Myth 1: Despite its flaws, the United States doesn’t have problems like widespread rape crimes and murders like in third world countries.
Fact: Native Americans have been, and continue to be, systematically raped, murdered, and tortured thanks to lawlessness as a direct result of US laws that prevented rape victims and families of murder victims from being able to sue the rapists and murderers. Rapists and murderers continue to commit acts of lawlessness: including gang rapes, child rapes, and wanton murder upon Native American tribal lands. In truth, in 86% of the cases, the perpetrators are non-Native men.
Chapter 4 of Amnesty International’s report underlies the chief causes regarding why this has continued to happen for so long. The Violence against Women’s Act’s amending in 2012 helped to identify Native Americans as having more rights, but thanks to the chronic underfunding of the majority of States throughout the US, nothing has really changed in a majority of these areas.
A Summary of Amnesty International’s Findings
Sexual violence against Indigenous women in the USA is widespread. According to US government statistics, Native American and Alaska Native women are more than 2.5 times more likely to be raped or sexually assaulted than other women in the USA. Some Indigenous women interviewed by Amnesty International said they didn’t know anyone in their community who had not experienced sexual violence. Though rape is always an act of violence, there is evidence that Indigenous women are more likely than other women to suffer additional violence at the hands of their attackers. According to the US Department of Justice, in at least 86 per cent of the reported cases of rape or sexual assault against American Indian and Alaska Native women, survivors report that the perpetrators are non-Native men.
Sexual violence against Indigenous women is the result of a number of factors and continues a history of widespread human rights abuses against Indigenous peoples in the USA. Historically, Indigenous women were raped by settlers and soldiers, including during the Trail of Tears and the Long Walk. Such attacks were not random or individual; they were tools of conquest and colonization. The attitudes towards Indigenous peoples that underpin such human rights abuses continue to be present in in the USA today. They contribute to the present high rates of sexual violence perpetrated against Indigenous women and help to shield their attackers from justice. They also reflect a broader societal norm that devalues women and girls and creates power dynamics that enable sexual violence against women of all backgrounds.
And Chapter 4 of the Report:
The Major Crimes Act (1885) granted the federal authorities jurisdiction over certain serious crimes, including rape and murder, committed in Indian Country.51 There is a widespread misconception that under the Act only the federal authorities have the authority to prosecute major crimes.52 In fact, tribal authorities retain concurrent jurisdiction over Indigenous perpetrators. Nevertheless the impact of the Act in practice has been that fewer major crimes have been pursued through the tribal justice system.
Most state authorities do not exercise criminal jurisdiction over Native Americans in Indian Country. However, Public Law 280 (1953) transferred federal criminal jurisdiction over all offences involving Native Americans in Indian Country to state governments in some states.53 The US Congress gave these states – California, Minnesota, Nebraska, Oregon, Wisconsin and Alaska upon statehood— extensive criminal and civil jurisdiction over Indian Country. Public Law 280 also permitted certain additional states — Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah and Washington — to acquire jurisdiction if they wished, and while a number of states originally opted to do so, currently only Florida has full Public Law 280 jurisdiction.54 Where Public Law 280 is applied, both tribal and state authorities have concurrent jurisdiction over crimes committed on tribal land by American Indians or Alaska Natives. Public Law 280 is seen by many Indigenous peoples as an affront to tribal sovereignty, not least because states have the option to assume and to relinquish jurisdiction, a power not extended to the Indigenous peoples affected. In addition, Congress failed to provide additional funds to Public Law 280 states to support the law enforcement activities they had assumed. The BIA, however, reduced funding to tribal authorities as a result of the shift in jurisdiction. This has led to a situation where tribal and state authorities have not received sufficient funds to assume their respective law enforcement responsibilities, resulting in a sense of “lawlessness” in some communities and difficult relations between tribal and state officials.55
The Indian Civil Rights Act (1968) limits the penalty which can be imposed by tribal courts for any offence – including murder or rape — to a maximum of one year’s imprisonment and a US$5,000 fine.57 The message sent by this law is that, in practice, tribal justice systems are only equipped to handle less serious crimes. As a result of this limitation on their custodial sentencing powers, some tribal courts are less likely to prosecute serious crimes, such as sexual violence.
