While we wait for Congress to do the right thing and reauthorize the Violence Against Women Act, there are important things that tribal leaders can do right now to protect Native women.
I'm talking about improving tribal statutes and dedicating more resources to tribal justice systems. Now is the time for tribal governments across the United States to enact tribal laws which are superior to those that currently exist. While there are vital changes to federal law that must be implemented to correct over a century of jurisdictional confusion, we must not forget that tribal police and prosecutors need strong statutory laws in order to take action on behalf of their tribal nations. In the meantime, tribal governments must be ready to take action on our own terms when women are assaulted. We don't need to wait until the VAWA reauthorization is signed into law to protect Native women—we can start now.
During the last century, various criminal code have been written and signed into law by tribal legislatures—some much better than others. Statutes are sometimes out of date. In addition, some of the earliest tribal criminal codes were taken from "boilerplate" codes which were drafted by non-Indians. Over the past several years, I have reviewed over 100 tribal sexual assault laws. What I have found is that many tribal codes have weaknesses—and most of the time, these weaknesses are inconsistent with tribal traditional laws which served to protect women and children. When we updates those tribal codes to be consistent with tribal traditions, we will be ready to take advantage of the new provisions in VAWA.
The truth is, tribal governments have never been stripped of our authority to prosecute felony crimes. Despite the Major Crimes Act and Public Law 280, tribal nations retain authority over all crimes committed by Indians, whether they are misdemeanors or felonies. Federal and/or state authorities share concurrent—not exclusive—jurisdiction over crimes committed by Indians. Some tribal prosecutors routinely exercise criminal authority over violent crime. For example, Fort Peck Assiniboine & Sioux Tribes has prosecuted violent felonies, including rape and severe domestic assault. The Eastern Band of Cherokee has prosecuted child sexual abuse cases. Recently, the Nez Perce Tribe charged a tribal member with murder.
But some of our tribal codes on sexual assault need an update. For example, some tribal codes require that a prosecutor prove that physical force was used to perpetrate sexual assault. This language should be changed to define sexual assault using lack of consent as the standard rather than physical force. Why is this important? Because many predators don't use physical force. Some use alcohol or drugs to incapacitate their victims. Other perpetrators take advantage of their privilege of power or age to render a victim unable to consent. If physical force is the standard, then fewer cases can be prosecuted. This also sends a message to some survivors that their assault was not "violent" enough to be illegal.
Some tribal codes have a marital exemption clause in the sexual assault language. This means that marriage is a defense to sexual assault. Put another way—a man cannot be held accountable for sexually assaulting his wife. This is inconsistent with tribal belief systems about the safety of women who are married. I believe that this language in tribal codes was largely lifted from older state sexual assault laws from the mid 20th century. All states have now criminalized spousal sexual assault, and tribal governments can do the same. In fact - tribal governments have the capacity to enact laws that are superior to the states' laws—why shouldn't we have the best sexual assault laws in the world?
There are other examples of problems in some tribal codes—but all of them can be corrected with changes to tribal statutory language. The Tribal Law and Policy Institute, a non-profit organization, has a free do-it-yourself workbook on drafting or revising tribal sexual assault laws using a tribal-centric perspective. It is available for download at Tlpi.org.
Revising tribal codes is obviously not the only reform that is needed. The major restrictions for tribes include the lack of criminal authority over non-Indians (as a result of an infamous erroneous decision made by the U.S. Supreme Court in 1978). In addition, tribal courts face incarceration limitations which have been imposed by Congress. These errors must be corrected through federal legislation. The 2012 VAWA reauthorization legislation begins to address these errors.
There is no doubt that the activism led by Native women this year has been revolutionary. There can be no question that the federal government is on notice that tribal governments will not continue to tolerate inaction when it comes to Native women and children. Federal laws must change.
At the same time, if there is no sexual assault code in place at the tribal level, there is nothing that can happen. No arrest for the crime can take place, and no justice can be found in tribal court. And there ARE things tribal governments can do to protect against non-Native offenders until full criminal jurisdiction is restored. For example, ensure that no one can work for the tribe if they have a violent crime record. Make sure it is possible for a victim to get a protection order against a non-Native offender. There are a variety of possibilities.
Please review your own tribal nation's laws on sexual assault. Ensure that when VAWA 2012 is signed into law, tribal nations are prepared with strong laws and policies which will enable tribal governments to press charges and seek justice in cases of violence against women. There is no greater exercise of sovereignty than protecting our own people.
Sarah Deer is a citizen of the Muscogee (Creek) Nation. She is an Associate Professor at William Mitchell College of Law in St. Paul, Minnesota and serves as the Secretary for the Minnesota American Indian Bar Association.