Monday, August 11, 2008

A jurisdictional vacuum that often leaves violence against American Indian women unredressed

Bruce Duthu, a professor of Native American studies at Dartmouth, highlights in an Op-ed piece in today's NYT the injustice suffered by Indian women who are victims of crime at the hands of non-Indians. Here's an excerpt from "Broken Justice in Indian Country":

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.

Prof. Duthu calls this jurisdictional situation "unfair" to the victims of all crimes. He expresses particular concern about sexual violence because such crimes against American Indian women are "overwhelmingly [80%] interracial," whereas such violence against white and African-American women is mostly intra-racial. Duthu provides other statistics that differentiate between sexual violence against American Indian women and other U.S. women. For example, American Indian women living on tribal lands are more than twice as likely to be raped or sexually assaulted as other U.S. women. Further, weapons are used in rapes against American Indians at three times the rate of other reported rapes.

Prof. Duthu notes the dearth of federal prosecutions of crimes in Indian country. In 2006 prosecutors filed, on average, only about one criminal charge for each of the 560 federally recognized tribes, and he suggests that these prosecutions rarely lead to conviction of non-Indian offenders. Duthu thus argues that Congress should intervene and clearly give Indian tribes the authority to investigate and prosecute all crimes in Indian territory, regardless of the involvement of tribal or non-tribal members.

I am not an Indian law scholar, and I've certainly not given as much thought to this jurisdictional problem as Prof. Duthu has. I have, however, briefly considered this jurisdictional vacuum in relation to domestic violence against American Indian women. (The article, "Place Matters: Domestic Violence and Rural Difference" is forthcoming in the Wisconsin Journal of Law, Gender & Society 2008). What I have found is that many tribes do not take domestic violence very seriously. Not taking this crime seriously, of course, has been a widespread problem across all U.S. jurisdictions with regard to intimate partner violence and other crimes against women, although it is one with respect to which we have seen improvement in recent decades. (See Elizabeth Schneider, Battered Women and Feminist Law Making (Yale U. Press 2000)). It is possible that, given the power to prosecute non-Indians for violent crimes against women (along with other crimes committed by non-Indians in Indian Country), tribal police and courts would do a better job than they currently do of prosecuting Indian perpetrators of such gendered crimes. (Duthu notes that Congress recently allocated $750 million for enhancing public safety in Indian country, so this could certainly help). I don't think, however, that we can assume that giving jurisdiction over these crimes to tribal justice systems will ensure greater dedication of tribal resources and attention to the prosecution of crimes against American Indian women. Gendered violence could well continue to slip through the cracks -- albeit the cracks in tribal justice systems rather than those of the U.S. Attorneys and Courts.

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