Law expert: State of federal Indian law contributes to epidemic of violence
WASHINGTON – The American Constitution Society for Law and Policy, a progressive legal organization, has distributed an issue brief entitled, “Addressing the Epidemic of Domestic Violence in Indian Country by Restoring Tribal Sovereignty.”
The brief’s author, Matthew L.M. Fletcher, argues that domestic violence and physical assaults experienced by American Indian women on reservations are related to unjust Supreme Court decisions and to lacking federal laws.
Indian victim advocates said the information is especially important for policy makers, both at the federal level and in Indian country, to review. Research indicates that American Indian women experience physical assaults at a rate 50 percent higher than the next most victimized demographic, African-American males.
Fletcher, director of the Indigenous Law and Policy Center at Michigan State University, notes the Supreme Court has held that tribal governments do not have jurisdiction over domestic violence misdemeanors committed by non-Indians in Indian country.
The situation causes a major dilemma, especially for Indian women, since approximately one-quarter of all cases of family violence against Indians involve a non-Indian perpetrator. It’s a rate of interracial violence five times that involving other races.
“The law simply has to change,” said Kirsten Matoy Carlson, staff attorney for the Indian Law Resource Center based in Helena, Mont. “Tribes are in the best position to investigate and prosecute these crimes, yet the law prevents them from doing so.”
“Tribes must be able to prosecute and sentence violent perpetrators to protect Native women from the alarming rates of domestic violence and sexual assault. As it is, perpetrators of violence against Native women often face no consequences for their crimes. Studies report that violent offenders are likely to commit further violence when they are not held responsible for their crimes, and that domestic violence escalates over time. Sexual and domestic abusers know they can get away with committing heinous violent crimes against Native women and they regularly exploit this by targeting Native women.”
Fletcher, an enrolled member of the Grand Traverse Band of Ottawa and Chippewa Indians, closely monitors Supreme Court and other legal decisions involving Indian issues. He writes in the brief that among the traditional powers retained by Indian tribes under tribal sovereignty is the power to establish tribal courts and to prosecute criminal offenders for acts committed within Indian country.
He notes that traditionally, tribal sovereignty is inherent and undiminished unless the tribe has voluntarily divested itself of some aspect of its sovereignty, or if Congress has affirmatively acted to divest the tribes of a part of their sovereignty.
However, the Supreme Court changed these rules when it held in 1978 that Indian tribes may be divested of their sovereignty by a decree from the high court. This means that tribal governments do not actually have jurisdiction over domestic violence misdemeanors committed by non-Indians in Indian country.
“The Supreme Court has created – and Congress has not done enough to solve – a terrible irony,” Fletcher writes. “The law enforcement jurisdiction closest to the crime and with the greatest capacity and motivation for responding quickly, efficiently and fairly, has been stripped of the authority to react, leaving Indian women to suffer, and crimes of domestic violence to remain unresolved and unprosecuted.”
Fletcher says the scenario leaves Indian women who are the victims of domestic violence and physical assault by non-Indians in a quandary when federal and state authorities do not prosecute these crimes, which they often are not able to do because of a lack of resources and other factors.
Carlson says this “stripping of tribal criminal jurisdiction and refusal to ensure the prosecution of these crimes has grave consequences for the safety of Indian women.” This legal framework, she says, places Native women at increased risk for further victimization, and leaves them unprotected and without any legal recourse.
“There is no justice for Native women, and there won’t be until the law changes,” warned Carlson.
The brief proposes that Congress fix the situation by enacting legislation that recognizes tribal court jurisdiction over domestic violence and related misdemeanors committed by non-Indians in Indian country.
According to legal experts, Congress has not taken such action due to opposition from the Department of Justice and from various state governments that generally oppose tribal government activities.
Under Fletcher’s plan, tribal prosecutions for such crimes would proceed as do other tribal prosecutions.
The legal expert also proposes that Congress would condition the recognition of tribal sovereignty on a requirement that Indian tribes provide adequate constitutional and criminal safeguards. Tribes would have the ability to “opt-in” to the system.
Fletcher believes Congress has the constitutional authority to “untie the hands of Indian tribes” and permit them to once more enforce criminal laws against non-Indians in Indian country and stop the epidemic of violence against Indian women.
“Each day, an Indian woman is victimized by a person who likely will never be prosecuted,” he concludes in the brief. “It is time to act.”