‘Jurisdictional maze’ hinders investigation of sexual violence against Native women, report says

Amnesty International has called on the US government to fully restore tribal jurisdiction over crimes on Native lands in the face of staggeringly high rates of sexual violence against Native women, according to a report released on Tuesday.

Nearly one in three American Indian and Alaska Native women have been raped – more than twice the average for white women and probably an undercount given gaps in data collection, according to the report.

These high numbers, the authors explained, result from the US government stripping tribal nations of their authority, followed by a “complex jurisdictional maze” that, depending on whether the survivor and perpetrator are Native and the location and severity of the crime, could place responsibility in the hands of tribal, state or federal authorities.

“You have then people who survive an assault, they have police show up who are then arguing on their doorstep who has to take this, who doesn’t want it, who’s responsibility it is, whose [it] isn’t,” said Tarah Demant, the report lead.

The 98-page report came 15 years after Amnesty International published a study on the crisis of sexual violence against Native women. Demant said it was rare for the organization to revisit an issue in this way. But after seeing no significant decrease in these crimes despite a series of related federal policies viewed as huge steps toward rectifying the situation, she said it was clear they needed to reinvestigate.

There was the 2010 Tribal Law and Order Act (TLOA), which allows tribal courts to sentence people to up to three years’ imprisonment. There was also the Violence Against Women Act (VAWA), which was recently reauthorized and is expected to make it possible for some nations to prosecute non-Native perpetrators of sexual violence.

Although TLOA had some positive effects on women’s safety, it still only allows for limited sentencing and the requirements to implement it are “onerous”, according to the report. As of October 2021, only 16 tribes had implemented it. At the same time, many tribes don’t have the needed funding to be able to move forward with prosecutions under VAWA, according to the report.

“All these half measures are Band-Aids on a tumor,” said Demant. “The tumor here is that the United States has stripped tribal governments of their sovereignty and their authority and their ability to protect their populations and prevent this type of violence.”

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Growing up on the White Earth reservation and in neighboring towns in Minnesota, Lisa Brunner remembers her mother’s husband, who was not a member of the tribe, beating and sexually assaulting her mother. When they called the police, he would sometimes be put in jail for the night and they occasionally would be brought to a shelter. But soon, the pattern would simply start all over again.

So, she said, when she was raped at 15 and then again at 16, she didn’t bother calling the police.

“I knew that law enforcement wouldn’t do anything, because I watched how they did nothing to the beatings that this man – coward, I should say – did to my mother,” said Brunner, who is now 49, and has spent decades working in the domestic violence and sexual assault field.

Years later, she had her own daughter and said she had to help her navigate a similar situation when, at 17 years old, she was raped by a white man about five blocks from their home on the reservation. This time, Brunner said she reported it to a sexual assault investigator for the tribe. But in the 10 years since, she said she hasn’t heard anything from law enforcement officials.

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In the report, Amnesty International urged Congress to take broader steps to address the sexual assault epidemic, including overriding the supreme court’s 1978 Oliphant v Suquamish decision, which established that Native courts do not have criminal jurisdiction over non-tribal citizens. Amnesty also pushed for amending the Indian Civil Rights Act to give Native nations broader sentencing power.

The authors also detailed how the high number of sexual assaults has been exacerbated by the US government under-resourcing tribal police, healthcare and other support services.

While the national average is one law enforcement officer for every 286 people, on Native lands the average is one officer for 524 people, according to the report. At the same time, “of the 650 census-designated Native American lands analyzed in 2014, only 30.7% of the land was within an hour’s drive of a facility offering sexual assault examination services,” the authors wrote.

Demant said the federal government “has obligations because of their actions and attempted elimination of Indigenous people … through that trust responsibility”.

Tami Truett Jerue, executive director of the Alaska Native Women’s Resource Center, who helped with the report, said having sovereignty over these issues is a “good final step”. But, she said, “there’s a lot of things that have to happen in the meantime.”

In Alaska, which has some of the highest rates of sexual assault against Indigenous women in the country, Jerue, a tribal member of Anvik village, said nations would need to have control over such things as rape kits and be able to readily provide counseling, including more traditional methods with elders.

Rachel Carr-Shunk, executive director of Uniting Three Fires Against Violence in Michigan, a tribal domestic violence and sexual assault coalition, who also helped with the report, said it was important that the response to local problems were local, tribal solutions. Handing off cases to the FBI and the US attorney’s office, who, she said, may be several hours away and offer little communication and accountability, can be extremely detrimental.

She gave the example of a woman who had been sexually assaulted on Native trust land in Michigan several years ago, and whose case was taken up by the FBI. But after about 18 months of delays, Carr-Shunk said the woman eventually couldn’t bring herself to continue with the process and so the charges were dismissed.

Carr-Shunk, an enrolled member of the Sault Ste Marie Tribe of Chippewa Indians, asked: “How is that justice for that survivor?”

Ultimately, Demant said, sexual violence against Indigenous women is a human rights crisis, one that the entire US government needs to come together to address.

She said: “The US government is obligated by its international human rights law obligations, and frankly its own treaties here in the United States with tribes, to do more to actually solve this problem.”