(WOMENSENEWS)–The passage of a U.S. law last summer was intended, in part, to curb violence against American Indian and Alaskan Native women.
But underfunding and legal limitations have made it largely irrelevant, said Sarah Deer, a citizen of the Creek Nation, Okla., and a professor at William Mitchell College of Law in St. Paul, Minn.
"I don’t think there’s been change for Indian women in the past 500 years," Deer said in a recent phone interview. "I don’t think we’ve begun to turn it around yet."
The Tribal Law and Order Act, passed in July, grants tribal courts–weak but autonomous–the right to sentence Indian criminal offenders to three years in prison, not just one. It also provides for stronger and larger ranks of tribal police and technical assistance for tribal courts’ investigations and prosecutions.
Tribal courts still can’t try or prosecute non-Indian men though. Indian women can take a non-Native man to court in the U.S., not just tribal courts. But between 2005 and 2010, federal officials declined to prosecute 50 percent of all alleged crimes in Indian country, including 75 percent of alleged sex crimes against women and children, according to the Washington, D.C.-based National Congress of American Indians.
That leaves a major legal stumbling block, since non-Indian men perpetrate more than 80 percent of the acts of violence against Indian women, according to Amnesty International.
The London-based rights group estimates that 1-in-3 Indian women will suffer rape in their lifetimes. Less than 1-in-5 non-Native American women living in the United States will be raped at some point, according to Amnesty.
Brenda Hill is co-director of the South Dakota Coalition Against Domestic Violence and Sexual Assault, which provides technical assistance to 28 organizations in the state. She said that non-Indian men abuse women purposefully only in Indian country to evade a law that only allows tribal police and courts to arrest and prosecute Indian perpetrators.
General understanding of this legal reality similarly leads some Indian men to drag women onto federal land to abuse them there, Hill said.
Adequate Funding Required
Hill added that treaties and acts don’t work without adequate funding. Many provisions the Tribal Law and Order Act calls for, like stronger police ranks, would be unable to be implemented at current funding levels.
"Health services, law enforcement, everything is under-funded. We have to fight the fact that we have three law enforcement officials on Indian country on average to serve a geographic area the size of Delaware," she said.
The problem can be compounded further in places like Oklahoma, where Indian country isn’t always clearly defined.
Juskwa Burnett, an independent advocate for Indian women vulnerable to abuse in Oklahoma, recalled a recent case in which a woman was being raped inside her trailer.
"The tribal police and the state cop stood outside and argued about whose jurisdiction it was," Burnett recalled. "Finally, her brothers broke down the door. The next six months were spent arguing over who should take it to court and the woman, in the end, did not go to court at all."
The Tribal Law and Order Act could prevent cases like this in the future, through its calls for further examination of jurisdictions and for better coordination in prosecution of federal crimes that occur in Indian country.
"The act is a small step, but a good step forward," said Deer.
Funding for the new law must come from the general federal allocations. The Department of Justice allocated $118.4 million to nearly 150 American Indian and Alaskan Native nations to sustain crime prevention and intervention efforts for fiscal year 2011, 60 percent of what it requested from Congress.
President Obama has requested an increase of more than 50 percent in tribal grant funds for 2012, according to Jessica Smith, a Department of Justice spokesperson.
Smith said there is "no question" there isn’t enough federal funding for Indian nations. That might make it unlikely to see "immediate robust change" as a result of the Tribal Law and Order Act, she explained.
Smith added that the inability for tribal courts to prosecute non-Indian men is damaging.
Potential VAWA Changes
That could change with the re-authorization of the Violence Against Women Act, or VAWA, up for renewal in 2011. The added inclusion of this provision is one of several legal nods to strengthening security on Indian country–especially for women–under the Obama administration. Money authorized under VAWA could also flow to Indian nations.
In some parts of South Dakota, the combination of rural communities and understaffed tribal police can be devastating to Indian crime victims who may wait days for police to respond to a call, South Dakota Coalition’s Hill said. She added that she hasn’t yet seen the Tribal Law and Order Act affect and improve that situation.
"By the time an officer gets there, the attacker is long gone and women start thinking, ‘What’s the point of this?’" she said.
Last year, Attorney General Eric Holder created a federal task force to study violence against tribal women and tribal prosecutions. That group is now compiling a handbook for federal prosecutors that addresses domestic violence in Indian country.
"There’s a lot of momentum right now," said Brent Leonhard, a member of the task force and the deputy attorney for the Confederated Tribes of the Umatilla Indian Reservation, based in Pendleton, Ore. "The Obama administration has really stepped it up."
Since the July signing of the law, Umatilla Indian Reservation has coordinated better with federal courts and police, Leonhard says, and has developed a sexual-assault response team.
Its courts have yet to sentence anyone to three years in prison, though it has the capability to do so with a public defender; a position not filled in all tribal courts.
"The act is there and people can implement it," Leonhard said. "But that is, of course, dependent on funding."
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Amy Lieberman is a correspondent at the United Nations Headquarters and a freelance writer in New York City.
For more information:
Indian Law Resource Center:
http://www.indianlaw.org/
National Congress of American Indians:
http://www.ncai.org/
United States of America: Maze of injustice: The failure to protect indigenous women from violence, Amnesty International:
http://www.amnesty.org/en/library/info/AMR51/035/2007
