Sexual Assault in Rural Indian Country 2-2012

7/30/2019 Sexual Assault in Rural Indian Country 2-2012

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Sexual Assault in Rural Indian Country

Background Robbi Ferron Issues Rosebud Sioux

o Culturalo Jurisdictiono Evidenceo Resources

Solutions Bibliography

This paper accompanies Carmen OLearys presentation dealing with violence against Indian women.

Her address is part of a panel of American Indian women addressing what some believe are the most

important issues in Indian Country. The writer assumes the reader is not familiar with the material

herein. The original theme for the panel was issues that impact rural American Indian women.

BACKGROUND

In the early 1800s the United States Supreme Court determined that American Indian Tribes were

quasi-sovereign dependent domestic nations. The Court created the concept of trust or protective

responsibility of the federal government to the tribes. By the mid 1800s many of the treaties between

Indian nations and the United States government established Indian reservations. Late in the1800s,

following the decision in the Ex Parte Crow Dog U.S. Supreme Court case, Congress enacted the Seven

Major Crimes Act, giving the federal government jurisdiction over the most serious crimes an Indian

committed against another Indian in Indian Country. The seven original crimes were murder,

manslaughter, rape, assault with intent to kill, arson, burglary and larceny. Indian reservations areconsidered Indian Country, although that terminology also relates to Indian land allotments.

The separateness of the Indian nations is important to Indian identity. The U.S. government recognizes

over five hundred Indian nations. Relatively few are located on a significant land base. Indian tribes

distinguish themselves from each other by cultural markers such as language and ceremonies. Many

Indian people identify themselves by their tribal or village affiliation.

As a result of federal legislation in the 1930s many Indian tribes established tribal governments similar

to each other and modeled after the three branches of the U.S. government: the administrative,

legislative and judicial branches with respective tribal administrations, tribal councils and tribal courts.

The method of selecting the tribal leaders varies by tribe. Regarding employees within the tribes,

because of the trust responsibility, some positions may be held by federal employees e.g. Indian Health

Service (IHS) doctors.


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The tribal courts are limited in their jurisdiction over persons, subject matter and location as well as

criminal sentences they may impose. Although the Seven Major Crimes Act allocated jurisdiction to the

federal courts there may be concurrent jurisdiction with tribal criminal law if the tribe has an identical

crime in their tribal law. There are now 14 major crimes, some that increase the range of sexual

offenses e.g. incest. The law reflects the reality in Indian Country.

The 1834 Indian Country Crimes Act authorized federal criminal laws to apply to Indian Country with

three exceptions. One of those exceptions was overridden by the Seven Major Crimes Act. Of

importance is the fact that this law gives jurisdiction over non-Indians committing crimes on an Indian

reservation to the federal government.

Subsequently other federal laws have set parameters around tribal court jurisdiction and sentencing

capability, e.g. Public Law 83-280 enacted in 1953 and the 1968 Indian Civil Rights Act. The most recent,

the Tribal Law and Order Act of 2010 (TLOA), increased the amount of time a tribal court could sentence

a convicted Indian from 364 days to three years for crimes in a tribes criminal law code.

P.L. 280, a deliberate step toward termination of tribes, required six states to assume jurisdiction over

Indian Country crimes. These mandatory states, Alaska, California, Minnesota, Nebraska, Oregon and

Wisconsin, were given the authority to prosecute Indian people. A handful of states were optional P.L.

280 states. In the latter states, the jurisdiction has been negotiated between the tribes and the state,

e.g. Montana. P.L. 280 permits the mandatory states to prosecute non-Indians committing the major

crimes against Indians in Indian Country. P.L. 280 increased state authority over a broad range of tribal

governance thus solidifying a colonization paradigm.

Meanwhile the federal government through the BIA implemented the relocation policy that

encouraged poverty-ridden Indians to leave the reservations to seek employment in urban areas.

