by Nathan Empsall, Sun Aug 17, 2008 at 06:11:12 PM EDT
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.