Post by blackcrowheart on Aug 12, 2008 11:23:35 GMT -5
Broken Justice in Indian Country
By N. BRUCE DUTHU
www.nytimes.com/2008/08/11/opinion/11duthu.html
White River Junction, Vt.
ONE in three American Indian women will be raped in their lifetimes,
statistics gathered by the United States Department of Justice show. But
the odds of the crimes against them ever being prosecuted are low,
largely because of the complex jurisdictional rules that operate on
Indian lands. Approximately 275 Indian tribes have their own court
systems, but federal law forbids them to prosecute non-Indians. Cases
involving non-Indian offenders must be referred to federal or state
prosecutors, who often lack the time and resources to pursue them.
The situation is unfair to Indian victims of all crimes --- burglary,
arson, assault, etc. But the problem is greatest in the realm of sexual
violence because rapes and other sexual assaults on American Indian
women are overwhelmingly interracial. More than 80 percent of Indian
victims identify their attacker as non-Indian. (Sexual violence against
white and African-American women, in contrast, is primarily
intraracial.) And American Indian women who live on tribal lands are
more than twice as likely to be raped or sexually assaulted as other
women in the United States, Justice Department statistics show.
Rapes against American Indian women are also exceedingly violent;
weapons are used at rates three times that for all other reported rapes.
Congress should step in and clearly establish the authority of Indian
tribes to investigate and prosecute all crimes occurring on Indian lands
--- no matter whether tribal members or nonmembers are involved.
Historically, Indian tribes have exercised full authority over everyone
within Indian lands. A number of the early federal treaties expressly
noted a tribe's power to punish non-Indians. Toward the latter part of
the 19th-century, however, federal policy shifted away from tribal
self-government in favor of an effort to dismantle tribal government
systems. Criminal law enforcement, especially in cases involving
non-Indians, increasingly came to be viewed as a federal or state matter.
Thirty years ago, the Supreme Court formalized the prohibition against
tribes prosecuting non-Indians with its decision in Oliphant v.
Suquamish Indian Tribe. In this case, a Pacific Northwest tribe was
attempting to try two non-Indian residents of the Port Madison
Reservation for causing trouble during the annual Chief Seattle Days
celebration --- one for assaulting an officer and resisting arrest and
the other for recklessly endangering another person and harming tribal
property. The court held that the tribe, as a "domestic dependent
nation," did not possess the full measure of sovereignty enjoyed by
states and the national government, especially when it came to the
affairs of non-Indian citizens.
Then in 1990, the court extended its Oliphant ruling to cases involving
tribal prosecution of Indian offenders who are not members of that
tribe. Congress subsequently passed new legislation to reaffirm the
power of tribes to prosecute non-member Indian offenders, but it left
the Oliphant ruling intact.
This means that when non-Indian men commit acts of sexual violence
against Indian women, federal or state prosecutors must fill the
jurisdictional void. But law enforcement in sexual violence cases in
Indian country is haphazard at best, recent studies show, and it rarely
leads to prosecution and conviction of non-Indian offenders. The
Department of Justice's own records show that in 2006, prosecutors filed
only 606 criminal cases in all of Indian country. With more than 560
federally recognized tribes, that works out to a little more than one
criminal prosecution for each tribe.
Even if outside prosecutors had the time and resources to handle crimes
on Indian land more efficiently, it would make better sense for tribal
governments to have jurisdiction over all reservation-based crimes.
Given their familiarity with the community, cultural norms and, in many
cases, understanding of distinct tribal languages, tribal governments
are in the best position to create appropriate law enforcement and
health care responses --- and to assure crime victims, especially
victims of sexual violence, that a reported crime will be taken
seriously and handled expeditiously.
Congress should enact legislation to overrule the Oliphant decision and
reaffirm the tribes' full criminal and civil authority over all
activities on tribal lands. This law should also lift the sentencing
constraints imposed in 1968 that restrict the criminal sentences that
tribal courts can impose to one year in jail and a $5,000 fine. In cases
of rape, state court sentences typically exceed 8 years, while federal
sentences are more than 12 years. Tribes should have the latitude to
impose comparable sanctions. (A bill pending in Congress would extend
tribal sentencing authority to three years, with more latitude in cases
of domestic violence, but its prospects of passage are uncertain.)
Congress recently allocated $750 million for enhancing public safety in
Indian country. This money will help tribes hire and train more police,
build detention facilities and augment federal investigative and
prosecutorial capacity for Indian country crimes. Ideally, the grant
process will be efficient enough to make sure that this money reaches
the places most in need.
But financial aid will not be enough to stop sexual violence against
Indian women. Tribal courts have grown in sophistication over the past
30 years, and they take seriously the work of administering justice.
Congress must support their efforts by closing the legal gaps that allow
violent criminals to roam Indian country unchecked.
