Sovereignty for Native Women: The Tribal Law and Order Act

8 years ago
This article was written by a member of the SheKnows Community. It has not been edited, vetted or reviewed by our editorial staff, and any opinions expressed herein are the writer’s own.

On Friday, July 30, President Obama signed into law the Tribal Law and Order Act.  It's a milestone in tribal law:  legislation that works to protect Native women by supporting tribal sovereignty –- and thereby enhancing personal and sexual sovereignty, as well.

By the Numbers

One in every three Native American women will be raped at least once during her lifetime.

 One in three. 

 At least once.

That's more than twice the rate for any other ethnic group in the U.S.

I've sat with some of these women, heard their stories, shared their pain and grief and fear.  And I've shared their frustration with the knowledge that, some 86% of the time, their rapists were virtually untouchable. 


Because with very few exceptions, tribal authorities have had no jurisdiction over non-Indian criminal offenders - and 86% of rapes of Native women are committed by non-Indian rapists (70% are white).

These numbers, of course, included only those rapes that are actually reported ...   According to the Bureau of Justice Statistics, 70% of all rapes in the U.S. go unreported; other sources place the number as high as 84%.  It's understandable that rape survivors often fear reporting the rape.  They may be afraid the attacker will retaliate.  They may fear that no one will believe them, or that they will be blamed for the assault.  They may feel ashamed, humiliated, degraded, dishonored –- and fear that reporting it will only allow others to humiliate them further.  And Native women's fears are exacerbated by historical tragedy and the knowledge that the system is not set up to help them.

Thanks to serious jurisdictional and cultural barriers, the under-reporting rate is undoubtedly much higher in Indian Country than elsewhere.  It's difficult to report a crime -- especially one involving sexual violence -- to members of federal law enforcement agencies, when long historical experience has given Indian women and men alike abundant reason to distrust both the officers and the entities they represent.  The ranks of police officers, investigators, and prosecutors are still filled disproportionately by white men, and cultural practices and spiritual requirements may deter many Native women from filing a report.  Many Native women decline even to seek medical treatment, because too many Indian Health Service facilities have non-Native (often male) physicians lacking in cultural awareness, and a severe shortage of Sexual Assault Nurse Examiners (SANE practitioners) exists all across Indian Country.

A Legacy of Conquest

In nearly 500 years of contact, rape has been part of a deliberate strategy of war, conquest, and annihilation of Native peoples.  It was not uncommon for European settlers to assault Indian women on an individual (or group) basis, but more than that, rape was one of many weapons in the U.S. government's arsenal as it executed its policies of Manifest Destiny and Indian removal.

Of course, the written record is sparse with regard to rape of Native women.  To the victors who kept the records, we were not important –- we weren't even fully human.  But our memories are long, and our oral traditions strong, and the stories are handed down from generation to generation. 

And occasionally, one finds documentation of "official" incidents.  Anishinaabe author Speaks Lightning, in his forthcoming book on Indian Nations of the Southern Plains, notes:

"In 1868, Lt. Col. George Custer and the 7th Cavalry attacked a peaceful village on the Washita River in present-day Oklahoma.  Following the battle, Custer invited all of the officers to select an Indian woman for sexual purposes.  Custer took first choice and selected Mo-nah-see-tah, who was pregnant at the time.  The women served as sexual slaves for some time (at least several months)." 

This behavior was not unusual.  To a patriarchal culture that regarded Indians as something less than human, the ability to rape Native women with impunity was seen as nothing more than their due –- the spoils of conquest and colonialism.  And they violated,  despoiled, and stole our grandmothers' bodies and souls in the same way that they violated, despoiled, and stole the body and soul of Akii, our Mother Earth.

