The time has come to make meaningful change. Native women need to be protected from the sexual predators who repeatedly victimize them, without consequence or repercussion.

The statistics are appalling: More than one-third of Indian women will be either raped or sexually assaulted in their lifetimes. Moreover, non-Natives (primarily white men) commit 4 out of 5 of those rapes or sexual assaults. To put this statistic into perspective, that means that if your mother, your sister and your niece are sitting on a couch across the room from you, statistically one of those three Indian women will be either raped or sexually assaulted, most likely by a non-native man (including non-tribal member male).

Circle of violence stamp Circle of Violence: An Open Letter to People Regarding the Rape and Sexual Assault of Indian Women

Circle of violence stamp Circle of Violence: An Open Letter to People Regarding the Rape and Sexual Assault of Indian Women

Equally dreadful, nearly three out of five Indian women have been assaulted by either their spouse or intimate partner, and many of these asssaults are committed by non-Indian partners. Truly dastardly acts of the lowest form right? It’s worse: Surveys analyzing murder rates in counties largely composed of tribal lands found that Native women are murdered at a rate more than ten times the national average.

That’s all bad.

It is a travesty that any woman of any race has to wonder whether or not the law will protect her from rape, sexual assault and/or domestic violence, which in most cases, leaves the victim deeply and emotionally scarred, if not dead. Indian women, like all women, deserve to feel safe in their own homes and homelands. That is a fundamental human right. Indeed it’s the very right recognized by the United Nations Declaration on the Rights of Indigenous Peoples, Article 22, which specifically affirmed that “states shall take measures, in conjunction with the indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.”

• Click here for a list of resources for victims of abuse.

It has taken the U.S. only thirty-something years to agree to this simple, fundamental right. To its credit, the Obama Administration has taken that very stand, saying—caveats aside—that the Declaration “expresses the aspirations of the United States, aspirations that this country seeks to achieve within the structure of the U.S. Constitution, laws, and international obligations, while also seeking, where appropriate, to improve our laws and policies.”

Still, Native women, unlike most women in the United States, cannot feel safe right now.

That’s a fact.

Worse yet, tribes do not have the capacity, legally, to protect their women from violent non-Native sexual predators on our own lands. Talk about worthless sovereignty. Many might argue that the ability to protect your people is the most fundamental aspect of a nation’s sovereignty. If Native people cannot protect the lifegivers in our own territory, what good is so-called “sovereignty” or “self-determination?”

The emasculation of Indian peoples’ ability to protect our women stems from a particular Supreme Court case that originated on one of the author’s home reservations, Oliphant v. Suquamish Tribe. That case said that the executive branch and the legislative branches of the U.S. government snatched away Tribes’ ability to protect their homelands from non-Indians. Thus Indians cannot prosecute non-Indian criminals in tribal court. Obviously this created a jurisdictional maze on Indian reservations where criminal jurisdiction became a game of “Who’s On First”—nobody knows because it’s expensive, laborious and, seriously, why do the county or feds really care what happens to those Indians on the reservation? Consequently, the U.S. Department of Justice, which has exclusive jurisdiction over non-Natives committing crimes against Indians on Indian reservations — has failed pathetically to protect Indian women. Think about that: The DOJ is the only agency, per the Major Crimes Act and Oliphant case, that can prosecute the above hypothetical (your sister, your mom or your niece getting raped or sexually assaulted)—and it does nothing. Don’t believe that? According to a Government Accountability Office study, between 2000 and 2009, federal prosecutors declined one-half of all Indian Country crimes referred to them. Those same federal prosecutors declined to pursue charges in 67% of sexually related crimes during that same time period. Heck, in many instances the federal prosecutors did not even tell the Indian women that the federal prosecutor declined the case, therefore putting her in the position where she could run into the sexual predator again on the reservation.

Still, there’s hope. We are Indian people—we would not have made it this far if we did not retain hope. This is the ‘silver lining around the dark cloud’. But only if we act.

In 2005 Congress enacted Title IX of the Violence Against Women Act to address violence against Indian women. Specifically, Congress found that “Indian tribes require additional criminal justice and victim services resources to respond to violent assaults against women; and the unique legal relationship of the United States to Indian tribes creates a federal trust responsibility to assist tribal governments in safeguarding the lives of Indian women.”

So, how does that help us?

Well, after Oliphant, there was another Supreme Court case that involved tribes and criminal jurisdiction; that case was called United States v. Lara. Importantly, Lara held that Oliphant did not “set forth constitutional limits that prohibit Congress from taking actions that modify or adjust the tribe’s status.” Lara specifically did not weigh in on whether Congress could legislatively restore tribes’ ability to prosecute non-Indians. That’s huge.

Why?

Well, the Violence Against Women Act is up for reauthorization this year. This may be our only chance to fix the system, and there are three facts that give us leverage:

1) the U.S. Attorney’s absolutely and inarguably pathetic record of protecting Indian women,
2) the economic development of tribes that has undoubtedly created much more stable and competent tribal court systems than existed when Oliphant came down, and
3) the United States’ economic vulnerability—that is, prosecutions cost a lot of money, and if tribes can incur that cost in order to protect our homelands more effectively than the United States, that might be a “win-win.”

Because of the interest from the Administration, the DOJ (under the leadership of Secretary Holder) has taken the initiative to propose changes. But the proposed changes fall short. According to the “Framing Paper” circulated by DOJ to tribal leaders, titled Proposed Federal Legislation to Help Tribal Communities Combat Violence Against Native Women, they propose three legislative amendments to the reauthorization wherein the most favorable is a partial Oliphant fix. Granted each of the proposed changes are intended to help curtail the problem. However, like many of the past authorizations (2000 and 2005, respectfully) that included amended improvements piecemeal, they have yielded little relief or protection to the Native women victims. The statistics simply haven’t changed much over the years despite changes to the legislation.

Bad case law that singles out tribes and results in harmful treatment must be given strict scrutiny and must be rejected where it denies equal protection. Indeed, those tribes that are capable and ready to take over criminal jurisdiction of non-Indians within their reservations need and deserve a clean Oliphant fix in the reauthorization.

Therefore, it is incumbent upon us to contact our tribal leadership ASAP to make this a priority at the tribal council level. After your tribal council members understand how important this issue is, direct your elected leaders to contact United States legislators and DOJ to press this opportunity to stop sexual violence against Indian women; we have a draft letter for your representatives, congressmen and congresswomen. We must attack now—this may be our only opportunity. This is not a sure-fire formula, to be sure. Still, it is the best that we have right now. We must protect our women. After all, if we do not, history shows us that no one else will.

Respectfully,

Michael O. Finley, Chairman, Confederated Tribes of the Colville Reservation

Gyasi Ross, Attorney, Blackfeet

Get Involved! Support the National Task Force to End Sexual and Domestic Violence Against Women, the National Resource Center to End Violence Against Native Women and/or the NCAI Task Force to End Violence Against Native Women. Helpful literature: Restoration of Native Sovereignty and Safety for Native Women, Vol. XVI, A Call to Action: VAWA Reauthorization.