Because of the rural nature of Indian reservations, jurisdiction limitations, and sovereignty status of

tribes coupled with federal trust responsibility, the prosecution of sexual assault perpetrators became

unwieldy and non-existent in some Indian communities. A 2007 report by Amnesty International, Maze

of Injustice, the Failure to Protect Indigenous Women from Sexual Violence in the USA focused on the

states of Alaska and Oklahoma and the Standing Rock Sioux Indian Reservation. Alaska is a P.L 280

mandatory state; Oklahoma does not have Indian reservations (instead they are called Oklahoma Tribal

Statistical Areas); and the Standing Rock reservation that bridges rural areas in two states. The report

exposed the lack of prosecution of sexual assault and made fifty recommendations to address the

shocking findings. The dissemination of the report influenced Congress to enact the Tribal Law and

Order Act of 2010.

The Indian Health Service (IHS) is the federal agency responsible for the health care of Indians and

provides primary health care in service regions. The trust responsibility of the federal government was

the impetus for creating IHS. The responsibility of providing health care is grounded in the U.S.


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Constitution, treaties and federal laws. IHS was originally housed within the Bureau of Indian Affairs

within the Department of the Interior but was transferred in 1955 to the Department of Health and

Human Services. Congress does not fund IHS at a level necessary to provide adequate health care for all

Indian people. There are very limited IHS services available in urban areas where the majority of Indians

reside. The 2010 U.S. Census determined that seventy eight percent (78%) of people who identify

themselves as Indian live in urban areas and not on Indian reservations. IHS funding does not even meet

the health service needs of Indians who live on reservations or in tribal service areas.

The U.S. Department of Justice (DOJ), unlike most other federal agencies, has within its purview the

gathering of crime data from Indian Country. Their reports incorporate data regarding crimes against

Indian women. Numerous proposals, crime reports and politicians cite data from 1990s DOJ reports.

Grassroots movements began on Indian reservations to provide services to victims of physical abuse

including sexual assault. An example is the White Buffalo Calf Woman Society established in 1977 on

the Rosebud Sioux Indian Reservation in South Dakota. Using tribal and federal grant funds the Society

now operates a multi-purpose facility. One coalition of organizations dealing with domestic violence

and sexual assault is the Native Womens Society of the Great Plains . This coalition has member

organizations from the states of North and South Dakota, Nebraska, Montana and Wyoming.

With the enactment of the federal Violence Against Women Act (VAWA) in 1991 some tribes took

advantage of available federal funds to provide domestic violence services or enhance the safety of

Indian women by improving their infrastructure. Between 1995 and 2000 123 tribes were awarded

funds for the latter. Most tribes recognize that men are also the victims of domestic violence and sexual

assault. Organizations within the tribes received grants with time limited funds to provide a variety of

services.

The National Congress of American Indians (NCAI), an Indian organization comprised of the leadership oftribes throughout the United States, has adopted positions related to sexual assault through a taskforce

on violence against women. In 2009 the task force prepared a Presidential Policy Brief on Communities

in Crises: Public Safety in Indian Country. In a June 2011 resolution NCAI made recommendations

regarding issues, some of which are identified in this paper. NCAI is active in urging the reauthorization

of the Violence Against Women Act.

The Tribal Law and Order Act (TLOA) required the appointments of a Commission, selected through bi-

partisan means. The Commission is to prepare a comprehensive report and submit it to the President

and Congress. Many of the issues related to sexual assault raised by the Amnesty International report

have fallen within the scope of TLOA. The Chairman of the Indian Law and Order Commission, Troy A.Eid, gave a status report to the U.S. Senate Committee on Indian Affairs in September of 2011.

Many tribes have addressed sexual assault in their law codes. However tribes are not equally equipped

to handle code violations. For example in Washington State, the twenty nine tribes located there


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provide judicial systems. At least eighteen of the tribes contract with the Northwest Intertribal Court

System (NICS) organization for judicial related services such as judges and prosecutors. Some of these

tribes have full-time judges and well developed court systems e.g. the Tulalip Indian Tribe that also uses

the pro-tem or temporary services of NICS.

Public Health and surveillance data related to sexual assault across Indian Country is not available for anumber of reasons. The primary reason is that Indian tribes were not integrated into the U.S. Public

Health System. In the 1950s a three partner surveillance system among the federal Centers for Disease

Control and Prevention (CDC) and state and county health departments was formed. These entities do

not have jurisdiction on tribal lands except for P.L. 280 states such as Alaska or where there are not

reservations as is the case in Oklahoma. There are no surveillance standards to incorporate tribal data

into this national surveillance system. And, if there were, they could not be uniformly used for all tribes.

