Law enforcement gaps leave Native women vulnerable to rape and domestic violence

By Kimberly N. Alleyne
America’s Wire

WASHINGTON—A gap in law enforcement on Native American lands creates an environment in which Native women suffer a higher rate of violence than any demographic in the United States, according to data collected by the U.S. Department of Justice, the U.S. Census Bureau and advocacy organizations.

The Justice Department has found that Native women are victims of violent crime at 3-1/2 times the national average, with advocates saying the actual figure is much higher because many victims mistrust authorities and don’t report such crime. The department says 70 percent of sexual assaults are never reported.

Jurisdictional conflicts make it difficult to arrest and prosecute non-Natives for crimes committed against Natives. Complications with investigations and court proceedings involving sexual assault and domestic violence cases further decrease likelihood of prosecutions.

“It’s almost like non-Native people have a license to brutalize Native women,” says Tina Olson, co-director of Mending the Sacred Hoop in Duluth, Minn. According to its website, the group works “to end violence against Native women and children while restoring the safety, sovereignty, and sacredness of Native women.”

The Census Bureau has determined that 39 percent of Native women are victims of domestic violence at least once. Moreover, it says, victims often use the term “domestic violence” to describe more vicious attacks.

“We tried to better assess the types of violence that Native women experience, and we learned that how they define domestic violence is so much worse than how we viewed it,” says Sarah El-Fakahany, a sexual assault advocate at the Minnesota Indian Women’s Resource Center in Minneapolis. “They viewed it as, ‘I almost died,’ or ‘I was kidnapped, raped and held in a basement for three days’ or ‘I was dragged by a car, but it wasn’t that bad’.”

Data from a survey by the National Coalition Against Domestic Violence in Denver show that 1.5 million women are physically or sexually assaulted annually and that Native women suffer domestic violence at a disproportionately higher rate. A Justice Department report says one of every three Native women will be raped in her lifetime.

“The types of violence we see against Native women at this agency are numerous,” El-Fakahany says. “Essentially, if there is a form of violence out there, we’ve seen it. I’ve worked as a sexual assault advocate for five years and in the Native community for about two years, and I’ve never seen the level of violence as I’ve seen here.”

Authorities’ inability to prosecute these crimes endangers Native women further. Domestic violence crimes perpetrated on reservations or pueblos are largely not reported or not prosecuted because of loopholes in jurisdictional authority.
Arrests occur in only 13 percent of sexual assaults reported by Native women, compared with 35 percent for blacks and 32 percent for whites, according to the Justice Department.

Much of the law enforcement paralysis is caused by laws that prevent tribal authorities from arresting non-Natives for violent crimes in most states, while state authorities can’t arrest tribal members. Public Law 83-280, a federal statute enacted in 1953, transferred authority over crimes involving Natives on Native territory from the federal government to only six states — Alaska, California, Minnesota, Nebraska, Oregon and Wisconsin.
“The law can be tricky,” El-Fakahany says. “In Minnesota, tribal police can’t go after non-Natives, but tribal and state law enforcement can go after Natives. Basically, there are non-Native perpetrators who don’t have to be held accountable for their actions, but Natives do.”

In all other states, federal and tribal governments maintain concurrent jurisdiction for major crimes committed in Indian Country. Tribal governments have jurisdiction over all crimes that are committed in Indian Country and involve a Native offender and Native victim. States retain jurisdiction for non-Native crimes committed in Indian Country but only those in which neither offender nor victim is a Native.

El-Fakahany’s experiences at the resource center underscore the extent of challenge for law enforcement. “Crimes against Native women are rarely prosecuted,” she says. “We see a spike in attacks during hunting and fishing season,” adding that non-Native men “can go onto the reservations and then go back to their homes five hours away. With tribal jurisdiction, tribal police cannot touch you, and it becomes a federal matter.”

According to the Census Bureau, 77 percent of residents on reservations and other Native lands are non-Natives, and about 56 percent of Native women are married to non-Natives. Still, tribes have no authority to prosecute a non-Native for domestic violence, even if the offender resides on the reservation where the assault occurred or is married to a tribal member.

Consequently, prosecution for domestic violence crimes committed in Indian Country is rare. The federal government has exclusive jurisdiction but often has neither resources nor the desire to pursue misdemeanor domestic cases.

