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Native women in the U.S. face some of the highest levels of violence of any group. The Justice Department says acts of sexual assault against Native American women are most frequently committed by non-Indian men, who are generally immune to prosecution in tribal courts. Congress reauthorized the Violence Against Women Act last year, which gave tribal courts jurisdiction over certain domestic violence crimes committed by non-Indians. But advocates say acts of sexual violence on Indian reservations are still happening with few consequences. NewsHour Weekend's Stephen Fee reports.
American Indian 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 4000 American Indians.
Lisa grew up surrounded by domestic violence — and since has become a leading advocate for Native victims of abuse.
"It's happening every day."
Native women in the US 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.
"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."
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 non-Native, not American Indians.
"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."
"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"
"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."
In a 1978 decision, the US Supreme Court said Indian tribes with their own tribal justice systems and courts were not allowed to charge non-Indians — unless Congress passed a law.
But Congress didn't act for 35 years. Then just last year, when lawmakers were reauthorizing the Violence Against Women Act, sometimes called VAWA, they included a new provision granting tribal courts jurisdiction over a limited number of domestic and dating violence crimes committed by non-Indians on reservations — perhaps allowing people like Lisa Brunner to see justice.
"While the tribal domestic violence provision doesn't kick in until March of next year, three Indian reservations have taken part in a pilot program, where they can begin some of those prosecutions now: one reservation in Arizona, one in Oregon, and this Indian reservation, the Tulalip Reservation, a little more than an hour's drive north of Seattle, Washington."
Theresa Pouley has served as chief judge on the Tulalip Tribal Court since 2009. She says the responsibility to prosecute offenders on Indian reservations belongs to tribal courts.
"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."
"What does this tribal provision in VAWA do to help close that gap?"
"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."
Since March of this year, the Tulalip tribal prosecutor has brought charges against five alleged non-Indian domestic violence defendants — as of this airing, two have plead guilty, two are awaiting trial, and one case has been 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.
"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."
"You're able to prosecute one crime but not the other."
"That's right. That's right."
Oklahoma Senator Tom Coburn was one of the original co-sponsors of the 1994 Violence Against Women Act — but from a legal perspective, he says tribes cannot extend their authority to non-Indians.
SEN. TOM COBURN, R OKLAHOMA:
"You cannot cast tribal sovereignty on me. I'm not a member of the tribe."
Hailing from a state with one of the highest Indian populations in the country, Coburn says Congress should have forced US Attorneys, federal lawyers, to prosecute domestic violence crimes on reservations more vigorously rather than granting authority to tribal courts.
And he feels the new law falls short and may even be overturned in court because some tribal systems may not have the resources to ensure due process.
SEN. TOM COBURN:
"There's no way you can assure and guarantee constitutional provisions under what passed. So it –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."
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.
"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."
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.
"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."
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.
"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."
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.
"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."
"Nothing happened after that?"
Once the new law goes into full effect next year, it's expected that only a few dozen tribes are prepared to initially take on the task of prosecuting non-Indian defendants.
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Stephen Fee is a producer and on-air reporter for PBS NewsHour Weekend. Since joining the broadcast in January 2014, he's reported on the obesity crisis in Mexico, the safety risks of the US shale oil boom, and the debate over terminally ill people using experimental drugs, among other stories.
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