The consequence is the current lack of tribal data across all surveillance systems and a lack of public

health prevention and educational resources. It is important to understand how this lack or failure

impacts health disparities, increases sickness and death, and increases the burden on IHS and tribal

health systems. Few tribes participate in a public health surveillance network.

For understandable historical reasons, leaders of some Indian tribes are leery of organizations or

individuals gathering data about their members without informed consent given by the tribal leaders

and individual Indians. More data-sophisticated tribes vet data studies and take ownership of the data.

Indomitable issues related to sexual assaults are related to geography. Where the Indian reservations

cover expansive areas, the issues increase given the physical isolation faced by victims. Those issues are

identified in the Amnesty International Report that identified issues related to rural Indian Country and

in the article Tiny Little Laws, a Plague of Sexual Violence in Indian Country in the February 2011 issue

of Harpers Magazine.

ISSUES

Cultural

Notwithstanding distinct sovereignty among Indian tribes, the use of the words Indian, Native, and First

Nations are assumed to encompass members of all Indian tribes. Tribes are fiercely distinct and suffer

this categorization, usually for economic and political reasons. Each tribe has its own culture and level

of tolerance of violence.

Violence permeates the cultures of the United States and the Indian tribes. Data on crime is available

from numerous reports, some from the U.S. Department of Justice. That datum shows that Indianwomen are the most frequent homicide victims in the United States. In testimony before the Senate

Committee on Indian Affairs in July 2011 Carmen OLeary, a leader of the Native Womens Society of the

Great Plains stated this was confirmed for the first time by the federal government in 1996 when the


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Department of Justice issued a report finding that Native women were homicide victims at a far greater

rate than any other population in the United States.

The CDC reports that one in seven women will experience rape in their lifetime, for Indian women that

rate is 1 in 3. President Obama so stated when he signed the Tribal Law and Order Act in 2010. The

actual rate is higher because of the lack of reporting and the definition of rape. The definition of rape

has undergone scrutiny and currently is being changed to include various forms of sexual assault. This

change will be reflected in the reporting requirements of the Uniform Crime Report used by law

enforcement. The new definition is penetration, no matter how slight, of the vagina or anus with any

body part or object, or oral penetration by a sex organ of another person without the consent of the

victim.

Gangs have made their presence known in Indian Country. Rival gangs with affiliations in urban areas

exist. Gang culture relies on assumed identity and loyalty. Initiations include acts of some form of

violence. In urban areas the Indian initiates violent task may be against unknown victims, e.g. shooting

a required number of cars on a freeway or raping any senior citizen, whereas on a rural reservation, the

victims are accessible Indians. Retaliation perpetuates the cycle of violence in gang culture. Again,

accurate and comprehensive data is not available.

The refusal of Indian people to testify against theirown in a justice system they do not own and

cannot trust creates its own set of prosecutorial problems. A grandmother knows that her grandson

who has been released from prison will go back to prison for life if anyone testifies that he instigated,

took part or was present at a gang rape of a child or adolescent girl. That loyalty, with an underlying

tolerance of violence, is paramount.

Passive violence is also present in the cloak of alcohol related accidents resulting in injury and death. A

chronic disease epidemiologist working with the Departments of Health in North and South Dakota

presented data that show death rates for Indians from alcohol related disease is twenty five times more

prevalent than that of the general population. Suicide rates are higher for Indian youth (ages 15 to 29)

than youth in the general population.

The norm is violence, only the level of tolerance is different on each reservation or village.

Jurisdictional

The abominably low prosecution rate by federal prosecutors in sexual assault has been exposed.

Courts rely upon the criminal standard of proof - beyond a reasonable doubt. The assumption is that a

person is innocent until proven guilty. The proof bar is appropriately high and sufficient evidence is

required.


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Under the Seven Major Crimes Act, the federal prosecutors have jurisdiction of rape and sexual assault,

when the alleged perpetrator and victim are both Indian. A DOJ report, cited by a briefing that NCAI

staff assisted with, revealed that nationwide eighty-eight percent (88%) of all violent crimes against

Indian women are committed by non-Indians. It is likely that on large, remote reservations Indian men

are the perpetrators. When the perpetrator is non-Indian the Indian Country Crimes Act becomes

operative as does the Major Crimes act. So, one issue is that federal prosecutors are not prosecuting

either Indians or non-Indians for sexual assault against Indian women. Furthermore, the U.S. Supreme

Court has decided and later upheld its decision that tribes do not have jurisdiction over non-Indians so

tribal courts are not prosecuting non-Indians.