Amplifying Violence

There's a significant and deadly difference in rape statistics as they relate to Native women:

  • Among rape victims in the general population, 74% report being physically battered in additional ways during the commission of the rape.  For Native women, that number jumps to 90%.
  • Among the general population, 30% of rape victims report sustaining other physical injuries, in addition to the rape itself.  Among Native women, that number is 50%.
  • Roughly 11% of rape victims as a whole report that their rapist used a weaponFor Native women, that number more than triples, to 34%.

Taken in historical context, and coupled with the fact that 86% of all rapes of Native women are committed by non-Indians, it's hard to escape the conclusion that something even more insidious is at work here.

Eluding Jurisdiction

Most rape survivors are attacked by a member of their own racial or ethnic group:  In other words, white women tend to be sexually assaulted by white men, African American women by African American men, etc.  The one group for whom this rule does not hold is Native American women. As noted above, more than 86 percent of Native rape survivors are attacked by non-Indians, (more than 70 percent of whom are white).

Why does this matter?

It matters because, until last Friday, the vast majority of Native women rape survivors had little or no legal recourse:  Even where the victim is a tribal member, tribal authorities have had no jurisdiction over non-Native defendants.  With limited exceptions, only federal authorities have had jurisdiction to arrest and prosecute non-Indians who commit crimes on tribal lands -- and historically, cases involving violence against Native women have received little to no attention.  As I've noted elsewhere, "[f]ederal authorities routinely decline to prosecute more than 50 percent of all violent crimes committed in Indian Country; the rate of declination is much higher for sexual assault cases."

The Tribal Law and Order Act

This is why the Tribal Law and Order Act is so monumental.  It provides significant funding for resources to help tribal authorities battle the rape crisis that has swept so many reservations.  More importantly, however, it removes certain limitations on tribal sovereignty, giving the tribes jurisdiction over non-Indians who commit violent crimes on tribal lands.  It's not perfect -- not by a long shot.  But among other important first steps, it provides the following:

  • $1.1 billion to tribal authorities to investigate and prosecute sexual assault cases;
  • Deputizes tribal police to arrest and prosecute non-Indians who commit crimes on tribal land;
  • Provides access to criminal records and other information through the National Crime Information Center (NCIC) and other federal databases;
  • Mandates that the Department of Justice to maintain and share records of federal declinations (refusals to prosecute), and to share evidence;
  • Forces federal officials to turn over information that may aid prosecutions in tribal court, including documentary and and testimonial evidence;
  • Permits tribal courts to imposes sentences of up to three years (up from the previous one-year maximum);
  • Provides training for tribal police in evidence collection and interviewing methods in cases involving sexual and domestic violence;
  • Mandates that all Indian Health Service (IHS) facilities implement consistent treatment protocols for survivors of rape and sexual assault;
  • Enhances general support programs for tribal police, courts, and corrections entities; and
  • Funds programs for at-risk youth on reservations.

Native-Run Resource Providers

In closing, I want to mention a few organizations that have been doing incredible, much-needed work to support survivors of sexual and domestic violence, often in the face of what seem like nearly insurmountable odds.  These are groups that are run by Native women for Native women; I'm familiar with some, while others were new to me.  Two of my personal favorites are White Buffalo Calf Woman Society (WBCWS) and Pretty Brid Woman House.   WBCWS, the oldest Indian-run resource provider in the country for Native survivors of sexual and domestic violence, has been doing this work for 33 years.  Thanks to the economic downturn, the grant monies on which their vital work depends are drying up, and they desperately need new funding.  Likewise, Pretty Bird Woman House has long provided shelter and other resources in a culturally appropriate manner to Native survivors of sexual and domestic violence.   Please keep these groups in mind when planning charitable giving. 

Below are links to an array of Native-run groups across the country.  Please visit their Web sites for information about their mission, for contact information, or to find out how to help:

There are a few other such groups that currently lack a Web presence.  I'll be happy to e-mail contact information to anyone interested.  Likewise, if you work with a Native women's group not listed here, please let me know for future reference.

Chi miigwech ("many thanks") ~

~ Ajijaakwe