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The Crisis Of Murdered And Missing Indigenous Women And Why Tribes Need The Power To Address It

Women's March California 2019
Sarah Morris / Getty Images

The Crisis Of Murdered And Missing Indigenous Women And Why Tribes Need The Power To Address It


Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

Last week, President Trump signed an executive order creating a task force on missing and murdered indigenous women. The task force, which will develop protocols for cases and create a team to review cold cases, will be overseen by Attorney General William Barr and Interior Secretary David Bernhardt. The task force announcement came a few days after Barr said the Justice Department will take steps to improve its response to missing persons cases.

Trump’s intervention is surprising, but as Rebecca Nagle noted in The Guardian, it took place against the backdrop of Senate Republicans trying to compromise one of the few positive developments in the federal government in addressing violence against Native women in recent years.

Over 1.5 million Native women have experienced violence, including sexual violence, in their lifetime according to the National Institute of Justice. Native women experience violence of twice the rate of women in the U.S. and on some reservations, the murder rate of Native women is 10 times the national average. In 2016, 5,712 cases of missing Native women nationwide were reported to the National Crime Information Center. Only 116 of them were logged in the U.S. Department of Justice’s missing persons database, according to the Urban Indian Health Institute.

In addition to the sheer volume of violence perpetrated against Native women, what is striking is that 97 percent of intimate partner violence and sexual assaults are estimated to be carried out by non-Native men. This is unlike the vast majority of sexual assaults in the U.S., which are committed by people of the same race as the survivors.

Assaults of Native women by non-indigenous men are the product, at least in part, of the limits on the jurisdiction of tribal courts. The 2013 reauthorization of the Violence Against Women Act included amendments that, for the first time, recognized that tribal courts have jurisdiction over criminal cases brought against nonmembers. This jurisdiction was still limited, however, applying only in cases of intimate partner violence and only to non-Native people who met at least one of three criteria: resident of Native country, employed in Native country, or the current or former intimate partner of a Native person living in Native country or a tribal member. It also imposed obligations that many tribes would struggle to meet, including the obligation to fund indigent defense. As of March 2018, only 18 tribes had met the requirements for expanding their jurisdiction.

Federal jurisdiction remains the default and it is characterized largely by unresponsiveness. In 2016, U.S. prosecutors declined to prosecute 46 percent of reservation cases, reported the Associated Press. Assault (which includes intimate partner violence) and sexual assault cases were declined more than any other offense category. Some tribal leaders and victims’ families report that authorities can be unwilling to help search for missing persons or even file a report.

While many believe that the problem of unchecked violence against Native women can be partially traced to the limitations on tribal jurisdiction, there is also powerful opposition to expanding that jurisdiction. As a senator, Jeff Sessions opposed the 2013 Violence Against Women Act reauthorization, in part because of an objection to expanding tribal jurisdiction to non-Native people.

The act lapsed this year. Now, even while bills to address violence against Native women have made progress in Congress, Republican Joni Ernst of Iowa has introduced a reauthorization measure that would make it easier to challenge tribal jurisdiction. Deborah Parker, a board member of the National Indigenous Women’s Resource Center described the bill as one that “in its current form, would constitute a significant rollback of the protections that VAWA 2013 provided to Native women. We cannot afford to step back. We can only move forward.”

In the 2016 law review article “Crime and Governance in Indian Country,” UCLA professor Angela Riley noted the irony in Native tribes demanding greater powers of policing and punishment at a time when issues of incarceration and criminalization of poor people of color finally figure prominently in the national conversation.

But the reason, Riley pointed out, was the horrific level of violence that had gone unaddressed for so long. Tribes had been stripped of the jurisdiction that would have allowed them to respond to the violence. The federal government, vested with that power, failed to respond. The result was near-total impunity for people committing acts of terrible violence and an absence of protection for those fearing harm.

In her article, three years after the 2013 Violence Against Women Act amendments, Riley looked at the prosecutions that had been brought under the new law by the 18 tribes that availed themselves of the expanded jurisdiction.

Riley considered how jurisdiction represents both an opportunity and a risk for tribes. It represents an opportunity to regain some of the power to ensure safety essential to a sovereign that was denied tribes for many decades. But it also requires that tribes adopt rules and safeguards that make their justice systems more like the federal government’s, compromising their values and autonomy.

The solution, Riley argues, is for tribes to avail themselves of the laws, passed in response to relentless mobilization and advocacy, that give Natives greater power to respond to crimes of intimate partner violence but to then use that power, where possible, to turn to non-incarceratory responses that reflect their own cultural values and knowledge.

The Yurok Tribal Court in Northern California, run by chief justice Abby Abinanti, is an example of a court that draws on tribal traditions, including in handling cases that involve intimate partner violence. Abinanti, the first Native female member of the California bar, told The Nation in 2017 that she asks: “How did we resolve things before our cultural interruption, when invasion occurred? We were village people, and we sat around and had discussions. My purpose is to help you think up how to make it right if you made a mistake. … For me, jail is banishment. It’s the last resort.” The program includes consultation with elders as well as training in anger-management skills. As of 2017, none of its participants had gone back to jail for domestic violence.

Riley, in considering what jurisdiction offers tribes, writes:

“I argue that expanded criminal jurisdiction and punishment authority have, perhaps paradoxically, enhanced the ability of tribes to develop and enforce policies, laws, and procedures that are consistent with tribal custom and tradition, and this presents a unique opportunity worthy of further exploration. In other words, rather than sovereignty and assimilation expanding in tension with one another, I find that the strengthening of sovereignty simultaneously enhances the ability of tribes to further protect traditional tribal values and indigenous justice systems. I seek to urge tribes even further in that direction, to view this enhanced tribal criminal authority as presenting an opportunity to only selectively engage the American system of criminal justice, and to deviate from it, when possible, in favor of experimenting more thoughtfully with indigenous methods of justice and restoration.”