The streets of Indian country aren't safe for American Indian and Alaska
Native women. Nearly 90 percent of the perpetrators of violent crimes
against Native women are non-Indians - 60 percent are white men - and
Native nations can't touch them.
Congress created this haven for non-Indian criminals on reservations and
it's up to Congress to fix it. The 109th Congress has a chance to do that
very thing this year, when it considers reauthorizing the Violence Against
VAWA 2005 is being drafted now to address the deplorable situation of women
in America, where physical abuse is a feature of one-quarter of all
marriages and where one-third of women who are treated in emergency rooms
are victims of domestic violence.
While Native women also sustain injuries in abusive relationships, most of
the men who assault Native women are strangers or acquaintances (80
percent) rather than intimate partners or family members (20 percent),
according to a U.S. Bureau of Justice Statistics report, "American Indians
and Crime (1992 - 2002)," issued in December 2004.
This statistical profile and a raft of other studies, including the 2000
National Violence Against Women Survey, report that:
American Indian and Alaska Native women are more than twice as likely to be
victims of violent crime as other women in America.
American Indian and Alaska Native women suffer sexual assaults at a rate of
more than three times that of women of other races.
More than one in three American Indian and Alaska Native women will be
raped during her lifetime.
The rate of violent crime experienced by American Indian women is nearly 50
percent higher than that reported by black males, the second highest
gender/race category victimized by violent crime.
Most violent crimes are committed intra-racially, as with white-on-white
crime. This is not the pattern in Indian country, where 88 percent of the
perpetrators of violent crime against Indians are non-Indians.
Why can't Indian governments punish these violent non-Indians and why
should Congress step in? It's a long, complex history, but the short answer
is that the federal government made this jurisdictional mess and should
take every opportunity to clean it up.
Over a century ago in the name of "Indian civilization," the federal
government criminalized tribal traditions and took control of the
reservations. When the Supreme Court ruled that the federal government did
not have jurisdiction over Indian murders of Indians, Congress enacted the
Major Crimes Act, authorizing federal jurisdiction over murder and other
serious offenses involving Indian people.
Congress expanded federal jurisdiction, effectively restricting tribal
authorities, under the Assimilative Crimes Act and myriad gaming,
environmental, repatriation, arts and other laws.
Tribal jurisdiction and remedies were limited under the federal tribal
termination policy. Starting in the 1940s, Congress gave selected states
certain criminal and civil authorities over Indian offenses. In the 1968
Indian Civil Rights Act, Congress restricted the sentencing authority of
tribal courts to a one-year imprisonment and a $5,000 fine. The Supreme
Court ruled in 1978 that Indian tribes cannot prosecute non-Indians in
That brings us to the present situation, where Native nations cannot punish
non-Indians who harm Indian women in Indian territory, or can only give
them a slap on the wrist.
There are many reasons why the federal and state governments aren't doing a
better job at bringing these bad men to justice. Basically, it comes down
to geography and connectedness. The federal and state agents don't live
where the crimes are being committed and the victims aren't their
Only the reinstatement of tribal jurisdiction and remedies has a chance of
reversing the epidemic levels of violence against Native women.
In VAWA 2005, Congress can address the jurisdictional void that prevents
Indian tribes from prosecuting non-Indians perpetrating these crimes.
VAWA was signed into law in 1994 and reauthorized in 2000. VAWA 2000
mandates that protection orders from one tribe or state be afforded full
faith and credit in outside jurisdictions. It also clarifies that Indian
tribes have full civil jurisdiction to enforce protection orders, including
authority to enforce any orders through civil contempt proceedings, the
exclusion of violators from Indian lands and other "appropriate
Some states do not comply with the federal mandate and exhibit hostility
toward affording full faith and credit to protection orders issued by
tribal courts. Alaska's executive branch has challenged a state judge's
decision allowing enforcement of a banishment order issued by the Native
village of Perryville. The Minnesota Supreme Court in 2003 rejected a
proposed statewide court rule for the consistent enforcement of all tribal
Advocates are working with legislators and staffers on the reauthorization
of VAWA, which is set to expire this September. Advocates in Indian country
would do well to work (and work fast) with the Senate Committee on Indian
Affairs and the judiciary committees to develop a bill that could stand
alone or be folded into VAWA 2005.
A meaningful VAWA provision for Indian country would restore tribal
criminal jurisdiction over non-Indians in the area of violent crime against
women. Proponents should be prepared for the inevitable discussion about
review of tribal court decisions and opt-in/opt-out mechanisms.
At the very least, Congress should provide necessary funding to study full
faith and credit implementation problems, in particular with regard to
tribal domestic violence protection orders, and should withhold certain
federal monies (unrelated to domestic violence prevention and response)
from states that refuse to comply with VAWA's full faith and credit
VAWA's effect in Indian country would be strengthened by provisions
ensuring tribal law enforcement officers' access to national databases that
track criminal history; a national database of tribal protection orders and
tribal adult sex offenders to track serial offenders who travel between
different Indian nations; an increase in funding for tribal governments and
programs providing infrastructure and services to survivors of rape,
stalking and domestic and dating violence; and a tribal division within the
Office on Violence Against Women to act as the liaison to tribal
governments on issues unique to Indian nations and Indian women.
Congress can continue with the same jurisdictional system that devalues
Native women and handicaps Native nations, or it can fill the
jurisdictional void with something that might just work.
If Congress fails to act, the reservation streets will remain safe for
violent non-Indians - and the Indian women and their children and
grandchildren will suffer. How is that good for anyone but the bad people?
Suzan Shown Harjo, Cheyenne and Hodulgee Muscogee, is president of the
Morning Star Institute in Washington, D.C., and a columnist for Indian