Rape in Indian country has recently become the subject of partisan campaign fodder and, even worse, systemic racism in Washington, D.C. It is time to set the record straight on the Violence Against Women Act (VAWA) reauthorization.
In 1978 the U.S. Supreme Court ruled in Oliphant v. Suquamish Indian Tribe that tribal governments do not have the power to prosecute non-Indians. Neither the federal government nor the states have filled this jurisdictional void. For decades, the Oliphant decision, which arose on Washington State’s Kitsap Peninsula, has allowed non-Indian criminals to enter Indian reservations and literally get away with murder—or, more commonly, rape.
Last April the Senate passed S. 1925, a version of VAWA that would again allow tribes to exercise limited criminal jurisdiction over non-Indian domestic violence defendants. This was the right move, as further confirmed in May when a U.S. Government Accountability Office study confirmed that “tribal justice systems are often the most appropriate institutions for maintaining law and order in Indian country.”
The Republican-controlled House’s companion bill, H.R. 4970, however, omitted the tribal components. Curiously, during the House Judiciary Committee markup of the Bill, Committee Chairman Lamar Smith (R-Texas) refused to allow consideration of a substitute amendment offered by Ranking Member John Conyers, Jr. (D-Michigan) that would reinsert the tribal protections. Representative Darrell Issa (R-California) attempted to offer a similar amendment, which was also disregarded by the Judiciary Committee Chairman.
Even more shocking was the House Report accompanying H.R. 4970. It admonished tribes for “tout[ing] unverifiable statistics about the rate of non-Indian violence against Indian women on Indian land, claiming that 88 percent of the perpetrators of violence against Indians are non-Indians.” According to the Report “a published 2008 study by the South Dakota Attorney General (“SDAG”) . . . showed that 69 percent of . . . Indian rape or sexual assault [cases] were, in fact, intra-racial.” In short, according to House Republicans, inter-racial incidence of rape isn’t that bad.
The data relied on in the SDAG study was limited to South Dakota policing records, and did not include the numerous instances in which non-Indian perpetrators dodged police investigation and prosecution due to the jurisdictional void created by the Supreme Court in 1978. The study’s underpinnings and conclusions are contradicted by both the U.S. Department of Justice and Amnesty International.
In a recent OpEd in Indian Country Today Media Network, retired businessman Scott Seaborne questions the DOJ and Amnesty International analyses for having made “no effort . . . to verify the claim that the respondents were in fact real American Indians” or to “cross verify the crimes they reported with local law enforcement agencies.” But most sexual assaults occurring in Indian country are unreported. Indeed, why would somebody report any crime to a local law enforcement agency that has absolutely no presence in Indian country? And asking women who come forward with accounts of rape to substantiate their race? That’s just distasteful.
Mr. Seaborne—a self-proclaimed expert on Indian law because he has “owned property between two Indian reservations for 50 years”—does, however, offer a solution. According to Seaborne, Public Law 280, a 1950s Termination-era act that allowed states to assume limited criminal jurisdiction over non-Indians on Indian reservations, “would eliminate the need to revise tribal court limits and would remove unreliable federal policing and prosecutions from Indian country.”
Tulalip Tribal Vice Chair Deborah Parker knows better. Parker, a domestic violence survivor in PL 280-implemented Washington state, has fought for years to bring non-Indians who commit crimes against women to justice on Tulalip lands. Vicci Hilty, deputy director of Domestic Violence Services of Snohomish County, has echoed the need for federal intervention in PL 280 states—she describes the House bill as “discarding Native American women.” Local Washington State Sheriffs share similar concerns. Indeed, conclusions of a just-issued empirical study of PL 280 jurisdiction confirm not only that the implementation of PL 280 has in fact “increased the occurrence of crime” in Indian country, but, further, that “PL 280 status is robustly negatively associated with median family income.” PL 280 is not now, and has never been, a solution.
But more importantly, who cares if the percentage of non-Indian sexual predators violating Native American women and going free is 88 or 31? Either number reflects a horrific national epidemic, which simply would not stand in non-tribal communities. The fact that House Republicans take the position that Indian rape is tolerable up to some point between the two numbers—not to mention making rape a racial (or “intra-racial”) issue—is sickening. It’s nothing more than institutionalized racism.
The House Report also stated that it is the Executive Branch’s “opinion that non-native domestic violence offenders represent a very small percentage of domestic-violence-reported crimes in Indian Country.” This statement was a blatant lie – so much so that the U.S. Department of the Interior felt compelled “to set the record straight” by chiding House Republicans for making the assertion with no proof; making clear that the number of non-Indian domestic violence offenders is altogether unacceptably high.
The House Report further misleads in its statement that “[i]f signed into law, this would be the first time that Indian Tribal governments have civil and criminal jurisdiction over non-Indians….” Again, this is absolutely false. Tribal courts have limited civil jurisdiction over non-Indians, exercised in a number of contexts, usually related to Indian/non-Indian business transactions. As to criminal jurisdiction, prior to the Supreme Court’s decision in Oliphant, tribal governments had full authority to prosecute non-Indians who entered into Indian Country. In the pre-Oliphant days, logic prevailed: If you don’t want to be subject to Indian courts, don’t enter Indian land.
According to the White House, the president will veto any VAWA reauthorization bill that does not include protections for Indian Country domestic violence victims. Washington’s Senator Patty Murray (D-Washington) has also vowed to reject any agreement with the House that does not include the tribal protections. Ranking House Democrats Edward Markey (D-Massachusetts) and Dan Boren (D-Oklahoma) are putting further pressure on the House by requesting hearings to address the “accountability for violent crimes in Indian country” that they fear is “decreasing as Native women continue to be victims of sexual assault at alarming rates.” As I write, hundreds of concerned tribal and women advocates are making their voices heard on Capitol Hill.
At the same time, Washington state Republican gubernatorial hopeful Rob McKenna advocates for mere “tribal civil authority” over non-Indian rapists, stopping short of recommending the jurisdictional power that is needed to bring criminal justice—and safety—to Indian Country. While Attorney General McKenna is at least addressing the issue with some thought, which is much more than can be said of his fellow GOPers, fines and civil restraining orders are not adequate responses to reservation murder and rape.
The jurisdictional gap created by our High Court nearly 35 years ago has created an extremely dangerous environment for Native women. It is only now that a solution to the sexual assault epidemic in Indian Country has finally been proffered in the Senate’s VAWA reauthorization bill. But if the House Republicans’ misogyny and racism is allowed to prevail, the solution will fall through the political cracks.
Meanwhile, Native women remain vulnerable to violent criminals who remain above the law. On this holiday week, for the sake of all women who have suffered at the hands of violence, let us put politics aside and allow just a bit of justice to prevail in Indian country. We, as fellow Americans, are better than this.
Ryan Dreveskracht is an Associate at Galanda Broadman PLLC, of Seattle, an American Indian-owned law firm.