Stopping Rape in Indian Country

This post adapted from my personal blog, The Wayward Episcopalian, and personal correspondence.

Last Sunday's New York Times included an important OpEd about a little known and gravely overlooked subject that affects millions of Americans. One of my favorite Dartmouth professors, Bruce Duthu, penned an article about the astronomical rate of rape in Indian country, and proposed some solid solutions. One in three Indian women will be raped at some point in their lifetime, and the fault is partially that of the United States Supreme Court for denying Indians criminal jurisdiction over all persons traveling or living in Indian Country (the legally and culturally accepted term, so no PC worries). And unfortunately, those who do have jurisdiction - the feds - don't act.

I am planning on doing an independent study with Prof. Duthu next year about this very topic, making it one of the two largest projects I've ever tackled. Duthu's Native Americans and the Law class is one of the best courses I've had yet; he is one of the best professors at Dartmouth (he also teaches at Vermont Law), and his word on these issues is gold. Here is an excerpt from the OpEd, with background information below:

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...

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.

But Prof. Duthu isn't one to just list problems and spread doom and gloom. Please, read the whole thing.

I forwarded this information out to several dozen people. To give you some background information on the issue, here is the response of a beloved and wonderful HS teacher of mine up in Idaho, and my reply to him:

This is really interesting and disturbing.  It appears to be a by-product of the Indians' long-established self-jurisdiction.  It's the same thing that allows you to buy "real" fireworks on the reservation, but not five miles away on non-Indian land.  It's probably too easy and obvious to ever be considered, but it seems that the Indian gov't and the feds simply have to agree that certain crimes will be prosecuted by the feds, regardless the race of victims and perpetrators.  That line about lacking time and resources bothers and confuses me.  Do they lack time and resources to investigate and prosecute the same offenses when they don't involve Indians? A related question... is whether the Indian officials (or the culture, in an informal way) choose to ignore/allow this crime.


I'm a Native American Studies (double with Government) major, and did a bit of study with Prof. Duthu on this subject last summer. The problem comes from a 1978 Supreme Court decision [Oliphant v. Suquamish Indian Tribe] that denied Indians criminal jurisdiction over non-Natives on Native land. I read the decision, and it makes no legal sense. If a Montanan commits a crime in Idaho, Idaho arrests him. If an American commits a crime in France, France arrests him. Since the Indians are sovereign over their reservations (per the Constitution, treaty agreements, prior Court decisions, and basic legal logic), you would think they'd have that same jurisdiction. Though most scholars agree, the Court didn't.

As a result, jurisdiction over non-Natives was turned over to the feds. When an Indian rapes someone on a reservation, the Indian cops can bust him, but not when the rapist is white or Latino or black or whatever. No, Indian officials certainly don't ignore these crimes, but the Supreme Court stripped them of the authority to do anything about it. Only the feds have jurisdiction, yet the Justice Dept. rarely gets involved if there's no confession. They follow through on BIA claims at a lower rate than any other agency. It's no secret, then, that anyone not enrolled in a tribe can literally get away with murder in Indian Country, which is why, unlike the nation at large, the majority of rapes of Indian women are by strangers rather than acquaintances, and by men of different races.

Why are the feds so indifferent? Part of it is the FBI's narrow focus on corruption, immigration, and terrorism, giving other issues the short end of the stick. I doubt racism is a big issue here; that comes more into play at the local level. The only realistic solution is for Congress, which through legal quirks does have the ability to overturn this SC opinion, to give Indians the same jurisdiction over their sovereign territory that counties have over theirs, and to help tribal police the same way COPS helps city police.

And as far as the sale of fireworks goes, the same thing happens with some state boundaries. You can't buy "real" fireworks in Massachusetts, but drive five miles to New Hampshire, and there you are. That's just the reality of states' rights and federalism, which is actually a three-tiered system that includes the tribes, not just state and federal.


On a related note, you may have heard about legislation recently introduced by Senator Byron Dorgan (D-ND), Chairman of the Indian Affairs Committee, aimed at increasing law and order in Indian Country. Duthu wrote his OpEd several months ago and the Times only just published it, so it doesn't mention the bill, which was introduced a week or three ago. I haven't read the text of Dorgan's legislation yet, but from what I've heard, it would give the feds a mandate and the resources to fill that mandate, which is better than the status quo but doesn't do anything about jurisdiction or sovereignty. In other words, it doesn't do nearly enough, and I am worried that it might make passage of further legislation more difficult. Normally I don't take the purist side in arguments of purism vs. pragmatism, but the small political power of the American Indian lobby makes this a special case, I think.

