[nativestudies-l] from today's NYTimes

[Alyssa Mt. Pleasant]

http://www.nytimes.com/2008/08/11/opinion/11duthu.html?_r=1&ref=opinion&oref=slogin

August 11, 2008


  *Broken Justice in Indian Country *

By N. BRUCE DUTHU

White River Junction, Vt.

ONE in three American Indian women will be raped in their lifetimes, 
statistics gathered by the United States Department of Justice show. But 
the odds of the crimes against them ever being prosecuted are low, 
largely because of the complex jurisdictional rules that operate on 
Indian lands. Approximately 275 Indian tribes have their own court 
systems, but federal law forbids them to prosecute non-Indians. Cases 
involving non-Indian offenders must be referred to federal or state 
prosecutors, who often lack the time and resources to pursue them.

The situation is unfair to Indian victims of all crimes ­ burglary, 
arson, assault, etc. But the problem is greatest in the realm of sexual 
violence because rapes and other sexual assaults on American Indian 
women are overwhelmingly interracial. More than 80 percent of Indian 
victims identify their attacker as non-Indian. (Sexual violence against 
white and African-American women, in contrast, is primarily 
intraracial.) And American Indian women who live on tribal lands are 
more than twice as likely to be raped or sexually assaulted as other 
women in the United States, Justice Department statistics show.

Rapes against American Indian women are also exceedingly violent; 
weapons are used at rates three times that for all other reported rapes.

Congress should step in and clearly establish the authority of Indian 
tribes to investigate and prosecute all crimes occurring on Indian lands 
­ no matter whether tribal members or nonmembers are involved.

Historically, Indian tribes have exercised full authority over everyone 
within Indian lands. A number of the early federal treaties expressly 
noted a tribe?s power to punish non-Indians. Toward the latter part of 
the 19th-century, however, federal policy shifted away from tribal 
self-government in favor of an effort to dismantle tribal government 
systems. Criminal law enforcement, especially in cases involving 
non-Indians, increasingly came to be viewed as a federal or state matter.

Thirty years ago, the Supreme Court formalized the prohibition against 
tribes prosecuting non-Indians with its decision in Oliphant v. 
Suquamish Indian Tribe. In this case, a Pacific Northwest tribe was 
attempting to try two non-Indian residents of the Port Madison 
Reservation for causing trouble during the annual Chief Seattle Days 
celebration ­ one for assaulting an officer and resisting arrest and the 
other for recklessly endangering another person and harming tribal 
property. The court held that the tribe, as a ?domestic dependent 
nation,? did not possess the full measure of sovereignty enjoyed by 
states and the national government, especially when it came to the 
affairs of non-Indian citizens.

Then in 1990, the court extended its Oliphant ruling to cases involving 
tribal prosecution of Indian offenders who are not members of that 
tribe. Congress subsequently passed new legislation to reaffirm the 
power of tribes to prosecute non-member Indian offenders, but it left 
the Oliphant ruling intact.

This means that when non-Indian men commit acts of sexual violence 
against Indian women, federal or state prosecutors must fill the 
jurisdictional void. But law enforcement in sexual violence cases in 
Indian country is haphazard at best, recent studies show, and it rarely 
leads to prosecution and conviction of non-Indian offenders. The 
Department of Justice?s own records show that in 2006, prosecutors filed 
only 606 criminal cases in all of Indian country. With more than 560 
federally recognized tribes, that works out to a little more than one 
criminal prosecution for each tribe.

Even if outside prosecutors had the time and resources to handle crimes 
on Indian land more efficiently, it would make better sense for tribal 
governments to have jurisdiction over all reservation-based crimes. 
Given their familiarity with the community, cultural norms and, in many 
cases, understanding of distinct tribal languages, tribal governments 
are in the best position to create appropriate law enforcement and 
health care responses ­ and to assure crime victims, especially victims 
of sexual violence, that a reported crime will be taken seriously and 
handled expeditiously.

Congress should enact legislation to overrule the Oliphant decision and 
reaffirm the tribes? full criminal and civil authority over all 
activities on tribal lands. This law should also lift the sentencing 
constraints imposed in 1968 that restrict the criminal sentences that 
tribal courts can impose to one year in jail and a $5,000 fine. In cases 
of rape, state court sentences typically exceed 8 years, while federal 
sentences are more than 12 years. Tribes should have the latitude to 
impose comparable sanctions. (A bill pending in Congress would extend 
tribal sentencing authority to three years, with more latitude in cases 
of domestic violence, but its prospects of passage are uncertain.)

Congress recently allocated $750 million for enhancing public safety in 
Indian country. This money will help tribes hire and train more police, 
build detention facilities and augment federal investigative and 
prosecutorial capacity for Indian country crimes. Ideally, the grant 
process will be efficient enough to make sure that this money reaches 
the places most in need.

But financial aid will not be enough to stop sexual violence against 
Indian women. Tribal courts have grown in sophistication over the past 
30 years, and they take seriously the work of administering justice. 
Congress must support their efforts by closing the legal gaps that allow 
violent criminals to roam Indian country unchecked.

N. Bruce Duthu, a professor of Native American studies at Dartmouth, is 
the author of ?American Indians and the Law.?
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