From birth to death, many Native women face a life characterized by violence and poverty. Tribal governments struggle to provide safety and justice for their citizens, including individual Indian women and their children, and this struggle is directly tied to the sovereignty of Indian nations. Sovereignty of Indian tribes is not based on race or culture, but is rooted in the unique historical, political, and legal relationship between tribes and the U.S. government.
Prior to colonization, tribal justice systems and cultural supports were in place to ensure safety and protection for tribal women. The capacity of Indian tribes to care for their citizens was diminished by the imposition of colonial tribal governments. According to the U.S. Department of Justice, 34.1%, more than one in three, Indian women will be raped in their lifetime; 64%, more than 6 in 10, Indian women will be assaulted; and, Indian women are stalked at more than twice the rate of other women. Seventy percent (70%) of violent victimizations experienced by Native women are more likely to be committed by other races, mostly Black and White men. This victimization differs from all other populations of women who are most at risk of being assaulted by members of their own race.
Primary tribal issues in responding to domestic violence and sexual assault include the lack of jurisdiction to respond to crimes committed by non-Indians on trust lands, the lack of authority to impose appropriate sentences in tribal courts, and the lack of resources to build the infrastructure of tribal criminal justice systems and community resources. This essay discusses historical tribal beliefs, the impact of colonization on Native women, contemporary tribal issues, and the future direction of addressing violence against Native women.
Historical Tribal Beliefs And Responses To Violence Against Women
The colonization of Native America disrupted effective social and justice systems of Indian nations. Prior to colonization, Native women were property owners, legislators, diplomats, and policymakers. The oral history and customary practices of tribal kinship networks and Indian nations describe women as full participants in all aspects of tribal life. Teachings about respect for women were brought by feminine, supernatural powers that held women as sacred and counseled the people that women were to be treated accordingly. Among the Lakota, the feminine entity, the White Buffalo Calf Pipe Woman, brought teachings to men, women, and children. Men were taught that women were to be respected, even in thought. The man who was unable to recognize her sacredness was reduced to a pile of bones.
Tribal oral histories describe the balance between the male and female, with feminine power honored and recognized. Tribal worldview was not hierarchal, but was circular. Every nation and all elements had a place and function within the circle. Natural law afforded Native women the safety and protection of their kinship network and tribe.
The governance of tribes was also based on these natural laws and ensured proper behavior of individuals. Although violence against Native women was not unheard of, it was the exception and not the rule. The oral histories of many tribes describe the harsh and severe nature of punishment in the event a husband abused his wife.
Mental self-discipline was highly valued, and those unable to adhere to customary practices of respectful behavior experienced consequences from kinship networks and social societies with the power to physically punish, shun, banish, or even kill an abuser of women.
The Impact Of Colonization On Safety And Justice For Native Women
When genocide failed, Indian tribes were geographically isolated in prisoner of war camps where Indians were assigned camp numbers for tracking and annuity purposes. When a military presence was no longer needed, these camps became known as Indian reservations. Indian affairs, originally under the War Department, were transferred to the U.S. Department of the Interior. The U.S. government divided Indian tribes between various Christian denominations. Today, individual Indians are assigned a number that reflects their legal status as a member of an Indian tribe.
The civilizing of Native people became synonymous with Christianizing, and federal government policy was to remove Indian children from their families and place them in residential Christian missions or government boarding schools. This tactic helped to distort or destroy traditional parenting abilities that were predicated on the worldview that children are sacred beings and replace it with experiences of corporal punishment that did not reflect Native American values. Similarly, Indian boys and girls were immersed in an environment that reflected male domination and female subservience.
Mission and boarding school experiences reinforced earlier role modeling of cavalry and government officials. Women were devalued and not allowed to participate in earlier treaty making and negotiations between sovereign tribal governments and a fledgling U.S. government. Treaties between Indian nations and the U.S. government, made in exchange for promises of tribal sovereignty, have not been honored and, in combination with subsequent congressional policy and legal decisions, result today in a lack of protection and safety for Native women.
There is a complex legal history that defines the contemporary political and legal relationship between Indian tribes and the U.S. government. Federal statutes such as the Major Crimes Act, Dawes Act, Indian Reorganization Act, Termination Act, Indian Self-Determination Act, Public Law 83-280, and the Indian Civil Rights Act were enacted to assimilate, terminate, and empower Indian tribes. Numerous Supreme Court decisions such as Oliphant v. Suquamish Tribe and Duro v. Reina have served to limit the sovereign right of Indian nations and to punish those who commit violations within their territories, including non-Indians. In the case of Duro v. Reina, congressional intervention was necessary to restore the sovereign right of Indian tribes to prosecute Indians who are members of a different tribe.
These federal statutes and court decisions are referred to as federal Indian policy. This legislative and legal history has affected Indian tribal governments in caring for their citizens, including protecting Native women.
Contemporary Tribal Issues
Although Indian nations as sovereign are capable of enacting their own laws and creating their own tribal criminal justice institutions, Indian nations do not have criminal jurisdiction over non-Native batterers and rapists. In 2003, there were only 54 convictions for rape of adult Indian women in the federal court system. Alaska, with the highest rate of rape victims in the United States, of whom many are Native women, is not included the federal conviction rate since the state of Alaska is a PL-280 state, meaning the state can exercise jurisdiction. Alaska Native villages often lack the resources and infrastructure to exercise their sovereignty or may feel limited by a federal statute that allows the state to exercise jurisdiction.
When responding to crimes against Indian women, there are many layers of bureaucracy, and tribal advocates may have to deal with a multitude of different criminal justice jurisdictions. It is highly unlikely that non-Native advocates will have contact with the Federal Bureau of Investigation; the Bureau of Alcohol, Tobacco and Firearms; the U.S. Marshall’s Office; or the U.S. Attorney’s Office.
Tribal courts are restricted in sentencing and can only impose one-year sentences, even for felony domestic violence and sexual assault crimes. Compounding jurisdictional and sentencing restriction issues is a lack of resources available to Indian nations in responding to crimes of domestic and sexual violence. Many tribal criminal justice institutions lack the basic infrastructure for effective system response, and community services for prevention, intervention, and healing are minimal.
Other tribal resource issues include poverty and inadequate housing, transportation, health care, and other basic community services. In the United States, 4 of the top 10 poorest counties are located in Indian reservations in South Dakota. Indian nations in general do not have any across-the-board institutional capacity that allows for effective administration, implementation, and response to crimes against Native women.
Restoring the government-to-government relationship between Indian nations and the United States may strengthen federal, state, and tribal responses to crimes against Native women. The reauthorization of the Violence Against Women Act and the inclusion of Title IX, Safety for Indian Women, ushers in a new era for Native women and provides a starting place for the federal government in meeting its treaty and trust responsibilities to its Indigenous citizens.
- Artichoker, K., & Mousseau, M. (1999). Domestic violence is not traditional. Rapid City, SD: Cangleska.
- Deloria, V., Jr. (2000). Singing for a spirit: A portrait of the Dakota Sioux. Santa Fe, NM: Clear Light.
- Greenfield, L. J., & Smith, S. K. (1999). American Indians and crime. Washington, DC: U.S. Department of Justice.
- Jones, B. J. (1998). Welcoming tribal courts into the judicial fraternity: Emerging issues in tribal-state and tribalfederal court. William Mitchell Law Review, 24, 457.
- S. Commission on Civil Rights. (2003). A quiet crisis: Federal funding and unmet needs in Indian country. Washington, DC: Government Printing Office.
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