In 1978, the Supreme Court ruled that tribal courts could not exercise criminal jurisdiction over non-Indian US citizens.58 This ruling in the case of Oliphant v Suquamish effectively strips tribal authorities of the power to prosecute crimes committed by non-Indian perpetrators on tribal land. This decision raises issues of sovereignty which are beyond the scope of this report. It also denies victims of sexual violence due process and the equal protection of the law. Jurisdictional distinctions based on the race or ethnicity of the accused, such as the jurisdictional limitation here, have the effect in many cases of depriving victims of access to justice, in violation of international law and US constitutional guarantees. (Tribal courts are the most appropriate forums for adjudicating cases that arise on tribal land, and, as this report finds, state and federal authorities often do not prosecute those cases of sexual violence that arise on tribal land and fall within their exclusive jurisdiction.) This situation is of particular concern given the number of reported crimes of sexual violence against American Indian women involving non-Indian men. In such situations, either federal or state authorities have the authority to intervene. Reportedly, the apparent gap in jurisdiction or enforcement has encouraged non-Indian individuals to pursue criminal activities of various kinds in Indian Country. 59 Tribal police do have limited powers of arrest over non-Indian suspects in some states.60 They also retain the power to detain non-Indian suspects in Indian Country in order to transfer them to either federal or state authorities, but this is not generally understood by tribal, state or federal officials.
What survivors report to have experienced for decades throughout US history:
- Support workers told Amnesty International about the rapes of two Native American women in 2005 in Oklahoma. In both cases the women were raped by three non-Native men. Other similarities between the crimes were reported: the alleged perpetrators, who wore condoms, blindfolded the victims and made them take a bath. Because the women were blindfolded, support workers were concerned that the women would be unable to say whether the rapes took place on federal, state or tribal land. There was concern that, because of the jurisdictional complexities in Oklahoma, uncertainty about exactly where these crimes took place might affect the ability of these women to obtain justice. Interviews with support workers (identity withheld), May 2005
- The mother of a survivor of sexual violence from the Standing Rock Sioux Reservation told Amnesty International how she returned home in September 2005 to find her 16-year-old daughter lying half naked and unconscious on the floor. She took her daughter to the hospital in Mobridge, South Dakota, where a sexual assault forensic examination was performed. She described how the suspected perpetrator fled to Rapid City, South Dakota, which is outside the jurisdiction of the Standing Rock Police Department (SRPD). He returned to the Reservation in early 2006 and was held by police for 10 days, although both mother and daughter only discovered this when they rang the SRPD to ask about the status of the case. They found out that the suspect was to go before a tribal court, but the mother told Amnesty International that to get this information, she had to go to Fort Yates and ask them in person. She told Amnesty International that she hoped that the case would be referred to the federal authorities because this would mean a lengthier sentence for the perpetrator. She said that, months after the attack, a Federal Bureau of Investigation (FBI) officer and a BIA Special Investigator arrived unannounced. As the daughter was not home at the time, the mother told them where to find her. However, she never heard from them again. Federal prosecutors did eventually pick up the case and in December 2006 the perpetrator entered into a plea bargain and was awaiting sentencing at the time this report was written. Interview with mother of survivor (identity withheld)
US politicians know that this is happening and have shown total indifference toward fixing the situation. Taking more Native lands seems to be more important than helping rape survivors.
Myth 2: The police have a duty to protect US citizens from harm.
Fact: The Supreme Court decided in the case of Castle Rock V. Gonzales that the public duty doctrine doesn’t extend to private citizens and that the safety of Gonzales’s three children was not a protected entitlement under the fourteenth amendment. In effect, the police don’t have to help you when you’re being robbed, raped, or murdered.
Politicians attempted to redirect the argument to what the police have to go through every day on the job but that was an attempt to divert the main issue: the US government – Local, State, and Federal – didn’t want to be held liable to lawsuit whenever police failed in their duty across the country. Ergo, the decision was ultimately about protecting government monies above the rights of human lives; in this case the three innocent children that the police failed to protect by not enforcing the restraining order.
The case file itself: https://www.law.cornell.edu/supct/html/04-278.ZS.html
Assessment of the legal implications: