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Reservations beyond the law
A legal loophole allows non-Indians who victimize Indian women and kids on
reservations to escape justice

By Gavin Clarkson
August 3, 2007

For more than a decade, a white man married to an Indian woman sexually
terrorized his entire family on the Eastern Cherokee reservation in North
Carolina. If his wife complained about the rapes and beatings with a
baseball bat, he shocked her with a Taser. While raping his wife, he would
force his teenage daughters to stand by so he could fondle their genitalia
to compensate for erectile dysfunction. Afterward, he would show them his
AK-47 and threaten to kill them if they ever left him or told anyone.

Despite those threats, his wife finally reported the incidents to tribal
police. Eastern Cherokee prosecutor James Kilbourne wanted to prosecute,
but the tribe did not have criminal jurisdiction over the non-Indian
husband. Local and state authorities didn't have jurisdiction either
because the victims were Indians.

In 21st century America, how is it that the availability of justice on
Indian reservations is determined by the race of the perpetrator and
victim? Although the federal government recognizes Indian tribes as
sovereign nations, Congress and the Supreme Court have severely restricted
tribes' ability to protect their citizens from violent crime.

The first blow came in 1885, when the Major Crimes Act declared that the
federal government -- not Indian tribes -- had jurisdiction over murders,
rapes and felony assaults involving Indians. Then, in 1978, the U.S.
Supreme Court further stripped tribes of criminal jurisdiction over
non-Indians in Oliphant vs. Suquamish Indian Tribe. The legacy of that
fundamentally flawed decision is a jurisdictional void that has produced an
epidemic of violence against Indian women and children.

On most reservations today, tribes prosecute misdemeanors committed by
Indians, and the state prosecutes crimes committed by non-Indians against
non-Indians. But when a non-Indian victimizes an Indian, only U.S.
attorneys can file charges.

But U.S. attorneys often don't pursue such cases. In fact, they decline to
prosecute crimes committed on reservations nearly twice as often as those
committed off-reservation, according to Justice Department data recently
analyzed by the Wall Street Journal. Six states (including California) were
given criminal jurisdiction over Indians by Congress in 1953, but
prosecutors in those states turn down cases at similarly high rates,
according to preliminary findings from research underway at UCLA.

No one knows exactly how many Indian reservation rape or assault cases are
referred to federal prosecutors, or how many of those go to trial. There is
no system to track such cases, and no meaningful data-sharing between
tribal and federal authorities. Without this information, we can only
speculate as to why cases aren't prosecuted.

Federal law enforcement officials interviewed for a recent National Public
Radio story suggested that rape and assault cases simply aren't priorities
for U.S. attorneys, who also work on terrorism, organized-crime and
drug-trafficking cases.

I know of a number of U.S. attorneys, however, who want to prosecute
domestic violence cases, but the federal statutory hurdle is so high that a
broken nose is insufficient grounds for a felony assault charge. That
requires "serious bodily injury," defined as a substantial risk of death,
extreme physical pain, protracted and obvious disfigurement or protracted
loss or impairment of the function of a bodily member, organ or mental
faculty.

As a result, most domestic violence cases wind up classified as
misdemeanors, which means that they rarely, if ever, get prosecuted. U.S.
attorneys also understandably decline cases they clearly can't win. The
abusive husband in the Eastern Cherokee case was finally prosecuted and
convicted only after he nearly severed his wife's hand with a shard of
glass.

The bottom line is that Indian women and children are denied any meaningful
protection under the law, and the criminals know it.

Chickasaw Nation Police Chief Jason O'Neil said predators strut through
Indian Country as if they were in "a lawless community, where they can do
whatever they want." Former Sen. Ben Nighthorse Campbell (R-Colo.) put it
this way: "The word is out that people can get off the hook, so to speak,
if they are not Indian."

Indian women are victimized at astonishingly high rates -- 2 1/2 times the
national average, according to Justice Department data. More than one-third
of all Indian women will be raped at least once during their lifetimes, and
nearly two-thirds will be violently assaulted. Nearly 90% of rapes and
sexual assaults involve non-Indian assailants.

There's other Oliphant-case fallout as well. To exploit the jurisdictional
void, some pedophiles became teachers in Bureau of Indian Affairs schools
-- where they had little or no fear of prosecution even after being caught
molesting Indian kids. Non-Indian drug gangs have discovered this legal
loophole and have set up methamphetamine operations on reservations. Other
non-Indian traffickers have intentionally married Indian women to establish
themselves on reservations, where their risk of prosecution is lowest.

The Oliphant decision, roundly criticized for years, is the primary cause
of this tragedy. But Congress is not without blame. The Supreme Court
specifically acknowledged that Congress could fix this jurisdictional void,
yet legislators have never taken action. Congress only recently allocated
funds to study the problem.

Regardless of the cause, the most logical remedy is quite simple:
Substitute the word "persons" for the word "Indians" in one sentence of the
Indian Civil Rights Act.

That small change would allow tribes to prosecute anyone, Indian and
non-Indian alike, who commits a crime on Indian land. Tribal and federal
prosecutors could then work complementarily, just as state and federal
prosecutors do.

Why should a non-Indian who molests an Indian child or rapes an Indian
woman be able to escape justice merely by committing the crime on a
reservation?

Congress has fixed other jurisdictional voids created by Supreme Court
decisions. It should do so again, and soon. Indian women and children
cannot afford to wait another 30 years for justice.

Gavin Clarkson is an assistant professor in the University of Michigan
School of Information, School of Law and Native American Studies.