Update, August 18, 10:00AM: Trond Jacobson made an insightful and informative comment below that I hope you will all read. I am sticking its full text after the jump; here is the original link. I don't agree with every little nuance, but that's not what's important; I thank Trond for providing a wonderful historic understanding for this issue. I wasn't sure I could boil down history's complexities so didn't try; he tried and won.

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Legislation Via Youtube

Ok, well it's not that big a deal, but Senator Byron Dorgan is on Youtube introducing his net neutrality bill.  Dorgan is one of the best Senators we have, an extremely progressive politician from North Dakota who is also quite popular.  Dorgan gives the lie to the whole red state nonsense.  There are corporate elites and the South, and then there's everyone else.

It's pretty cool that Dorgan is going directly to internet communities to drive support for his bill.

It's not surprising that Dorgan would go directly to the people for support.  He's always been a progressive populist recognizing that our elites are selling us out.  

I am though surprised and heartened by Senator Schumer's recent comments about blogs.  I tend not to care if a politician praises blogs, since that could easily be dismissed as pandering.  What is clear about Schumer's comments is that he 'gets' the larger forces at work here.

I read KOS -- I read the whole thing but I read it once every couple of days. But I go for the subject more than the blog. But I like the political blogs, and I think the blogs democratize things.

So my family and I saw this movie. ... It was a movie about -- Oh no. Sorry. It was a play: "Jersey Boys." That's it. It's about The Four Seasons, the old singing group. Do you remember them? And it had great songs. And it was just a whole lot of fun.

This is the night before Thanksgiving. It's the one show we go to. We can't afford many shows, so the one show we go to a year is the night before Thanksgiving because my wife doesn't have to cook Thanksgiving dinner. My sister-in-law always does.

Anyway, it was just great. I loved it. Then I went home and read The New York Times review. The review, it was so snide -- that it wasn't great art and this and that.

But then, they had a blog on it, and people wrote their own reviews. And everyone loved it. And I said to myself, "I'm so glad the bloggers -- they democratize it."

Do you know what I mean? Here you have this sort of very snobby critic who goes to a hundred plays a year and is looking for things the average person wouldn't even care about, and yet the blogs criticized his review and brought him down to earth.

So yeah, I like them. I think it's a good democratizing force.

I've met Schumer and talked to him approximately once, at an American Prospect roundtable for liberal media (which Maria Leavey used to set up).  The transcript of the meeting is here. One thing you'll note about Schumer is that he hates what he perceives as cultural elitism, and having been elected in 1980, he ascribes elitism to liberal groups.

Reagan came in; we deserved to lose. We stopped being democrats -- small "d" -- talking to average people about what affects their lives, and instead had these ideologies. OK, Reagan comes in and basically accomplishes a lot of things that he wanted to accomplish, especially on those type issues -- crime. I spent 10 years trying to get the Democratic Party to move to the middle on crime.

In the discussion, if you read it, there's an interesting back-and-forth between Schumer and Mark Schmitt in which Schmitt tries to point out to Schumer that Moveon and the blogs are not single-issue liberal narrow-minded groups, but are instead broad-based constituencies that have as much concern about the Bankruptcy Bill as abortion.  I could sense that Schumer was trying to argue that something fundamental had shifted in American politics since 1980, but that he didn't get that the same fundamental shift had happened in the liberal community itself.

Anyway, it's important that this incredibly intelligent and abrasive Senator, a man who is really a force, gets that the internet is a democratizing force, that the New York Times theater critic is as unrepresentative as Adam Nagourney of the concerns of the public.  Schumer hit Alito on abortion, but he didn't believe that there was an organized group that cared about the unitary executive.  There is, and it's on the internet.  If Schumer can make the shift, and recognize that he could have allies on broader issues like constitutional prerogatives instead of just narrowly focused liberal groups he didn't like in 1980, he and the progressive movement can generate a lot of political leverage.

It's a bit unusual to hear what sounds like praise for a figure I have derided in the past, but I have always had respect for Schumer's immense abilities and sense of the political zeitgeist (unlike Rahm Emanuel, who strikes me as less capable of effective strategic insight).  If Schumer is moving to take internet progressives as a serious and democratizing force, that means a whole lot of others are as well.

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Open Letter to Howard Dean

Dear Dr. Chair Governor Dean,

Thanks for sticking to your guns with the 50 State Strategy that resulted in new business cards being printed for Madame Speaker Nancy Pelosi and Majority Leader Harry Reid.

I am writing today to join with Harry Reid, Max Baucus, Jon Tester, Jeff Bingaman, Byron Dorgan, Kent Conrad, Maria Cantwell, Tim Johnson, Ben Nelson and nearly 50 members of the House of Representatives in respectfully asking you to give Denver the 2008 Democratic Party Convention.

