Imagine a place where a known rapist and abuser cannot be touched by the law. Where a man who would repeatedly rape his wife, assault his daughters, and threaten them all with an AK-47 if they were to report him, could not be prosecuted. This isn’t a third world country or war-torn nation with a legal system in disarray. This is the United States, and it happens all the time (LA Times).
Such perversions of justice are the result of a bizarre, unprecedented loophole in American law. Federally recognised Native American tribes are sovereign nations in their own right, and hold a government-to-government relationship with the United States (Time). It is in this peculiar relationship that questions about jurisdiction are raised. A legal loophole exists whereby non-natives cannot be arrested or prosecuted by tribal courts for crimes committed on Native American reservations (Atlantic). If a crime is committed on a reservation and both the victim and perpetrator are non-native, only a county or state officer (i.e. not a tribal officer) can make the arrest. If the perpetrator is non-native and the victim is Native American (an enrolled member of the tribe), only a ‘federally certified agent’ can make the arrest. If the perpetrator is Native American and the victim is not, a tribal officer can make the arrest, but the case will be tried in federal court. Tribal officers are only unquestionably entitled to make arrests when both parties are Native American, but it is still often the case that a U.S. attorney would assume the case as ‘tribal courts lack the authority to sentence defendants to more than three years in prison’ (Atlantic). In the example given above, on an Eastern Cherokee reservation in North Carolina, the husband was non-native. Although authorities were aware of the case, the tribe did not have jurisdiction as he was not a tribe member. Because the victims were, neither did the state (LA Times). This meant an arrest could only be made at a federal level by a U.S. attorney, held to much stricter requirements for arrests than state or tribal officers. The man was only prosecuted and convicted ‘after he nearly severed his wife’s hand with a shard of glass’ (LA Times).
This legal tangle is the result of centuries of legislation. The Major Crimes Act of 1885 gave the federal government, as opposed to the tribes, jurisdiction over murder, rape and felony assaults involving Native Americans. In 1978, the infamous Oliphant v. Suquamish Indian Tribe decision by the Supreme Court served to unequivocally take away tribal jurisdiction over non-natives in Indian Country (‘the legal term used by the federal government’) (LA Times, Vice). And whilst federal authorities can intercede to prosecute serious crimes committed in Indian Country, they often decline to do so, indeed almost twice as often as crimes committed outside of reservations (Vice, LA Times). This reluctance cannot be entirely attributed to the attorneys themselves. As was the case in the Eastern Cherokee case, a U.S. attorney may want to intervene in domestic violence cases, but ‘the federal statutory hurdle is so high that a broken nose is insufficient grounds for a felony assault charge’ (LA Times). Only ‘serious bodily injury,’ here defined as ‘a substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ or mental faculty,’ would legally permit the involvement of the U.S. attorney (LA Times).
If you think this system sounds bewildering, you’re not alone. Police on reservations are often stalled at the scene of a crime, entangled in questions of jurisdiction, unsure of their own right to investigate. The complexity of the flawed system regularly results in unprosecuted crimes, when jurisdiction is unclear or contested, or simply doesn’t exist. The result is a ‘jurisdictional void’ upon reservations responsible for ‘an epidemic of violence against Indian women and children’ (LA Times).
Sometimes the failures in the law are exposed by accident, for example when large numbers of non-natives move to a reservation during an oil boom, and any resultant crimes are lost in this jurisdictional void. Yet whilst some crimes take place on reservations by coincidence, many others take place there by design. Native Americans have little protection against violent crimes from non-natives, ‘and the criminals know it’ (LA Times). Non-native criminals exploit the system to their advantage, creating a ‘culture of lawlessness,’ and telling tribal officers, again and again, ‘you can’t do anything to me’ (Atlantic). The travesty is, these taunts are true. A tribal officer is powerless to do anything more to a non-native than issue a traffic ticket (Atlantic). It has been reported that some paedophiles become teachers in Bureau of Indian Affairs schools, conscious that even after their discovery they would be most likely safe from prosecution. Drug gangs set themselves up on reservations. Such activities amplify the already-high crime rate on reservations. Violent crime in Indian Country is double the national average (Government Executive). Centuries of abuse and exploitation from governments and individuals have left Native American communities vulnerable to poverty, unemployment, and drug and alcohol abuse. This, too, is exacerbated by another issue: scarcity of police presence. ‘If an incident requires a deputy, he could take hours to arrive, due to the volume of calls he receives and the reservation’s enormity’ (Atlantic). Such an environment would inevitably result in a higher-than-average crime rate in the best of circumstances. The jurisdictional void, however, has caused it to escalate ungovernably.
One of the most apparent – and appalling – consequences of this situation is the extremely high incidence of rape on reservations. One in three Native American women will be raped in her lifetime, two-and-a-half times higher than the rate for non-native American women. This statistic is in itself almost too awful to comprehend. Yet it is somehow made even more abhorrent when one considers that in 86% of these cases, the perpetrator is non-native (Atlantic). An awful injustice is being committed against Native American women not just by their abusers but by the United States government, who has left them legally vulnerable; obvious targets for anyone seeking to commit violent crime without consequence. The incidence of rape would unquestionably be lower were these 86% of offenders not tempted to Indian Country to exploit its apparent lawlessness. These women are doubly abandoned by the federal government when it renders itself and its subsidiaries impotent to prosecute the perpetrators of the rapes it enabled. More than half of rapes reported on reservations are not prosecuted by the Justice Department (Atlantic).
Of course, attempts have been made to ameliorate the legal position of Native Americans. The Violence Against Women Act (VAWA) of 2013 – which came into effect in 2015 – allowed tribes, for the first time, to prosecute ‘certain crimes of domestic violence committed by non-Indians in Indian country’ (Washington Post: New Law). Whilst this represented a significant step forward, it was an incomplete victory. The law covers domestic violence committed by non-native husbands and boyfriends, but not assault or rape by non-native perpetrators who are unknown to their victims – as so many exploiters of the system are. Nor does it apply to Native American women in Alaska. The incompleteness of the law was deliberate, designed to win support from relectuant Republican lawmakers. Those in opposition to the bill argued that ‘non-native suspects would not receive a fair trial in the tribal justice system,’ and some even went so far as to betray ‘a fear of retribution by the tribes for the long history of mistreatment by white Americans’ (Washington Post: New Law). Positive as this law is, it is clear than both the law, and social attitudes, still leave a lot to be desired.
In spite of past failures to change the law, the solution is in fact simple. ‘Substitute the word “persons” for the word “Indians” in one sentence of the Indian Civil Rights Act’ (LA Times). Tribes could then prosecute anyone who commits a crime in Indian Country – just as states do – and just as states do, work alongside the federal government. Indeed, that in 21st century America race can determine justice in any form is preposterous (LA Times). The Supreme Court has ‘specifically acknowledged that Congress could fix this jurisdictional void, yet legislators have never taken action,’ in fact funds have only in recent years even been allocated to examining the problem (LA Times). As with the 2013 VAWA, suspicion towards tribal courts, Republican reluctance, and insufficient funding continue to hamper any desire to rectify the situation. In the current political climate – and with a President who publicly demeans Native Americans, shows blatant disregard for tribal land, and who secretly funded ‘anti-Indian’ advertising campaigns – change does not look to be imminent (Washington Post: Donald Trump). Until Congress fulfils their obligation to these American people, Native Americans will not share the rights and protections due to all American citizens.
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