Join Login




      

Mary Kathryn Nagle

 

The Legal and Social Challenges of Ending Violence Against Native American Women and Girls

Mary Kathryn Nagle, Partner, Pipestem Law

Today, Native women face the highest rates of domestic violence, sexual assault and murder in the United States[1]—rates that are fueled, in large part, by the fact that in 1978, the Supreme Court eliminated tribal jurisdiction over non-Indian-perpetrated crimes on tribal lands.[2] As the Department of Justice has reported, the majority of violent crimes committed against Natives are committed by non-Natives.[3] However, because of the Supreme Court’s decision in Oliphant, Tribal Nations are denied the jurisdiction necessary to prosecute the majority of violent crimes committed against their citizens.[4] And although the 2013 re-authorization of the Violence Against Women Act restored tribal criminal jurisdiction over non-Indian perpetrated crimes of domestic violence, dating violence, and violations of protective orders, criminal jurisdiction over crimes perpetrated by non-Indian “strangers” has not been restored.[5]

The conundrum of Oliphant is profound. Imagine if the Supreme Court told the State of Colorado that it could not prosecute Ted Bundy for the rapes and murders he committed against women in Colorado because Ted Bundy was not a citizen of that State?

But this is precisely the law that applies to Tribal Nations today, and consequently, Native people are the only population in the United States who do not have an unqualified right to be protected by their own government’s law enforcement when someone attacks them in their own home. These injustices come with profound psychological consequences for Native people who have been told their lives are not valued and not worth protecting.

Likewise, American culture continues to regard Native women as either a Halloween costume (Pocahottie) or a political joke (Pocahontas). Pocahontas was a Native girl who was raped, kidnapped, and many suspect murdered. The contemporary dehumanization of one of the most well-known Native women victims of violence provides permission to criminals to perpetuate this violence against Native women today.

Truly, if we are going to end these high rates of violence of Native women, we must (1) restore the criminal jurisdiction of Tribal Nations to prosecute anyone who commits crimes on tribal lands; and (2) we must, as individuals, refuse to vote for politicians who dehumanize Native women, and we must refuse to patronize businesses who objectify Native women. The end of the fake Land O Lakes butter woman is a step in the right direction, but thousands of American businesses continue to use fake images of the “sexy Indian princess” stereotype to sell their products. Of course, the two go hand in hand. A culture that dehumanizes Native women will never pass laws to protect them.


[1] United States v. Bryant, 136 S.Ct. 1954, 1959 (2016). See also Andre B. Rosay, Nat’l Inst. Of Justice, Office of Justice Programs, U.S. Dep’t of Justice, Violence Against American Indian and Alaska Native Women and Men: 2010 Findings from the National Intimate Partner and Sexual Violence Survey 44 (2016), https://www.ncjrs.gov/pdffiles1/nij/249736.pdf.

[2] Oliphant v. Suquamish, 435 U.S. 191 (1978)

[3] Andre B. Rosay, Nat’l Inst. Of Justice, Office of Justice Programs, U.S. Dep’t of Justice, Violence Against American Indian and Alaska Native Women and Men: 2010 Findings from the National Intimate Partner and Sexual Violence Survey 46 (2016), https://www.ncjrs.gov/pdffiles1/nij/249736.pdf. (concluding that 97% of Native women victims of violence have had a least one non-Native perpetrator).

[4] Oliphant v. Suquamish, 435 U.S. 191 (1978)

[5] 25 U.S.C. § 1304(c); 25 U.S.C. § 1304(d)(4).

back to menu