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Violence Against Women and Tribal Law

Sarah Deer
7/16/12

While we wait for Congress to do the right thing and reauthorize the Violence Against Women Act, there are important things that tribal leaders can do right now to protect Native women.

I'm talking about improving tribal statutes and dedicating more resources to tribal justice systems. Now is the time for tribal governments across the United States to enact tribal laws which are superior to those that currently exist. While there are vital changes to federal law that must be implemented to correct over a century of jurisdictional confusion, we must not forget that tribal police and prosecutors need strong statutory laws in order to take action on behalf of their tribal nations. In the meantime, tribal governments must be ready to take action on our own terms when women are assaulted. We don't need to wait until the VAWA reauthorization is signed into law to protect Native women—we can start now.

During the last century, various criminal code have been written and signed into law by tribal legislatures—some much better than others. Statutes are sometimes out of date. In addition, some of the earliest tribal criminal codes were taken from "boilerplate" codes which were drafted by non-Indians. Over the past several years, I have reviewed over 100 tribal sexual assault laws. What I have found is that many tribal codes have weaknesses—and most of the time, these weaknesses are inconsistent with tribal traditional laws which served to protect women and children. When we updates those tribal codes to be consistent with tribal traditions, we will be ready to take advantage of the new provisions in VAWA.

The truth is, tribal governments have never been stripped of our authority to prosecute felony crimes. Despite the Major Crimes Act and Public Law 280, tribal nations retain authority over all crimes committed by Indians, whether they are misdemeanors or felonies. Federal and/or state authorities share concurrent—not exclusive—jurisdiction over crimes committed by Indians. Some tribal prosecutors routinely exercise criminal authority over violent crime. For example, Fort Peck Assiniboine & Sioux Tribes has prosecuted violent felonies, including rape and severe domestic assault. The Eastern Band of Cherokee has prosecuted child sexual abuse cases. Recently, the Nez Perce Tribe charged a tribal member with murder.

But some of our tribal codes on sexual assault need an update. For example, some tribal codes require that a prosecutor prove that physical force was used to perpetrate sexual assault. This language should be changed to define sexual assault using lack of consent as the standard rather than physical force. Why is this important? Because many predators don't use physical force. Some use alcohol or drugs to incapacitate their victims. Other perpetrators take advantage of their privilege of power or age to render a victim unable to consent. If physical force is the standard, then fewer cases can be prosecuted. This also sends a message to some survivors that their assault was not "violent" enough to be illegal.

Some tribal codes have a marital exemption clause in the sexual assault language. This means that marriage is a defense to sexual assault. Put another way—a man cannot be held accountable for sexually assaulting his wife. This is inconsistent with tribal belief systems about the safety of women who are married. I believe that this language in tribal codes was largely lifted from older state sexual assault laws from the mid 20th century. All states have now criminalized spousal sexual assault, and tribal governments can do the same. In fact - tribal governments have the capacity to enact laws that are superior to the states' laws—why shouldn't we have the best sexual assault laws in the world?

There are other examples of problems in some tribal codes—but all of them can be corrected with changes to tribal statutory language. The Tribal Law and Policy Institute, a non-profit organization, has a free do-it-yourself workbook on drafting or revising tribal sexual assault laws using a tribal-centric perspective. It is available for download at Tlpi.org.

Revising tribal codes is obviously not the only reform that is needed. The major restrictions for tribes include the lack of criminal authority over non-Indians (as a result of an infamous erroneous decision made by the U.S. Supreme Court in 1978). In addition, tribal courts face incarceration limitations which have been imposed by Congress. These errors must be corrected through federal legislation. The 2012 VAWA reauthorization legislation begins to address these errors.

There is no doubt that the activism led by Native women this year has been revolutionary. There can be no question that the federal government is on notice that tribal governments will not continue to tolerate inaction when it comes to Native women and children. Federal laws must change.

At the same time, if there is no sexual assault code in place at the tribal level, there is nothing that can happen. No arrest for the crime can take place, and no justice can be found in tribal court. And there ARE things tribal governments can do to protect against non-Native offenders until full criminal jurisdiction is restored. For example, ensure that no one can work for the tribe if they have a violent crime record. Make sure it is possible for a victim to get a protection order against a non-Native offender. There are a variety of possibilities.

