Broken Justice in Indian Country

ONE in three American Indian women will be raped in their lifetimes, statistics gathered by the United States Department of Justice show. But the odds of the crimes against them ever being prosecuted are low, largely because of the complex jurisdictional rules that operate on Indian lands. Approximately 275 Indian tribes have their own court systems, but federal law forbids them to prosecute non-Indians. Cases involving non-Indian offenders must be referred to federal or state prosecutors, who often lack the time and resources to pursue them.

The situation is unfair to Indian victims of all crimes — burglary, arson, assault, etc. But the problem is greatest in the realm of sexual violence because rapes and other sexual assaults on American Indian women are overwhelmingly interracial. More than 80 percent of Indian victims identify their attacker as non-Indian. (Sexual violence against white and African-American women, in contrast, is primarily intraracial.) And American Indian women who live on tribal lands are more than twice as likely to be raped or sexually assaulted as other women in the United States, Justice Department statistics show.

Rapes against American Indian women are also exceedingly violent; weapons are used at rates three times that for all other reported rapes.

Congress should step in and clearly establish the authority of Indian tribes to investigate and prosecute all crimes occurring on Indian lands — no matter whether tribal members or nonmembers are involved. 

. . . .Thirty years ago, the Supreme Court formalized the prohibition against tribes prosecuting non-Indians with its decision in Oliphant v. Suquamish Indian Tribe. . . . .

The court held that the tribe, as a “domestic dependent nation,” did not possess the full measure of sovereignty enjoyed by states and the national government, especially when it came to the affairs of non-Indian citizens.

Then in 1990, the court extended its Oliphant ruling to cases involving tribal prosecution of Indian offenders who are not members of that tribe. Congress subsequently passed new legislation to reaffirm the power of tribes to prosecute non-member Indian offenders, but it left the Oliphant ruling intact. …..

Congress should enact legislation to overrule the Oliphant decision and reaffirm the tribes’ full criminal and civil authority over all activities on tribal lands. This law should also lift the sentencing constraints imposed in 1968 that restrict the criminal sentences that tribal courts can impose to one year in jail and a $5,000 fine. In cases of rape, state court sentences typically exceed 8 years, while federal sentences are more than 12 years. Tribes should have the latitude to impose comparable sanctions. (A bill pending in Congress would extend tribal sentencing authority to three years, with more latitude in cases of domestic violence, but its prospects of passage are uncertain.)

Complete article in the New York Times

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