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Tribal Justice: Prosecuting non-Natives for sexual assault on reservations

September 5, 2015 at 1:08 PM EST
Native American women are two and a half times more likely than their peers to experience sexual assault. Often the perpetrators aren't Native Americans, and because of a legal loophole, perpetrators have been able to get away with it. Now a new federal law gives tribal courts the ability to bring those perpetrators to justice. Stephen Fee updates this report that first aired in November 2014.
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STEPHEN FEE: Lisa Brunner spent her childhood on and around the White Earth Indian reservation, a huge tract of land in northern Minnesota that’s home to around 4-thousand Native Americans like her. Brunner grew up surrounded by domestic violence and since has become a leading advocate for Native victims of abuse.

LISA BRUNNER: “It’s happening every day.”

STEPHEN FEE: Native women in the U-S face some of the highest levels of violence of any group. According to the Justice Department, one in three Native women has been raped. And three out of five will experience domestic violence in their lifetimes. Lisa says she too is a victim of rape and sexual assault. She had enough, she says, when a boyfriend slapped her across the face while she cradled her nine-month-old child.

LISA BRUNNER: “And I packed up and left the next day, and I never went back. And I vowed thereafter that no man will ever touch me again. I will not — my babies will not know the life that I had to survive.”

STEPHEN FEE: Lisa says that as an adult, she seldom went to the police — and that much of that has to do with the fact that some of the men who attacked her were not Native Americans.

STEPHEN FEE: “So why does that matter? Up until recently, non-Native people were immune from prosecution in tribal courts. That’s crucial for two reasons: one, the Justice Department says non-Native men commit the vast majority of assaults and rapes against Native women. And two, federal attorneys — who are often the only lawyers who can try non-Natives who commit crimes on reservations — often don’t prosecute them.”

LISA BRUNNER: “I knew when I had been raped and been victimized and whatnot, I never tried to report it because nothing — I knew nothing would ever happen. I knew nothing would be done”

THERESA POULEY: “When you have the combination of the silence that comes from victims who live in fear and a lack of accountability by outside jurisdictions to prosecute that crime, you’ve created if you will, the perfect storm for domestic violence and sexual assault, which is exactly what all the statistics would sort of bear out.”

STEPHEN FEE: In a 1978 decision, the U-S Supreme Court said Indian tribes with their own tribal justice systems and courts were not allowed to charge non-Indians — unless Congress changed the law. Congress didn’t act for 35 years. Then, two years ago, when Congress reauthorized the Violence Against Women Act — the VAWA — lawmakers granted tribal courts jurisdiction over a limited number of domestic and dating violence crimes committed by non-Indians on reservations. That change took effect in March.

STEPHEN FEE: Earlier, three Indian reservations had taken part in a pilot program for those prosecutions: one in Arizona, one in Oregon, and this Indian reservation, the Tulalip Reservation, an hour’s drive north of Seattle. Theresa Pouley, who has served as chief judge on the Tulalip Tribal Court since 2009, says the responsibility to prosecute offenders on Indian reservations belongs to tribal courts.

THERESA POULEY: “The confused jurisdiction in Indian country, which leaves those responsibilities oftentimes to the state and federal government, who don’t effectively prosecute those crimes, creates this place where you have a category of people on Indian reservations who are essentially above the law.”

STEPHEN FEE: “What does this tribal provision in VAWA do to help close that gap?”

THERESA POULEY: “It allows me to treat all domestic violence perpetrators exactly the same, Indian or non-Indian. So I have authority over Indians who commit that crime. This just gives me authority over non-Indians who commit the exact same crime.”

STEPHEN FEE: In the past 17 months, the Tulalip tribal prosecutor has brought charges against nine alleged non-Indian domestic violence defendants — five pleaded guilty, two await trial, one was referred to federal prosecutors, and one case was dismissed.

But will this new authority actually help stop the crisis of violence against Indian women? One concern: the new law only covers domestic and dating violence — it does not include crimes like assault by a stranger or even rape. Michelle Demmert is the Tulalip Tribes’ lead attorney.

MICHELLE DEMMERT: “Unfortunately it’s not quite gone far enough. In just three recent cases, we had children involved, and we’re not able to charge on the crimes that were committed against those children including endangerment, criminal endangerment, possibly assault, other attendant or collateral crimes.”

STEPHEN FEE: “You’re able to prosecute one crime but not the other.”

MICHELLE DEMMERT: “That’s right. That’s right.”

STEPHEN FEE: Former U-S Senator Tom Coburn, from Oklahoma, a state with one of the highest Native American populations, co-sponsored the original Violence Against Women Act 20 years ago, and he thinks the change in the law is wrong – that tribes should not be allowed to exert their authority over non-Indians.

FMR. SEN. TOM COBURN: “You cannot cast tribal sovereignty on me. I’m not a member of the tribe.”

STEPHEN FEE: Instead of granting expanded authority to tribal courts, Coburn says, Congress should have required federal prosecutors to take on domestic violence crimes on reservations more vigorously. Coburn also believes the new law could be found unconstitutional.

FMR. SEN. TOM COBURN: “There’s no way you can assure and guarantee constitutional provisions under what passed. So this provision will eventually be thrown out, be challenged, and on appeal they’ll lose, because you cannot guarantee American citizens their constitutional rights if they’re non-tribal members in a tribal court.”

STEPHEN FEE: But the Justice Department’s Sam Hirsch says any tribe that proceeds with prosecutions must adhere to a list of Constitutional guarantees laid out in the new law.

SAM HIRSCH: “Here’s the evidence that it’s working: under the pilot project, more than two dozen non-Indians have been charged with domestic violence and dating violence crimes. They all have the right to go straight to federal court and ask to be released if their rights are being violated. And how many have done so? Zero.”

STEPHEN FEE: “So far?”

SAM HIRSCH: “So far.”

STEPHEN FEE: Hirsch concedes the law is limited — especially because it only covers domestic violence and not more serious crimes— but he says the Justice Department is stepping up its prosecution rate against non-Natives.

SAM HIRSCH: “At the same time, we have to recognize that when federal prosecutors and FBI agents are often located hundreds of miles away, many hours’ drive away, it’s very hard for them to play the role of local law enforcement, especially on misdemeanor level crimes and lower-level felonies.”

STEPHEN FEE: In the years leading up to the Tulalip Reservation’s ability to prosecute non-Indians, Chief Judge Theresa Pouley says she’s already seen one mark of success.

THERESA POULEY: “The reporting of domestic violence and sexual assault cases have gone up at Tulalip for the last three years steadily as victims know that perpetrators will be held accountable — and as they know they’re going to be listened or heard, they actually report it more often. So if you just look at the numbers, you sort of see that it changes the level of reporting and that’s really the first step towards stopping it.”

STEPHEN FEE: Back on the White Earth reservation, Lisa Brunner is still concerned about the limitations of the new law — that it doesn’t cover crimes like rape. It’s especially personal, because she says one of her daughters was raped a few years ago by non-Native men who came on to the reservation.

LISA BRUNNER: “Of course they threatened her and she didn’t tell me until after the fact. But we did report it to law enforcement and um — that was it.”

STEPHEN FEE: “Nothing happened after that?”

LISA BRUNNER: “No. Nothing.”

STEPHEN FEE: In the past six months, since Indian tribes obtained the authority to prosecute non-Indian defendants, five tribes have done so and more plan to join them.

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