The issue of law enforcement apathy and misfeasance is raised in the Tiny Little Laws article. The

article implicates people who work for the federal government in a variety of roles, (for example, a BIA

policeman) as a bottleneck barrier to prosecuting sexual violence. The venue of the article is the

Standing Rock Reservation. Recall this reservations bridges North and South Dakota. Federal employees

operate within a strict hierarchical and rule-ridden culture where violations result in severe

consequences. A federal employee cannot talk with the media or testify without a chain-of-command

supervisors permission. BIA employees and IHS health care providers are federal employees.

A final jurisdictional issue is dubbed the checkerboard issue. That is when Indian Country and state

jurisdictional border lines alternate in a checkerboard pattern. This problem is often the outcome of

individual Indians selling their land to non-Indians, with the necessary approval of the federal trustee of

Indian land allotments, followed by the federal courts taking thenon-trust lands out of Indian Country.

Checkerboard mazes are law enforcement barriers.

Evidence

When there is not a jurisdiction issue, the lack or quality of evidence may be an insurmountable barrier.

The lack may be witnesses refusing to testify or the lack of forensic evidence that an assault occurred.

Weak credible evidence may be the testimony of the victim when the victim had been consuming some

form of drug, alcohol likely being the most prevalent. According to victim advocates, BIA police refuse

to consider the fact than an intoxicated person is incapable of giving consent.

In remote areas the absence of adequate triage, which includes gathering of forensic evidence, is often

the norm. Some observers of the facilities that are reachable by the assault victim conclude that many

rural facility personnel lack adequate training to handle sexual assault victims and gather credible

evidence for prosecution. A prosecutor knows when she or he cannot meet the criminal standard or

the case is based on weak evidence.


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Resources

Medical facilities within reasonable traveling distance do not exist in remote areas. Transportation such

as ambulance service may not be available. The person sexually assaulted experiences the trauma of

violence which in itself is disempowering. Not only is the victim not mentally or emotionally equipped

to anticipate the evidence needed to eventually get to justice, but does not have the physical resources

such as private transportation or money to pay to get to a medical center or other facility. Several

reports show that often the personnel at a medical facility are not adequately trained to obtain and

preserve appropriate evidence. Small clinics may not have the rape evidence kits or the knowledge of

how to use the kit. This lack is one result of inadequate funding resources for training and refresher

courses. In many places sexual assault response teams do not exist.

There are now shelters and programs on many of the Indian reservations. A culture of violence is most

responsive to change when it is undertaken by grassroots action. Many Indian individuals do not know

what to do, what they can do, and how to best serve the victim. Where programs exist there is often a

strong education component to overcome the colonization mentality. Programs empower women by

moving them from crisis intervention as victims to support group services as survivors and ultimately to

thrivers. Thrivers possess good self-esteem, are spiritually connected and have control over their lives.

Often the programs to assist victims are dependent on grant funding and thus not fully to provide

sustained needed services. Grant funding has a life of several years, rarely more than five. In the overall

economic status of the United States much discretionary money has evaporated. To a great extent

other than the gaming tribes, rural Indian tribes are dependent financially on the federal government.

There are too few resources to rehabilitate the life of a victim of sexual assault and perpetrator who,

unchecked, can continue to damage generations of girls or boys. In the domestic violence arena, many

child victims become adult perpetrators. Rehabilitation is paramount to rebuilding a life. Mental health

triage services are essential. The weak sustainability of corrective and healing programs may be due to

weak coordination of existing resources or a failure of a holistic approach to rehabilitation of the victims

and perpetrator. Mental health services are necessary. Disarming colonization mentality requires

cooperation and influence on the tribal education system.

Because the impact of the violence and sense of helplessness it engenders can understandably become

unbearable, the consciousness altering options are readily considered as a refuge. Addictions blossom.

And when they cease to work, suicide may be a more attractive option.

