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The Rise of Tribes and the Fall of Federal Indian Law
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Tanya Lee: Violence against Native women a national disgrace

Filed Under: Law | National
More on: crime, doj, icra, jurisdiction, pl280, supreme court, tribal courts, vawa, women
     


President Barack Obama signs S.47, the Violence Against Women Reauthorization Act of 2013, at the Sidney R. Yates Auditorium at the U.S. Department of Interior in Washington, D.C., March 7, 2013. Official White House Photo by Chuck Kennedy

Tanya H. Lee writes about the history of federal Indian law and policy leading up to S.47, the reauthorization of the Violence Against Women Act, which recognized tribal jurisdiction over non-Indian offenders:
There are many reasons why so many Native women victims of violence, sexual and otherwise, never see justice. For example, a shortage of law enforcement officers means cases in remote locations may not be investigated for several hours - or days - by which time perpetrators and witnesses may be long gone and evidence compromised. Prosecution could mean victims and witnesses have to travel tens or hundreds of miles - often over dirt roads in rattletrap vehicles - to be present in court. If the case is delayed, the trip is wasted. Clinics and hospitals are sparse on rural reservations, and transportation may not be available to access medical help, meaning that no official hospital record exists to verify the injuries. In some instances, rape victims must pay for the rape kits that could document their injuries.

A major cause of these impediments is the jurisdictional tangle that exists in Indian Country. The complex relationships among federal, state and tribal law enforcement and legal systems result from decades of ill-considered, inconsistent and arbitrary decisions on the part of Congress and the US Supreme Court.

Following millennia during which Native tribes successfully policed their own communities, the Major Crimes Act of 1885 gave the federal government jurisdiction over several serious crimes committed by Indians or non-Indians on Indian lands, including rape and murder, a move that was and is characterized as a direct assault on tribal sovereignty. More than 20 other crimes, including child sexual assault, have been added to the list since the law was passed.

Then in 1953, during the termination era, Pulic Law 280 (PL280) gave what had been federal criminal jurisdiction in Indian Country to certain states - California, Minnesota, Nebraska, Oregon, Wisconsin and Alaska - and gave the states of Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota and South Dakota, Utah and Washington the right to assume such jurisdiction if they wanted it. This change in jurisdiction meant even less federal money for tribal court systems, which had never been adequately funded anyway. Only a few states continue to exercise authority under PL280, but its consequences - including grossly underfunded public safety institutions on tribal lands - persist.

In 1968, the Indian Civil Rights Act limited the penalties tribal courts could impose for any crime to a maximum of one year of jail time and/or a $3,000 fine.

Then came the case commonly referred to as Oliphant. In Oliphant v. Suquamish, the US Supreme Court stripped from tribal authorities the right to prosecute crimes committed in Indian Country by non-Indians. This decision was critical in denying indigenous women legal protections against violence. Many non-Indians live on Indian reservations for a variety of reasons (and many women, especially those with young kids, have intimate partners or spouses who are not tribal members).

The Oliphant ruling means that violence committed by non-Indians on tribal lands must be investigated and prosecuted by radically understaffed federal agencies and courts. And that more often than not means, for example, dispatching an FBI agent from an urban area to a rural reservation hundreds of miles away when a rape or beating is reported. The agent must interview whatever witnesses are still available when he finally gets there, collect whatever evidence has not been destroyed or compromised, and take whatever findings he can make to a US assistant attorney general, who must decide which cases, among the dozens or hundreds on his desk, can be successfully prosecuted. Under these circumstances, domestic violence cases in Indian Country are most often lost long before they get anywhere near a court.

Get the Story:
Tanya H. Lee: A National Disgrace: Violence Against Native Women (Truthout 7/30)

Related Stories:
Al Jazeera: Advocates seek inclusion of Alaska tribes in VAWA (07/21)
Tulalip Tribes prosecutor gets expanded authority under VAWA (07/15)
Mary Hudetz: Slow moving justice for women in Indian Country (06/16)
DOJ supports bill to include Alaska tribes in VAWA jurisdiction (06/12)
Blog: Tribal jurisdiction provisions in VAWA face legal scrutiny (05/28)
Al Jazeera: Pascua Yaqui Tribe looks for justice under VAWA (04/24)
Pascua Yaqui Tribe faces a test of jurisdiction under VAWA (04/21)
Pascua Yaqui Tribe exercises VAWA jurisdiction in five cases (04/01)


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