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The limits on justice for Native women and girls
Last week, the Department of Justice announced that it will double funding to tribes for public safety programs and crime victims in an effort to address violence against Native women. The move is an extremely limited step toward increasing federal support for women and girls who are survivors of violence, much of it perpetrated by non-Native men. [Mary Hudetz / Associated Press]
The violence against Native women and girls is not easily addressed by the court system because tribal courts, for the most part, have no jurisdiction over non-Native people, and the federal system, which has jurisdiction over these cases, is largely inaccessible and unresponsive. This month, the Associated Press ran a series of stories on the large numbers of Native women and girls who are murdered or reported missing. Native women are overrepresented in open missing person cases, and on some reservations the homicide rate for women is 10 times the national average. Many more cases go unreported. In a federal report on violence against women, one tribal leader said, “Our people go missing at an alarming rate, and we would not hear about many of these cases without Facebook.” [Mary Hudetz / Associated Press]
An expert on sexual violence and tribal jurisdiction said in an interview with Vice that the problem is how jurisdictional law “privileges non-Native people who commit crimes specifically against Native people.” As a result, she said, “Reservations became hunting grounds.” And though the vast majority of sexual assaults in the U.S. are committed by people of the same race as the survivors, “Native women are the one statistical anomaly.” [Jessica Rizzo / Vice] In a nationally representative survey used in a 2016 Department of Justice study, 97 percent of Native women who had experienced intimate partner violence or sexual assault said they had experienced violence from a person who was not Native.
The limits on the jurisdiction of tribal courts goes back to the Supreme Court’s 1978 ruling in Oliphant v. Suquamish Indian Tribe. 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. [James D. Diamond / Criminal Justice]
Prosecution in federal courts, then, remains the default. And while the criminal legal system’s approach to intimate partner and sexual violence can fall far short of what survivors or society needs, it is too often not even available to Native women. In 2016, U.S. prosecutors declined to prosecute 46 percent of reservation cases. 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. [Mary Hudetz / Associated Press]
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 plenty of powerful opposition to expanding that jurisdiction. As a senator, Jeff Sessions opposed the 2013 reauthorization of the Violence Against Women Act, in part because of an objection to expanding tribal jurisdiction to non-Native people. [Mary Hudetz / Associated Press]
In California, Judge Abby Abinanti is chief justice of the Yurok Tribal Court, which runs a domestic violence program that is the first in the state, and perhaps in the country, certified to have non-Native participants. Abinanti’s approach draws on tribal traditions and 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 last year, none of its participants had gone back to jail for domestic violence. [Rebecca Clarren / The Nation]
It is unknown how many tribal courts operate in a manner that reflects tribal traditions. While at least 19 have drafted tribal codes, most tribal courts face significant budgetary challenges. For most, the funding they receive from the Bureau of Indian Affairs is just 6 percent of what is needed, according to a 2015 report. Abinanti’s court hears an average of 670 cases a year, including cases of domestic violence. Savala Trepczynski, executive director of the Thelton E. Henderson Center for Social Justice at the University of California Berkeley School of Law, told The Nation in an email: “If we were serious about mirroring Judge Abby’s style, we’d have to create and sustain a society with minimal incarceration. We’d have to reimagine the purpose of the criminal-justice system and destroy the economic incentives to incarcerate.” [Rebecca Clarren / The Nation]
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