According to government data, U.S. attorneys decline about 67 percent of sexual assault cases referred from Indian Country. Enforcement gaps created by PL 83-280 and indifferent attitudes help to perpetuate cyclical violence against Native women.
Olson says assault cases often are not even investigated. “One woman told me, ‘I would have validated my rape if someone had called or followed up’,” she says.

Others blame PL 83-280. “The obstacles presented by Public Law 280 to address sexual assault relate to data collection, training or awareness, lack of resources targeted at tribal communities, lack of well-funded tribal police departments, animosity toward tribal communities and lack of reporting from tribal community members,” the Tribal Law and Policy Institute in West Hollywood, Calif., reported in December 2007.

Essentially, the system allows non-Natives who commit domestic violence crimes to act without fear of penalty. Statistics show that non-Natives commit 88 percent of violent crimes against Native women.

“It’s like they’ve [Native women] become this mythical creature, and when you mystify something, you tend to destroy it,” El-Fakahany says. “There is an ill-conceived idea that they are not real people. If you don’t believe in something, it is really easy to destroy it.”
Tribal authority is further limited because the federal Tribal Law and Order Act, signed in July 2010, limits the maximum sentence a tribal offender can receive for a single crime to three years.
Nearly all of 109 tribes responding to a survey about the sentencing increase said they need more federal money and technical help to provide public defenders, establish or update criminal codes and have sufficiently trained judges as the law requires, the Associated Press reported in May.
Efforts to address violence against Native women continue.

Advocates have included language in the reauthorization of the Violence Against Women Act to expand its provisions to cover undocumented immigrants, American Indians, gays and college students. The legislation was approved by the Senate, but the Republican-controlled House has opposed the additional language and is blocking reauthorization of the Act. First passed in 1994, the Act provided $1.6 billion to assist in the investigation and prosecution of suspects accused of violent crimes against women. It also included other measures, such as creating the Office on Violence Against Women in the US Department of Justice and allowing civil compensation for victims in cases that were not unprosecuted.

The Office on Violence Against Women administers the Tribal Coalitions Program, which provides grants to nonprofit and nongovernmental tribal domestic violence groups that work to prevent violence and sexual assaults against Native women. But root causes behind the disparity in domestic violence against Native women remain complex.

“Native women are very vulnerable,” Olson says. “There is a high rate of sex trafficking, and many women’s children are being taken out of their homes as young children and going into foster care. And we’re not talking about one-time incidents. Many women experience multiple victimizations.”

Advocates for Native women say causes of increased domestic violence often include breakdowns of the family structure, lack of understanding about sexual violence and widespread alcohol abuse.

“There are many reasons,” Olson says. “There is a history of violence in generation upon generation. There is addiction, alcohol and designer drugs that can be bought over the counter. There is a smoke shop right near our office, and people line up for two hours to get their drugs, to get a cheap high.”

Furthermore, relations between Natives and government authorities at state and federal levels have long been tense.
In 2006, Mending the Sacred Hoop and the Program for Aid to Victims of Sexual Assault Inc., in Duluth conducted a safety and accountability audit of the response to reported rapes of Native women. “We found that out of 50 police reports, not one of them was prosecuted,” Olson says. “Law enforcement blames whoever is responsible in prosecution, and prosecution blames whoever is responsible in law enforcement.”

Enactment of the Tribal Law and Order Act marked a historic step in ensuring that the federal government is properly equipped to manage challenges unique to Native communities. A primary goal is to help reduce violence against Native women there, and a key component is to provide more training for authorities who handle cases of domestic violence against Native women.
The Indian Health Care Improvement Act, made permanent in March 2010 as part of the Patient Protection and Affordable Care Act, established standardized practices in health facilities for victims of sexual assault. It helps Native women obtain justice against perpetrators of sexual assault.

“There is a lot of hope among people” in Indian Country, El-Fakahany says. “People are revitalizing their languages and getting in touch with their cultures. Before, you could not talk about abuse. It was too painful. We’re seeing progress. There are people who are speaking out and saying, ‘We will not accept violence against women’.

“There is a strong fighting spirit in the people we serve. It’s not about education or wealth. . . . I’ve met many amazing, talented and brilliant people. Women are saying, ‘I got help, and you can, too.’ ”

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