Native American women: Victims of criminal jurisdiction quagmire

Native American women are nearly three times as likely to be raped or sexually assaulted as the average American woman, according to a 2007 Amnesty International report. Many factors contribute to this disparity: underfunded tribal police departments, cultural gender bias and geographic isolation. Ironically, a landmark Supreme Court decision viewed at the time as a victory for Native Americans plays a large part in this ongoing tragedy.

John Marshall's decision in Worcester v. Georgia (1832) established the limits to state intervention in tribal affairs. Georgia had subjugated the Cherokee nation following the discovery of gold on tribal lands in the 1820s. The state confiscated property and refused to recognize Cherokee law.


The United States Supreme Court refused to consider the tribe's grievances in Cherokee Nation v. Georgia (1831), but it stood up for the Cherokee when the state tried to impose laws limiting who could travel on their land. "The Cherokee nation is a distinct community ... in which the laws of Georgia can have no force," Marshall wrote. The federal government, believed to be more accommodating of Native Americans, would be the only white authority in tribal matters.

The federal government proved to be a poor friend of the Cherokee (See: Trail of Tears) and a delinquent partner in fighting tribal sex abuse. Writer Kathie Dobie explored this problem in an article in Harper's magazine: "Tiny Little Laws: A Plague of Violence in Indian Country." A major source of confusion results from the conflicting jurisdictions between tribal, state and federal officials. Dobie explains the situation as it plays out on the Standing Rock Indian Reservation, straddling the border between North and South Dakota:

Only the feds can prosecute a non-Indian who commits a crime against an Indian on tribal land. The tribal courts can prosecute only Indian offenders and if both the defendant and the victim are non-Indian, the state - not the federal government, not the tribe - steps in. One can well imagine how the investigative delays multiply while the authorities attempt to figure our the race of both the victim and the alleged perpetrator.

Making matters worse, federal prosecutors have been reluctant to take up Native American cases. Between 1997 and 2006, U.S. attorneys refused to pursue nearly two thirds of such cases, more than twice the rejection rate for all federal cases, according to a Denver Post study cited by Dobie. And Syracuse University researchers obtained records showing that the federal government declined to prosecute 76.5 percent of adult sex-crime cases and 72 percent of child sex-crime cases between 2004 and 2007. A public defender who didn't give his name for Dobie's article says federal prosecutors would rather go after cases involving terrorists, drug cartels or white-collar crime. He adds:

The feds believe that if they have a strong enough case, they’re going to prosecute it, and a strong enough case means a slam-dunk. If it’s a marginal call or if they believe they have a chance of losing, they will not prosecute.

If the federal government refuses to prosecute, the case falls back to tribal courts, assuming the accused is a tribal member. These are the courts that impose the "Tiny Little Laws" referenced in the title to Dobie's article. The Major Crimes Act of 1885 created sentencing limits on Indian courts. As of 2010, under tribal law, someone convicted of murder, manslaughter, rape, assault with intent to kill, arson, burglary, and incest would get, at most, one year in prison.

The Tribal Law and Order Act, which President Obama signed in 2010, allows these courts the option of sentencing criminals to three years. But the tribal courts must provide defendants with a licensed attorney, something many tribes can't afford. (This may be part of the reason why tribal gang violence is also a problem on reservations, as Professor Pruitt noted here in 2009. She also wrote about the Tribal Law and Order Act here).


While Worcester prevents states from prosecuting these cases, creative solutions could benefit all parties involved. Such collaboration has happened in other situations. This past summer, Oregon changed its definition of "police officer" in a way that gives tribal police the authority to arrest non-tribal members. The hope is that this will relieve the burden on sheriff's departments and state troopers, while empowering tribal police to pursue cases in which the racial identity of the accused is initially unknown.


Perhaps an arrangement in Standing Rock and other reservations could allow counties to provide prosecutors and public defenders in tribal courts. The district attorneys would probably be more familiar with handling rape and violent-crime cases than federal prosecutors, and have an interest in limiting crimes within their county as a whole. under these circumstances, the federal government might agree to provide additional funding, since this would lighten the burden on U.S. attorneys. And victims would feel more comfortable having justice served on the reservation, instead of in a distant U.S. courthouse.

The major hole with this scheme is where a convict would be imprisoned. Dobie notes in her article that most tribal jails are already filled to capacity. Sad to say, given today's economic problems, I don't see tribal, state or federal officials willing to provide more funding to incarcerate those who are raping Native American women.