N. Bruce Duthu, a professor of Native American studies at Dartmouth, is
the author of "American Indians and the Law."
By N. BRUCE DUTHU
www.nytimes.com/2008/08/11/opinion/11duthu.html
White River Junction, Vt.
ONE in three American Indian women will be raped in their lifetimes,
statistics gathered by the United States Department of Justice show. But
the odds of the crimes against them ever being prosecuted are low,
largely because of the complex jurisdictional rules that operate on
Indian lands. Approximately 275 Indian tribes have their own court
systems, but federal law forbids them to prosecute non-Indians. Cases
involving non-Indian offenders must be referred to federal or state
prosecutors, who often lack the time and resources to pursue them.
The situation is unfair to Indian victims of all crimes --- burglary,
arson, assault, etc. But the problem is greatest in the realm of sexual
violence because rapes and other sexual assaults on American Indian
women are overwhelmingly interracial. More than 80 percent of Indian
victims identify their attacker as non-Indian. (Sexual violence against
white and African-American women, in contrast, is primarily
intraracial.) And American Indian women who live on tribal lands are
more than twice as likely to be raped or sexually assaulted as other
women in the United States, Justice Department statistics show.
Rapes against American Indian women are also exceedingly violent;
weapons are used at rates three times that for all other reported rapes.
Congress should step in and clearly establish the authority of Indian
tribes to investigate and prosecute all crimes occurring on Indian lands
--- no matter whether tribal members or nonmembers are involved.
Historically, Indian tribes have exercised full authority over everyone
within Indian lands. A number of the early federal treaties expressly
noted a tribe's power to punish non-Indians. Toward the latter part of
the 19th-century, however, federal policy shifted away from tribal
self-government in favor of an effort to dismantle tribal government
systems. Criminal law enforcement, especially in cases involving
non-Indians, increasingly came to be viewed as a federal or state matter.
Thirty years ago, the Supreme Court formalized the prohibition against
tribes prosecuting non-Indians with its decision in Oliphant v.
Suquamish Indian Tribe. In this case, a Pacific Northwest tribe was
attempting to try two non-Indian residents of the Port Madison
Reservation for causing trouble during the annual Chief Seattle Days
celebration --- one for assaulting an officer and resisting arrest and
the other for recklessly endangering another person and harming tribal
property. The court held that the tribe, as a "domestic dependent
nation," did not possess the full measure of sovereignty enjoyed by
states and the national government, especially when it came to the
affairs of non-Indian citizens.
Then in 1990, the court extended its Oliphant ruling to cases involving
tribal prosecution of Indian offenders who are not members of that
tribe. Congress subsequently passed new legislation to reaffirm the
power of tribes to prosecute non-member Indian offenders, but it left
the Oliphant ruling intact.
This means that when non-Indian men commit acts of sexual violence
against Indian women, federal or state prosecutors must fill the
jurisdictional void. But law enforcement in sexual violence cases in
Indian country is haphazard at best, recent studies show, and it rarely
leads to prosecution and conviction of non-Indian offenders. The
Department of Justice's own records show that in 2006, prosecutors filed
only 606 criminal cases in all of Indian country. With more than 560
federally recognized tribes, that works out to a little more than one
criminal prosecution for each tribe.
Even if outside prosecutors had the time and resources to handle crimes
on Indian land more efficiently, it would make better sense for tribal
governments to have jurisdiction over all reservation-based crimes.
Given their familiarity with the community, cultural norms and, in many
cases, understanding of distinct tribal languages, tribal governments
are in the best position to create appropriate law enforcement and
health care responses --- and to assure crime victims, especially
victims of sexual violence, that a reported crime will be taken
seriously and handled expeditiously.
Congress should enact legislation to overrule the Oliphant decision and
reaffirm the tribes' full criminal and civil authority over all
activities on tribal lands. This law should also lift the sentencing
constraints imposed in 1968 that restrict the criminal sentences that
tribal courts can impose to one year in jail and a $5,000 fine. In cases
of rape, state court sentences typically exceed 8 years, while federal
sentences are more than 12 years. Tribes should have the latitude to
impose comparable sanctions. (A bill pending in Congress would extend
tribal sentencing authority to three years, with more latitude in cases
of domestic violence, but its prospects of passage are uncertain.)
Congress recently allocated $750 million for enhancing public safety in
Indian country. This money will help tribes hire and train more police,
build detention facilities and augment federal investigative and
prosecutorial capacity for Indian country crimes. Ideally, the grant
process will be efficient enough to make sure that this money reaches
the places most in need.
But financial aid will not be enough to stop sexual violence against
Indian women. Tribal courts have grown in sophistication over the past
30 years, and they take seriously the work of administering justice.
Congress must support their efforts by closing the legal gaps that allow
violent criminals to roam Indian country unchecked.
N. Bruce Duthu, a professor of Native American studies at Dartmouth, is
the author of "American Indians and the Law."