Reservations beyond the law

By Gavin Clarkson

For more than a decade, a white man married to an Indian woman sexually terrorized his entire family on the Eastern Cherokee reservation in North Carolina. If his wife complained about the rapes and beatings with a baseball bat, he shocked her with a Taser. While raping his wife, he would force his teenage daughters to stand by so he could fondle their genitalia to compensate for erectile dysfunction. Afterward, he would show them his AK-47 and threaten to kill them if they ever left him or told anyone.

Despite those threats, his wife finally reported the incidents to tribal police. Eastern Cherokee prosecutor James Kilbourne wanted to prosecute, but the tribe did not have criminal jurisdiction over the non-Indian husband. Local and state authorities didn’t have jurisdiction either because the victims were Indians.

In 21st century America, how is it that the availability of justice on Indian reservations is determined by the race of the perpetrator and victim? Although the federal government recognizes Indian tribes as sovereign nations, Congress and the Supreme Court have severely restricted tribes’ ability to protect their citizens from violent crime.

The first blow came in 1885, when the Major Crimes Act declared that the federal government -- not Indian tribes -- had jurisdiction over murders, rapes and felony assaults involving Indians. Then, in 1978, the U.S. Supreme Court further stripped tribes of criminal jurisdiction over non-Indians in Oliphant vs. Suquamish Indian Tribe. The legacy of that fundamentally flawed decision is a jurisdictional void that has produced an epidemic of violence against Indian women and children.

On most reservations today, tribes prosecute misdemeanors committed by Indians, and the state prosecutes crimes committed by non-Indians against non-Indians. But when a non-Indian victimizes an Indian, only U.S. attorneys can file charges.

But U.S. attorneys often don’t pursue such cases. In fact, they decline to prosecute crimes committed on reservations nearly twice as often as those committed off-reservation, according to Justice Department data recently analyzed by the Wall Street Journal. Six states (including California) were given criminal jurisdiction over Indians by Congress in 1953, but prosecutors in those states turn down cases at similarly high rates, according to preliminary findings from research underway at UCLA.

No one knows exactly how many Indian reservation rape or assault cases are referred to federal prosecutors, or how many of those go to trial. There is no system to track such cases, and no meaningful data-sharing between tribal and federal authorities. Without this information, we can only speculate as to why cases aren’t prosecuted.

Federal law enforcement officials interviewed for a recent National Public Radio story suggested that rape and assault cases simply aren’t priorities for U.S. attorneys, who also work on terrorism, organized-crime and drug-trafficking cases.

I know of a number of U.S. attorneys, however, who want to prosecute domestic violence cases, but the federal statutory hurdle is so high that a broken nose is insufficient grounds for a felony assault charge. That requires “serious bodily injury,” defined as a substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ or mental faculty.

As a result, most domestic violence cases wind up classified as misdemeanors, which means that they rarely, if ever, get prosecuted. U.S. attorneys also understandably decline cases they clearly can’t win. The abusive husband in the Eastern Cherokee case was finally prosecuted and convicted only after he nearly severed his wife’s hand with a shard of glass.

The bottom line is that Indian women and children are denied any meaningful protection under the law, and the criminals know it.

Chickasaw Nation Police Chief Jason O’Neil said predators strut through Indian Country as if they were in “a lawless community, where they can do whatever they want.” Former Sen. Ben Nighthorse Campbell (R-Colo.) put it this way: “The word is out that people can get off the hook, so to speak, if they are not Indian.”

Indian women are victimized at astonishingly high rates -- 2 1/2 times the national average, according to Justice Department data. More than one-third of all Indian women will be raped at least once during their lifetimes, and nearly two-thirds will be violently assaulted. Nearly 90% of rapes and sexual assaults involve non-Indian assailants.

There’s other Oliphant-case fallout as well. To exploit the jurisdictional void, some pedophiles became teachers in Bureau of Indian Affairs schools -- where they had little or no fear of prosecution even after being caught molesting Indian kids. Non-Indian drug gangs have discovered this legal loophole and have set up methamphetamine operations on reservations. Other non-Indian traffickers have intentionally married Indian women to establish themselves on reservations, where their risk of prosecution is lowest.

The Oliphant decision, roundly criticized for years, is the primary cause of this tragedy. But Congress is not without blame. The Supreme Court specifically acknowledged that Congress could fix this jurisdictional void, yet legislators have never taken action. Congress only recently allocated funds to study the problem.

Regardless of the cause, the most logical remedy is quite simple: Substitute the word “persons” for the word “Indians” in one sentence of the Indian Civil Rights Act.

That small change would allow tribes to prosecute anyone, Indian and non-Indian alike, who commits a crime on Indian land. Tribal and federal prosecutors could then work complementarily, just as state and federal prosecutors do.

Why should a non-Indian who molests an Indian child or rapes an Indian woman be able to escape justice merely by committing the crime on a reservation?

Congress has fixed other jurisdictional voids created by Supreme Court decisions. It should do so again, and soon. Indian women and children cannot afford to wait another 30 years for justice.

Gavin Clarkson is an assistant professor in the University of Michigan School of Information, School of Law and Native American Studies.