Thanks for your consideration.

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The Seventh Inning Telco Stretch

Ok, so I spent awhile on the phone last night with super duper secret Senate sources and super duper secret lobbyists.  The Wall Street Journal, the Washington Post, Investors Business Daily, and USA Today confirm what my sources are telling me, which is that the issue of net neutrality and the contentious fights over the Snowe-Dorgan amendment (as well as a few other amendments) could scuttle the whole bill.

Yesterday's events threw a lot of pieces into place for a hardened opposition to this bill.  While telco lobbyists were probably celebrating last night's passage of the bill through the Commerce Committee and the failure of the net neutrality amendment, today the landscape is probably making them a lot less sanguine about their prospects.  They won the Committee vote, but lost a lot of ground.

The Committee's audio servers were overloaded so I couldn't listen to the hearings.  From what I'm told, here's how it went down.  The scene in the room was surreal, with Senators debating in front of a room full of Blackberry-armed lobbyists.  There were aides behind the Senators who would pass their bosses arguments and information, with the lobbyists passing arguments and information to the aides based on the arguments Senators were making.  There were over 50 Bell lobbyists alone, including 12 employees of Verizon.  Some Senators were simply proxies for lobbyists to argue through.  Lunatic arguments were apparently in vogue; Senator Demint said that he couldn't understand why the broadband market wasn't considered competitive.  In a few years, he asserted, there would be as many broadband providers as there are search engines on the internet.  Stevens was angry and ranting, pushing aggressively to get his bill through the Committee.  He ultimately succeeded, but rubbed the Senators so raw that he now realizes that this bill cannot make it through the floor in its current shape.

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On the Net Neutrality Commerce Committee Tie

In terms of the vote, well, we pretty much expected this, though we weren't sure whether we could keep the Dems unified.  They held under intense lobbying pressure from the telecoms.  I think it's fair to say that we've reversed the momentum on this issue, turning it from a little noticed 23-8 subcommittee vote in the House on April 5 to today's 11-11 tie in Commerce Committee and clearly what will be a contentious floor fight.  There's now a primary challenger against Al Wynn in MD-04, Donna Edwards, and the Verizon/AT&T/Comcast/Cox giants are in the process of turning their brand names into Walmart level territory.

George Allen, maverick McCain, and Conrad Burns all voted against a free internet.  Here's the amount of money they took from telecom PACs and associated individuals:

George Allen: $72,000
John McCain: $44,250
Conrad Burns: $162,600

Of course McCain sold out the goo goo groups when it mattered, and went with the corporate wing of the party.  No surprise there.

It's important to keep the pressure up prior to the floor fight.  If you live in one of these states, call your Senator and thank them/chide them for their vote on Snowe-Dorgan.  I've bolded the good guys.

Chairman Ted Stevens (AK): (202) 224-3004; (202) 224-2354 FAX
John McCain (AZ):  (202) 224-2235; Fax: (202) 228-2862
Conrad Burns (MT):  202-224-2644; Fax: 202-224-8594
Trent Lott (MS): (202) 224-6253; Fax: (202) 224-2262
Kay Bailey Hutchison (TX): 202-224-5922; 202-224-0776 (FAX)
Olympia J. Snowe (ME):  (202) 224-5344; FAX (202) 224-1946
Gordon H. Smith (OR):  202.224.3753; Fax: 202.228.3997
John Ensign (NV):  (202) 224-6244; Fax: (202) 228-2193
George Allen (VA):  (202) 224-4024; Fax: (202) 224-5432
John E. Sununu (NH):  (202) 224-2841; FAX (202) 228-4131
Jim DeMint (SC):  202-224-6121; Fax: 202-228-5143
David Vitter (LA):  (202) 224-4623; Fax: (202) 228-5061

Co-Chairman Daniel K. Inouye (HI): 202-224-3934; Fax: 202-224-6747
Jay Rockefeller (WV):  (202) 224-6472; (202) 224-7665 Fax
John F. Kerry (MA):  (202) 224-2742 - Phone; (202) 224-8525 - Fax
Byron L. Dorgan (ND):  202-224-2551; Fax: 202-224-1193
Barbara Boxer (CA): 202-224-3553
Bill Nelson (FL):  202-224-5274; Fax: 202-228-2183
Maria Cantwell (WA):  202-224-3441; 202-228-0514 - FAX
Frank R. Lautenberg (NJ):  (202) 224-3224; Fax: (202) 228-4054
E. Benjamin Nelson (NE):  Tel: (202) 224-6551; Fax: (202) 228-0012
Mark Pryor (AR):  (202) 224-2353; Fax: (202) 228-0908

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