, in WA ST While I was at the protocol tent, different tribes and Bands were honoring Native women. Things are changing for younger generation, for my daughter, my niece. Thanks for sharing this 'Open Letter'! I hope people to continue to talk about this travesty against Native women!!!
rezdweller
ellej28's picture
This is a serious issue and it must be addressed. No one should have to suffer such indignities and pain. There has to be someway to end this deplorable situation.These women need help NOW! The Native Americans have suffered enough at the hands of the government and it is way past time for the govenment to get involved by stopping this immediately...If not now WHEN???
ellej28
softbreeze's picture
I think training all native women from a young age in self-defense skills, including the skills and confidence in using a firearm and carrying one with them at all times, might be an effective deterrent. I know it sounds a little extreme, but the sons of you know whats that are doing this to native women need to be put in their place. I'll tell you right now, if it were a choice between my life or theirs, you better believe I'd be choosing for me to live, guaranteed.
softbreeze
mbleonhard's picture
Re: "But the proposed changes fall short. According to the “Framing Paper” circulated by DOJ to tribal leaders, titled Proposed Federal Legislation to Help Tribal Communities Combat Violence Against Native Women, they propose three legislative amendments to the reauthorization wherein the most favorable is a partial Oliphant fix." The proposal has been narrowly drawn for a very good reason. The Lara case that upheld the Duro fix resulted in a variety of opinions. Of those in the majority who had no problem finding that Congress can recognize the inherent power of tribes to exercise authority over non-members, there are only 3 remaining on the court. The other concurring and dissenting opinions in Lara were, at their best, highly sceptical of the ability of Congress to do this (Kennedy), and at their worst appear to challenge the very notion of tribes retaining any semblance of sovereignty(Thomas). Of the negative Lara opinions, 4 remain on the court. For this reason, any proposed Oliphant fix needs to be carefully crafted so the best case possible gets to the US Supremes. If that doesn't happen, there is a real chance the Supremes will render a decision that not only solidifies Oliphant and takes away the possibility of a legislative fix in the future, but sets tribal sovereignty back even further. Given recent decisions of the US Supremes like Plains Commerce Bank and Jicarilla Apache Nation, caution needs to be taken. The proposed limitations, as frustrating as they may be, are necessary.
mbleonhard
neemeepoo's picture
Thank you Mike and Gyasi for summarizing a disturbing but not surprising trend in Indian Country. Our relations in Canada also share in this travesty. The failure of both governments is a matter of simple numbers. Native people are a small group of people. We represent a smaller number of voters. This is why we are ignored by our respective governments. Usually the only remedy for this mistreatment is when we utilize the law to make the government listen or when we have money to contribute to the political machine. Other ethniticities have gone through this mistreatment but they have the luxury of having a larger population where they cannot be ignored. The laws that prevent Tribes are not a mistake by the US governement, they are malicious and purposeful. They were enacted to prevent Tribes from progressing and prospering. The Native Woman is where Tribes receive their strength and hope for the future. Why would the Government want to enact laws that protect our women? This is why our women are ignored by the police and the judicial system. It is the hard truth but I've witnessed firsthand this failure to protect our women. We can continue to lobby our State Representatives and Congressional members and even contribute more to the lobbying machine but some Tribe will get bold and force the government to act. They will arrest a non-Indian for committing a crime on their lands and refuse to hand them over to the local, County, State or Federal law enforcement officials. This Tribe will demand that they be allowed to prosecute a non-Tribal member because they committed the crime within their boundaries and are subject to their laws. They will say that this is no different when a Tribal member commits a crime off the reservation, they must go through the appropriate legal system. This is the status quo for Native people. Non-Indians must be held to the same standard. Many Tribes have judicial detention facilities are exemplary and well managed. Tribes can also collect and enforce fines and penalties to those who commit crimes on the Reservation. The Tribes should not be held to a higher standard, we are just asking for the opportunity to be truly sovereign. The right to protect your people and citizens is a fundamental element of sovereignty. Again excellent article, I hope more Natives and non-Natives read it.
neemeepoo
gyasiross's picture
Thank you all for the comments. It's not a perfect article, and the "solution" presented in the article is not perfect either. Still, I do think that it's an improvement over where we stand right now: that is, either accept that violence against Indian women is a way of life or resort to vigilante violence. Seriously. Thanks for the thoughts and let's try to improve Indian Country. ~G~
gyasiross
softbreeze's picture
I want to clarify that I am not suggesting or advocating vigilante violence. I am actually very much of a pacifist, and do not believe in using violence as a means of resolving conflict. What I was suggesting in my comment was for women to be able to defend themselves in a life-threatening situation where if the threat is clear and imminent, to be able to have a means of protecting their own lives. This is not a desirable solution, by any means, but until the extremely high rates of violence and murder of native women on reservations is mitigated and resolved, self-defense skills may be women's only option if they want to protect their safety and lives. Of course, the risk in this kind of a solution is that it could get out of hand, and it could turn into vigilantism, which is something that would only make matters worse. I think prevention of the situations that arise where women are at risk to begin with is the ideal solution, of course.
softbreeze
michelleshiningelk's picture
Well done Gyasi and Michael. Appreciate your dedication to gathering resources and information and your time spent on writing this article. -Michelle
michelleshiningelk
psette's picture
Abuse is a complex psycho-physical thing that always remains with the person, and if it's so bad and ugly; the abused person will forget that it ever happened. A lot has been written on the subject, but thanks for the article that was concise and truncated. Only by writing about it and making people aware of the fact, will the numbers of abused victims decrease: all way down to "0".
psette