Minnesotans pushed to restore Tribal Nations' ability to prosecute sex crimes

In Minnesota and across the country, tribal nations now have the power to prosecute outsiders who come on reservation land and sexually assault Native women, children and men.

Minnesotans were at the forefront of the change — decades in the making — which was tucked into the massive federal spending package signed last week by President Joe Biden. Advocates say it's a major step in addressing the epidemic of violence against Native American women and girls, who face staggeringly high rates of sexual assault and violence.

"Could you imagine going to another state or another country and that sovereign authority not being able to hold you accountable if you committed a crime there? It's hard to even wrap your head around it," said Nicole Matthews, executive director of the Minnesota Indian Women's Sexual Assault Coalition, which lobbied for the change. "Any tools that we can give to our tribes to be able to keep the people of their community safe and hold perpetrators accountable is a step in the right direction."

The spending package includes a five-year reauthorization of the Violence Against Women Act, which lapsed in 2019 and hasn't been updated since 2013. During that last round of changes nearly a decade ago, lawmakers restored tribes' ability to prosecute cases of domestic and dating violence on tribal lands in cases where the victim was Native and the perpetrator was not.

But groups said that still left a huge gap for tribes who wanted to pursue action against nontribal offenders who commit acts of sexual violence, including rape, stalking and sex trafficking.

The tribes had to rely on state and federal law enforcement to take action when the offender was not Native, which often didn't happen. A 2010 report from the U.S. Government Accountability Office found federal prosecutors failed to pursue 67% of cases of sexual abuse that occurred on tribal land.

Advocates contacted Minnesota U.S. Sen. Tina Smith, who sits on the Senate Committee on Indian Affairs and worked to eliminate the requirement that offenders must have "sufficient ties" to the land. The change also allows tribes to prosecute child abuse cases and assaults on tribal police by non-Native offenders on tribal lands.

"Native women are experiencing an epidemic of violence that is just unprecedented and the need to take action to protect them is so obvious," Smith said. "In most instances, the victim has to rely on the federal system to seek justice, but these cases rarely result in prosecution. Providing the option to tribes to prosecute crimes of sexual violence is an important remedy."

The National Institute of Justice found in 2016 that more than half of all Native American women have experienced sexual violence in their lifetimes — and 97% of those women were victimized by a non-Native offender.

But jurisdictional confusion has resulted in many cases falling through the cracks. Minnesota is among five Public Law 280 states, where criminal and civil jurisdiction shifted from the federal government to the state without the consent of Minnesota's 11 sovereign tribes. That meant tribes had to rely on local county prosecutors to take on cases.

Native women are also more likely to be targeted by sex traffickers, in part because predators can exploit confusion over the complex jurisdictional issues, according to the state's 2020 report on Missing and Murdered Indigenous Women.

"It made reservations perfect hunting grounds for predators," said Lisa Brunner, a citizen of the White Earth Band of Ojibwe and director of the Indigenous Women's Human Rights Collective.

Nearly two decades ago, Brunner was part of a grassroots group that worked with the National Congress of American Indians to pass a resolution calling for the federal government to allow tribes to prosecute non-Native offenders who commit crimes on their land.

"I cannot go anywhere in this country and not be held to the laws of the territory that I'm in, but when it comes to tribal lands, the United States federal government made it very clear that they were giving non-Natives diplomatic immunity to come here and commit crimes," she said.

After decades of limited jurisdictional power, many tribes will now need federal support to build the judicial capacity to take on cases outlined in the Violence Against Women Act against non-Native offenders. Sexual assault cases require considerable resources to build and successfully prosecute, and tribes need to have legally trained public defenders and judges with sufficient training to preside over a criminal trial.

That's an important next step, said Marisa Miakonda Cummings, an enrolled member of the Omaha Tribe and president and CEO of the Minnesota Indian Women's Resource Center, which backed the new law change.

"The tribes need that capacity to be able to provide a judicial system that can even prosecute these crimes," she said.

Cummings said sexual violence against Native women from non-tribal members has been happening since the first settlers arrived. The trauma is generational and passed down from mothers to daughters.

"It's not if a Native woman has experienced sexual violence, it's how many times in her lifetime," she said. "I look at this next generation coming, and everything we can do in our power to make them safe, that's what motivates me to do this work. That they will have something different and better."