The impact of sexual assault is not limited to the victim, but includes those in the circle of influence of

the victim children, relatives, friends, enemies. A culture of impunity that protects the perpetrators of

sexual violence becomes the norm. Every perpetrator is some mothers son, and therefore the


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mentality is to protect the perpetrator from the greater enemy of the criminal justice system and those

seeking justice for the victim. . The cycle of dysfunction continues through generations.

Solutions

Throughout Indian Country the issues related to sexual assault of Indian women are being examined and

corrected. The changes are frustratingly slow. The intergenerational damage will not likely be healed in

a single generation. And some areas are so intimidating, such as changing a culture in time to protect

the generation of girls now becoming women, that it appears that nothing can be done.

Cultural

The following partial list of solutions should decrease the incidents of sexual assault and continue the

broader rehabilitation process:

Catalog all the cultural recommendations made in reports and make them available torural Indian communities.

Form a clearing house of best preventative cultural practices from services fromdifferent tribes that can be adjusted to each community.

Adjust the school curriculum, depending on the local needs, e.g. restoring respect ofIndian girls and women and the impact on Indian Country if that is not done.

Piggy back information on steps to take when sexual assault occurs on existing effectivecommunity education venues.

Create or sustain holistic rehabilitation program for victims and violent offenders. Create a pledge program for leaders in national Indian organizations such as NCAI and

National Indian Education Association to use their influence to change the culture of

violence at home, focusing on sexual assault e.g. personally oversee the creation of a 12

step program for perpetrators. Indian spiritual leaders taking ownership of the spiritual solutions to the problem. Incorporate prevention of violence in sentencing first offenders. Use Elders panels and tribal drug courts to restore an Indian sense of justice and

fairness, after the panels and courts have been trained on the topic of sexual assault.

Federal courts consider:o Copying successful tribal court programs,o Include in sentencing the successful completion of a tribal rehabilitation

program,

o Work cooperatively with tribal courts to identify the cultural justice.Some tribal programs have men and women experience their relationships in healthy ways. One such

program existed for several years on the Pine Ridge Indian Reservation. The focus was on the male

perpetrator taking responsibility for his actions. The recovery of the male perpetrator often copies the

Alcoholics Anonymous twelve-step program that requires the perpetrator to make amends to the victim


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or victims. This powerful remedy is as effective as criminal prosecution and more like the justice system

that existed for Indian people at the time of Ex Parte Crow Dog.

Jurisdictional

The Tribal Law and Order Act is currently beginning to address major jurisdictional issues. The TLOA

Commissions findings and recommendations should provide a guide as to where energy and resources

are best spent to make permanent corrections to the problem.

The following list is compiled from various reports and women advocates:

Revisit, repeal or amend P.L. 280 to correct how its current implementation contributes toperpetuating the issues related to sexual assault of Indian women.

Enact legislation to permit tribes to have jurisdiction over non-Indians committing crimes inIndian Country, accompanied by full faith and credit requirement by state and federal courts.

Federal BIA and IHS employees who work with a tribe be granted exceptions to the federalemployee rules that serve as barriers to investigation or reporting, thus making justice for the

victims a priority.

Form an oversight function within the Department of Justice to monitor the prosecution ofsexual assault crimes in Indian Country.

Evidence

The obvious solution is to provide the option to create evidence or enhance the quality of evidence. The

following list can help:

Training of BIA police is currently being addressed by TLOA Tribal linguists can prepare education posters targeted at different age groups to a) restore

respect for girls and women and b) indoctrinate against a code of silence that trades the girlsand women for the men, and c) offering tribal alternatives.

IHS service centers use the established clinical protocols for handling sexual assault victims. Make this issue a priority trust responsibility with the front-line of federal employees such as the

Superintendents, all BIA police and staff, and IHS Service Center personnel.

Tribes establish a reimbursement program for a victims travel for triage for violence andrehabilitation services.

Give elders panels authority to begin to restore fairness in the justice system.Resources

The resources needed are permanent funding and making the dedication of personnel resources andservices for solutions a priority. For example:

Tribal Family or Social Services provide mental health services for the victim and perpetrator.Shared best practices of coalitions can aid in perfecting the available services.

Permanent funding of sexual assault and domestic violence resource centers.


