Native American Sexual Assault: Amendments to the Violence Against Women’s Act

DJ Harris, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

In 2007 Leslie Ironroad, a young enigmatic woman decided to move to Standing Rock, a Sioux reservation in South Dakota.  At twenty years old Ironroad aimed to begin a new chapter.  She moved to Standing Rock with her friend Rhea Archambault to make tribal quilts for a living.  One evening Ironroad went to a party with friends.  It is not exactly clear what occurred at the party or who even attended the gathering.  However, several hours later Archambault’s brother received a frantic call from Ironroad. Ironroad insisted that she needed to be picked up immediately and that several men at the party were harassing her.

The next time Archambault saw her friend was in a hospital bed in Bismarck, N.D.  Ironroad had been severely beaten and had substantial injuries.  The swelling in her face was so significant that she was unable to fully open her eyes when Archambault entered the room. It was then that Ironroad informed her that she had been brutally gang raped and locked in a bathroom at the party. Ironroad continued that she stayed in this bathroom until someone found her unconscious on the bathroom floor the next morning.  Archambault contacted the Bureau of Indian Affairs (BIA) to report the rape, this bureau served as the reservation’s federal police force.  After a couple days the BIA officer finally arrived at the hospital and took Ironroad’s statement.  A week later Ironroad died of her injuries.  There was no investigation and no arrest was made.  Her case was never followed up on by the BIA nor or any other federal agency.  Nothing ever happened.

Many may hear Ironroad’s story and think “what an outrageous failure of law enforcement.”  However, this scenario may sound very familiar to those familiar with Native American tribal lands.  There is no question about it, many women experience rape, domestic violence, and other forms of domestic violence in their lifetime.  One recent study estimates that as many as one in five women are raped in their lifetime.  However, the rates of rape and domestic violence against Native American women are staggering.  Studies show that one in three Native American women will be raped during their lifetime and that nearly half will suffer from domestic violence.  These figures are nearly double the rates of abuse for white women, and much higher than those for African-American and Hispanic women.

Further adding to the victimization of Native American women are the often-isolated conditions of tribal reservations and the limited resources available to build and try rape cases.  In many reservations police forces are small and have limited resources and training to adequately handle sexual abuse crimes.  Often health centers and other clinics on tribal reservations have limited capability to provide the full array of medical examinations that would be found in a rape kit.

Moreover, federal funding has not been provided for an adequate number of federal police agents.  Often complaints and allegations of rape and sexual assault by Native American victims go uninvestigated and unprosecuted.  Many of the tribal and federal police forces in tribal lands are overworked, underfunded, and underpowered.  It is not unusual for a handful of law enforcement officers to cover huge tribal territories, some of which are even lacking paved roads.  That was case in Standing Rock, where only five BIA officers were employed at the time of Ironroad’s rape. These five officers were tasked with covering a large reservation that is nearly the size of Connecticut. The BIA officer who saw Ironroad in the hospital was interviewed by National Public Radio and said that at the time of Ironroad’s rape his office was overwhelmed with the calls and reports of sexual assault and child abuse. He went on to concede that Ironroad’s case and many others can get lost in the shuffle.

To compound the situation, it has been said that some Native American activist do not even press alleged victims to make charges of rape because the Department of Justice (DOJ) prosecutes so few cases.  In a recent New York Times article, columnist Timothy Williams noted that in 2011 the DOJ prosecuted only 65 percent of alleged sexual abuse cases on tribal lands.

The lack of federal police and prosecution is even more problematic given the fact that tribal governments lack the ability to prosecute and punish non-Indian citizens.  This appears of critical importance since recent statistics show that non-Native American, non-tribal members are alleged to have been the perpetrators in over 85 percent of reported incidents of rape and domestic violence.  However, tribal governments have no jurisdiction over the alleged non-tribal perpetrators.

This lack of criminal jurisdiction regarding non-tribal citizens is rooted in a 1978 Supreme Court decision, Oliphant v. Squamish Indian Tribe.  In Oliphant, the Court held that neither Squamish, nor any other tribe had criminal jurisdiction over non-tribal citizens.  However, in a 2004 decision, United States v. Lara, the Court held that it was within Congress’ power to “relax” or “lift” restrictions placed on Native American tribes by the political branches.

Given statistics of violence towards Native women and an apparent route around the jurisdiction box established by Oliphant, there have been calls for increased resources for tribal governments through congressional legislation.  Democrats and other progressives in Congress have attempted to use statutory amendments to the Violence Against Women’s Act (VAWA).  The bill is set for reauthorization by Congress this year.  The original bill was passed in 1994 and drastically increased federal funding for the investigation of domestic violence and to provide stiffer federal penalties for violence against women.