Please review your own tribal nation's laws on sexual assault. Ensure that when VAWA 2012 is signed into law, tribal nations are prepared with strong laws and policies which will enable tribal governments to press charges and seek justice in cases of violence against women. There is no greater exercise of sovereignty than protecting our own people.

Sarah Deer is a citizen of the Muscogee (Creek) Nation. She is an Associate Professor at William Mitchell College of Law in St. Paul, Minnesota and serves as the Secretary for the Minnesota American Indian Bar Association.

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esthermitchell's picture
Unprosecuted Rape of a Native Woman By Ruth Jewell When a sexual assault happens to a Native woman, especially by a non-Native, history repeats itself, unchanged since European contact. Amnesty International’s 2007 Maze of Injustice report revealed that Native women are sexually assaulted two to three times more often than non-native women. It relates how the Justice Department has failed Indian Country in its response to violence against Native women. Indian tribes’ lack of jurisdiction to hold offenders accountable for crimes committed in Indian country is part of the problem. But when local, state and federal justice systems fail to prosecute non-Native crimes against Native people off-reservation, the Natives are re-victimized. This is the story of a Native woman who was sexually assaulted off-reservation and how the justice system has failed to hold the offender accountable. On August 20, 2004, a 25 year old Native woman spent the evening with friends at a pub in Bar Harbor, Maine. During the evening, she got into a conversation with a man and later accepted his invitation to step outside for some fresh air. They walked along the waterfront -- a popular spot for the thousands of vacationers who visit this quaint New England town each year. The waterfront is an easily visible area in the center of this affluent coastal town, but as they stood looking at the boats, the man forced her to the ground and raped her. She was terrified. She didn’t know what would happen if she resisted. Would he hurt her? Would he kill her? Unable to fight him off, she endured the brutal invasion of her body without a struggle. The experience left her scarred for years -- depressed, ashamed, humiliated, fearful of all men, unable to form a healthy relationship and afraid of social interactions. She worried immediately about pregnancy, then later about STD, HIV/AIDS. Her mother says: As a mother, it's instinctive to protect our children and to think that you're going to be there to keep them from harm. When your child is harmed and you weren’t there to protect her, you’re left in a gut-wrenching state. This kind of violence affects every member of your family. I've struggled to comprehend the act of violence that touched my child's life. I felt helpless thinking of what I should have done to prevent it or what I should do, but I felt I couldn't even comfort to my child as I watched her daily struggle with fear, depression and anger. When I watched her rages, I thought it was a lost cause. During my daughter's struggles, she found comfort in drugs and became addicted. Again I felt helpless watching her struggling with her addiction and then kicking it. I've often wondered if this man who raped my daughter ever thought about what he had done as he went about his daily life. Did he feel ashamed? Did it keep him awake late at night? What was his upbringing? Did his parents harm others? Was this normal to him? My husband and I worked hard to teach our children to be kind to others and respect others. My daughter appeared before the Grand Jury and when they heard her story, they indicted the man, but by then he had left Maine, so they issued a warrant for his arrest. My daughter says that even if she doesn't win the case, she would be satisfied with some justice, with the case going to trial. She wants to have a say, and let him know how much he had disrupted her life and the struggles she had to overcome. (PBM) Former District Attorney Michael Povitch’s office in Hancock County, where Bar Harbor is located, notified the woman in January 2010, that the man had been found and the DA’s office was considering extraditing him back to Maine for trial. On June 30, 2010, after months of unanswered calls and e-mails, the Victim Witness Advocate called with an appointment with the district attorney’s office. Assistant District Attorney Mary Kellett told the rape victim that the office was reluctant to go forward with the case because they didn’t think they could get a conviction. She said it would cost a lot of money to extradite the assailant to Maine and it would not be economically feasible to do so for what she considered a weak case. She asked the rape victim to consider dropping the case. Although Kellett has brought many cases to trial and lost, she now refuses to prosecute a case that has enough physical and medical evidence to have convinced the Grand Jury to indict the assailant and bring him to trial. The family is convinced that the DA’s office has based its decision on money rather than the facts of the case – or justice. The DA’s refusal to prosecute the alleged offender has sent the Native woman the message that money is more important than prosecuting the man who raped her in their town. There would, of course, be publicity around the case if it went