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Increased and sustained funding for IHS to implement relevant protocols and public healtheducation in rural service areas.

Establish data surveillance systems e.g. IHS, CDC, and Law Enforcement. Requiring public healthservices to include tribal data.

The problem of sexual assault in rural Indian Country has been exacerbated by the unwitting

cooperation of Indian communities, shameful neglect of the federal trust responsibility and

shortsightedness of leaders. The sacrifice of Indian girls and women require we all take some

responsibility in correcting this travesty.

BIBLIOGRAPHYWorks used in this paper

Felix S. Cohens Handbook of Federal Indian Law. University of New Mexico Press.

Stephen L. Pevar. The Rights of Indians and Tribes. Southern Illinois University Press. 2002.

Tribal Law and Order Act Pub. L. 111-2111. H.R. 725. 124 Stat. 2258.

Maze of Injustice, the Failure to Protect Indigenous Women from Sexual Violence in the USA. Amnesty

International Report. April 25, 2007.

U. S. Department of Commerce. Bureau of the Census. United States Census of Population 2010.

American Indian Brief.

Nativewomenssocietyofthe greatplains.org.

Mary Rogers, PhD and Jennifer Giroux MD. Domestic Violence in American Indian Communities:

Background Culture and Legal Issues. Health and Social Issues of Native American Women. Jenifer Joe

and Francine C. Gachiupin, Editors. Rogers and Giroux chapter is under review.

National Congress of American Indians

1. Briefing Paper on Violence Against Indian Women for Ms. Rashid Manjoo, UN SpecialRapporteur on Violence Against Women. January 2011.

2. U. S. Senate Committee on Indian Affairs. Native Women: Protecting, Shielding, &Safeguarding our Sisters, Mothers and Daughters. NCAI Task Force on Violence Against

Women. Written statement. July 14, 2011.3. 2009 Presidential Policy Brief: Communities in Crisis: Public Safety in Indian Country.4. Support for Inclusion of Legislative Proposals that Enhance the Safety of Native Women

within the 2011 Reauthorization of the Violence Against Women Act . NCAI Resolution

#MKE-11-034. June 2011.


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5. Support for S. 1763, the Stand against Violence & Empower Native Women Act. NCAIResolution #PDX-11-005. November 2011.

U. S. Senate Committee on Indian Affairs. The Tribal Law and Order Act One year Later: Have We

Improved Public Safety and Justice throughout Indian Country? Testimony of Troy A. Eid, Chairman,

Indian Law and Order Commission. September 22, 2011.

Preventing Violence: Roles for Public Health Agencies Safe States Alliance reports including Roles for

Local Public Health Agencies, Roles for State Public Health Agencies and Roles for National Public Health

Agencies. October 2011.

Kathy Dobie. Tiny Little Laws A plague of sexual violence in Indian country. Letter from the Dakotas.

Harpers Magazine. February 2011.

U. S. Senate Committee on Indian Affairs. Testimony ofCarmen OLeary, Director ofNative Womens

Society of the Great Plains. July 14, 2011.

Rob Capriccioso. Rape Data from Indian Country Fail to Capture the Complete Picture and Congress

Recently Cut Funds that would Aid Indian Victims. This Week from Indian Country Today. January 25,

2012.

U. S. Senate Committee on the Judiciary. The Violence Against Women Act Building on Seventeen

Years of Accomplishment. Testimony of Terry ONeill, Esq., President National Organization of Women.

July 13, 2011.

Mathew Christiansen, PhD. Mortality Epidemic among Young Indians in South Dakota. 2000-2009

North Dakota Resident Deaths, Age Specific Death Rates American Indian, White, Leading Cause of

Death by Age. Presentation. March 15, 2011.

Patricia Tjaden & Nancy Thoernne. Prevalence, Incidence, and Consequences of Violence Against

Women: Findings From the National Violence Against Women Survey 22 . U. S. Department of Justice.

2000.

Building Domestic Violence Health Care Response in Indian Country: A Promising Practices Report.

Funded by the Administration for Children and Families and Indian Health Service, U. S. Department of

Health and Human Services. 2010.

U. S. Centers for Disease Control and Prevention webpage, link to WISQARS youth suicide data.

Documents

Sexual Assault in Rural Indian Country 2-2012