This year two versions of the bill have been introduced in the Congress with disagreements largely among party lines, with much to do surrounding proposed provisions affecting tribal Native America women.  In April, with a bi-partisan majority the Senate approved a reauthorization of the VAWA that included provisions aimed at Native American tribal groups. The key provision gives tribal governments a limited criminal jurisdiction over non-tribal citizens regarding the specific crimes of assault or sexual assault against women who reside in tribal territories.  In addition to the enforcement provision, the Senate bill also provides tribal governments with funding for education, prosecution and investigation of domestic violence and rape claims.  However, in May the House of Representatives approved their own version of the Bill.

The House reauthorization crafted by Republican lawmakers does not include any of the Senate bill’s provisions regarding Native American tribal governments, including the section regarding concurrent criminal jurisdiction over alleged culprits.  It does however allow tribal women to seek orders of protection (restraining orders) in local US District Courts.  House Republican’s held that the Senate version may be unconstitutional since it allows Native American tribunals to prosecute American citizens. Also noting that some Constitutional Due Process rights may be lost if an American citizen is prosecuted in tribal courts.  Republican lawmakers have commented that Native American courts lack the resources and experience of providing the adequate due process rights of criminal defendants.

While an examination of Lara appears to provide a pathway for a congressional grant of concurrent criminal jurisdiction, evidence is lacking regarding the ability of Native American tribunals to provide adequate due process to non-tribal criminal defendants.  Native American tribes have judicial systems that vary and have even larger disparities in the amount of funding available for their judicial systems.  However, there does not appear to be a wealth of direct evidence showing that tribes would not or are unable to provide adequate due process.

The passage of dueling VAWA reauthorization bills means that both houses must settle the disputes and try to reconcile the two bills.  If a reauthorization is not passed by the end of the year then the entire bill is without force.

“What else could authorities want or needed to investigate such cases and when will the violence stop” was the question asked by Rhea Archambault when asked about the rape and death of her friend.  This question asked by many lingers along as well as the future of the VAWA.

Sources:

http://www.fed-soc.org/publications/detail/criminal-jurisdiction-of-indian-tribes-should-non-indians-be-subject-to-tribal-criminal-authority-under-vawa

http://www.nytimes.com/2012/05/23/us/native-americans-struggle-with-high-rate-of-rape.html?pagewanted=all

http://www.amnestyusa.org/pdfs/MazeOfInjustice.pdf

http://www.justice.gov/otj/pdf/american_indians_and_crime.pdf

http://blogs.justice.gov/main/archives/1489

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S. Ct. 1011, 55 L. Ed. 2d 209 (1978)

United States v. Lara, 541 U.S. 193, 124 S. Ct. 1628, 1629, 158 L. Ed. 2d 420 (2004)

http://www.whitehouse.gov/blog/2012/05/14/addressing-violence-against-native-women-violence-against-women-act-reauthorization

http://www.ourbodiesourblog.org/blog/2007/07/a-warped-world-for-native-american-women-seek

http://dartcenter.org/content/sexual-abuse-native-american-women

http://www.aljazeera.com/programmes/witness/2012/06/20126565933637560.html

http://www.newser.com/story/146595/for-native-american-women-sex-assault-is-the-norm.html

http://www.standingrock.org

http://www.ncai.org/news/articles/2012/05/10/keel-op-ed-vawa-tribal-provisions-are-constitutionally-sound

http://www.nytimes.com/2012/07/24/opinion/delay-on-violence-against-women-act.html

http://www.whitehouse.gov/blog/2012/05/14/addressing-violence-against-native-women-violence-against-women-act-reauthorization

http://www.huffingtonpost.com/2012/05/16/house-passes-violence-against-women-act_n_1522524.html

http://www.huffingtonpost.com/2012/04/26/violence-against-women-act-passes-senate_n_1456839.html

http://womenagainstvawa.org/battle-in-the-house-looms/

http://4vawa.org/pages/tribal-provision-of-s-1925-myths-v-facts

http://www.randomlengthsnews.com/blogs/Notebook/2012/08/congressional-foot-dragging-leaves-violence-against-women-act-in-limbo/

http://www.washingtonpost.com/blogs/2chambers/post/senate-should-hold-firm-on-vawa-provisions-murray-says/2012/06/26/gJQAmPBa4V_blog.html

http://www.now.org/nnt/spring-2001/nativeamerican.html

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