to trial and it could negatively impact Bar Harbor’s tourism industry, a main source of income for the region, if visitors learn that the town is not a safe place for women. The refusal to prosecute sends the not only the victim in this case, but also other Native women the decades- or centuries-old message that a Native woman is not worth the time and money to hold a non Native offender accountable for his crime. One wonders, however, how the local justice system would respond if a rich white woman had been raped by a Native man. WHAT IS THE MESSAGE? By Kirk E. Francis, Chief Penobscot Indian Nation It was brought to my attention that a citizen of the Penobscot Nation has been victimized in the worst way. A 25 year old women who was out with friends in Bar Harbor met a guy and had a conversation which turned into taking a walk, not through some dark alley or through the woods but to a park in one of the most affluent towns in America. In this park the women was forced to the ground and raped. This disgusting crime was reported and the offender was indicted by a grand jury for his crime and then fled.. The offender was located yet to date no decision has been made to return him to Maine to answer for this crime; it has been six years. Inquiry after inquiry by the victim has done nothing to bring this man to justice; instead the victim has had to listen to prominent people within the legal system tell her that they did not think “that they could win”. To the victim, it is not about winning and losing, I would dare say that no one ever wins in these situations. For her it is about being heard, about hearing him having to explain his actions, and hearing someone say this is not ok. Victims of this type of crime understand that they will again be victimized in the process as they will be asked what they were wearing, how many drinks they had, etc. I commend this victim’s courage to stand up to all of that and ask for her day in court and face the issue openly. I believe this is the justice system that we are all entitled to and it is being denied. By denying it we are, as a society, sending a message that silences victims of rape, creating a situation where the message to the victim minimizes the incident. Native women are sexually assaulted at two times the rate of white American women and the prosecution disparities are about the same in finding justice. No wonder the unreported incidents continue to grow. In this case there has been little to no interest by the media about a rape that occurred in one of America’s favorite places. This lack of reporting is also very typical in sexual assault cases against Native women; they simply do not rise to the level of importance for the media. One reporter in Maine’s biggest newspaper told the victim in this case, “My editor keeps sending me on important issues” to explain the lack of coverage. This incident, however, has nothing to do with race as this could have been anyone’s daughter, mother or sister since these offenders typically do not discriminate. But in this case the system seems to be about race and unfortunately this follows national trends for this issue. As a state we have to do better. Our culture is a matriarchal society with clan mothers, our communities are dependent on the strength of our women and their well being, so this did not just create one victim but affects our entire community. Other governments tell us that we have limited jurisdiction over non-Native offenders especially on off-reservation crimes. So who does prosecute these offenders, if not us? Those who claim to have responsibility need to live up to it and vigorously fight for this young lady. It has been six years since this crime occurred and despite the claims of limited resources and the assumption that it will be hard to win the case, action needs to be taken not just for this one victim, but to send a message that criminals cannot come to our state and sexually assault our women, and leave because we will pursue them. I think it is time for mandatory extradition for people charged or indicted for rape and will pursue making that a reality for all citizens of our state. The victim of this crime re-lives it every day. We have to do better. Our goal as leaders has to be to create and maintain healthy communities; in our culture no one plays a more important role then our women. I call on the Hancock County district attorney’s office to get serious about protecting our citizens, stop being afraid of conviction rates and get concerned about allowing victim’s to be heard and to heal. That’s what we need to stand for as communities and as a State or we will never heal but promote more of these acts by sending the message to offenders that their offense is not a serious matter by this State’s non action in bringing this man to stand and held accountable.
esthermitchell
esthermitchell's picture
My sister.
esthermitchell
mtex13's picture
Thank you! I returned to school to obtain a law degree in order to start fighting for our rights as natives and people. However, I believe that the abuse that many women suffer in many of our communities/reservations are still prevalent and laws are still limited to protect. I hope to see more of your articles.
mtex13
nightrain's picture
If violence against Native American women is being perpetrated mostly by non-Native American men, it seems like a no-brainer to me. Stop trying to race mix with non-Natives. Duh.
nightrain